Posts Tagged ‘minimum monthly maintenance needs allowance’

HMO Patient’s Survivors Not Limited To Medicare Appeal

DECEMBER 30, 1996 VOLUME 4, NUMBER 26

William and Cynthia Ardary lived in rural California. In 1991, they attended a seminar sponsored by Aetna Health Plans of California; the seminar was part of Aetna’s marketing plan for its Medicare HMO, Aetna Senior Choice.

Mr. and Mrs. Ardary were interested in the HMO alternative, but were concerned about the availability of care in their rural area. They particularly asked about access to emergency care and more sophisticated treatment. According to Mr. Ardary, the Senior Choice representative reassured them that, if the need arose, they would immediately authorize transfer to a larger hospital or more specialized treatment facility.

Attracted by the excellent benefits and lower prices (compared to Medigap coverage), the Ardarys changed from “regular” Medicare to the Senior Choice HMO. Two years later, Mrs. Ardary suffered a serious heart attack.

Mrs. Ardary was first treated at a small rural hospital near her home. The local facility did not have either cardiac or intensive care capabilities. According to Mr. Ardary, both he and his wife’s physician repeatedly requested that Aetna authorize an airlift transfer to a larger medical center, but Aetna declined. Mrs. Ardary died in the local hospital.

Mr. Ardary and his children brought a wrongful death action against Senior Choice and Aetna. In their lawsuit, they alleged that the HMO was negligent in denying the transfer to a larger, more advanced treatment facility. Aetna argued that the Ardarys’ only recourse was to appeal the alleged denial of Medicare benefits through the administrative appeal process.

The U.S. District Court agreed with Aetna and dismissed the Ardarys’ lawsuit. The Ardarys appealed, arguing that they were not seeking review of the denial of Medicare benefits itself, but the alleged negligence of the treatment team in failing to secure proper medical care.

The Ninth Circuit Court of Appeals now agrees with the Ardary family. The appellate court finds that the claims are not “inextricably intertwined” with the denial of benefits, and the Ardarys may seek to prove their claims at a trial in the District Court. Ardary v. Aetna Health Plans of California, October 21, 1996.

[Note: The Ninth Circuit includes Arizona, so the same result would clearly be reached in Arizona.]

ALTCS and SS Figures for the New Year

Last week, Elder Law Issues reported on the new 1997 figures for Medicare copayments and benefits. Many Medicaid and Social Security figures will also change with the new year. Some new numbers:

Income Cap (single applicants earning more than this amount do not qualify for long-term care Medicaid–ALTCS– unless they create special trust arrangements) $1,452.00 /mo

Minimum Community Spouse Resource Allowance (in Arizona this is called the CSRD–this is the minimum amount a community spouse is permitted to retain while permitting the institutionalized spouse to still qualify for long-term care/ALTCS) $15,804.00

Maximum Community Spouse Resource Allowance (the community spouse is permitted to retain one-half the total available resources of the couple, up to this amount–but always retains at least the minimum amount above) $79,020.00

One other ALTCS eligibility number will not change. The Minimum Monthly Maintenance Needs allowance (the MMMNA), the figure used in calculating share of cost for married ALTCS recipients, will remain at $1,295 until July 1, 1997.

Monthly exempt earning amount (Social Security retirees may earn this amount without having any reduction in benefits):

Under age 65 $720.00

Ages 65-69 $1,125.00

Medicaid Estate Recovery Applied to Late-Acquired Assets

JUNE 16, 1996 VOLUME 3, NUMBER 51

Bertha Cripe died in 1989 at the age of 84 in Indiana. At the time of her death, Ms. Cripe’s nursing home care was being paid for by Indiana’s Medicaid long term care program. Indiana’s Medicaid agency filed a claim against her estate in the amount of $90,313 for the last seven years of Medicaid subsidies.

Of course, Ms. Cripe had qualified for Medicaid assistance by showing that she had no assets, so ordinarily the claim for care would have been insignificant. A year before Ms. Cripe’s death, however, a wealthy cousin had died leaving Ms. Cripe a substantial inheritance. Although she had not received a single penny of that inheritance by the time she died, her estate ultimately received $103,712.

Ms. Cripe’s heirs argued that the Medicaid claim should be disallowed, since she had not actually received any money from her cousin’s estate prior to her own death. The Indiana Medicaid agency insisted that the entire claim should be paid, nearly consuming the estate. The Indiana judge decided on an intermediate approach; the Court granted the claim for benefits paid after the death of the cousin, even though no funds were actually received until later.

The Medicaid agency appealed to the Indiana Court of Appeals. After hearing arguments in the case, that court overruled the trial judge’s approach to the question.

Indiana had enacted a law providing for recovery after receipt of an inheritance or other resources. Ms. Cripe’s estate argued that the statute limited the power of the state to pursue recovery of the entire claim. Furthermore, claimed the estate, permitting the Medicaid agency’s claim would generate an unfair windfall for the State. The Court of Appeals did not agree, and instructed the trial court to allow the entire Medicaid claim. Elkhart County Dep’t of Public Welfare v. Estate of Cripe, January 30, 1996.

Ms. Cripe’s story points out the importance of planning for family members receiving public assistance. If Ms. Cripe’s cousin had consulted an attorney, it would have been simple to construct her estate plan to prevent the result, and even to still benefit Ms. Cripe.

New Allowances for Community Spouses

Arizona’s “Minimum Monthly Maintenance Needs Allowance” (known to its friends as MMMNA) will increase next month, to $1,295. The new figure represents an increase of about $40 over last year’s Allowance.

The MMMNA has no effect on eligibility for ALTCS (Arizona’s long term care Medicaid program). Most eligibility figures also change annually, but on January 1 rather than July 1 of each year.

The significance of the MMMNA is in calculation of the share of cost for Medicaid-eligible nursing home patients. Once Medicaid begins to subsidize a nursing home resident’s care, he or she is required to turn over nearly all his or her income (retaining only $70.50 each month for personal needs) to the nursing home.

For married couples the rules are harder. The “community” spouse is entitled to keep all his or her own income (including half of any checks naming the nursing home resident), but must turn over a portion of the income naming the institutionalized spouse each month.

The MMMNA is the minimum amount of income guaranteed to the community spouse. If his or her own income is less than $1,295, he or she keeps enough of the institutionalized spouse’s income to reach that figure. In addition, the minimum level can be increased in some circumstances.

MMMNA Increased

MAY 9, 1994 VOLUME 1, NUMBER 24

The 1994-1995 figure for the Minimum Monthly Maintenance Needs Allowance (or MMMNA) has been announced. Beginning July 1, 1994, community spouses of ALTCS patients will be entitled to retain sufficient income to guarantee at least $1,230 in total monthly income.

The new figure represents an increase of $51 per month over the previous level. Prior to the increase, a community spouse was permitted to retain $1179 of the total community income each month.

In addition to the MMMNA, the community spouse may be entitled to an excess shelter allowance of up to $369 per month. This also reflects an increase, from a maximum of $354 in fiscal year 1993-1994. In addition, the community spouse may retain excess income for extraordinary or exceptional costs, with a new cap on the total amount retained of $1817.

While the community spouse is permitted to retain as much of the institutionalized spouse’s income as necessary to reach the monthly maintenance needs allowance (between $1230 and $1817), the institutionalized spouse is also permitted to retain a personal needs allowance. In fact, the personal needs allowance is available to every institutionalized ALTCS patient. This allowance, which is also fixed by federal law, is set at 15% of the maximum monthly SSI benefit, which translates to $66.90 for calendar year 1994.

Numbers, Numbers …

As long as we’re talking about numbers, let’s review a few other important ones.

Income Eligibility

Of course, the most infamous of all long-term care numbers is the income eligibility limit. If an applicant for ALTCS benefit receives more than $1338 per month in income from all sources, he will simply not be eligible.

Two important variations on this hard-and-fast rule need mentioning. If the applicant is married, and “his” income exceeds $1338 per month but the total community income does not exceed $2676, he will still be eligible. And even if his (or their) income is too high, it may be possible to establish a “Miller”-type trust to permit eligibility.

The income eligibilty number changes with each calendar year. The 1993 number was $1304.

“CSRA”

The Community Spouse Resource Allowance is the value of available assets the community spouse is allowed to retain and still have the institutionalized spouse obtain ALTCS benefits. This figure is one-half the value of available community resources held at the time of admission to the hospital or nursing home, with an upper and lower limit.

No matter how little a couple is worth, the community spouse is permitted to retain at least the first $14,532. And wealthier couples are not permitted to retain more than $72,660 as the community spouse’s “half.” This area is particularly complex, and care must be taken not to overlook techniques (many of them quite simple) for maximizing the community spouse’s “share.”

Average Cost of Care

The primary significance of this figure is in determining the penalty period suffered by ALTCS applicants who have made gifts during the previous three years. The estimate of typical nursing home care costs is divided into the total amount of gifts to determine the number of months of ineligibility.

Currently, the figure for Pima and Maricopa counties is $2406.30; for all other Arizona counties it is $2321.10. This despite the fact that long-term care actually costs as much as $3500 per month.

ALTCS and Community Resources

JANUARY 31, 1994 VOLUME 1, NUMBER 11

A little-known and seldom-used section of federal law may provide relief for married couples who have difficulty meeting asset limitation for Arizona Long Term Care System (ALTCS) eligibility. The relatively obscure provision requires ALTCS to increase the value of assets which a “community spouse” is entitled to retain under some circumstances.

Most workers who deal with ALTCS eligibility are familiar with the concept of a “Community Spouse Resource Allowance” (CSRA). When one spouse enters a hospital or nursing home, the community spouse may retain half the assets “available” to the community at the time of admission (plus the residence and some other assets). The maximum amount of this Allowance is usually $72,660.

For some poorer couples, the government’s largesse may permit retention o all (or nearly all) the community’s assets. No matter how little is available at the time of admission, the community spouse is always permitted to retail a minimum of $14,532 in addition to the residence, vehicle and some other assets.

Can You Pronounce MMMNA?

But the maximum CSRA is not really $72,660. The obscure (but highly useful) provision that requires a higher CSRA is found in 42 United States Code Section 1396r-5(e)(2)(C). That law, which is binding on Arizona’s ALTCS program, provides that:

If…the community spouse resource allowance… is inadequate to raise the community spouse’s income to the minimum monthly maintenance needs allowance, there shall be substituted, for the community spouse resource allowance…an amount adequate to provide such a minimum monthly maintenance needs allowance.

But what on earth is a “minimum monthly maintenance needs allowance?” In a different context, Congress decided that a community spouse should be entitled to retain the first $1179 of community income to ensure sufficient funds to maintain basic needs (this number can also be increased in some circumstances). All section 1396r-5(e)(2)(C) says is that the community spouse is entitled to retain enough assets to guarantee that he or she receives that $1179 per month, even though that may be more than the $72,660 (or whatever the CSRA equals in an individual case).

Fair Hearings

There is one catch to the increased CSRA. Eligibility officers are not able to invoke the provision during the initial eligibility application. The higher CSRA can only be granted after a “fair hearing”–usually in the course of an appeal from the denial of eligibility. But since most eligibility workers are unfamiliar with the provision, and since no one is telling applicants to appeal from denials (ALTCS usually just talks applicants into withdrawing applications), many eligible couples may be denied benefits to which they are entitled.

In such cases, it may be advisable for applicants to have legal counsel during the application process and subsequent appeal. Substantial assets may be retained by the community spouse, making the cost of legal advice seem reasonable by comparison.

Safe Return

Demented patients who wander away from home care settings can be very difficult to deal with. For many family members, the fear of losing a wandering family member may make it impossible to keep a patient at home.

While it does not provide a complete solution, the Alzheimer’s Association has come up with a plan to help families deal with anxiety about wandering. The “Safe Return” program provides an identifying bracelet, a national registry, an 800 number contact system, and wallet and garment tag identification for patients prone to wandering. The year-old national program may provide peace of mind for family caretakers, and has the potential to save patient’s lives and permit community placement in more instances. For information about Safe Return, contact the Alzheimer’s Association at (800)272-3900.

©2017 Fleming & Curti, PLC