Posts Tagged ‘penalty periods’

Failure to Claim Share of Estate Results In Medicaid Ineligibility


Medicaid, the federal-state program which pays for about half of all nursing home care in the United States, is governed by eligibility rules intended to discourage applicants from making gifts as a way of qualifying. For example, Medicaid penalizes most gifts for a period up to three years—though the actual penalty is usually shorter. Sometimes the penalty applies even when the applicant does not think she has given anything away.

Josephine Perna lived in a Pennsylvania nursing home when her husband Michael died in 1997. He had actually been living in New Jersey at the time of his death. New Jersey law permits a surviving spouse to claim a share of her deceased spouse’s estate even if his will leaves less (or nothing at all) to the surviving spouse—a process usually referred to as “electing against the will.” Mrs. Perna took no steps to make an election against her husband’s will.

Though Mrs. Perna had been receiving Medicaid assistance with her nursing home costs before her husband’s death, the Pennsylvania Medicaid agency determined that her failure to elect against her husband’s will amounted to a gift and terminated her benefits.

Mrs. Perna made two arguments on appeal. First, she pointed out that she would have had to make a claim against her husband’s estate in New Jersey, and that she lacked resources to travel to that state or to make her claim. Second, she argued that she and her husband had been living separate and apart from one another at the time of his death, and that she was not actually entitled to claim a portion of his estate under New Jersey law.

The Commonwealth Court of Pennsylvania, that state’s intermediate appellate court, disagreed. Whether it was difficult for Mrs. Perna to make her claim or not, ruled the court, she had a duty under Pennsylvania Medicaid law to seek her entitlement from her husband’s estate, and her failure to do so was really a gift.

On Mrs. Perna’s second point, the court opined that all the evidence indicated that Mr. and Mrs. Perna lived apart for medical reasons only, and were not truly separated. In fact, noted the court, Mrs. Perna was sending a portion of her income every month to support her husband, as she was permitted to do under Medicaid regulations; that fact supported the court’s finding that the couple was not truly separated. Perna v. Department of Public Welfare, August 22, 2002.

Arizona’s Medicaid program for long term care, the Arizona Long Term Care System (ALTCS), would probably have made the same determination if presented with Mrs. Perna’s circumstances. One big difference: the amount to which Mrs. Perna would have been entitled (and, therefore, the value of the “gift”) would probably have been much less in Arizona.

Eligibility, Benefits Figures Increase With Cost of Living


Each year Social Security benefits are raised automatically to keep up with the increased cost of living. Benefit increases are pegged to standard measures of inflation, and take effect on January 1. Social Security figures, however, are not the only automatic increases affecting seniors and the disabled.

Beginning January 1, 2002, Social Security beneficiaries will see their monthly checks go up by 2.6%. Supplemental Security Income (SSI) recipients will also see a 2.6% increase, with the largest federal checks going up to $545 (some but not all states contribute an additional amount to SSI benefits).

That SSI increase will have an indirect effect on Arizona nursing home residents. The Arizona Long Term Care System (ALTCS), Arizona’s Medicaid program for long-term care subsidies, is available only to those with incomes less than three times the maximum SSI benefit.

As a result ALTCS recipients with more than $1635 in monthly income will need to take additional steps to qualify for assistance. In most cases that will mean establishing a “Miller” Trust, though it may be more complicated for some long-term care recipients. Some ALTCS patients who have already established Miller Trusts may no longer need them if income has failed to keep up with the automatic increases.

Participants in the federal Medicare program will also see some increases in program numbers. Perhaps most importantly (or at least most immediately apparent) will be an increase in the Part B premium paid by Medicare beneficiaries. That premium is usually deducted from Social Security benefits, which means that a portion of the cost of living increase will be withheld from checks automatically. The Part B premium is slated to increase from $50 to $54 per month.

Other Medicare numbers will also change, with most of the changes pegged at 2.5% over 2001 figures. Increased figures will include the deductible for hospital stays (rising to $812 per month), and the coinsurance amount for nursing home stays between the 21st and 100th day of the stay (rising to $101.50 per day).

Some state government figures have also increased. Arizona annually calculates the average cost of nursing home care for purposes of determining whether gifts made by ALTCS applicants should disqualify them from coverage. In most cases the value of a gift is divided by the state-calculated figure to determine a period of months of disqualification. Arizona’s calculation of the average cost of care increased, effective October 1, 2001, to $3,540.67. In other words, if an ALTCS applicant gave $35,406.00 to his children in 2001, he would be ineligible for ALTCS for 9 months (the ineligibility period is rounded down). The figure for counties other than Pima, Pinal and Maricopa is lower, at $3,290.17.

It can be a chore to keep track of the regular changes in benefits levels and rates. At Elder Law Issues we will try to keep you current; let us know if there are other benefits figures you have difficulty locating.

Medicaid “Transfer” Is Incomplete Until Joint Owners Withdraw Funds


Dora Steinberg was 76 years old when her husband died. She decided that she should put her children’s names on her account. Right after her husband’s death in 1983 she opened a stock brokerage account with Dean Witter Reynolds with about $120,000. The account was titled in three names: her own, her son George Steinberg’s and her daughter Marsha Gross’.

Eleven years later several things had changed. For one, Ms. Steinberg’s investments had performed handsomely and the Dean Witter account was now worth over $240,000. Ms. Steinberg was not doing well herself, however, and it looked like she might need to move into an assisted living facility or nursing home.

In January, 1995, Ms. Steinberg’s children withdrew $190,000 from the Dean Witter account and placed the proceeds in accounts in their own names. Six months later, Ms. Steinberg moved into the Saunders House Nursing Home. Just over a year after that, Ms. Steinberg applied for Medicaid assistance with the cost of the nursing home.

The Pennsylvania Medicaid agency denied Ms. Steinberg’s application. According to the agency, Ms. Steinberg had not transferred control of any of the money until the children withdrew funds in 1995. By Ms. Steinberg’s reckoning, the transfer had occurred when she first placed her children’s names on the account.

After several administrative review hearings Ms. Steinberg appealed the denial of benefits to the court. Nearly three years after the initial Medicaid application, the courts agreed that she was not entitled to Medicaid when she first applied.

When a Medicaid applicant has made a gift within the three years before the application is filed, he or she will be ineligible for benefits for a calculated period. The length of that ineligibility is determined by dividing the total value of gifts by the average cost of nursing home care in the state (or region of a state) at the time of application. In Ms. Steinberg’s case, that calculation meant that she would not be eligible for Medicaid benefits until October, 1998—three years and ten months after funds were removed from the account. Steinberg v. Dep’t of Public Welfare, September 12, 2000.

Although she likely would have been ineligible anyway, it did not help that Ms. Steinberg’s Social Security number was listed on the account, and that she had paid all the taxes on the account’s income from the beginning. That was viewed as additional evidence that she had not really made a completed gift of all but $40,000 (as she alleged) when she first established the account.

The process is identical in Arizona, albeit with different numbers. While the value of Ms. Steinberg’s “gift” was divided by about $4,600, in Arizona the divisor would have been $3,352.91. In other words, Ms. Steinberg would not have been eligible in Arizona until September, 1999.

One irony: if no application had been filed for Medicaid assistance until after January, 1998, she would have been immediately eligible. By rushing to secure eligibility, Ms. Steinberg ended up paying privately for an additional ten months of nursing home care.

Agency Mistake No Basis For Retroactive Medicaid Eligibility

JULY 10, 2000 VOLUME 8, NUMBER 2

The federal-state Medicaid program was designed to make sure poor Americans would receive necessary medical care. It now pays for about half of all nursing home costs. Tragically, the program is so complicated that it often requires expert legal assistance to ensure that benefits are received in accordance with the program’s own rules. A recent Iowa case demonstrates that it can be a mistake to rely on even Medicaid’s own staff members for interpretation of those rules.

William and Lydia Ahrendsen knew as early as 1991 that they might face nursing home placement, and they wanted to keep the family farm in the family. On advice of their attorney, they “sold” the property to their two children for two dollars; the farm was worth about $240,000 at the time. Because the “sale” was really a gift to the children, Medicaid rules made the Ahrendsen’s ineligible for Medicaid assistance for a period of months.

The period of ineligibility for such a gift is determined by dividing the value of the gift by an amount set by the state. That amount, in turn, is intended to approximate the actual monthly cost of nursing home care. In the Ahrendsen’s case, the period of ineligibility worked out to be 72 months (six years).

Both Mr. and Mrs. Ahrendsen went into the nursing home shortly after making the gift to their children. A year later, at the suggestion of the nursing home social worker, their son Glen applied for Medicaid assistance. Because the gift was just over a year old their application was denied; the Medicaid worker advised Glen Ahrendsen that they would not be eligible until August of 1997—nearly five years later.

The Medicaid worker, as it turned out, was simply wrong. Federal law provides that gifts older than three years (in most cases) are not counted in calculating Medicaid eligibility. Although there has been some dispute about what that means for people who make an early application like the Ahrendsens, Iowa’s Medicaid rules were clear: the Ahrendsens would have been eligible in February, 1994.

Glen Ahrendsen learned of the mistake in September, 1996. He immediately filed for Medicaid eligibility for his mother and father, even though his father had died two years earlier. He sought reimbursement for the nursing home payments which would have been covered during the prior two years if he had not received incorrect advice from the state’s Medicaid worker.

Federal Medicaid law limits retroactive coverage to the three months prior to filing of an application. The Iowa courts disallowed Glen Ahrendsen’s request for additional reimbursement, and the Iowa Supreme Court agreed. Because he relied on agency advice, the Ahrendsen family was simply out of luck. Ahrendsen v. Iowa Dep’t. of Human Services, July 6, 2000.

Court Invalidates “Power of Appointment” In Home Deed

MAY 22, 2000 VOLUME 7, NUMBER 47

Lucille Lucareli had three sons: Les Lee, Leigh and Robert. She owned her home in Racine, Wisconsin, and not much else. In 1996 she gave her son Les Lee a durable financial power of attorney, and she also took some steps to plan for the possibility that she might have to move to a nursing home at some point.

The problem facing Ms. Lucareli is a common one. Although she could qualify for Medicaid assistance with her long-term care if she did move to the nursing home, the state would begin to accumulate a claim against her estate. After her death, the state’s claim could prevent her sons from receiving the family home, or at the least could mean that they had to pay off her nursing home costs before the home could be transferred to them.

Ms. Lucareli could qualify for Medicaid assistance while still owning the home, since federal law requires that the state not count the value of the home in determining eligibility. On the other hand, if she gave the home outright she would be ineligible for Medicaid help for up to three years.

Ms. Lucareli decided to take advantage of a popular planning technique: she transferred her home to her sons immediately, but retained the power to change her mind later and exclude one or more sons. She did this by retaining a “power of appointment” over the home, exercisable by a written instrument any time before her death. This approach, she thought, would get the home out of her estate (so Medicaid would not have any claim against it), but not affect her Medicaid eligibility. In Arizona, many practitioners use another similar technique, preparing a deed which retains both a life estate (that is, the power to reside on and use the property for the life of the original owner) and a power of appointment. A similar approach is sometimes referred to as a “Lady Bird” Deed in some states.

There were at least two problems with Ms. Lucareli’s approach. First: she didn’t actually complete the transaction herself; her son Les Lee signed the deed on her behalf using his power of attorney. Second: according to the court decision rendered this week, Wisconsin law does not recognize this type of power of appointment.

A month after the transfer of Ms. Lucareli’s home, she apparently became unhappy with her other two sons. In September, 1997, she signed a document exercising the power of appointment and removing sons Leigh and Robert from the home title, and leaving the home to Les Lee alone. Upon her death Les Lee sued his brothers, asking for a ruling that the property was his alone. The trial court disagreed, holding that the transfer was invalid and the power of appointment meaningless. The Wisconsin Court of Appeals ordered that the property be divided into three equal shares. Lucareli v. Lucareli, May 17, 2000.

The significance of the Lucareli case is broader than the family squabble between brothers. This decision casts doubt on one of the most popular and effective mechanisms for protecting the family home against future nursing home costs. It is not yet known whether the same result will be reached in Arizona or other states.

New Law Penalizes Gifts By SSI Applicants But Permits Trusts


On December 14, 1999, President Clinton signed the Foster Care Independence Act of 1999. While most of the new federal legislation deals with foster care programs, it also changes the law and practice regarding so-called “Special Needs” trusts.

The Supplemental Security Income (SSI) program, administered by but separate from Social Security, helps guarantee a minimum income for disabled Americans. SSI provides a maximum of $512 per month (beginning in January, 2000) to disabled individuals who do not qualify for Social Security Disability Insurance. Because SSI is a welfare program, however, it requires that the recipient not have significant assets or income available from other sources.

Under prior law it was possible for most disabled persons to qualify for SSI fairly easily, however. For many years the SSI program did not impose a penalty on asset transfers by applicants; in other words, a disabled individual could satisfy the asset eligibility limitations by simply giving away most of his or her property.

In practice, this opportunity was usually exercised in one of two common ways—either the prospective SSI recipient gave assets to family members (who could be counted on to use the money for the original owner’s benefit), or the recipient established a trust for his or her own benefit and transferred the assets into that trust. These trusts—usually called “Special Needs” or “Supplemental Benefits” trusts—could be used to pay for the SSI recipient’s needs other than necessities. In other words, the trust could take care of everything but food, clothing and shelter, while SSI income could be used to pay for those items.

Because SSI recipients automatically qualify for Medicaid coverage, even a fairly wealthy disabled individual could secure medical care from the federal welfare system by use of a Special Needs trust or an outright gift of assets. The new law changes the rules permitting such a transfer. Beginning immediately, a gift of assets by an SSI applicant will disqualify the applicant from receiving benefits for a period of time based on the size of the gift. Transfers into most trusts will simply be ignored—if there is any circumstance in which the trust assets or income can be used for the benefit of the SSI applicant, it will be treated as an available resource (or income, as the case may be).

This does not end the usefulness of Special Needs Trusts, however. An exception in the new law expressly permits transfers of assets into such a trust—but only if the trust includes a provision reimbursing the government for any benefits received by the beneficiary upon the beneficiary’s death. Only trusts established after January 1, 2000, must include such “pay-back” provisions, so pre-existing trusts should not be affected by the new law.

Congress Says Some Medicaid Planning Is A Federal Crime


Congress has acted once again to make it more difficult for families to secure government assistance with the costs of long-term nursing care. This time, the changes from Washington add a much more punitive element.

In enacting the Health Reform Bill (usually referred to as the Kassebaum-Kennedy bill, after its original sponsors), Congress included a provision turning ordinary citizens in crisis into criminals. Under the new act, it becomes a crime to transfer assets (or to assist someone else to transfer assets) when the transfer causes a period of ineligibility for Medicaid long-term care.

Curiously, the criminal sanctions are imposed for actions which already cause a period of Medicaid disqualification. The new law does not extend that disqualification or change the method of calculation in any way. Apparently, Congress believes that the principal cause of the runaway cost of long-term health care is the occasional practice of giving one’s assets away to qualify for assistance. Increases in per-patient costs, and demographic shifts adding tens of thousands of older patients to nursing home beds have once again been ignored as causes of a difficult social, medical and tax problem.

The criminal sanction for making disqualifying gifts is chillingly severe. Although the new law is so poorly drafted that it is impossible to tell whether the offense is a misdemeanor or felony, the lower penalty is up to a $10,000 fine and one year in prison; sanctions might be as high as a $25,000 fine and five years in prison. Cynical observers have already noted that the new law actually provides for easier access to public support; those who make transfers causing periods of ineligibility will be disqualified from receiving Medicaid assistance for a period of months or years, but could spend the intervening period in penal institutions at public expense. The supposed new practice is being referred to, with black humor, as “penitentiary planning.”

Who is targeted by this new law? Two groups are at immediate risk: the middle class elderly and their lawyers. Poorer patients need not worry about transfers of assets–they will qualify for public benefits relatively easily. Wealthier patients will have sufficient resources to avoid any ineligibility problems associated with transfers. Congress apparently hopes to terrorize the rest into using every penny of their savings for nursing home care, without regard to how hard they may have worked to accumulate their modest wealth, or the needs of those relying on them (including spouses, disabled children or family members who may have contributed mightily to care before institutionalization).

But the real targets of the new law are elder law attorneys. While tax attorneys routinely counsel clients on how to avoid paying millions of dollars to the government in legal, ethical and financially sound ways, Congress wants to prevent elder law attorneys from giving similar kinds of information to their middle-class clients. Because the law makes criminals out of transferors and anyone who aids or abets them, lawyers, spouses, family members and care providers are all at risk of prosecution. Congress apparently hopes that by imposing this draconian penalty they can make the problem of health care for an aging population simply go away.

Who benefits from this new provision? Arguably, insurance companies (middle-aged consumers are now supposed to buy more long term care insurance policies) and nursing home operators (more patients paying higher private-pay rates means more revenues). Unfortunately, Congress has ignored root problems in both industries. Insurance is too difficult to obtain and too expensive for most prospective patients. And nursing homes will lose more to Medicaid cost cutting than they can hope to make up from higher private-pay rates.

Quitclaim to Children Not “Fraudulent” Transfer

JUNE 3, 1996 VOLUME 3, NUMBER 49

Seniors concerned about the high cost of nursing care often transfer assets, sometimes even including their homes, to their children. Such transfers may actually make paying for nursing care more difficult, since Medicaid (ALTCS) eligibility does not count the residence as an asset, but does count the transfer to children as a disqualifying gift. Nonetheless, many elderly homeowners choose to transfer the home.

Elder law attorneys have long been concerned about another aspect of this practice. Every state has some form of a law making it illegal to give away assets to avoid creditors; do such laws prevent transfers to avoid future nursing home claims against the seniors’ assets? The so-called “fraudulent transfer” rules have not been widely tested, but a recent Tennessee case suggests that most such transfers are permissible.

Ruth Bryan, 71, owned a modest home in Tennessee and had a savings account of about $10,000. She had given her daughter a power of attorney to manage her affairs if she became incapacitated. When Ms. Bryan’s condition worsened and she was hospitalized, her daughter used the power of attorney to quit-claim Ms. Bryan’s home to herself and her brother (Ms. Bryan’s son).

Ms. Bryan improved enough to be discharged to Imperial Manor Convalescent Center, where she incurred a bill of $10,000 which she was unable to pay. Upon her release from Imperial Manor, she filed bankruptcy, claiming that she owned no assets.

The Tennessee court, at the bankruptcy trustee’s request, initially ruled that the transfer of Ms. Ryan’s home to her children was fraudulent, and set it aside. On appeal, the Tennessee Court of Appeals disagreed.

According to the appellate court, Ms. Ryan’s transfer of the home was not fraudulent for two reasons. First, it did not render her insolvent (remember that she also had a small bank account). More importantly, perhaps, she did not owe anything to Imperial Manor at the time of transfer (which was made while she was still in the hospital), and the bankruptcy trustee had not shown that Ms. Ryan’s daughter did not act for the express purpose of making her unable to pay her debts. At the time of the transfer, the daughter did not know that her mother’s debts would accrue beyond her ability to pay. Crocker v. Ryan, Tenn. Ct. App. (1995).

Arizona’s fraudulent transfer law is quite similar to Tennessee’s. Arizona Revised Statutes §44-1004 makes a gift fraudulent if the transferor “intended to incur, or believed or reasonably should have believed that he would incur, debts beyond his ability to pay as they became due.”

In applying this law to the common practice of gifting one’s home to children, two questions come to mind:

  • Does the gifting parent have a basis to believe that he or she will soon incur a debt for nursing care?
  • Does the possibility of qualifying for Medicaid (ALTCS) assistance affect the expectation of the gifting parent?

There are two common circumstances where a senior who has given his or her home to children may qualify for ALTCS. In the first, the parent will have stayed out of the nursing home for three years following the gift. In the second, ALTCS eligibility rules expressly permit gifts of residences to children who have lived with the applicant and provided care for two years. Though there are other, rarer circumstances where transfer of the home is advisable, the fraudulent conveyance law makes it more difficult to recommend that seniors quit-claim the home to children.

Transfer Penalties for Medicaid Recipients


Applicants for long-term care Medicaid coverage (in Arizona, ALTCS) must disclose all transfers of assets made during the three-year period prior to applying for assistance. To the extent that the transfers are “uncompensated” they will make the applicant ineligible for Medicaid for a defined period of time. The value of the gift is divided by $2,651.42 (in Pima, Maricopa and Pinal counties); the result is the number of months of ineligibility.

Recent cases in two other states point up some of the specific problems which can occur with transfers. In one, the problem was the kind of asset transferred; in the other, the difficulty was the intent of the gift-maker.

Disclaiming Inheritance

Barbara Molloy, 56, lived in a New York nursing home. She had been on Medicaid for two years when her daughter Jennifer was killed in a car accident. The Medicaid agency informed her that any proceeds from her daughter’s estate needed to be assigned to the agency.

Ms. Molloy instead renounced her interest in her daughter’s estate. Although the value of the estate (including the possible wrongful death lawsuit) was unknown, the agency made Ms. Molloy ineligible, counting the renunciation as a transfer without consideration.

The New York court agreed with the Medicaid agency. Although Ms. Molloy had the right to renounce , her exercise of that right amounted to a gift, and Medicaid eligibility was lost. In re Molloy v. Bane, NY Sup. Ct, Appellate Division, October 2, 1995.

[The same result would occur in Arizona. The ALTCS program includes renunciations and disclaimers in its definition of “uncompensated transfers.”]

Fraudulent Transfers

Meanwhile, Ada and Adolph Ness were planning for their admission to a Minnesota nursing home. After Ada entered the Lutheran Brothers nursing home, she and her husband deeded their summer cabin to their nephews, Ronald and Michael Edman. A few weeks later, Adolph joined his wife in the nursing home; over the next year and a half the Nesses gave their nephews an additional $44,000 in cash.

After Mr. and Mrs. Ness ran out of money to pay for their nursing home bills, the home filed suit against the nephews to recover the transferred assets. The court ruled in favor of the nursing home, finding that there was no evidence that Mr. and Mrs. Ness received anything of value in return for the transfers. Furthermore, the court found, the transfers were made at a time when Mr. and Mrs. Ness intended to incur expenses they were otherwise unable to pay for. Lutheran Brethren Retirement Services, Inc., v. Ness, Minn. Court of Appeals, October 24, 1995.

[It is harder to predict whether the same result would be reached in Arizona. The result might hinge on the gift-givers intentions at the time.]

More Legal Myths


Continued from Last Issue)

#4: When I have to go into a nursing home, “they” will just take all my money. Wrong! Most social and medical providers realize that the nursing home will not take the patient’s assets, but many do not realize how firmly ingrained this misinformation is among caregivers and elderly prospective patients. Many have gotten the same information from well-meaning (but uninformed) friends and relatives, but about “the government” rather than the nursing home. Of course, the reality is that government assistance will not be available until eligibility criteria have been met, and the patient will usually have to pay from his or her private funds until eligibility is established, but no one literally takes away the patient’s money or assets.

#5: In order to qualify for nursing home assistance, I should give my house to my children now. Wrong! Your home is not counted in determining eligibility standards. If you give it away, however, it may make you ineligible for Medicaid (ALTCS) for up to 3 years (or even 5 years in some cases). In other words, giving your house to your children can (and usually does) make your situation worse. It may still be a good idea, but only after you know all the facts and the true result of your decision.

#6: I don’t want to become my mother’s agent (“power of attorney”) because then I will have to pay her bills with my own money if she runs out. Wrong! Acting as agent (or “attorney-in-fact”, as the position is properly titled) does not subject you to any liability for the bills of your “principal” (as the person signing a power of attorney is called). Some organizations may try to get you to accept responsibility, but you have no obligation to do so.

#7: I am covered by Medicare, so I don’t need to worry about nursing home costs. Wrong! Medicare covers only a tiny fraction of all nursing home costs. In general terms, Medicare will only cover short-term nursing care for rehabilitative purposes. Less than 5% of all nursing home costs are paid by Medicare.

[Send us your favorite candidates for most prevalent legal myth so we can share them in future issues. Or let us know what legal concept you have always wondered about so we can respond. We promise not to identify contributors without permission.]

Alcohol’s Effects

A recent report in the Harvard Women’s Health Watch should give caregivers pause about even moderate alcohol consumption. Three observations about the effect of alcohol are of particular importance:

Alcohol interacts with a number of drugs, particularly sleeping pills, antidepressants and anti-anxiety medications–occasionally with fatal consequences. Caffeine enhances rather than counteracts alcohol’s effects.

A nightcap before retiring may help you get to sleep faster, but it is also likely to cause disrupted sleep and bad dreams.

The ability to metabolize alcohol declines with age. As we grow older, every drink begins to have a greater impact.

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