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March 17, 2006     Barnstable Patriot
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March 17, 2006
 
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Changes in Medicaid law effective Feb. 8 By Michael Lavender columnist@barnstablepatriot.com Deficit Reduction Act of 2005 As many of you have probably heard , the Federal Government recently made it more difficult to protect assets in the event of catastrophic long-term care in a nursing home. There are many legal changes, but I will highlight two that I deem most significant and easiest to explain in the context of a short article. To understand the new law requires a brief review of the old. This is a very complex area of law so please under- stand that the explanations made herein are broad brushes indeed. Furthermore , many interpretations of the new law still must be clarified by the govern- mental agencies administering these programs. Lookback period Changed from 3 years to 5 years Many folks misunderstand the former three-year lookback period. They believe that if you make gifts within three years of going into nurs- ing home, that you can't qualify for Medicaid (we will refer to Medicaid as MassHealth, which is what it is called in Massachusetts.) The actual rule is that if you apply for MassHealth for nursing homes, you must disclose to the Department of Medical Assistance (DMA) alltransfers made during three years prior to that application. Once it is determined that atransfer has been made within the three years, then a formula of ineligibility is then applied, which, roughly,takes the value of the asset transferred and divides it by $70, and which in turn, renders the number of months an applicant is ineligible to receive MassHealth to pay for the nursing home. For example, say you gave away $150,000 dollars 35 months ago and you are now applying for MassHealth. Such a transfer made within three years of application would only re- sult in a period of ineligibility of 21 months ($150,000 divided by $7,000 = 21 months) Note that if you made this transfe r 35 months ago, the transfer would have no consequence on Masshealth eligibility because the period of ineligibility would have ex- pired 14 months ago! This is because under the old law the transfer ineligibility start date began at the date of transfer. Can you see how a 21-month period of ineligibility on a transfer that was made 35 months ago no longer matters? The new law extends the lookback period from three years to five years. But much worse than that, it can ad- vance the transfer ineligibility start date to the time an individual actually applies for MassHealth (which usually coincides with the applicant'srunning out of money!) So, in our example above, the 21- month period of ineligibility would not start when the $150,000 was given away 35 months ago, but would start when the applicant actually applies for MassHealth and is probably out of money! This could create all kinds of hardship even from benign gifts made to children and grandchildren during the last five years. It also creates areal dilemma of how a nursing home is going to be paid if a resident runs out of money and had made such transfers during the new lookback period. Substantial Home Equity Now Countable Under the former law, the value of the home of an individual would not count toward the financial eligibility criteria for MassHealth. True, upon the MassHealth recipient/nursing home resident'sdeath,the DMA could seek reimbursement from the value of the home in the form of a lien. But it would not affect an applicant's abil- ity to achieve MassHealth eligibility to pay for the nursing home in spite of the fact that he or she still owned a house. Also, the amount of the lien that would accrue on the house would be only the Medicaid pay rate (prob- ably about half of the actual cost of the nursing home private pay rate). Under the newlaw,individuals could not establish eligibility for medical assistance if the individual's equity interest in the home exceeds $5,000. (or up to $750,000 at the state's discretion) There certainly are lots of homes on Cape Cod that exceed $500,000! Fortunately, this law does not apply if a spouse continues to reside in the home or certain other limited categories of individuals. It is believed within the legal com- munity that these laws are too harsh to be of practical application and will not stand the test of time in the short term. These constricting legal rules are the unfortunate result of ahealth- care system that needs total overall since it was designed for seniors who were expected to die in their mid 60s to early 70s. Such laws havethe quality of amov- ingtarget and for the past decade have being reduced to a unstable hodge- podge/patchwork of rules, state and federal,that exemplify an intensifying tug of war between competing private and public interests -folks who want to legitimately protect assets as an inheritance for their beloved heirs, and taxpayer funded governmental agencieswhich are strained to the max as aresult of soaring health care costs and an aging senior population. More than ever this is a time to not act blindly when undertaking estate planning strategies that have as their goal the protection of assets in the nursing home context. Now such plan- ning must be undertaken as a time when asenior is younger and healthier, which unfortunately is a time when seniors are much less motivated to undertake the type of gifting that places assets beyond their reach. Please stay tuned to this column as I will do my best to keep you current. Attorney Michael L. Lavender specialized in Elder Law and is in private practice in Barnstable Village. Dangerous gases By Klaus Guttmann www.barnstabletnad.org There is a Gas, that can't be seen and can't be smelled. It is called Carbon Monoxide (CO). It is the by-product of combustion. It is deadly. The effect of exposure to ex- cessive amounts of CO at the onset is nausea, headaches, sleepiness and other signs of discomfort . It will, however, cause death very quickly. The gas can enter your living area in various ways. There could be aleakinyour furnace, the vent of your boiler could be blocked , the chimney for your fireplace could be blocked , a car motor could be left run- ning in an attached garage, a car, with it's motor running, could be near an open window, adefective gasdryer and many other causes. Make sure your gas and oil fired appliances are inspected and serviced at the manufac- turer recommended intervals. You can protect yourself by installing Carbon Monoxide Monitor/Alarms , which is a required addition to homes after the 31s1 of this month. The gas is lighter than air. It's detection/alarm function can be combined with a com- bination CO/Smoke Detector unit and mounted on the ceiling of sleeping and living areas. Regardless of which units you install, it is impera- tive that the manufacturers testing and maintenance in- structions be followed. When you hear the alarm,try to get to fresh air immediately. If making a 9-1-1 call requires you to breathe more , like climbing stairs and there is no concern with other membersof your household, temporarily forego the 9-1-1 call. Get fresh airthrough awindow,abalcony, a deck, etc. There are other gases that could be present in your liv- ing areas, including natural gas and propane. They are commonly used for cooking, clothes drying, space and wa- ter heating. While they are not as deadly and toxic as carbon monoxide, they are extremely flammable and inthe right gas and air mixture can cause an explosion. The gases,asmanufactured, are odorless. Gas distributors, however , add an odorizer (Mercaptan) to them. This adds a very strong odor that smells somewhat like rotten eggs to allow the detection of leaks. Leaks could be the result of faulty appliances and faulty connections in the piping system. There have also been re- ports of gas entering homes that do not have gas service. Gas from a ruptured under- ground pipe can find its way along with water mains and other channels, into a home. When you detect a strong smell indicating a gas leak, leave the house immediately. Notify other occupants home to evacuate. Do not turn off any lights. Do not touch a telephone. Do not even take your cordless phone off the base. Even the slightest spark from the completion of an electrical circuit could cause an explosion. If you have a cellular phone that is not connected to a charger, take it out with you and make your 9-1-1 call when clear of the house. If it is con- nected to the charger cord , leave it there. Don't touch it. Otherwise, if you can, use a neighbor 's phone. It is more important not to be in an exploding and burning home than to make a 9-1-1 call. Make sure that all occupants of your home are prepared to follow these instructions. Your TRIAD S.A.L.T. council hopes that you are never exposed to the events mentioned above but wants you to be safe . 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