Is your family getting the VA support they deserve?

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Individuals who have risked their lives to serve and protect the United States of America and its citizens are entitled to a variety of benefits through the U.S. Department of Veterans Affairs (VA). Eligibility requirements vary for these benefits, but many veterans (and their family caregivers) are able to receive some level of coverage, financial assistance or support. This guide will help direct veterans and their family members to VA programs that may assist in paying for or providing long-term care, burials, pensions, and other benefits.

Get Your FREE Veterans Benefits Guide from AgingCare: Click Here

This guide includes the most up‑to‑date information on getting VA benefits.
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About AgingCare.com

AgingCare.com is the go-to destination for family caregivers, providing trusted information, practical answers to real-life questions, and ongoing support. Our mission is to help families prepare for and navigate the care of an elderly loved one. AgingCare.com has been recognized in both national and local media as an expert resource on elder care. AgingCare.com is paid by our participating providers, so we are able to offer you a completely cost-free service with no hidden fees.

What effects will repealing Obamacare have on Medicare?

What effects can repealing the Affordable Care Act (ACA), aka Obamacare, have? While repealing Obamacare will have implications for millions of younger people covered by the insurance, it will also affect Medicare beneficiaries.

To begin with, the ACA requires insurers to provide free preventative care coverage to Medicare beneficiaries. Without that requirement, seniors may end up having to pay for many preventative care services.

In addition, the ACA reduced prescription drug costs under Medicare Part D and phased in an elimination of the infamous “doughnut hole.” The doughnut hole is the period of time in which seniors are responsible for 100 percent of the cost of prescription drugs. Under the ACA, the percentage seniors pay for drugs while in this coverage gap was capped at 50 percent starting in 2011 and is supposed to continue dropping until the doughnut hole is eliminated completely in 2020.  (For more on how the ACA addresses the doughnut hole, click here.)

A little–known fact about the ACA is that it contains provisions designed to strengthen Medicare. Repealing the ACA may eliminate those provisions, potentially destabilizing Medicare.  The ACA also established programs to reduce Medicare waste, fraud, and abuse. Thanks to these measures, according to the Center on Budget and Policy Priorities, the Medicare hospital insurance fund is projected to remain solvent eleven years longer than before the ACA was enacted.

These factors combined with the fact that millions of near-seniors aged 50-64 could lose coverage, leaving them in poorer health when they become eligible for Medicare, could raise future Medicare costs for existing beneficiaries.

Hopefully the best parts will be kept in place if a new plan is enacted.

What’s the Difference Between Medicare and Medicaid in the Context of Long-Term Care?

Although their names are confusingly alike, Medicaid and Medicare are quite different programs. Both programs provide health coverage, but Medicare is an “entitlement” program, meaning that everyone who reaches age 65 and is entitled to receive Social Security benefits also receives Medicare (Medicare also covers people of any age who are permanently disabled or who have end-stage renal disease.)

Brian Raphan, P.C.

Medicaid, on the other hand, is a public assistance program that that helps pay medical costs for individuals with limited income and assets. To be eligible for Medicaid coverage, you must meet the program’s strict income and asset guidelines. Also, unlike Medicare, which is totally federal, Medicaid is a joint state-federal program. Each state operates its own Medicaid system, but this system must conform to federal guidelines in order for the state to receive federal money, which pays for about half the state’s Medicaid costs. (The state picks up the rest of the tab.)

Medicare and Medicaid Coverage of Long-Term Care

The most significant difference between Medicare and Medicaid in the realm of long-term care planning, however, is that Medicaid covers nursing home care, while Medicare, for the most part, does not. Medicare Part A covers only up to 100 days of care in a “skilled nursing” facility per spell of illness. The care in the skilled nursing facility must follow a stay of at least three days in a hospital. And for days 21 through 100, you must pay a co-payment of $152 a day (in 2014). (This is generally covered by Medigap insurance.) In addition, the definition of “skilled nursing” and the other conditions for obtaining this coverage are quite stringent, meaning that few nursing home residents receive the full 100 days of coverage. As a result, Medicare pays for less than a quarter of long-term care costs in the U.S. In the absence of any other public program covering long-term care, Medicaid has become the default nursing home insurance of the middle class. Lacking access to alternatives such as paying privately or being covered by a longterm care insurance policy, most people pay out of their own pockets for long-term care until they become eligible for Medicaid. The fact that Medicaid is a joint state-federal program complicates matters, because the Medicaid eligibility rules are somewhat different from state to state, and they keep changing. (The states also sometimes have their own names for the program, such as “Medi-Cal” in California and “MassHealth” in Massachusetts.)

Both the federal government and most state governments seem to be continually tinkering with the eligibility requirements and restrictions.

This is why consulting with your elder law attorney is so important. As for home care, Medicaid has traditionally offered very little — except in New York, which provides home care to all Medicaid recipients who need it. Recognizing that home care costs far less than nursing home care, more and more states are providing Medicaid-covered services to those who remain in their homes. It’s possible to qualify for both Medicare and Medicaid. Such recipients are called “dual eligibles.” Medicare beneficiaries who have limited income and resources can get help paying their out-of-pocket medical expenses from their state Medicaid program. For details, click here.

To Collect Debts, Nursing Homes Are Seizing Control Over Patients

The need to protect your assets is always at hand. Planning for long-term care with an elder law attorney can help protect your assets for the in home spouse and heirs. Medicaid Planning or Life Care Planning helps to ensure that you or your loved one get the best possible long-term care and the highest possible quality of life, whether at home, in an assisted living facility, or in a nursing home. The following article brings this issue to light.

Article via The New York Times: 

Photo credit: Piotr Redlinski for The New York Times

To Collect Debts, Nursing Homes Are Seizing Control Over Patients.

Lillian Palermo tried to prepare for the worst possibilities of aging. An insurance executive with a Ph.D. in psychology and a love of ballroom dancing, she arranged for her power of attorney and health care proxy to go to her husband, Dino, eight years her junior, if she became incapacitated. And in her 80s, she did.

Mr. Palermo, who was the lead singer in a Midtown nightclub in the 1960s when her elegant tango first caught his eye, now regularly rolls his wife’s wheelchair to the piano at the Catholic nursing home in Manhattan where she ended up in 2010 as dementia, falls and surgical complications took their toll. He sings her favorite songs, feeds her home-cooked Italian food, and pays a private aide to be there when he cannot.

5 Tips for Arranging and Paying for a Home Health Aide:

-By Emily Garnett, Associate Attorney at Brian A. Raphan, P.C.

Finding oneself or a family member in need of home care can be a tough pill to swallow. It is often difficult to accept that you or a loved one is no longer able to safely do many of the activities of daily living that you once could. At that point, it may be time to bring in a home health aide for assistance with a wide variety of activities of daily living.

1. How to Arrange Help and Payment: Many people choose to privately pay for home health aides. If you choose to go this route, you can utilize a long-term home health care program (LTHHCP). These are agencies accredited by the state that provide home health aides. They manage the staffing and payroll. However, you can also choose to select aides that are privately paid, and work outside of an LTHHCP agency. For these aides, you would have to manage staffing and payroll issues yourself, or utilize the expertise of an elder law attorney or geriatric care manager to manage these details.

Medicaid Planning

2. Using Medicaid to Pay: If you are unable to privately pay for home care, you have the option of applying for Medicaid to obtain coverage for long-term home care. It is advised that you work with an elder law attorney or other professional to facilitate this process, as it can be complicated, and the regulations are frequently changing. In order to qualify for Medicaid, the applicant must meet certain requirements for income and assets. The current Medicaid asset limit is $14,550.00, and the monthly income limit is $809.00. Unlike nursing home Medicaid, there is no look-back period for community Medicaid, meaning that Medicaid is not going to investigate past money transfers like they would for an application for nursing home coverage. There are several ways to address the income and asset limits required for Medicaid acceptance, the most common being the use of pooled trusts to shelter those funds. Pooled trusts are frequently used to meet the Medicaid spend-down, which is the requirement that an applicant reduce his or her available income so that it remains under the Medicaid limit.

3. Shelter your Income: Once an individual applies for Medicaid coverage, he or she can join a third party pooled trust to shelter the excess income and meet the spend-down. These trusts allow the individual to use the funds sheltered in the trust for personal needs outside of the Medicaid coverage, including expenses like rent, utilities, and phone bills. If this arrangement is not made, the applicant runs the risk of rejection by Medicaid or having to privately pay for some part of his or her home care each month.

4. Enrollment for Managed Long Term Care: Once you have applied for and been approved for Medicaid, you will work with your elder law attorney or specialist to enroll in a managed long-term care program (MLTC), which will provide home care services. The first step in this process is assessment by a new program, the Conflict-Free Eligibility and Enrollment Center (CFEEC), sometimes also referred to as “Maximus”. This assessment takes about two hours and provides a determination to Medicaid that the consumer is eligible for home care services. At that point, the consumer selects a managed long term care plan to enroll in. The MLTC plan then schedules a second assessment, also lasting about two hours, in which the specific care needs of the consumer are assessed. At the conclusion of this assessment, the nurse performing the assessment will submit the information to Medicaid, who will ultimately determine the number of hours of home care needed each day by the consumer. This process is very time-sensitive, so work closely with your Medicaid attorney assisting with the application process, to avoid costly and unnecessary delays.

5. Keeping Your Ongoing Benefits: Once the application process is complete, your home care will likely start on or around the first of the following month. At that point, your obligations as a consumer are to maintain the income and asset limits, including utilization of a pooled trust if needed. You will be required to annually re-certify with Medicaid that you have maintained these levels. Should you have questions at that point, please don’t hesitate to reach out to your Medicaid planning attorney, rather than risk losing your Medicaid benefits. It is worth noting, however, that occasionally delays arise in various points of the application process through no fault of the attorney or applicant. Should you find yourself in such a position, understand that these issues do arise, and make sure to cooperate with your attorney or specialist’s advocacy efforts towards resolution.

Emily Garnett, Esq.

The Law Offices of Brian A. Raphan, P.C. 7 Penn Plaza, Suite 810 New York, NY 10001 T: (212) 268-8200

“Helping Senior New Yorkers for over 25 Years”

The Rights of Nursing Home Residents

While residents of nursing homes have no fewer rights than anyone else, the combination of an institutional setting and the disability that put the person in the facility in the first place often results in a loss of dignity and the absence of proper care.

As a result, in 1987 Congress enacted the Nursing Home Reform Law that has since been incorporated into the Medicare and Medicaid regulations. In its broadest terms, it requires that every nursing home resident be given whatever services are necessary to function at the highest level possible. The law gives residents a number of specific rights:

  • Residents have the right to be free of unnecessary physical or chemical restraints. Vests, hand mitts, seat belts and other physical restraints, and antipsychotic drugs, sedatives, and other chemical restraints are impermissible, except when authorized by a physician, in writing, for a specified and limited period of time. 
  • To assist residents, facilities must inform them of the name, specialty, and means of contacting the physician responsible for the resident’s care. Residents have the right to participate in care planning meetings. 
  • When a resident experiences any deterioration in health, or when a physician wishes to change the resident’s treatment, the facility must inform the resident, and the resident’s physician, legal representative or interested family member. 
  • The resident has the right to gain access to all his or her records within one business day, and a right to copies of those records at a cost that is reasonable in that community. The facility must explain how to examine these records, or how to transfer the authority to obtain records to another person. 
  • The facility must provide a written description of legal rights, explaining state laws regarding living wills, durable powers of attorney for health care and other advance directives, along with the facility’s policy on carrying out these directives. 
  • At the time of admission and during the stay, nursing homes must fully inform residents of the services available in the facility, and of related charges. Nursing homes may charge for services and items in addition to the basic daily rate, but only if they already have disclosed which services and items will incur an additional charge, and how much that charge will be. 
  • The resident has a right to privacy, which is a right that extends to all aspects of care, including care for personal needs, visits with family and friends, and communication with others through telephone and mail. Residents thus must have areas for receiving private calls or visitors so that no one may intrude and to preserve the privacy of their roommates 
  • Residents have the right to share a room with a spouse, gather with other residents without staff present, and meet state and local nursing home ombudspersons or any other agency representatives. They may leave the nursing home, or belong to any church or social group. Within the home, residents have a right to manage their own financial affairs, free of any requirement that they deposit personal funds with the facility. 
  • Residents also can get up and go to bed when they choose, eat a variety of snacks outside of meal times, decide what to wear, choose activities, and decide how to spend their time. The nursing home must offer a choice at main meals, because individual tastes and needs vary. Residents, not staff, determine their hours of sleep and visits to the bathroom. Residents may self-administer medication. 
  • Residents may bring personal possessions to the nursing home such as clothing, furnishings and jewelry. Residents may expect staff to take responsibility for assisting in the protection of items or locating lost items, and should inquire about facility policies for replacing missing items. Residents should expect kind, courteous, and professional behavior from staff. Staff should treat residents like adults. 
  • Nursing home residents may not be moved to a different room, a different nursing home, a hospital, back home or anywhere else without advance notice, an opportunity for appeal and a showing that such a move is in the best interest of the resident or necessary for the health of other nursing home residents. 
  • The resident has a right to be free of interference, coercion, discrimination, and reprisal in exercising his or her rights. Being assertive and identifying problems usually brings good results, and nursing homes have a responsibility not only to assist residents in raising individual concerns, but also to respond promptly to those concerns.

Nursing Home Myths and Realities

Myth

Reality

Medicaid does not pay for the service you want.

Medicaid residents are entitled to the same service as other residents.

Only staff can determine the care you receive.

Residents and family have the right to participate in developing a care plan.

Staff cannot accommodate individual schedules.

A nursing home must make reasonable adjustments to honor residents’ needs and preferences.

You need to hire private help.

A nursing home must provide all necessary care.

Restraints are required to prevent the resident from wandering away.

Restraints cannot be used for the nursing home’s convenience or as a form of discipline.

Family visiting hours are restricted.

Family members can visit at any time of day or night.

Therapy must be discontinued because the resident is not progressing.

Therapy may be appropriate even if resident is not progressing; Medicare may pay even without current progress.

You must pay any amount set by the nursing home for extra charges.

A nursing home may only require extra charges authorized in the admission agreement.

The nursing home has no available space for residents or family members to meet.

A nursing home must provide a private space for resident or family councils.

The resident can be evicted because he or she is difficult or is refusing medical treatment.

Being difficult or refusing treatment does not justify eviction.

Free Download: 2014 Benefits Guide for Seniors: NYC

NYC Department of Aging, senior citizens, aarp
Free download. NYC Department of Aging resources. Free benefits guide for senior citizens.

 

 

 

 

 

 

 

 

For 2014, this guide from NYY.gov  is a helpful resource for benefits available to senior citizens of New York.

Table of contents include:

Social Security 1

Supplemental Security Income 2

Veterans Benefits 3

New York Prescription Saver Card 3

Public Assistance 4

Medicare 5

Medicare Savings Program 6

Medicare Part D 7

Affordable Care Act 7

Medicaid 8

Food Stamps (Supplemental Nutrition Assistance 9 Program SNAP)

Reduced Fare 10 Senior Citizen Rent Increase Exemption (SCRIE) 11

Senior Citizen Homeowners Exemption (SCHE) 12

Real Property Tax Credit (IT-214) 13

Home Energy Assistance Program (HEAP) 14

Heating Equipment Repair or Replacement 15

Elderly Pharmaceutical Insurance Coverage (EPIC) 15

New York State School Tax Relief Program (STAR) 16 

Regards, Brian

info@raphanlaw.com

 

Some FAQ’s about Health Care Proxys

As an Elder Law attorney  for over 25 years  I have recently been getting more and more questions about Health Care Proxys. Below are some answers as well as a link to a Free Sample Draft so my readers can see what it’s all about:

 Why you need a will
Living Will
 

What is a Health Care Proxy?

A Health Care Proxy is someone you appoint to make health related decisions for you, in the event you can not.

Who decides that I’m not able to make my own healthcare decisions?

Your attending physician will decide whether you lack the capacity to make health care decisions. The decision is made in writing. A second doctor also must be consulted in the case of decisions to withdraw or withhold life-sustaining treatment.  You will be given notice of these decisions if there is any indication that you can understand it. If you object to this decision or to a decision made by your agent, your objection or decision will prevail unless a court determines that you are unable to make health care decisions.

 

What if I recover the ability to make my own healthcare decisions?

Your doctor is required to decide whether you can make your own health care decisions and confirm it in writing each time your doctor plans on acting on your agent’s health care decisions. If you have recovered the ability to make your own decisions, your agent will not be able to make any more decision for your unless you again lose the abilities to make them. 

 

How do I complete a Healthcare Proxy?

In New York State, laws set forth the requirements for completing a health care proxy. You must be at least 18 years old and have the capacity to make your own decisions at the time you complete the proxy.

You must state your name and the name of the person you want to act as your agent, and state that your want the agent to have the authority to make health care decisions for you. You also must sign and date your health care proxy in the presence of two adult witnesses who are not names as your agent and have the witnesses sign the proxy. Please note that there are also special rules for the execution of a proxy by residents of psychiatric facilities.

Please note that you do not need to have a lawyer draft your health care proxy, however, you may wish to consult with a lawyer for advice about a health care proxy.

 

When will my Healthcare Proxy end?

You can create a proxy that lasts for a limited period of time by including in the document the dates you want the proxy to be valid. You can also revoke your proxy if you wish and you are competent to do so.

If you have appointed your husband or wife as your agent, and then you divorce or legally separate, the appointment will be revoked unless you specify that you do not wish to revoke it. You should review your proxy periodically to be sure that it continues to reflect your wishes. 

 

 Where should I keep my Proxy?

It’s best to give a copy of your proxy to your doctor as well as to the agent named in your proxy. If you revoke your proxy, be sure to notify whomever you gave a copy of the proxy. Upon entering a hospital you may give it to an administrator in charge, as your doctor, or attending physician may not be there when you arrive. Also, keep a copy with your other important documents such as a Power of Attorney and Will. All should be reviewed every couple of years.

What if I don’t want a Healthcare Proxy?

You can’t be required to execute a health care proxy as a condition of receiving health care services or insurance. Also, the lack of a health care proxy or other specific instructions does not crate any presumptions regarding your wishes about health care.

If you have any questions feel free to contact me! You can also visit this page on our website and download a FREE SAMPLE DRAFT of a health care proxy.

Regards, Brian

info@RaphanLaw.com

The Law Offices of Brian A. Raphan, P.C.

7 Penn Plaza, New York, NY 10001

Court Ruling: Transfers Made Years Before Needing Care Were Not Made in Order to Qualify for Medicaid

Doing Medicaid Planning for clients, I often get asked the question: “How does medicaid determine if my gifts were made to qualify for medicaid or not?” Saavy clients have a long history of gifting to show a pattern meant for gifting not medicaid spend down. This recent decision should be of interest.

medicaid planning, appeal
http://www.raphanlaw.com

A New York appeals court holds that a Medicaid applicant who transferred funds several years before needing long-term care and kept enough resources to care for herself rebutted the presumption that the transfers were made in order to qualify for Medicaid. Safran v. Shah (N.Y. Sup. Ct., App. Div., 2nd. Dept., 2013-04373, 20166/12, July 2, 2014).

While she was living independently and didn’t require long-term care, Louise Kornhaber transferred funds to her family as gifts. Several years later, Ms. Kornhaber entered a nursing home. Due to the unexpected theft of her remaining resources, Ms. Kornhaber applied for Medicaid. The state assessed a penalty period based on the uncompensated transfers.

Ms. Kornhaber appealed, arguing that the transfers were made for a reason other than to qualify for Medicaid. The state affirmed the penalty period, and Ms. Kornhaber appealed to court.

The New York Supreme Court, Appellate Division, orders the state to provide Ms. Kornhaber with Medicaid benefits, holding that the penalty period was not appropriate. The court rules that because Ms. Kornhaber still had enough resources to maintain herself for years after she made the transfers, she rebutted the presumption that the transfer was made in order to qualify for Medicaid.

Medicaid Planning takes the experience and legal expertise of a qualified attorney. The detailed process of medicaid planning needs to avoid errors and mistakes that can make you ineligible of cost you possibly tens of thousands of dollars in delays or penalties. Click here to read: 8  Medicaid Mistakes to Avoid,

For the full text of this decision, go to: https://www.nycourts.gov/reporter/3dseries/2014/2014_04943.htm

Any questions? Send me an email: info@raphanlaw.com or call 212-268-8200 during the day for a free consultation.

Regards, Brian

Heir Liable for Reimbursement of Mother’s Medicaid Expenses

medicare denialA California appeals court rules that the heir of an estate who sold her interest in her mother’s house to her brother is liable to the state for reimbursement of her mother’s Medicaid expensesEstate of Mays (Cal. App., 3d, No. C070568, June 30, 2014).

Medi-Cal (Medicaid) recipient Merver Mays died, leaving her house as her only asset. Ms. Mays’ daughter, Betty Bedford, petitioned the court to be appointed administrator of the estate, but she was never formally appointed because she didn’t pay the surety bond. The state filed a creditor’s claim against the estate for reimbursement of Medi-Cal expenses, and the court determined the claim was valid.  A dispute arose between Ms. Bedford and her brother, Roy Flemons, over ownership of the house. After the court determined Mr. Flemons owned a one-half interest in the property, Ms. Bedford and Mr. Flemons entered into an agreement in which Mr. Flemons paid Ms. Bedford $75,000 and transferred the house to his name.

The state petitioned the court for an order requiring Ms. Bedford to account for her administration of Ms. Mays’s estate. The court determined Ms. Bedford was liable to the state for the amount she received from Mr. Flemons because although she wasn’t formally appointed administrator, she was acting as administrator. Ms. Bedford appealed.

The California Court of Appeal, 3rd Appellate District, affirms on different grounds. The court rules that Ms. Bedford cannot be held liable due to her failure as administrator of the estate because she was never formally appointed administrator. However, the court holds that Ms. Bedford is liable as an heir of the estate who received estate property. According to the court, Ms. Bedford’s settlement with Mr. Flemons was “essentially an end-run around the creditor’s claim and the estate process” and “the $75,000 payment represented proceeds of the estate that would otherwise be available to satisfy creditors’ claims.”

Planning wisely, accurate and legally is key in Medicaid Planning. Make sure you use an attorney with experience, knowledge and is extremely familiar with rules in your state. Read 8 Medicaid Planning Mistakes to Avoid by clicking here.  You can also download a FREE GUIDE to Medicaid’s Asset Transfer Rules on the right hand column of this page on my website.

If you have any questions regarding Medicaid Planning feel free to give me a call.

Regards, Brian

212-268-8200  www.RaphanLaw.com