Bankruptcy Trustee Is Entitled to Funds Transferred in Order to Qualify for Medicaid

The following article serves as a warning about do-it-yourself estate planning.  An effective technique of protecting assets from nursing homes and long term care expenses is to transfer those assets to an adult child. However, the assets can be lost to that child's own creditors.

I always recommend that my clients transfer assets to a trust instead of a child so that the money is protected from both the parent's and child's creditors.

The following article is courtesy of ElderLawAnswers.com:

A woman who transferred funds to her daughter to qualify for Medicaid cannot claim that she retained ownership of the funds when her daughter declares bankruptcy, according to a U.S. bankruptcy court. In Re Woodworth (Bankr. E.D. Va., No. 11-11051-BFK, Feb. 6, 2013).

In 2002, Dorothy Stutesman transferred $142,742 to her daughter, Holly Woodworth, so that she would not have assets in her name if she ever needed Medicaid. In April 2010, Ms. Woodworth transferred the money to a trust designed to protect the assets from creditors. The entire corpus of the trust was used to purchase an annuity to benefit Ms. Woodworth. In February 2011, Ms. Woodworth filed for bankruptcy.
The bankruptcy trustee sought to void the trust, arguing it was a fraudulent transfer under bankruptcy code. Ms. Woodworth did not dispute that the transfer was fraudulent, but she argued that the property was never part of her estate because she was holding it in trust for her mother.

The U.S. Bankruptcy Court for the Eastern District of Virginia enters judgment for the bankruptcy trustee, holding that Ms. Woodworth clearly had complete ownership of the funds. According to the court, "Ms. Stutesman can't have it both ways—she can't part with title for purposes of Medicaid eligibility, and at the same time claim that she retained an equitable title to the asset. To allow this kind of secret reservation of equitable title would be to sanction Medicaid fraud."

For the full text of this decision, click here.

Economists Say That Tightening Medicaid Rules Would Barely Increase Demand for Private Insurance

It is sometimes claimed that reducing the amount of assets an individual can keep while qualifying for Medicaid would increase the purchase of private long-term care insurance coverage.  

Now, two professors of economics have estimated that tightening Medicaid asset rules would do little to encourage the purchase of long-term care insurance policies.  

Although Medicaid recipients may keep only about $2,000 in assets in most states, their spouses may retain between $22,728 and $113,640, depending on their particular state.  The minimum and maximum are determined by federal law but individual states’ limits may set their own limits within these parameters.  

In an article published in the Fall 2011 issue of the Journal of Economic Perspectives, Jeffrey R. Brown of the University of Illinois and Amy Finkelstein of the Massachusetts Institute of Technology estimate that a $10,000 decrease in the level of assets an individual and their spouse can keep while qualifying for Medicaid would increase private long-term care insurance coverage by 1.1 percentage points.

“To put this in perspective,” they write, “if every state in the country moved from their current Medicaid asset eligibility requirements to the most stringent Medicaid eligibility requirements allowed by federal law, this would decrease average household assets protected from Medicaid by about $25,000. This, in turn, would increase the demand for private long-term care insurance by only 2.7 percentage points. While this represents a large increase in insurance coverage relative to the baseline ownership rate, the vast majority of households would still find it unattractive to purchase private insurance.”

Overall, Brown and Finkelstein are pessimistic about the prospects for encouraging more Americans to buy long-term care insurance unless Medicaid is completely restructured or done away with altogether.  They note that long-term care insurance is a poor deal, particularly for men, who get back only about 33 cents on the premium dollar they spend, and that for a 65-year-old man of average wealth, 60 percent of the private insurance benefits would have been paid by Medicaid.   

But the authors say that even if the implicit Medicaid “tax” on long-term care insurance were eliminated, “other factors could still prevent the market for long-term care insurance from developing.”  These factors include the availability of informal insurance provided by family members, the liquid assets in the home serving as a “buffer stock of assets,” and the difficulty many individuals have in “making decisions about long-term, probabilistic outcomes.”

To read the article, “Insuring Long-Term Care in the United States,” click here.
For a commentary on the article in Forbes magazine, click here.
For more on Medicaid's rules, click here.

This article was reprinted with the permission of ElderLawAnswers.com.

Adult Children Losing $3 Trillion in Caring for Aging Parents

Americans who take time off work to care for their aging parents are losing an estimated $3 trillion dollars in wages, pension and Social Security benefits, according to a new MetLife study. Meanwhile, the percentage of adult children providing basic care for their parents has skyrocketed in recent years. 

Nearly 10 million adults age 50 and over care for an aging parent, MetLife says. For the individual female caregiver, the cost impact of caregiving in terms of lost wages, pension and Social Security benefits averages $324,044. For male caregivers, the figure is $283,716. 

The study also identified a dramatic rise in the share of men and women providing basic parental care over the past decade and a half. In 1994, only 9 percent of women and 3 percent of men and were providing care. By 2008, the percentage of women caregivers had more than tripled to 28 percent, while the figure for men had quintupled to 17 percent. "Basic care" is defined as help with personal activities like dressing, feeding, and bathing. Daughters are more likely to provide basic care and sons are more likely to provide financial assistance, the study found. 

"Undoubtedly, the impact of the aging population has resulted in increased need within families for family caregiving support," the study notes. 

At the same time, MetLife found that adult children age 50 and over who work and provide care to a parent are more likely to have fair or poor health than those who do not provide care to their parents. 

The study was based on an analysis of data from the 2008 National Health and Retirement Study (HRS). 

The findings have implications for individuals, employers and policymakers, MetLife says. Individuals, it says, should consider their own health when caregiving and should prepare financially for their own retirement. Employers can provide retirement planning and stress management information and assist employees with accommodations like flex-time and family leave. 

On the policy side, although only a few states mandate paid family and medical leave, "clearly this policy would benefit working caregivers who need to take leave to care for an aging parent," the study concludes. MetLife also notes that the CLASS Act, a voluntary long-term care insurance program that is part of the new federal health reform law, will provide some coverage for long-term care needs as well as raise public awareness of the issue. 

For more on the study, "The MetLife Study of Caregiving Costs to Working Caregivers: Double Jeopardy for Baby Boomers Caring for Their Parents," click here.

Reprinted with permission by ElderLawAnswers.com

Currently on The Swinton Law Firm Radio: A Case of Neglect

Barbara Salerno and her family thought their decision to send their 80-year-old father, Albert Salerno, to a nursing home would mean he would be safe and cared for--but they were wrong. Barbara tells the story of how her family was helpless in saving their father even though they visited him nearly every day. Nursing home staff minimized and explained away a sharp downturn in Mr. Salerno's condition. By the time he finally received medical attention; Mr. Salerno was in acute renal failure, had advanced pneumonia and was malnourished. He died a few days later.

A Trip to the Hospital May Put Assisted Living Residents on Medicaid at Risk of Eviction

Assisted living facility residents covered by Medicaid are at risk of being evicted if they leave the facility, even for a temporary hospitalization, the National Senior Citizen's Law Center (NSCLC) warns in a recently released White Paper on the problem. Ironically, Medicaid officials in most states have the power to prevent these evictions but in most cases are not exercising it.  Most state Medicaid programs pay for services not just in nursing homes but in assisted living facilities, which are meant to provide a home-like alternative to nursing homes. But there is a crucial difference between nursing homes and assisted living facilities. The Nursing Home Reform Law authorizes Medicaid to pay a nursing home to hold a room for a Medicaid recipient who is temporarily absent due to hospitalization and entitles the resident to return to the first-available room.  In contrast, Medicaid does not make similar payments on behalf of residents of assisted living facilities and the facilities are not required to give admission priority to returning residents. This difference in treatment, the NSCLC asserts in its report, "Medicaid Payment for Assisted Living: Residents Have a Right to Return After Hospitalization," diminishes the value of assisted living facilities as a community-based alternative to nursing home care. If assisted living facilities truly seek to offer "home or community-based" services, says the advocacy group, residents should have the peace of mind of knowing that they won't be evicted if they are absent for a few days or weeks.  The NSCLC points out that in most cases states could remedy the situation. Most states pay for assisted living care though a Medicaid waiver program. In 2000, the federal Centers for Medicare and Medicaid Services (CMS) advised states that it would authorize the issuance of "retainer payments" to Medicaid waiver home and community based service providers during a Medicaid recipient's temporary absence, such as for hospitalization. The guidance described the retainer payments as being comparable to room-hold payments for nursing home residents. However, it appears that most of the states either do not understand the federal guidance or have not implemented it. Exceptions include Georgia, Illinois, Montana and Washington, all of which make retainer payments to assisted living facilities on behalf of residents who are temporarily absent. The NSCLC makes a number of recommendations: CMS should clarify that Medicaid-funded retainer payments are available for temporary absences from an assisted living facility; State governments should authorize retainer payments up to the federally allowed maximum; Federal Medicaid law should be changed to entitle residents of assisted living facilities to room holds, room-hold payments and readmission to the next available room after temporary absences; Room holds should apply regardless of the reason for an absence. To view NSCLC's White Paper and other materials on the issue, including a News Release and a Policy Brief, click here.

Group Calls for Federal Probe into Florida's Firing of Nursing Home Advocate

A nursing home advocacy group is calling on the federal government to investigate Florida governor Rick Scott's recent removal of the director of the state's Long-Term Care Ombudsman Program. 

Every state is required to have an ombudsman program that serves as an independent voice for nursing home residents -- addressing resident complaints and advocating for improvements in the long-term care system. As ElderLawAnswers reported earlier, shortly after taking office, Gov. Scott ousted Brian Lee, who during his seven years directing Florida's ombudsman program had gained a reputation as a staunch advocate for the elderly. After Scott, a Republican, won the governorship last November, the Florida Assisted Living Association, an industry group, sent him a letter recommending an individual to replace Lee, one who would presumably be friendlier to their industry. 

Lee's removal has alarmed The National Consumer Voice for Quality Long-Term Care, a leading advocate for long-term care residents nationwide. In a letter to the head of U.S. Administration on Aging, the Consumer Voice's Executive Director Sarah F. Wells charges that "Mr. Lee was forced to resign from office at the request and recommendation of nursing home and assisted living operators." Wells calls on the federal agency to "investigate the reasons for Lee's dismissal as potential willful interference and detrimental impact on the ability of the State Ombudsman to advocate on behalf of the long-term care residents of the state," and notes that willful interference with the ombudsman's job is illegal. 

ElderLawAnswers has obtained a copy of the letter that the Florida Assisted Living Association sent to Governor-elect Scott recommending an individual to replace Lee. To see the letter, click here. 

Some of the state's 17 councils of volunteer ombudsmen are considering legal action and/or filing a formal complaint with the U.S. Attorney General.

Florida Governor Heeds Nursing Home Industry and Fires Advocate for Elderly

Florida governor Rick Scott is making headlines for canceling the state's high-speed train project, but in another, less-noticed move he may be derailing protections for long-term care residents by firing their chief advocate in the state. The decision, an apparent capitulation to the wishes of the long-term care industry, has alarmed resident advocates, who fear a decline in their ability to protect the institutionalized elderly from substandard care and abuse. 

"We are very concerned that the governor of Florida has yielded to industry demands to dismiss an effective advocate for residents in a state that so many elderly Americans choose as their retirement home," said Sarah F. Wells, executive director of the National Consumer Voice for Quality Long-Term Care, in a press release.

The ousted advocate, Brian Lee, was director of the Florida Long-Term Care Ombudsman Program, a position he had held for seven years. Every state is required to have an ombudsman program that serves as an independent voice for residents -- addressing resident complaints and advocating for improvements in the long-term care system. Florida is perhaps unique in the nation in that all of its 300 ombudsmen are volunteers, not paid employees. The volunteers make annual inspections of licensed long-term care facilities and try to resolve problems.

"The ombudsman's role is to focus very narrowly on the representation of the residents," Hank Stevens, a volunteer ombudsman in Broward County, told ElderLawAnswers. "These vulnerable citizens have no lobbyists, trade council, or collectively, any representation -- except for what the volunteer ombudsmen provide. In the process of doing that, I suspect that we are, at best, a bit of a frustration for the long-term care industry." 

By all accounts the volunteers' leader, Brian Lee, was a passionate champion of the elderly, but one who crossed swords with the long-term care industry more than once. Immediately prior to his removal he had requested that the state's 677 nursing homes make public the names of their owners and operators, something that is required under the new federal health care law. Earlier, he had asked owners to demonstrate they had enough food and water set aside for residents in case of an emergency like a hurricane. 

When Republican Rick Scott won the governorship, the Florida Assisted Living Association sent him a letter recommending that Lee be replaced with someone friendlier to their industry. Scott seems to have listened, although Lee was given no explanation for his removal, according to the Miami Herald. (Governor Scott's office has not responded to ElderLawAnswers' request for comment.) 

In the weeks prior to Lee's firing, his army of volunteer ombudsmen worked hard to save his job. The heads of all 17 of the district offices in the state ombudsman program signed a letter to the governor calling Lee "the guiding light of the program. He has transformed the program's culture from one that was regulatory-focused to one that is now resident-centered, doing what is right for some of Florida's frailest citizens." 

Fears That Oversight Will Be Compromised
 
Advocates in the state are worried that Lee's removal signals the start of a weakening in the ombudsman's role in protecting elderly residents of long-term care facilities. 

"There is concern that members of the industry have a very strong lobby and would like to do away with many of the ombudsman's capabilities, especially the inspections of the nursing homes," said Linda Stevens, Hank Stevens's wife and also a volunteer ombudsman in Broward County. "I think politically the firing of Brian Lee is to move in the direction of lessening our capabilities to advocate for these residents." 

Lee, 39, is quoted in the Sarasota Herald-Tribune as saying he was proud to have renewed the ombudsman program's focus on resident rights during his tenure.  "I'm very glad I never compromised my principles or those of the program," Lee said.  The volunteers are now reaching out to lawmakers in the state to try to win back Lee's job.

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For a Miami Herald article on the Lee's removal, click here.
For more on the nation's long-term care ombudsman program, click here.

Currently on The Swinton Law Firm Radio: When to Use an Elder Law Attorney

My website, www.swintonlaw.com,  has a link to Elder Law Radio. The current show is summarized below.  You can listen online or download it for later.

I hope you find it informative.
,

The Swinton Law Firm Radio

When to Use an Elder Law Attorney   Peter J. Strauss with Harry Margolis

Peter J. Strauss is co-director and founder of the Elder Law Clinic, which provides representation to persons for whom a guardianship is sought and serves as court evaluator in guardianship proceedings. He also teaches the Elder Law course. He has been an adjunct professor at New York Law School since 1992 and was named distinguished practitioner in residence in the fall semester 2003.

Nursing Home Residents Have Rights

Many people incorrectly believe that once someone enters a nursing home, their freedom is over. In fact, nursing home residents have many rights, and it is important to know those rights and to be able to enforce them.


Nursing home residents' rights are protected under federal law. In broad terms, nursing homes are required to ensure that every nursing home resident be given whatever services are necessary to function at the highest level possible. Following are some of the specific protections that residents have:

• Nursing home residents have the right to privacy in all aspects of their care. This means phone calls and mail should be private, and residents should be able to close doors and windows. In addition, residents may bring belongings from home, and nursing home staff is required to assist the residents in protecting those belongings.

• Residents have the right to go to bed and to get up when they choose, eat a variety of snacks outside 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 have the right to leave the nursing home and belong to any church or social group they wish to.

• Residents must be allowed to participate in planning their care. Residents may also manage their own financial affairs.

• Residents may not be moved to a different room, a different nursing home, a hospital, back home or anywhere else without advance notice and an opportunity for appeal. For more information on fighting a nursing home discharge, click here. click here

For a full list of nursing home resident rights, click here

If a disagreement with the nursing home does arise, there are a number of steps you can take to enforce the resident's rights. The first step would be to talk to the nursing home staff directly. This may be all it takes to solve the problem. If that doesn't work, then you may need to talk to a supervisor or administrator. The next step is to contact the ombudsperson assigned to the nursing home. He or she should be able to intervene and get an appropriate result. Contact information for the Ombudsman Program in your state can be found at: www.ltcombudsman.org/ombudsman. Additional steps include reporting the nursing home to the licensing agency and hiring a geriatric care manager to intervene. If the direct approach isn't working, you may need to hire a lawyer to try and resolve the issues. The last resort is to move the resident to a different facility.

For more information on resolving nursing home disputes, click here.

How do I remain independent in my home without being a burden on my loved ones or having to get assistance?

For reasons ranging from acute illness to long-term health conditions, more than 7.6 million Americans receive in-home care, according to the U.S. Census Bureau. But that number is far greater if you include care given by family members. Informal care is given to an adult family member in 1 in 5 American households, according to the 2004 survey Caregiving in the U.S. The typical caregiver is a 46-year-old woman, who spends about 20 hours a week taking care of her mother, according to the survey, which was paid for by the National Alliance for Caregiving and AARP.

Failing to Plan

Long-term care is not high on the list for most people. It is difficult to imagine you or a loved one aging to the point where intervention is required. In fact, many people do not give it consideration until it happens.

But…I have a will.

Ironically, a will is not enough protection. Long-term planning is referred to as estate planning and it will not only protect you and your loved ones, but it will guide the process for situations that you may not want, or expect.

While in our profession it is difficult to understand why more people do not take the time to learn about estate planning and the benefits of it, is saddens us to see the crisis situations that could be avoided.


I do not want to ever be put in one of those “homes”

Today in the United States there are over 16,000 nursing homes. Nursing homes, also known as skilled nursing facilities, are for seniors who require constant medical care and need significant assistance with the activities of daily living. The goal of care in a nursing home is to help individuals meet their daily physical, medical, social, and psychological needs. Nursing homes are generally stand alone facilities, but some are operated within a hospital or an assisted living community.


Residents of nursing homes generally have high care needs and complex medical conditions that require routine skilled nursing services. Due to the constant care needs of its residents, nursing homes are required by federal law to have a licensed nurse on duty 24 hours a day. Residents typically share a room and are served meals in a central dining area. Residents should have the opportunity to be involved in activities that provide mental, physical, and social stimulation. Be sure to ask about activities offered when you tour the facility.

The average cost of care for nursing home care ranges on average $8000 per month. Cost is determined by the level of care needed, the setting where the care is provided, and the geographic location. Due to the high cost of care, many residents use supplemental funding from the government in the form of Medicare and/or Medicaid.

When Does Someone Need To Move From Assisted Living To Nursing Home Care?

The following story is not uncommon:
My 86-year-old mother has been in an assisted living community close to my home for the past two years. She has been declining slightly, almost imperceptibly, over the years. Most recently she fell while in her room and was unable to get up or reach out for the call cord. It wasn’t until later that day, when mom did not come to dinner, that a staff member finally found her on the floor. She had been there for hours.

Fortunately, she was only weak and did not suffer any serious injury but it was of major concern for both myself as well as the center’s administrator.

When I was called about the incident, I spoke in length with the administrator. She told me that it was “time” for mom to move to skilled care, that it was best for her own safety.

I was disheartened for mom. She never wanted to go into “one of those places”. She loves her apartment, her friends and was still mentally strong and even physically strong. I took the time to research nursing homes and spoke with her doctor. He said that with her age and the fact she fell and was unable to find the strength to get up, that it was an indication her health was declining. I was sick to stomach. I argued with him that she doesn’t seem forgetful and that this environment was so good for her mental and emotional state. Of course, I want her to be safe but how is she going to feel having to go into a nursing home? How in the world would I tell her? How could we afford 24 hour skilled care? Can this facility force her to move?

These concerns are complex and unfortunately common. In fact, these questions are the same that you may have when faced with a situation such as this.

Here are some others issues to consider:
What kind of contractual agreement does your mother have with the retirement community? Many assisted living facilities have month to month agreements. Often, when the facility needs more care, they can ask the resident to leave.

If it is a continuing care retirement community (CCRC), it is often stipulated in the contractual agreement that a nurse’s assessment will determine the location and level of care. It is more difficult for staff to provide services all over a large community and easier if all the people needing care such as medication and continence management are in the same building or on the same floor.

One other consideration is to think about how good your mother’s quality of life may be when in a different setting. This can be difficult to assess and often depends on both the individual and the setting. Consider the levels of attention she may receive in a nursing home: less privacy and perhaps more restrictions with less activity and social schedules. Also, the cognitive levels of the other residents may be less than your mother’s, therefore she may not be able to establish as many friendships.

Some possible interventions might postpone or preclude a move to nursing home care:
1.The option of physical therapy and exercise. Can her strength be regained with the appropriate guidance and strength training?

2.Outside assistance. Can you afford and will the facility allow an in-home care agency to provide assistance in her room?

3.Are you or other family/friends able to intervene more and see her on a more frequent basis?

Give all of the above serious consideration. Unfortunately, because we live in a litigious society, the facility may have liability concerns. If you are confident that it is best for your mother to stay where she is, you may want to inquire if the facility has a negotiated risk agreement or a “hold harmless” contract, where your family would basically promise not to sue if there is an adverse event.

This is an important decision and one that needs to be made carefully. Seeking the advice of an elder law attorney can help you review the emotional, financial and long term issues for your mother, while protecting both her, you and the future.