Protecting Your Life Savings

HOME IS WHERE THE HEART IS:
THE MEDICAID HOME CARE ALTERNATIVE

By: Anthony J. Enea, Esq.*

All too often when I am reviewing the requirements for Medicaid Nursing Home eligibility and an asset protection plan with a client their immediate reaction is that they are never going to a nursing home, and that I should not waste any time discussing it.  Fortunately, for many of my clients that may be true; however, for an equally large percentage of my clients it is not true.  Realistically there is no way of predicting with any degree of certainty who will need to enter a nursing home and who will not.  However, one thing appears to be certain, a great majority of seniors would prefer to remain at home and receive care at home rather than in a nursing home. 
The Medicaid Home Care program provides a solution for many Medicaid eligible seniors.  Medicaid home care is often a viable  solution for a Medicaid eligible senior because there are no penalty periods imposed by Medicaid for the home care program if a senior transfers (gifts) his or her assets.  However, the assets transferred would be subject to the five year look back period, and create a period of ineligibility for nursing home Medicaid as provided for by the Deficit Reduction Act of 2005 ("DRA"), which became effective February 8, 2006. 
 
Additionally, if the applicant for Medicaid home care is married, the couple can transfer all assets into the name of the non-applicant spouse.  The non-applicant spouse can execute a  "spousal refusal", which would allow the applicant spouse to become eligible for the Medicaid home care program.   Additionally, if a single individual applies for Medicaid home care and has monthly income in excess of the amount permitted by Medicaid, he or she can transfer his or her excess income to an approved "pooled trust", which will in turn be permitted to reimburse the applicant for many of his or her expenses from the excess income contributed to the pooled trust.

If the applicant for Medicaid home care is single and does not have a spouse, blind, disabled or minor child residing with him or her, the applicant will be subject to a $750,000.00 home equity cap on the net equity value of his or her home for eligibility purposes. 

In order to receive home care services, the applicant's health and safety must be able to be maintained in the home.  The applicant's conditions must be "stable" (not expected to suddenly deteriorate or improve), and not require skilled professional care.  The assistance in the home must be needed "to prevent a health or safety crisis" from developing. 

The level of services and number of hours the home care program will provide will in large part depend on the needs of the applicant, his or her ability to "self direct" his or her activities of daily living, the amount of assistance available from his or her spouse and/or others residing in the home, and the specific Medicaid home care program for which the applicant is applying.    

In light of the harsh requirements imposed by the Deficit Reduction Act, the Medicaid home care program provides in many instances an excellent and viable alternative. 

*Anthony J. Enea, Esq. is a member of the firm of Enea, Scanlan & Sirignano, LLP of White Plains, New York (914-948-1500).  His office is centrally located in White Plains and he has a home office in Somers, New York.

Mr. Enea is the Treasurer of the Elder Law Section of the New York State Bar Association and is the Editor-in-Chief of the Elder Law Attorney, a quarterly publication of the Elder Law Section of the New York State Bar Association.

Mr. Enea concentrates his practice in Elder Law, Asset Preservation Planning, Guardianships, Trust and Estate Planning, Estate Administration and Trusts and Estates Litigation.  In his practice he has represented numerous families that have loved ones suffering with disabilities and the special planning needs attendant thereto.  Mr. Enea is also fluent in Italian.