Medicaid Myths

Many people want to know when Medicaid will cover nursing home costs, which can run $100,000 a year or more. Not many people can pay those costs out of their regular income. So, it doesn’t take long to lose all one’s savings. Long-term care insurance is too expensive for many older people. If the person is already sick, he or she may be uninsurable. So, folks will ask friends and neighbors how to get Medicaid to pay the cost for nursing home care. Few lawyers know this area of the law. “Medicaid Myths” was developed by Wake Forest School of Law, which has been training law students in the area of Medicaid law as part of the Clinic for the Elderly.

This version of “Medicaid Myths” was adapted by Pamela M. Burdick, Esq., to reflect Medicaid rules in Florida, which differ from rules in North Carolina and other states, by the kind permission of Kate Mewhinney, Clinical professor and Managing Attorney, Legal Clinic for the Elderly, Wake Forest University School of Law. This is a complicated area and should only be handled by an attorney who knows Medicaid law. Ask whether the attorney has the Florida Medicaid Manual and receives and files all changes to that manual. (The printed manual was last updated in 2000 and has been out of print since then. It can now only be accessed online.) Ask the attorney how many people has he or she advised in the field of Medicaid law? The National Academy of Elder Law Attorneys, www.naela.com can assist consumers in locating elder law attorneys. There are some common “myths” that can get you in trouble. Often, they are somewhat correct, but mainly just plain wrong! This article won’t go into great detail; consult an attorney about your own situation.

1. Myth: “I have to give away everything I own to get Medicaid.”

The Truth: Basically, a person is permitted to own some property, and still be eligible for Medicaid. The trick comes in knowing what is “countable” and what is “non-countable” under the Medicaid rules. For a married couple this includes, for example, the marital home that is occupied by the healthy spouse. For a single person, the home is exempt if they have the “subjective” intent to return, whether or not the intent is realistic. Whether you are married or not, certain types of prepaid burial contracts are non-countable. There are many other types of “non-countable property.” The bottom line is, you don’t need to be completely without assets to be Medicaid eligible.

2. Myth: “I can’t give anything away and get Medicaid.”

The Truth: The Medicaid rules provide that a person can be disqualified for giving away property, in some cases. But a lot depends on what is given away, to whom, and when. So, again, it’s complicated. Some asset transfers are not penalized under the Medicaid rules. Consult with a lawyer who knows the law.

3. Myth:”I have to wait 5 years after giving anything away, to get Medicaid.”

The Truth: The disqualification isn’t always 5 years long and sometimes there is no disqualification at all. True, there is a 5 year “look-back” for some asset transfers under the Medicaid rules. This means that the Medicaid agency will look back at all transfers of property, including sales for less than market value. The rules penalizing transfers do not apply to all transfers. See #2 above.

4. Myth: “I can keep all our marital property and my inherited property when my spouse gets Medicaid.”

The Truth: When a married person applies for Medicaid, assets in either or both spouse’s name are considered by the Medicaid agency. However, some assets won’t be “countable” and you may keep some as an asset allowance if your spouse enters a nursing home. See #1 above.

5. Myth: “If I put my property into my spouse’s name, I will be eligible for Medicaid.”

The Truth: Assets are counted, regardless of which spouse’s name they are in. However, the healthy spouse will be given several months to re-title assets from the name of the spouse in the nursing home, into the name of the healthy spouse. An elder law attorney can explain these rules when the sick spouse applies for the Medicaid program.

6. Myth: “Medicare will cover my nursing home bill.”

The Truth: Medicare only covers a small amount of the nursing home care provided in this country. Many older people are surprised to learn this. In general, there are 20 days of full coverage if you go into the nursing home after at least three days in the hospital, and are getting skilled care (not intermediate level care). Then, if you still need skilled care, you can get up to 80 days of partial coverage from Medicare. After that, you will either pay out-of-pocket, or get Medicaid, unless you have private long-term care insurance.

7. Myth: “If I enter a nursing home as a private pay resident, I must use up my assets before I can get Medicaid.”

The Truth: You are not required to use your assets to private pay for the nursing home care. However, some nursing homes might try to make you believe that you do have to do this. They are paid less under the Medicaid program than they collect from private pay patients. Many people seek advice from an elder law attorney to find out how they can become Medicaid eligible before having spent a significant part of their assets on the private pay rate.

8. Myth: “I can only ‘spend-down’ my assets on medical or nursing home bills.”

The Truth: See # 7 above. Nursing homes may tell you that you have to spend your savings on the private pay rate, before applying for Medicaid, but this is not true. In fact, it’s against the law for them to tell you this!

9. Myth: “My power-of-attorney automatically has the power to take property out of my name, If I ever need Medicaid.”

The Truth: Your best tool to be able to plan for Medicaid eligibility, should you ever need it, is to sign a general, durable power of attorney that includes a “gifting” power. Your agent under the power of attorney will only be able to re-title your assets if your power of attorney contains a “power to make gifts.” Most powers of attorney don’t contain this, so you should consult with an experienced medicaid planning and elder law attorney to add it (and other protective powers). The court procedures to transfer assets without a “gifting power” can be expensive and time-consuming, and may not allow the type of asset protection that many people would like to accomplish. Without a “gifting power” your agent is generally limited to spending your money on your bills and selling your assets to generate cash, to pay your bills. A “gifting power” is recommended for people who want to become eligible for Medicaid and not be limited to the “non-countable” assets allowed under that program. Some powers of attorney contain this “gifting” provision, but it’s limited to $14,000 per year. This figure is too limited to do effective Medicaid planning, and is related to a completely different type of legal issue. (See #11 below, about the federal estate tax.) One more word about the “gifting power.” You should require your agent under your power of attorney to consult with an attorney experienced in Medicaid law before making any asset transfers.

10. Myth: “All property transfers will cause me to be disqualified from Medicaid.”

The Truth: Not all transfers of property will cause a person to De-come ineligible for Medicaid. See # 2.

11. Myth: “I can only giveaway $14,000 per year under Medicaid rules.”

The Truth: This is a rule under federal estate and gift law, not under Medicaid law. People who would pay federal estate tax should not worry about getting Medicaid. In fact, if more millionaires paid federal estate tax, we could cover the costs of nursing home care for the rest of us! Right now, Florida Medicaid law disqualifies a person from getting Medicaid for one month for every $8,944 given away, in most circumstances. This disqualification used to begin in the month the transfer was made. Under the new laws, the penalty period begins when you apply for Medicaid and are “otherwise eligible”. So, if my grandmother gives me $17,888 in May, enters a nursing home in June and applies for Medicaid, she will be ineligible for two months – for June and July. On August 1, the “penalty ” or “disqualification period” is over.

12. Myth: “My Income may have to be used to pay my spouse’s nursing home bill.”

The Truth: This is not true in Florida or the majority of states.

13. Myth: “All of my spouse’s Income must be used to pay the bill if my spouse is on Medicaid In a nursing home.”

The Truth: The law allows you to keep a portion of your spouse’s income if your income is below certain limits. In addition to this allowance, you may be entitled to a greater allowance if the cost of maintaining your home exceeds a certain amount or if a state hearing officer or a judge orders a greater allowance.

14. Myth: “I can hide my assets and get eligible for Medicaid.”

The Truth: Intentional misrepresentation in a Medicaid application is a crime and can be costly. When you apply for Medicaid, you agree to allow the Adult Services division of DCF obtain credit information to verify your application. The IRS shares any information concerning income or assets you have with the department. You or whoever applied may have to pay Medicaid back to avoid prosecution.

15. Myth: “Medicaid rules that applied to my neighbor when he went in a nursing home will also apply to me.”

The Truth: Medicaid rules change, so don’t count on the law that applied to your neighbor still applying to you. Also, there may have been facts about your neighbor’s situation that you just don’t know. It’s best to have your situation analyzed by a competent elder law attorney. For more information about Medicaid and other elder law concerns, see: http:/Iwww.benefitscheckup.org/ from the National Council on Aging; http:Ilwww.fdhc.state.fl.us/MedicaicVabouttabout2.shtml of the Florida Agency for Health Care Administration “AHCA”; and http://www.medicare.gov/ the official US Government site for Medicare. Dated March 2012.