When both spouses of a married couple need nursing home care, the most immediate result is a catastrophic bill of $12,000.00 per month or more. Without the advice of an elder law attorney, the couple will continue to spend down assets until their assets reach just $4,000.00 in cash. Substantially better results can be achieved with some planning, but understanding how to proceed in these circumstances is a delicate matter. The rules are counter-intuitive.

Michigan’s Program Eligibility Manual (which is used by the Department of Human Services to determine eligibility for Medicaid) does not have any clear policies on point to help families facing this situation. The rules allowing a healthy spouse to shelter assets above $2,000.00 do not apply because both spouses are in the nursing home. There is therefore no community spouse.

If any assets are transferred, it appears that the couple will face a shared penalty. What this means is that if the couple were to divest $63,260.00, they would both face a penalty of five months each ($63,260 / $6,326.00=ten months. But divide by two because of the shared penalty). The shared penalty rules are discussed at PEM 405, p11 and read as follows:

A client can be penalized if he or his spouse divests. The penalty is

imposed on whichever spouse is in a “Penalty Situation.” If both

spouses are in a penalty situation, the penalty period (or any remaining

part) must be divided between them.

Example: Mr. Brown is in LTC and under a divestment penalty for 1/1/

04 through 12/31/05. On 9/9/04, Mrs. Brown enters LTC and applies for

MA. She is eligible for MA starting in September. There are 16 months

of penalty left (9/04 – 12/05). Each spouse must serve 8 months. Mr.

Brown’s penalty is now 1/1/04 through 4/30/05. Mrs. Brown’s penalty is

9/1/04 through 4/30/05.

At the outset, I would mention that having the spouses share the penalty makes sense on an intuitive level. But we should expect a little more from the government. The actual rules controlling this situation are not what one would expect.

When two spouses are in the nursing home, it does not follow that gifts by one will result in penalties for both. This is because two spouses in a nursing home are treated as financially separate for purposes of Medicaid eligibility.

When determining financial eligibility for Medicaid, it is important to determine whose assets and income will be counted. There are different rules for making this determination depending on the type of Medicaid for which one is applying. For SSI-related MA, it is clear that the general rule is that an adult applicant forms a fiscal and asset group of one. Fiscal group rules are generally designed to impose financial responsibility among non-traditional living arrangements. But for L/H Patients, there is a clear exception “even if he lives with his spouse.” In other words, no rule to create financial responsibility between spouses will generally be imposed, even if they live together (which is the broadest net DHS casts for capturing assets). The rules prohibit expanding the fiscal group for SSI-related Medicaid where one person who generally lives in the same household is in long term care-and an intention to return to the household is specifically mentioned as not being an exception to this policy. Here is the relevant rule (PEM 211, p5):

SSI-Related Adult SSI-Related MA

An adult’s fiscal and asset groups are:

• The adult for an L/H patient, a waiver patient (see PEM 106) and a

Freedom to Work customer even if he lives with his spouse.

Exception: When PEM 402 instructs you to determine a couple’s

countable assets for an “INITIAL ASSET ASSESSMENT” or “Initial

Eligibility,” the L/H or waiver patient and his community spouse are

considered an asset group.

In other words, when two spouses are in the nursing home, each long term care resident is a separate applicant for Medicaid. PEM 402 (the community spouse rules) are an exception to this rule. But where both spouses are in the nursing home, they are separate fiscal groups (of one).

On a practical level, this means that one spouse can qualify for Medicaid while the other spouse carries out asset protection planning. While asset protection planning for one in the nursing home generally means carefully managing a penalty period, it is nonetheless possible to protect a significant portion of a married couple’s estate from the enormous expense of two nursing home stays.

Medicaid qualification is full of its own jargon that can make the process a mystery to almost anyone. One key concept to understand is the “community spouse resource allowance.” To speak in the jargon of Medicaid for a moment, the community spouse resource allowance is the value of non-exempt assets that a married couple is permitted to keep and still qualify for Medicaid long-term care assistance. That definition is quite a mouthful, so I will break it all down and put it into context.

When one member of a married couple requires long-term care for more than 30 days, an inventory of the couple’s assets as of the day the institutionalized spouse first entered the hospital or nursing home must be prepared. This is done using form DHS 4574-B, the Asset Declaration. This form must accurately describe a couple’s assets, under penalty of law. From this form, a determination is made of how much the couple will be permitted to keep and qualify for Medicaid. Eventually, assets that are retained by the couple will have to be separately titled in the name of the spouse who is not institutionalized. That spouse is called the community spouse. Therefore, the amount the couple can keep is called the community spouse resource allowance. “Resource” means basically the same thing as “asset” for most purposes. The process of dividing assets between what must be spent down and what the community spouse may keep is referred to as the division of assets. Generally speaking, the community spouse will be permitted to keep one half of all countable assets, but no less than $20,800.00 and no more than $104,400.00.

To take an example, let’s suppose that Bob and Mary have a house worth $150,000.00 and a car worth $8,000.00 and $150,000.00 in the bank on the day that Bob goes into the nursing home. Bob and Mary’s asset declaration might look like this:

House                    $150,000.00

Car                    $8,000.00

Bank Account                $150,000.00

Total:                    $308,000.00

At first glance, it appears that this couple is entitled to take retain the full $104,400.00 since they have $308,000.00 in net worth. But remember that the community spouse resource allowance only concerns non-exempt assets. The car and the house are exempt assets and so they do not count in the determination of what the couple may keep. But by the same token, the car and the house are not subject to spend-down. Here, the couple will only be entitled to keep $75,000.00 of the $150,000.00 in money that they have in the bank. The remaining $75,000.00 is the amount that is subject to spend-down. This money must be devoted to specific purposes under law, most commonly the cost of nursing home care. However, there are significant ways to put this money to the best use for the sake of the community spouse that will help to secure a retirement, care for the community spouse, or meet a number of other needs that the family may be facing. This is one area where consultation with an experienced elder law attorney can be particularly helpful.

For a free guide to Medicaid Planning and Division of Assets, send an email to Jerrold Bartholomew.

QUESTION: I have heard that you are allowed to keep some things and qualify for long-term care Medicaid. What are you allowed to keep?

ANSWER: It is true that some property may be exempt for purposes of Medicaid qualification. And indeed, converting non-exempt assets to exempt assets is one valuable method of spend down. The following items are generally exempt:

• Home, up to $500,000.00 in equity value. The home must be the principal place of residence and the resident may be required to show some intent to “return home” even if this never actually takes place.
• Household and personal belongings such as furniture, appliances, jewelry and clothing.
• One vehicle (a car or truck or van)
• Pre-paid funeral plans and burial plots
• Cash value of life insurance policies – Up to $1,500 in cash surrender values may be exempt, along with term life insurance, depending upon your situation.

With careful asset positioning, an elder law attorney may be able to help you exempt additional property. You should also know that in some cases, assets may also be excluded from being counted for Medicaid purposes.

QUESTION: I am concerned about my parents. My dad just entered the nursing home. His care costs more $6,000.00 per month and my mother is almost out of savings. Does she have to sell the house (which is worth about $250,000.00) to pay for my dad’s care? And what about estate recovery? What is that?

ANSWER: Your mother does not have to sell the house and for now, it is safe as long as you follow the proper procedures to qualify for Medicaid. But there are still several concerns here.

First, most people needing nursing home care will end up receiving Medicaid assistance at some point. Many people make the mistake of thinking that they should just pay the nursing home each month without realizing that there are often estate planning options that can prevent the need for a full spend down. Seeing an elder law attorney during a nursing home spend down is a lot like seeing an accountant at tax time: there are a lot of deductions and exclusions that you would not otherwise know about that can cut your tax bill. An elder law attorney can help you minimize your nursing home bill in the same way.

With respect to your home, it is an exempt asset for purposes of Medicaid qualification. A nursing home patient in Michigan can own a home and still qualify for Medicaid. But there are exceptions to this rule and any non-homestead real estate would not be exempt.

Second, a house occupied by a nursing home patient’s spouse is not currently subject to estate recovery. Estate recovery is the process by which the state seeks reimbursement from a Medicaid recipient’s estate. Under current law, the state will not seek to recover costs against the home of a Medicaid recipient that is occupied by the recipient’s spouse. So that is not an immediate concern. But that law could change or it could be that the spouse living at home will have a dramatic change in health and perhaps need Medicaid assistance as well. At that point, the house would become subject to estate recovery and so it would make sense to begin planning for some of these potential problems now.

The reality is that families faced with the chronic illness or disability of a loved-one often have few options but a traditional long-term care facility. Aside from the financial devastation that this usually entails, there is the fact that a traditional nursing home is a difficult place to be in. It is good therefore to see nursing home alternatives emerging, such as described in this story about a new nursing home developing near Grand Rapids, Michigan:

Differing from a traditional “hospital-style” nursing home, the so-called green house concept features smaller facilities designed to create a home-like setting with private rooms, baths and other amenities. Residents still receive the daily assistance and medical care they need, though their activities are not regimented nor predicated on their medical needs.

While the article is silent on the cost of care at this facility, it is not unreasonable to assume that it will be more expensive than traditional nursing home care. If it were otherwise, the article would be trumpeting both higher quality care and lower costs. The fact is that this sort of care remains out of reach for most seniors whose savings would be quickly depleted by the cost of this higher level of assistance. Perhaps the best chance most seniors will have at this sort of care is begin planning early in order to maximize assets.

Sue Schiebel has written an excellent article on Medicaid Planning. While her article concerns MassHealth, which is the Massachusetts Medicaid program, the rules and ideas explained are the same in Michigan. She writes:

A lot of middle-aged people don’t realize Medicare, the federal health insurance program, pays for a very limited amount of skilled nursing home care. As we live longer, that means more of us will have to spend our own money for long-term care or must rely on MassHealth, the state health insurance for low income people. Many people wind up doing both — first using up many of their own assets to “spend down” to Medicaid limits so they are financially eligible for state help.

Medicaid qualification is a complex area of the law. To highlight just one counter-intuitive aspect, consider that donations to a church or charity are treated as gifts under the law. One making such a gift is technically creating a period of ineligibility for Medicaid. Strictly speaking, a person making significant donations to a church could be ineligible for Medicaid for several months after all other assets have been spent down. An elder law attorney helps families cope with these bizarre rules and avoid such unfortunate results.

Retirement assets (401ks, IRAs, etc) are considered available assets for purposes of Medicaid qualification in Michigan. In simple terms, that means that those funds have to be spent down until the threshold for asset eligibility is met. In the case of a single person, asset eligibility is generally about $2,000.00, with some additional allowances for the homestead, modest life insurance and funeral expenses. In the case of a married person, the threshold is higher, and will be between $20,880.00 and $104,400.00, depending on the couple’s assets before entering the nursing home. For more details, see The Basics of Medicaid Qualification, below.

In order to avoid having to spend these assets on the cost of care, it is very common to annuitize the retirement assets. For a variety of reasons, I think this is something to avoid whenever possible. First of all, the return on such annuities is low. With inflation likely to increase in the present economic climate, it is difficult to recommend a long-term investment with a low return. An additional concern is that current law requires an annuity to pay out in level installments and in an actuarially sound manner. The days of the deferred annuity with a substantial amount held until after the passing of the owner are gone. Furthermore, under current law, the state of Michigan must be named as the remainder beneficiary after the community spouse or a disabled child. It is true that an annuity will provide secure retirement income for a community spouse, but it should be considered an alternative of last resort in light of these considerations.

Retirement assets present some of the most difficult problems in elder law, but there are solutions. With some intricate planning, one can use a solely for the benefit of trust, for example to preserve the tax-deferred funds and obtain qualification. This is an important alternative for families to consider so that retirement assets are not unnecessarily depleted by the cost of long-term care or restricted to minimal returns and subjected to estate recovery.

An astounding thing happened during the fall of 2007. Michigan changed its Medicaid policy with respect to annuities and implemented those changes with retroactive effect.

The new policy requires annuities to have several features in order to avoid being considered a divestment. Among the requirements is a rule that the state of Michigan must be named a remainder beneficiary to the extent of Medicaid benefits received. This law applies to all annuities purchased or altered after February 8th, 2006, the day President Bush signed the Deficit Reduction Act into law.

This policy change is troubling is several respects. First, it certainly defeats a common sense understanding of justice and fair play to change the rules retroactively, particularly where the financial consequences can be so significant. The law changed in October of 2007, but it applies to all annuities purchased or changed more than a year and half before the new policy was announced. Annuities not in compliance with the new policy can be considered a divestment–just as though the money used to purchase the annuity had been given away. So, for example, a $60,000.00 annuity could result in more than 10 months of ineligibility for Medicaid and under the new law, this penalty time would not begin to run until the purchaser was otherwise out of money and in the nursing home.

Second, this policy change–with all of its harsh consequences–is not necessarily understood by those selling and recommending annuities. Even today, annuities are still being sold with the idea that they will help one to qualify for nursing home care. But for many annuities, just the opposite is true. How many annuities are likely to be sold with Michigan as a remainder beneficiary? Would you invest your money that way? Many annuities will actually prevent qualification and it may be extremely difficult or impossible to undo the transaction. With nursing home costs averaging $6,500.00 per month or more, the problem is widespread and troubling.

The lesson here is that Medicaid policy is potentially an issue for almost everyone at or approaching retirement age. It is important to consult with an elder law attorney before making any long term decisions on annuities or other financial products. The impact on Medicaid qualification may surprise you.

It is important to understand the basic rules of qualifying for Medicaid Long Term Care Assistance in order to cope with the financial realities of a relative’s long-term care. The rules below apply in Michigan and have been updated for 2008.

First, you should understand that the rules are different for single people and those who are married. To make things just a little more complicated, if both spouses of a married couple are in the nursing home, they are both subject to the rules of a single person, with each spouse qualifying separately.

Single people are permitted $2,000.00 in assets and $60.00 a month in income. The remainder of non-exempt assets will have to be spent down until the asset threshold is reached. The additional income will be used to pay the cost of long-term care, even after qualification for Medicaid. See below for details on what assets can be exempt.

Married people are entitled to keep 1/2 of the couple’s non-exempt assets, with a minimum protected amount of $20,880.00 and a maximum of $104,400.00. This protected amount is known as the Community Spouse Resource Allowance or CSRA. For some thoughts on increasing the CSRA, click here.

Exempt assets in Michigan include a home with less than $500,000.00 in equity value, one automobile, a burial space, a pre-paid funeral contract, up to $1,500.00 in face value of life insurance, wedding and engagement rings, household goods, and very little else.

Assets that are not exempt include bank accounts, stocks, bonds, retirement accounts (IRAs, 401ks, etc) and virtually anything else of value.

It is widely anticipated that there will soon be limitations placed upon the automobile, including that it must be worth less than $25,000.00 and it must be purchased by a single person before entering the nursing home. So there will be no more purchasing a Cadillac on the eve of qualification, which has previously helped many families preserve assets.

Giving away assets now results in a period of ineligibility that will not begin to run until one is otherwise qualified for Medicaid. In other words, one must be completely out of non-exempt assets before the period of ineligibility will begin to be served. This makes it extremely difficult to preserve assets in the case of Medicaid crisis situation, i.e., there has been no previous planning for a person who is now or will soon be in long-term care.

It is difficult to lay out every complexity of this area of law in an article such as this and indeed, I have not done so. There are many fact-sensitive exemptions and asset protection strategies and other issues that are outside of this scope of a brief note like this. But as a general rule of thumb, I can help you to preserve 50% or more of long-term care patient’s assets. Feel free to email me if you would like to discuss your situation and learn more.

Under previous Medicaid policy, applicants for long term care were given the benefit of a doubt most of the time. In some cases, a demonstrated intent to complete asset conversion, which is the process of converting non-exempt assets into exempt or excluded assets and is the heart of Medicaid planning, would be enough to pass scrutiny.

Today, one should expect to have every aspect of a Medicaid application scrutinized and one should be prepared to provide timely and extensive documentation of all assets and recent transactions. Michigan is still fairly mild in its requirements alongside states like New York, which according to some reports requires a full five years of bank records and an explanation of all transactions over $1,000.00. But Michigan has tightened requirements considerably.

You should expect to have to provide third party documentation (statements from financial institutions and the like) for all significant assets. If asset conversion is being employed, expect to have to show what the asset was both before and after the conversion.

The trick here is that financial institutions move slowly and often with indifference to the fact that time is money–$6,500.00 a month or more in most cases. Sometimes it makes sense to cash in small insurance policies before long term care is an issue, just to avoid having a life insurance policy with a cash value of $2,400.00 put the nursing home patient over the asset limit and prevent qualification for Medicaid for a month or more.

Furthermore, an elder law attorney can often earn his keep just by knowing how to move quickly when a nursing home crisis strikes.

Pre-planning for long term care or nursing home care is always best. It is at that point that assets can be consolidated to allow for nimble reactions to changing circumstances.

But above all, gather your documents now. Birth certificates (to prove citizenship), a marriage license, discharge papers, deeds to real estate, etc. You will need all of these things for a Medicaid application and you will need them when you have many more important things to worry about. See this page for a complete list.