Tuesday, December 6, 2016

How Does Someone Qualify Medically for Medicaid to Pay for Long-Term Care?

Medicaid will pay for skilled nursing home care only if it is medically necessary and the person is otherwise qualified and meets the financial eligibility requirements. Unless a nursing home stay is expected to last less than 30 days, a pre-admission screening is required to determine if an individual living outside of a nursing facility meets the level of care for Medicaid payment of long-term care services. No screening is required for individuals who have lived in a nursing home for longer than 30 days. Individuals who do not live in a nursing facility and wish to enroll in Medicaid must be screened and approved before Medicaid will authorize payment (assuming the individual meets the financial and other eligibility requirements). The Department of Social Services will send a representative to meet with and evaluate the individual, and this evaluation will typically be conducted by a nurse or social worker.
Virginia uses a form called the Virginia Uniform Assessment Instrument to determine if an individual medically needs skilled nursing home care. To qualify medically, the individual must have a physical or mental condition that requires services, such as nursing supervision and dependence in at least two activities of daily living (such as bathing, dressing, toileting, transferring, and feeding). The screener will determine how much assistance the person typically needs to complete those activities. The assessment team will also assess the individual’s mental orientation and behavior, mobility, joint motion, and ability to self-administer medications. When an individual is going through a medical needs assessment, it is important for a family member or advocate to inform the team of all the things with which the person needs help. If the pre-admission screening team determines that the person is not functionally or medically in need of long-term care services, the decision can be appealed to the Department of Medical Assistance Services (“DMAS”) in Virginia.

Written by Heather W. Winter

Wednesday, November 30, 2016

Will Medicare Pay for Care in a Rehabilitation Facility?

Medicare will pay for skilled nursing care in a skilled nursing facility if a senior has a qualifying hospital stay and the patient needs the services of professional personnel. A qualifying hospital stay is one where the senior was admitted as an inpatient to the hospital for 3 consecutive days or more. Make sure that the senior isn’t admitted for “observation” only and was actually admitted to the hospital as an inpatient. For a period of time in the skilled nursing facility, Medicare will cover a semi-private room, meals, skilled nursing care, medical social services, medications, medical supplies and equipment and other services such as physical therapy, occupational therapy, or speech-language pathology if those services are needed to meet the patient’s health goal. Medicare will pay the full cost of the skilled nursing facility for only the first 20 days. Medicare will pay all but the daily coinsurance for days 21-100 and the patient would need to cover up to $157.50 per day for the care. Medicare will not pay for anything beyond 100 days in the benefit period. It is important to know a senior’s rights to care. Medicare will continue to cover the skilled nursing care if the care is necessary to help improve a senior’s condition or to maintain their condition and prevent or delay it from getting worse. The patient does not necessarily have to keep making improvements for Medicare to continue coverage. If the care will keep the patient from slipping, the senior has Medicare coverage for the first 100 days in the benefit period.

Written by Heather W. Winter, Esquire

Tuesday, November 1, 2016

What Are Some Legal Considerations Senior Couples Should Think About Before Marrying?

As people live longer, multiple marriages are more common and proper elder law planning is important. Couples who marry should consider the legal implications of marriage at any age, but especially later in life marriages. Marriage creates certain rights and obligations and it is important to understand those rights and obligations. It is important to understand that married couples owe each other certain duties, such as the duty to support one another. If one spouse has medical issues and incurs high hospital expenses, the other spouse’s income and assets may be used to pay for them.

Senior couples may want to consider entering into a prenuptial agreement. Seniors may have assets to protect, children from prior marriages whom they’d like to provide for, and other concerns that can be addressed in a prenuptial agreement. The prenuptial agreement can address spousal support, division of debts and property, inheritance rights, and other issues. However, if one spouse needed to qualify for Medicaid to provide long-term institutionalized care, all assets of both spouses are considered available for the care of either and Medicaid will ignore the provisions of the prenuptial agreement.

Finally, after the wedding, the senior couple should ensure that their estate planning documents are updated, including any wills, trusts, durable powers of attorney, and advance medical directives, to make sure the documents reflect his or her wishes and any new decisions he or she has made.

Written by Heather W. Winter, Esquire

Thursday, October 20, 2016

What are ABLE Accounts?

ABLE stands for Achieving a Better Life Experience and the ABLE Act was signed into federal law at the end of 2014. The ABLE Act creates tax-advantaged ABLE Accounts which are financial accounts for certain disabled individuals to use on disability-related expenses. Family members, friends, the disabled individual, or anyone else may make contributions to the disabled person’s ABLE Account. The ABLE Act recognizes that people with disabilities have extra costs that public benefit programs such as SSI, SNAP, or Medicaid cannot always meet. The significance of these accounts is that the funds in the account generally are not considered for SSI, Medicaid, and certain other federal means-tested benefits and the funds help the disabled person finance a more independent life. Virginia has enacted the ABLE bill which authorizes the Virginia College Savings Plan (Virginia529) to create and implement these types of accounts. Virginia529 is currently working to get the program ready. To learn more information about the features of these accounts and to check for any updates on Virginia ABLE Accounts, head to Virginia529.com.

Written by Heather W. Winter, Esquire

Monday, October 10, 2016

There is a New Rule Making It Easier to Sue Nursing Homes

The Centers for Medicare and Medicaid Services recently announced a new rule that preserves the rights of patients and families to sue long-term care facilities in court for claims such as elder abuse, sexual harassment and wrongful death. The rule bans any long-term care facility, including nursing homes, that receives federal funding from requiring its residents to sign forced arbitration contracts to resolve disputes through arbitration instead of the court system. The parties may enter into an arbitration agreement after a dispute arises, but not before. The rule promises to help deliver safety measures for residents. Requiring patients and families to use the private arbitration system for claims reduces legal costs for facilities, but may block patients and families from getting the justice that they seek. The Administrator for the Centers for Medicare and Medicaid Services announced that the rules “are a major step forward to improve the care and safety of the nearly 1.5 million residents in the more than 15,000 long-term care facilities that participate in the Medicare and Medicaid programs.” The rule is scheduled to go into effect November 28, 2016 for facilities that participate in the Medicare and Medicaid programs.

Written by Heather W. Winter, Esquire

Wednesday, September 28, 2016

How Do I Provide for My Special Needs Child?

For parents who have a special needs child, it is so important to have an appropriate and well thought out estate plan in place. Parents may worry about planning for their child’s future and want to ensure that their child is cared for throughout the rest of his or her life, even when the parent has passed. Having an estate plan in place will give parents peace of mind about their child’s future. If a child receives government benefits such as Medicaid or Supplemental Security Income (SSI), inheriting money directly can cause problems with maintaining eligibility. Families have some options with their estate plan, protecting their child’s eligibility to receive government benefits.

Government benefits generally provide only basic support and parents may want to provide their child with some extra support. In order to provide their child with extra support while keeping their child eligible for government benefits, some parents may want to establish a special needs or supplemental needs trust for the benefit of their child, which can be funded during the parent’s lifetime or at their death. If properly drafted, this type of trust will not jeopardize eligibility for government benefits and can provide the child with an enhanced quality of life by having the trustee pay for extra things. Parents may also want to consider joining a pooled special needs trust, where the funds of each beneficiary of the trust are placed in an individual account and the assets from all of the individual accounts are “pooled” together and invested and managed by a trust company. A pooled trust is managed by a non-profit organization and with this type of arrangement, families do not have to find a trustee who is willing and capable to manage the trust for their child, unlike the special needs or supplemental needs trust.

Parents should discuss the future with family members and friends and have a plan in place for their child’s future care, when mom, dad, a sibling or other family member is no longer available or able to care for the special needs child. Parents also need to take care of their own future, and have a Will, power of attorney, and advance medical directive for themselves. Planning for the future may seem overwhelming, but having a good plan in place can provide peace of mind.

Written by Heather W. Winter, Esquire

Friday, September 16, 2016

Could Mom or Dad Qualify for VA Pension Benefits?

It is possible to receive various need-based pension benefits from the Department of Veterans Affairs (VA) and it could be a good idea to explore these benefit options fully if you think mom or dad may be eligible. A qualified Veteran (together with any spouse) or a surviving spouse who has low income and few assets can apply for non-service connected disability VA Pension benefits. The VA pension program provides monthly benefit payments to certain wartime Veterans who demonstrate financial need, and their survivors. The VA offers both a Veterans Pension and a Survivors Pension, which are tax-free monetary benefits payable to low-income wartime Veterans or low-income surviving spouses and/or unmarried children of a deceased Veteran who served during wartime. To be an eligible wartime Veteran, the service member must be discharged under other than dishonorable conditions and served 90 days or more of active military service with at least 1 day during a period of war (with different requirements for those Veterans who entered active duty after September 7, 1980).

There are three different levels of VA Pension that a Veteran and survivor may be eligible to receive. The first is the Veterans Pension, which provides supplemental income and is a needs-based program for low-income Veterans and survivors. The second pension available is the Housebound Pension, which provides an increased monthly pension amount when a Veteran or survivor is housebound as defined by the VA and certified by their doctor. The third pension available, and one that may be the most familiar, is the Aid & Attendance Pension. The Aid & Attendance pension increases the monthly pension if the applicant needs help with at least 2-3 activities of daily living and would normally require a protected environment, and certified by their doctor.
The VA Pension is a great program to explore, however, it is important to recognize that as far as VA benefits are concerned, the law is complex and currently is unsettled due to changes that have been proposed by the regulators and could change at any time.

Written by Heather W. Winter, Esquire

Thursday, September 8, 2016

Welcome Back to School!

It’s that time of year again when the kids go back to school or even start a new school. While the kids may have been nervous and sad that summer is over, hopefully they were excited to start school and see their friends and make new friends. We hope that everyone had a safe and enjoyable first day back to school!

Monday, August 29, 2016

What is adult day care and what services are available?

Adult Day Care Centers are intended to provide care and companionship for adults who need assistance or supervision. These programs provide caregivers and family members a temporary rest from caregiving, while the senior adult receives care in a safe environment. The senior adult benefits from staying in the community, structure to his or her daily activities, and social interaction. Placing the senior adult in a day care center allows the caregiver or family member to go to work, run errands, or just relax while their loved one is safe.

            Generally, there are two different types of Adult Day Care Centers: adult social day care and adult day health care. Adult social day care provides a social outlet for the senior and offers activities, meals, recreation, and some health-related services. Social activities can include crafts, cooking, exercise, field trips, and games. Adult day health care offers intensive health, therapeutic, and social services for adults who otherwise may need institutionalized care. Adult day care services can also include counseling, education, physical therapy, medication management, assistance with eating, toileting, and/or walking, and transportation services.

            The cost of day care services vary depending on location, the services offered, and other factors. However, adult day care services are often less expensive than hiring a home health nurse or placing the senior in a facility and day care could be a good option for families to consider. To explore Adult Day Care Centers in Virginia, the Virginia Department of Social Services maintains an online search database that can be found here:

Written by Heather W. Winter, Esquire

Thursday, August 18, 2016

What should I do after a loved one has passed away?

When a loved one passes away, it is an emotional and difficult time. The last thing someone wants to think about are the practical steps that need to be taken care of during this time of grieving. Some practical steps family members and/or friends may want to take during this time include:
  1. Request copies of the death certificate through the funeral home, mortuary or the state’s vital records office.
2.      Locate important papers, such as the decedent’s legal documents, financial records and information. 

3.      Notify any bank or credit unions where the decedent did business, any brokerage firms, and life insurance companies where the decedent maintained life insurance. Find out whether these assets had named beneficiaries or were payable on death. 

4.      Notify Social Security Administration, Department of Veteran’s Affairs (if the deceased was a veteran), Medicare/Medicaid (if applicable) and similar agencies.

5.      Start the probate process, if probate is necessary to administer the estate.

6.      The personal representative should collect the decedent’s assets that are part of the probate estate and follow the state’s laws of administration of the estate. 

7.      Safeguard the decedent’s home and vehicle(s) and protect valuables, including checking on insurance coverage for the estate or heirs for any real estate, vehicle(s) and specifically insured items. 

8.      Forward the decedent’s mail at the post office.
9.      Cancel utilities and other services when appropriate and request final bills.
Written by Heather W. Winter, Esquire