It has long been my practice to send executors and administrators of estates numbered letters preparing them for the different stages of the probate process. Letter 1 would be about setting up the estate, Letter 2 about documenting and caring for the estate’s assets, and so on. But I have realized over time that probate has a few quirks no reasonable person could be expected to know, and also that many mistakes are made before the probate court even opens an estate. On top of that, it can be easy to get into probate without understanding where a lawyer’s time goes, or the mindset and approach you should take to make the estate go smoothly and close on time. After all, most people know that they should tally their prescription bills and charitable donations before they see their tax preparer, if they want to be cost effective, but you’d be forgiven for not realizing that probate works the exact same way.
In a press release this week, the IRS confirmed that the $1,200 pandemic stimulus payments (officially called “Economic Impact Payments” under the CARES Act) received by nursing home residents remain their property. Under long-standing Medicaid law, income tax refunds follow special rules that treat these as an asset that can be spent over the following YEAR by Medicaid recipients without any penalty to their Medicaid benefits. It is not considered income paid as “applied income” to a nursing home and it does not count against the $1,600 resource limit so long as it was spent – but not given away, normally – over the year following receipt.
Since the CARES act was passed, and technically issued these payments as income tax refunds, practictioners like myself have argued that they were retained by nursing home residents, even where they were on Medicaid and the facility was managing their Social Security money as “Representative Payee.” However, certain facilities disputed this and were applying these payments – received only because the government relied on direct deposit information for Social Security for non-tax-filers – to outstanding or current nursing home bills.
If social security or other funds are being managed for your loved one by a nursing home, you may wish to request a copy of their resident trust account statement to confirm that the funds have been retained there, or to demand a refund if not. If you have any problems with this, or other care/visitation compliance in these changing times, please call our office at 203-871-3830 for a free consultation.
TEXT OF PRESS RELEASE:
WASHINGTON – The Internal Revenue Service today alerted nursing home and other care facilities that Economic Impact Payments (EIPs) generally belong to the recipients, not the organizations providing the care.
The IRS issued this reminder following concerns that people and businesses may be taking advantage of vulnerable populations who received the Economic Impact Payments. The payments are intended for the recipients, even if a nursing home or other facility or provider receives the person’s payment, either directly or indirectly by direct deposit or check. These payments do not count as a resource for purposes of determining eligibility for Medicaid and other federal programs for a period of 12 months from receipt. They also do not count as income in determining eligibility for these programs.
The Social Security Administration (SSA) has issued FAQs on this issue, including how representative payees should handle administering the payments for the recipient. SSA has noted that under the Social Security Act, a representative payee is only responsible for managing Social Security or Supplemental Security Income (SSI) benefits. An EIP is not such a benefit; the EIP belongs to the Social Security or SSI beneficiary. A representative payee should discuss the EIP with the beneficiary. If the beneficiary wants to use the EIP independently, the representative payee should provide the EIP to the beneficiary.
The IRS also noted the Economic Impact Payments do not count as resources that have to be turned over by benefit recipients, such as residents of nursing homes whose care is provided for by Medicaid. The Economic Impact Payment is considered an advance refund for 2020 taxes, so it is considered a tax refund for benefits purposes. . . .
March 30, 2020: This Afternoon, the CT Department of Public Health (DPH), in conjunction with the Long-Term Care Ombudsman, announced plans to temporarily designate select nursing homes within the state as COVID-positive and COVID-negative skilled nursing facilities.
This plan will allow facility residents who have tested positive to receive more concentrated skilled care, to have access to more skilled health professionals and equipment at their facility, while maximizing the change that those who have tested negative are at minimal risk of contracting COVID-19 during this wave of infection. However, accomplishing this plan means that many nursing home residents, including those who have not been tested for COVID-19, will be temporarily relocated to other facilities.
This will be deeply troubling to some families concerned about quality and continuity of care for a parent or other senior in a nursing home. In this article, I provide some educated guesses about what this will mean, and also what proactive measures you should be taking in the event that your loved one is selected for relocation.
First, My Assumptions
You should not be expecting calls about this tomorrow; it is a plan that will unfold during the next several weeks, throughout April and possibly into May.
This move is likely to have a proactive and reactive phase. In a proactive phase, the state will start relocating resident’s soon to establish dedicated facilities. Then, if individual facilities develop a cluster of infection, moves will be made to confirm and isolate uninfected residents, moving one group or the other.
In the immediate future, for practical reasons, I would expect the state to focus on low-census facilities for proactive transfers, except of course for facilities that already have outbreak clusters. By low-census facility, I mean nursing homes with a high number of empty beds relative to their size. This is simply the most practical way to do it. Most larger facilities (175+ beds) and those rated poorly by Medicare tend to be low-census facilities.
In larger facilities that have multiple wings, I would expect attempts to be made to isolate residents in different wings before transfers between facilities is considered. Whether or not that is feasible is based on a number of factors (ability to isolate staff/airflow to separate units; whether units are separated by distance or merely floor; elevator access to different units, etc.). While DPH will move with some quickness, reactive facility changes should and likely will be a last resort.
If your loved one tests positive for COVID-19 and is moved to a designated facility, I would expect that facilities will have increased respiratory therapy and equipment on site, and residents will only be hospitalized as a last resort. Additionally, toward the height of “the curve,” healthcare workers who have tested positive but are only mildly symptomatic or post-symptomatic could be allowed or assigned to work in the COVID-positive facilities. This can be scary, but in the context of a state-wide response, is a low-risk, and an important one relative to the larger needs of the community.
Some Tips For Relocation
Normally, a nursing home resident can’t even be required to change their room without their permission. In light of the national and state health care emergency declarations, these moves are considered essential, they are not the facility’s decision, and there is not likely to be a significant method of objection or appeal. There are a few things that you can do, however, to make a potential relocation as easy as possible:
1. Ask for psychiatric consult. If your resident is on any significant psychiatric medication, it is likely being prescribed by a visiting Psychiatric APRN from an outside service. If you have any question about whether your loved one is receiving appropriate medication right now, you should ask for them to be seen on the provider’s next visit in, and request a copy of the visit summary.
Unlike other visiting services at nursing homes (podiatry, dental, optical), which can swap providers with little need for continuity, your psych prescriber has relied on a history with your resident and the knowledge of staff familiar with him or her. Additionally, our state has a history of overusing antipsychotic medication in nursing homes to address behavioral issues, which is something that should be monitored. For nursing home residents with severe Alzheimer’s Disease or other forms of dementia, the act of relocating can be very unnerving and cause a need for adjustments in psych meds, but as part of a larger behavioral plan. With a recent assessment from a familiar provider in hand, you will be empowered to have a new, temporary provider justify any changes being made in their drug regimen.
2. Get the transfer orders. If you are notified that your loved one is being transferred, you should ask for a copy of their current physician’s orders, and also ask for a copy of their transfer orders, commonly called a “W-10” when it is ready. You should review the physician’s orders first, and if they seem correct, make sure the diagnoses, medications, and service orders being sent to the new facility match what is currently being recieved. Pay particular attention to the following:
Prescription Medication Daily meds are normally listed first, followed by “as needed” medication and then over-the-counter medication.
Major Diagnoses Any chronic or current condition, particularly if it is the basis for medication, should be prominently listed.
Frequency of Blood Sugar Checks for Type 1 Diabetes
Frequency of Weigh-ins for Congestive Heart Failure or edema
Physical Therapy and Occupational Therapy if any is currently received.
Dietary Plans (low salt, carb-controlled or no sugar for diabetics, chopped or pureed foods for swallowing difficulty, calorie supplement (Boost, Ensure, Hi-Cal) for poor eaters losing weight.
3. Alternate Clothes and Toiletries. While some effort will certainly be made to transfer a loved one with the personal property they will need, oversights are made even on the best of days, and a mass-departure of residents is not nearly that. Under current guidelines, you are not able to visit nursing home residents, and this includes in a new facility after transfer. However, if you have spare clothing or quality toiletries for them, you should still be able to leave these at the new facility to be brought to your relation, ideally after they have physically arrived. For best results,
Make sure each article of clothing is labelled with the resident’s name on or near the tag. Permanent marker is best.
Clothing should be clean, in good repair, and neatly folded.
Goods should ideally be placed in a plastic bag, ideally a clear garbage bag, and contain a note that prominently indicates the name of the resident, and that the clothing has been labelled and freshly washed.
DO NOT INCLUDE ANY FOOD. Facilities may allow prepackaged, shelf stable snacks such as cookie or cracker snack packs, but even for these get explicit permission first and bring them separately bagged in the original outer packaging from the store.
These steps maximize the chance that your provisions will be promptly delivered to your loved one in their temporary new home.
If you have any questions about a loved one in transition to or from a skilled nursing facility during the outbreak, feel free to call us at (203) 871-3830 or email scott@CTElder.com for a free case assessment.
Read the Full Letter Here:
Dear Resident, Family Member or Responsible Party,
There have now been positive tests for the coronavirus (COVID-19) in many nursing homes across our state. It is normal to have questions, feel uneasy or even scared. This is unprecedented in our lifetimes. The Office of the Long-Term Care Ombudsman and the Department of Public Health have received many calls from residents and family members as they look for Information about how to protect themselves.
We understand that this period of uncertainty and extra safety measures is incredibly challenging. The Governor, In consultation with the State Department of Public Health, has had to make extremely difficult decisions that impact all of you. It has not been easy to know what will come next, but I am thankful that at every step State Officials have kept the rights of residents at the forefront of their decision making and want to keep all parties informed.
Unfortunately, we are at a point in this pandemic that more extreme precautions need to be taken. This is not something any of us ever thought would happen in our long-term care community, but these are unprecedented times. We must take immediate action to prevent and delay further spread of COVID-19 to keep all residents and staff safe. These measures, outlined below, will impact residents throughout Connecticut.
In order to protect residents, the state will designate specific nursing homes for residents who have tested positive for COVID-19 and those who have not. Providing this physical distance is an attempt to concentrate the care and service needed to provide the highest level of care for each group of residents.
This means that some nursing homes will have to move residents to another nursing home. Residents who have tested COVID-19 positive will be transferred to a nursing home that has been designated as a COVID-19 positive home. If a nursing home has been designated as a COVID-19 positive home, residents who are negative or without symptoms will need to be transferred to a home that has been designated as a COVID-19 negative nursing home.
This measured decision is the only option available at this time. This will be in effect for an unknown period of time, perhaps months, but will allow you to transfer back to your home when it has been determined that this separating of residents is no longer necessary. We know this is going to be overwhelming for both residents and families. As we have learned from other areas of the country, to address the pandemic and meet the health, safety and well-being of all residents, these necessary measures must be taken and begin as soon as possible.
If you or your loved one need to move to another room or nursing home, a team member from your nursing home will contact you directly. The rights, safety and well-being of the residents are always at the forefront of the State Official’s decision making. This is an incredibly trying time and we are asking for your assistance keeping residents’ well-being as the priority.
We will be setting up Zoom meetings for residents and families to have an opportunity to ask questions to representatives of the Department of Public Health and the Long-Term Care Ombudsman Program. We will be providing the dates and times for these meetings through your nursing home as well as on the Long-Term Care Ombudsman website (https://portal.ct.gov/LTCOP), Facebook page (https://www.facebook.com/CTLTCOP) and the Department of Public Health website (https://portal.ct.gov/DPH).
If you have specific questions or concerns related to your nursing home, you can contact the Long-Term Care Ombudsman’s office at: 860-424-5200, or toll-free 1-866-388-1888.
The Long-Term Care Ombudsman Program and the Department of Public Health are here to support you through this very challenging time. Please remember it is normal to have questions, feel uneasy or even scared due to this unprecedented situation. Our offices as well as the care team members at your nursing home are here for you. Reach out, tallk about how you are feeling and what you think might help you cope with all of this. We need to do things differently right now and will continue to offer support so that we can get through this together.
A new cog in the federal response to the Coronavirus outbreak are some changes in how individuals on traditional “straight” Medicare can qualify for nursing home rehabilitation.
Medicare rehab coverage is provided under Part A hospital insurance, with two key provisions being that (1) seniors are only eligible for rehabilitation after a 3-night stay in a hospital as an inpatient, and (2) nursing home rehab is limited to 100 days per hospitalization period.
Federal Medicare administrators recognize that hospital and nursing home beds will likely become limited commodities in the coming weeks. That means some who should have hospital care will be denied in favor of needier patients, and some who would benefit from facility-based rehab will not be able to access it, possibly becoming more infirm due to the lack of intervention. In light of this, the Medicare Administrator issued a “special finding” that waives both of these limitations, in most cases.
SNF [skilled nursing facility] care without a 3-day inpatient hospital stay will be covered for beneficiaries who experience dislocations or are otherwise affected by the emergency, such as those who are (1) evacuated from a nursing home in the emergency area, (2) discharged from a hospital (in the emergency or receiving locations) in order to provide care to more seriously ill patients, or (3) need SNF care as a result of the emergency, regardless of whether that individual was in a hospital or nursing home prior to the emergency.
In addition, we will . . . provide renewed coverage for extended care services which will not first require starting a new spell of illness for such beneficiaries, who can then receive up to an additional 100 days of SNF Part A coverage for care needed as a result of the [COVID-19] emergency.
Seema Varma, Administrator, Centers for Medicare and Medicaid Services
If you are worried about yourself or a loved one having access to services, the situation is highly in flux at the moment, but we stand ready to answer your calls and questions with the latest information at (203) 871-3830 and are available for videoconferencing and teleconferencing on several common platforms.
Over the past week, there have been conflicting reports and governmental orders regarding visitation of residents in nursing homes. This was clarified March 13, when CMS (the federal medicare/medicaid regulator) issued new guidance to nursing homes nationwide. Namely, they have ordered that all visitation of nursing home residents is prohibited, with two exceptions: outside health care professionals, and limited visitation for resident’s who are actively dying or receiving hospice/palliative care. Additionally, group activities such as recreation and communal dining have been suspended.
In furtherance of this, the Probate court has suspended all proceedings that require hand-delivered notices or hearings conducted at facilities. Mostly this means new applications for conservatorship for people presently located in nursing homes, and applications to make nursing home care permanent (change of residence). It is still unclear how these will work with respect to deadlines imposed by law.
One important thing to know, however, is that just because you cannot see your loved one does not mean that you are unable to participate in their care. These rules do not change the requirement that facilities provide quality care, or develop a plan of care on a quarterly basis, with your input. It only means that conferences and reviews need to be conducted through telephone and records exchanges, rather than talking and looking in person.
We understand this change is particularly concerning for loved ones of seniors who have recently moved to a facility for rehab purposes. It is tough not being able to see their progress in person, or to know if or how quickly they will return home. You should also expect that, because facilities will have to exclude both personal care and licensed staff as an abundance of caution, and at a minimum it will be even harder than it normally is to get the responsiveness and communication by phone you may desire. But there are certain levers you can pull to get what you need, and my office is ready and able – by phone, paper, and video conference – to answer questions and help those who feel they need an advocate on their side.
Many clients come to me, sometimes even before retiring, asking me to help them give their homes to their children to “protect it from Medicaid.” They are the lucky ones who haven’t already done so through a friendly paralegal or attorney who did not ask important questions or give important advice.
There are some benefits and also a number of risks to giving away any real estate, but especially your home and especially if you do not keep a life use. I will discuss the practical and tax concerns of this in another article, but for the time being I would like to focus on one of the single biggest issues that folks are unaware of: if you have money you want to protect for yourself from Medicaid, owning a home can actually make it easier to do it!
You see, “money” is a dirty word for Medicaid: if you want help with your care, you have to be pretty much out of it (a healthy spouse can keep a bit, but not that much). But while you can’t have money, they will ignore your home, even a nice and pretty expensive one, so long as you or your spouse reside there. If you receive in-home care, an increasingly popular option, they don’t touch your house. If you go into your nursing home and your spouse remains at home, they don’t touch your house. You can even go into a nursing home for up to six months after Medicare Part A coverage expires, and Medicaid will give you an allowance to pay your mortgage, taxes, and insurance while you are away!
If you have money and need assistance with your care, Medicaid will ask you to spend that money (ideally on that care) before they’re willing to pay a penny. But if you also have a house, you can use the money to pay off your mortgage, make the house more accessible, upgrade the kitchen, add central air, or build an extension, and Medicaid will pay right away. You can also buy a house from not owning one at all to spend down that extra money, and save the cost of rent. Even more stunning, Medicaid’s definition of “your house” is much closer to “the plot your house is on and all of the land and structures you own that touch it.” There are actual recent examples of seniors who have used their savings on an adjacent plot of land, or have bought an apartment building and let their relatives occupy other units rent free. And the state HATES THIS. But they legally have to approve you for benefits.
While you can put money into your house, you can also take money out of it without being disqualified from benefits. So-called “reverse mortgages” often get a bad rap due to misunderstandings by consumers and also some bad practices that took place before the federal government began supervising and insuring the process. In reality, reverse mortgages are fair and useful vehicles in many circumstances, whether or not you have Medicaid. But if you do have Medicaid, the State of Connecticut offers you a bonus: if you take money out of the house through a reverse mortgage, they pretend you don’t have it, so long as you keep it in its own “segregated” bank account until you spend it.
So in summary: a man with $50,000.00, a house, and serious daily care needs have to pay for his care until only $1,600.00 of that money is left. But if the same man puts that money into home improvements, or a bigger house, or paying off a mortgage, he will be eligible right away. And if he borrows the same money right back out through a reverse mortgage, he won’t have to spend any of it on his care. Like the title says, it’s legal money-laundering.
To be clear, this is not a perfect solution. Nothing with Medicaid is. There are also caps, exceptions, and exclusions to many of the legal rules I have summarized in this article. At the very least, I hope by reading this you will understand that multiple considerations in protecting assets for your children as well as for your own use, and a conversation with a qualified elder law attorney is essential before making such a big decision so that you are fully informed of the different scenarios that could take place, and what these mean not just for your future wallet, but for your future care and quality of life.
Attorney Rosenberg practices throughout South-Central Connecticut. He can be reached at 203-871-3830 or by email at Scott@ScottRosenbergLaw.com.
We are excited to announce that Attorney Rosenberg has been selected to present a paper in the CT NAELA Practice Update based on his appeals court victory in Harborside Conn. Ltd. Partnership v. Witte earlier this year. Practice Update is the official journal for our state’s chapter of the National Academy of Elder Law Attorneys, the nations preeminent education and advocacy source for the practice of elder law.
In the Harborside case, the nation’s largest nursing home chain sued the widow of a former resident for her husband’s outstanding bill. Since neither of them had signed a contract, the nursing home claimed they were entitled to collect the debt directly from the widow because she had managed the family finances, paid the bills, and received insurance checks in the past. When this claim was thrown out of court without a trial, the nursing home appealed. In a split decision, the Appeals Court upheld the dismissal of the suit, siding with the brief of Attorney Rosenberg and lead appeal counsel Miguel Almodóvar. The court ruled that the nursing home only had a debt with the decedent, and could only recover it by filing a claim with his probate estate. Because this decision comes from the appellate court, other judges may now be required to throw out similar lawsuits in the future.
Ordinarily, spouses are jointly responsible for their housing and necessary medical expenses, but both state and federal laws require a spouse to volunteer through a written document in the case of nursing home care.
Having a parent or loved one with any form of dementia in never easy. It comes with a continual sadness over the loss of the person you once new. The holidays can be a particularly difficult time to deal with this reality, but that is nothing compared to the difficulty you may fear by having your loved one visit during this season. With that in mind, I’m posting the following quick guide to make these experiences easier on the both of you.
1. The General Rules Still Apply
There are some best-practices employed by elder care providers, and these should be continued while your loved one is in your care. This is particularly important when visiting you because the environment may seem foreign to your loved one, increasing anxiety as well as the risk of disorientation. These practices include:
Sticking to your loved one’s regular routine as much as possible
Being mindful of hygiene, but also respect your loved one’s privacy
Allowing your loved one do the activities that they can ordinarily do with safety
Avoiding being domineering or expressing frustration, where possible
Powers of Attorney are a major tool in every estate planner and elder law attorney’s toolkit, and the concept has been fairly well ingrained in our cultural lexicon. Perhaps it’s because of that that it never ceases to amaze me how frequently misunderstood they are. It shouldn’t be surprising that a properly informed client does not translate to properly informed children a decade or two down the road, and yet, when my colleagues and I then try to set the record straight for family members, they do not want to believe us.
I have given some thought to what the easiest, proper explanation of a power of attorney is, and if I was pressed to boil it down to a single sentence, I’d go with the following:
A power of attorney is a document that allows an individual to share with another person their own ability to manage their money and property and make legally binding agreements on their behalf to the extent specified in the document.
However, since my goal is to provide a well-rounded discussion in these blog posts, and there’s no shortage of space, I’d like to break down a few key parts of that definition for those who are interested.
AARP volunteers help millions across the U.S. file their taxes each year.
Tax season is coming into full swing shortly, and this will be my third tax season volunteering with AARP’s TaxAide program. For me, it’s an opportunity to do some good and keep abreast of how all the different tax tweaks congress makes each year find their way into the IRS forms and filing requirements we actually deal with back here on Earth. For you – or for an elderly friend or loved one – it’s can be an opportunity to get your taxes done for free with friendly, convenient service. For the benefit of those who might be interested, I’ve reposted this FAQ article with a summary of the services we provide. Read more »
Scott Rosenberg is a CT and MA- licensed attorney with a focus on estate planning and elder law. He operates a small solo practice on the south-central Connecticut Shoreline and is active in the Trusts, Estates and Probate section of the New Haven County Bar Association. Outside of law, Scott volunteers with the AARP TaxAide program and serves on the board of directors of the Learning Disability Association of Massachusetts.
DISCLAIMER
The materials presented on The Estate Planning Ticker and scottrosenberg law.com are provided as general information and never constitute legal advice. Posts do not provide an exhaustive discussion of any legal issue, are not specific to the laws applicable in any one state, and are not updated after posting to reflect changes in the law. Outside sources such as news reports, reference sites, and other blogs that are commented on or linked to have not been vetted for accuracy. You should never act upon the insights provided by The Ticker or any other law-related website without first discussing the issue with an experienced attorney in your home state.
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