Elder Law Blog

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Subcategories from this category:

Medicaid, Medicare, Social Security, VA Benefits

Wartime periods for VA Pension benefits

VA Pension benefits, which includes VA Aid & Attendance, requires 90 days of active duty and at least one of those days must have been during a wartime period. Under current law, VA recognizes the following wartime periods to determine eligibility for VA Pension benefits:Mexican Border Period (May 9, 1916 – April 5, 1917 for Veterans who served in Mexico, on its borders, or adjacent waters)World War I (April 6, 1917 – November 11, 1918)World War II (December 7, 1941 – December 31, 1946)Korean conflict (June 27, 1950 – January 31, 1955)Vietnam era (February 28, 1961 – May 7, 1975 for Veterans who served in the Republic of Vietnam during that period; otherwise August 5, 1964 – May 7, 1975)Gulf War (August 2, 1990 – through a future date to be set by law or Presidential Proclamation)

http://www.benefits.va.gov/pension/wartimeperiod.asp 

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Extra Help With Medicare Prescription Drug Plan Costs

The application for extra assistance paying for prescription drugs is at: https://secure.ssa.gov/i1020/start

You should complete this application for Extra Help on the Internet if:

You have Medicare Part A (Hospital Insurance) and/or Medicare Part B (Medical Insurance); andYou live in one of the 50 States or the District of Columbia; andYour combined savings, investments, and real estate are not worth more than $27,250, if you are married and living with your spouse, or $13,640 if you are not currently married or not living with your spouse. (Do NOT count your home, vehicles, personal possessions, life insurance, burial plots, irrevocable burial contracts or back payments from Social Security or SSI.) If you have more than those amounts, you may not qualify for the extra help. However, you can still enroll in an approved Medicare prescription drug plan for coverage.
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Backdoor filial responsibility in Georgia

Filial responsibility is a name given to laws that make third parties (usually adult children) responsible for support for indigent family members. These laws are based on English "poor laws" from the 16th Century. Many states, including Georgia, have these laws on the books. Georgia's version, however, has been a toothless tiger for the most part. The Georgia statute is found at O.C.G.A. § 36-12-3. There, it provides that the “county” providing care for a pauper may bring an action against a father, mother or child to recover support provided to the pauper. These days, however, counties rarely provide support, so it’s difficult to imagine how a claim could be brought.

By contrast, Pennsylvania has a broader filial responsibility statute. In Health Care & Ret. Corp. of America v. Pittas, 46 A.3d 719 (Super. Ct. of Penn. 2012), a nursing home sued a son for his mother’s unpaid nursing home bills. The case went to arbitration, where the son won. However, the nursing home appealed the case and the arbitration award was reversed in the Common Pleas Court, and upheld on appeal. On appeal, the son objected to the Court placing on him the burden to prove he was unable to pay, because other family members were not held liable with him, because the Court refused to consider other potential sources of payment such as Medicaid, and because his mother was not indigent. The Court rejected each of the son’s arguments, but noted that if Medicaid was ultimately approved, then he would have no responsibility to pay the bill.

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2017 Spousal Impoverishment Standards

CMS has published the 2017 Spousal Impoverishment Standards at:

https://www.medicaid.gov/medicaid/eligibility/downloads/spousal-impoverishment/2017-ssi-and-spousal-impoverishment-standards.pdf 

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Can you sell your home after you go on Medicaid (or to a nursing home)

The short answer is "yes, you can" sell your house. However, there may be consequences.

A home is usually an exempt resource when you apply for Medicaid. Cash from the sale of a home, is not exempt and counts toward your $2,000 resource limit. Therefore, if you sell your home, you must report the sale to Medicaid within 10 days and you will probably be kicked off of Medicaid until you do something with the cash. One option is to spend the cash on nursing home care until you're broke and then go back on Medicaid. That;s probably not a good choice because that does nothing to enhance your circumstances or your quality of life. Another option is to speak with a Certified Elder Law Attorney about ways you can plan for your future needs, or the future needs of your spouse or children (especially if you have disabled children or grandchildren).

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VA Aid & Attendance

VA Aid and Attendance is a means-tested benefit available for veteran's with a non-service connected disability. It is frequently used by aging veterans to pay for long-term care. The benefit is available veterans who served 90 or more days of active duty with at least one day of service during a wartime period, and who have an other than dishonorable discharge.

The 2016 benefit rate is $1,788 for a single veteran, $2,120 for a veteran with a spouse, and $1,149 for a surviving spouse. These rate will increase by 0.3% for 2017 due to a Cost-of-Living Adjustment. These are maximum A&A benefit rates. To receive the maximum rate, you must need the aid of another person to perform personal functions in everyday living, such as bathing, feeding, dressing, toileting, adjusting prosthetic devices, or protecting yourself from the hazards of everydasy environment, or you must be bedridden, or you must be in a nursing home for a mental or physical condition, or you must be nearly blind. You must also have Income for VA Purposes (IVAP) that is below the benefit rate.

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If I have Medicare and other health coverage, who pays first?

This issue comes up when an individual is eligible for Medicare, but also has other coverage. It's known as "coordination of benefits." The answer is, it depends on the type of coverage you have.

For example, if you have Medicare and Medicaid, then Medicare always pays first. Medicaid would only pay the amount remaining after Medicare pays for it's share.

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Can I have Medicare and a Marketplace policy?

Generally, no. It's illegal to sell you a marketplace policy if you have Medicare. Section 1882(d) of the Social Security Act makes it illegal to knowingly sell duplicate coverage to a Medicare beneficiary.

If you already have a marketplace policy before you sign up for Medicare, then you can keep your marketplace policy. However, any tax credits you were receiving will end when your Medicare Part A coverage begins. That means you'll have to pay the full price for your marketplace plan.

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What does Medicare cover?

Does Medicare pay for all of my health care?

No. Medicare only pays for covered goods and services. In fact, there are many co-pays and deductibles. The 2016 co-pays are at the following link: https://www.medicare.gov/your-medicare-costs/costs-at-a-glance/costs-at-glance.html. The 2017 numbers have not been finalized yet, but when they are, they should be posted at the same link. Most individuals who purchase a Medicare Supplement will have the co-pays and deductibles covered by the supplement. You can learn more about Medicare Supplements at https://www.medicare.gov/supplement-other-insurance/medigap/whats-medigap.html 

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When can I enroll in Medicare?

When can you get Medicare? You can sign up for Medicare during the initial enrollment period, which begins 3 months before the month you turn 65, continues through the month you turn 65 and for an additional three months thereafter. In other words, the initial open enrollment period is 7 months. If you do not enroll in Medicare during the initial enrollment period, then you must wait for a special enrollment period, or for the annual open enrollment period. Special enrollment period includes time while you’re covered by an employer provided health insurance policy, or during the 8 month period after employment ends or after employer provided health coverage ends. The annual open enrollment period is from January 1, through March 31, with coverage beginning on July 1.

https://www.medicare.gov/sign-up-change-plans/get-parts-a-and-b/when-sign-up-parts-a-and-b/when-sign-up-parts-a-and-b.html

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Social Security Increase payments by .03% for 2017

Woo-hoo!!! Social Security has increased its payments for 2017 by --- wait for it --- .03% for 2017. That means someone who was on SSI and received $733 per month in 2016 will receive a $2 per month increase in 2017. With monthly benefits soaring to $735 per month, we remind you "don't spend it all in one place!" Meanwhile, the payroll amount subject to Social Security taxes has increased to $127,200.

http://blog.ssa.gov/an-increase-in-social-security-benefits-in-2017/

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Medicare Covered Home Health Services

Medicare Home health services

How often is it covered?

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Georgia changes method for awarding home and community based services

As of July 1, 2016, the Georgia DHS is changing the way Home and Community Based Services are awarded.

Home and Community-Based Services are services that help older Georgians live safely, healthily and independently in their communities. The services are funded through the Older Americans Act and include home-delivered meals, personal care assistance, homemaker services and respite care.

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Medicaid Planning: Don't try this at home

If you think Medicaid is confusing, you have some good company. A number of federal judges have arrived at the same conclusion. The following quote appears in Cherry v. Magnant, 832 F. Supp. 1271 (S.D. Ind. 1993):

The federal and state Medicaid statutes have been described as the regulatory equivalent of the "Serbonian bog." See John Milton, Paradise Lost, bk. 2, 1.592 ("A gulf profound, as that Serbonian bog Betwixt Damiata and Mount Casius old, Where armies whole have been sunk."). These regulations have also been characterized as "almost unintelligible to the uninitiated," Friedman v. Berger, 547 F.2d 724, 727 n.7 (2nd Cir. 1976) (Friendly, J.), cert denied, 430 U.S. 984, 52 L. Ed. 2d 378, 97 S. Ct. 1681 (1977); as an "aggravated assault on the English language, resistance to attempts to understand it"; Friedman v. Berger, 409 F. Supp. 1225, 1225-26 (S.D.N.Y. 1976); and by this circuit as "labyrinthinan." Roloff v. Sullivan, 975 F.2d 333, 340, n. 12 (7th Cir. 1992).

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The cost of nursing home care: Could it be as high as $730,000?

On October 16, 2015, USA Today reported (see link below) that nursing home care could run as high as $730,000. It told the story of Randy and Mary Kaump, who care for Randy's 97 year old monther, Janis. Janis has been a nursing home resident for four years, paying $13,000 per month. So far, she has depleted her savings, with Randy and Mary chipping in an additional $100,000 of their own money. In Georgia, the cost of care is hovering around $7,000 per month, so the bills are lower. Unfortunately, for most families $7,000 per month isn't nearly low enough.

Stories like this are all too common, but even more common is the story of a spouse depleting his or her savings to pay for a sick spouse's care. Although there is nothing wrong with paying for your own care, most people don't have that much to fall back on so paying for care could mean the healthy spouse has nothing to use for his or her own retirement needs. Would it make a difference if you knew there's help out there?

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Using mySocialSecurity

Social Security recently announced that you can use your online account to get a replacement Medicare card if your card is lost or damaged. You can also get statements from Social Security regarding your earnings, and estimate regarding future benefits.

Among other things you can do, you can get a letter with proof of your benefits. You can manage your account, change your address, start or change your direct deposit, and get a replacement SSA-1099 or SSA-1042S for your taxes.

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Should I get divorced before I apply for Medicaid?

In hindsight, people might have acted differently. That could be the case with the participants litigating Colonial Park Care Center, LLC v. Dep’t of Public Works, 2015 Pa. Commw. LEXIS 406 (July 21, 2015).

In March, 2012, John Matjasic was admitted to Colonial Park, a nursing home. John was 77 years old at the time. In 2007, John had a stroke, after which he resided with his wife and daughter. Although the facts in the case are less than clear, it appears like John and his wife were separated prior to the stroke. In 2012, John had a seizure, which led to the nursing home admission.

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