Elder Law and Medicaid Planning Attorneys Serving Westchester County and the NY Metro Area
Amoruso & Amoruso LLP advises clients regarding how to obtain public benefits, including Medicaid. In fact, we are at the forefront of creating strategies and instruments to help seniors obtain the long-term care they need while preserving and protecting assets. Michael Amoruso is a past-chair of the Elder Law Section of the New York State Bar Association and he is past-president of the National Academy of Elder Law Attorneys. We can help you plan in advance for the possibility of needing long-term care in the future and/or help you obtain public benefits to pay for your care.
Our firm develops personalized, comprehensive plans for clients and their families as loved ones age, including the best use and management of personal and financial resources to meet their long-term objectives, exploring all home-based care options as a first priority when appropriate, and easing transitions in the event a facility placement is required.
Long-Term Care Insurance
Amoruso & Amoruso LLP advises and assists clients in planning for and purchasing long-term care insurance, a vital asset preservation tool. Long-term care insurance can reduce the financial risk of long-term disability and provide financial security for loved ones.
Home and Community-Based Medicaid
Many clients are unaware that Medicaid also provides generous long-term home care services. Through a variety of programs that are administered by the Department of Social Services, residents may qualify for Medicaid funding even though they remain at home or in an Assisted Living Facility (ALF) and, in many cases, need not enter a skilled nursing facility.
Amoruso & Amoruso LLP represents the best interests of our clients who most often would prefer to remain at home with assistance or in the more social environment of an ALF. Therefore, we are well-versed in these programs and discuss them as an integral part of our planning process.
For residents of New York State, it is important to note that a look back period for Community Medicaid is slated to take effect as early as January 1, 2022. (The start date for the look back period has been delayed several times and could be delayed again.) This means that if an applicant made any non-exempt transfers six months prior to the start of the look back period, he or she will be subject to a period of Medicaid ineligibility (known as the penalty period). During the penalty period, the applicant will have to pay for necessary care out-of-pocket.
Given that the median cost of home care in New York is $50,000 per year, this could prove financially devastating for many families.
With timely planning, our attorneys can help preserve a portion of your life savings against the new transfer penalty. Asset protection tools like irrevocable trusts and promissory notes, as well as innovative gifting and spenddown strategies, can be used to preserve your hard-earned assets while still protecting your eligibility for Community Medicaid.
Managing a Community Medicaid Crisis
When a person requires home or assisted living care and is informed that he or she is ineligible for assistance from Medicaid to cover the cost, it precipitates what is often called a Community Medicaid crisis. If you or someone you love is facing a Community Medicaid crisis, we will address the situation immediately and help you get the Medicaid assistance you need as quickly as possible. (We also provide Medicaid crisis planning for those who require immediate nursing home care.)
The attorneys at Amoruso & Amoruso LLP are knowledgeable and experienced in filing and gaining approval for all types of Medicaid applications. Our proven record of success exemplifies the superior service and specialized knowledge we provide to our clients. We maintain excellent working relationships with case workers, perform all follow-up work, and keep abreast of agency and statutory modifications and rule-makings.
We constantly are interpreting the program and policy manuals which contain nuanced information about the application process. Furthermore, we work together with area facilities to achieve mutually beneficial results for both our clients and the facilities. From the facility, case manager, financial planning, agency, and legal professional perspectives, our reputation is unmatched.
Patients' and Residents' Rights
Nursing Home and Assisted Living Facility Residents' Rights
We are strong advocates for our clients who reside in facilities or who are entering a facility for the first time, and their families. We are discrimination watchdogs and pay special attention to the starting points of mistreatment or inferior service. These services include source of payment, resident lifestyle preferences, providing necessary services, limits on use of physical restraints, use of psychoactive medications and feeding tubes, visitors’ rights, Admission Agreement prerequisites, and arbitration claims.
In addition, we participate in care plans for our clients and their families. Care plans address an individual’s particular needs and preferences. Too many families do not have the benefit of an advocate at the care plan meeting, creating a potential for dissatisfaction and premature discharge. We guide our clients to ensure a safe and healthy discharge so they can succeed in the community.
Hospital Discharge Planning
Often the most stressful time for a family is learning that their loved one is being discharged from a hospital to a nursing home or the home environment within 24 hours. Facing the shock of discharge before the family feels discharge is appropriate leaves loved ones scrambling to find the most suitable nursing home or home care agency to protect the quality of life of their loved one. At Amoruso & Amoruso LLP, we have vast experience in preventing a premature discharge and in ensuring the proper coordination of care from the hospital to the nursing home or home setting. Equally important, Amoruso & Amoruso LLP’s amicable relationships with nursing homes and home care agencies eases the stress experienced by the family during the discharge process.
Crisis Planning: Gift and Loan Strategy
Amoruso & Amoruso LLP is nationally recognized as a leading law firm for implementing a successful Gift and Loan asset preservation plan. In a post-Deficit Reduction Act of 2005 (“DRA”) world, asset preservation in the crisis plan fact scenario hinges upon dividing the client’s estate into two shares, namely, the gifted share and the DRA compliant promissory note share. The objective is to preserve as much of the gifted share as possible while utilizing the DRA compliant promissory note share as an income stream to contribute toward the cost of care during the Medicaid penalty period caused by transferring the gifted share. It is important to note, however, that this strategy is only appropriate in the situation when the client is in need of immediate institutional level care or possibly home care if New York State implements a 2 ½ year lookback period for Community Medicaid. This is due to the fact that the DRA mandates that the Medicaid penalty period (“Penalty Period”) on the transfer of the gifted share does not start until the person files an application for Medicaid and would be eligible for such coverage except for the resulting Penalty Period. This is the point in time that the individual is receiving services, and, Penalty Period aside, the individual is otherwise financially eligible for institutional Medicaid (i.e., non-exempt assets < $15,900 for 2021 and available monthly income < medical expenses). If the client meets the level of care requirement and has monthly income that is less than the monthly cost of care, the transfer of the gifted share and the DRA compliant promissory note share out of the client’s estate will render the client “otherwise eligible,” thereby triggering the penalty period for the gifted share.
The computation of the gifted share and the DRA compliant share requires a careful balancing of the desire to preserve the client’s assets, the need to obtain otherwise eligible Medicaid status, and the ability to ensure payment for the client’s care during the resulting Penalty Period.
The key is that the DRA compliant promissory note share will return an income stream coupled with the client’s income (i.e., Social Security, pension, other income) that is slightly less than the private pay rate for the cost of care and will continue paying until the Penalty Period expires. At that point, a significant portion of the gifted share is preserved and the client is eligible to receive Medicaid benefits.
It should be noted that the strategy also may be used to correct a post-DRA gift made by the client made prior to meeting with our law firm. In such a case, where a return of the previously gifted funds is not available, Amoruso & Amoruso LLP’s focus will shift from determining the gift share (since the client already made the gift) to calculating the appropriate payback timeframe of the DRA compliant promissory note to obtain “otherwise eligible” status, trigger the penalty on the previously made gift, and ensure a payment stream during the Penalty Period.
This strategy also can be employed to convert excess resources of a community spouse into an income stream, thereby potentially protecting the community spouse from a spousal support lawsuit for excess resources by their county.
Asset Preservation Planning: Personal Service Agreements
Adult children or family members who live near their aging relatives often act as caregivers and/or providers of personal services. Some of the services they provide include:
- Transportation to and from doctor appointments
- Aiding in daily care
- Paying bills and managing households
- Running errands
- Arranging social time with friends
- Communicating with medical and other types of professionals
- Coordinating and communicating with other family members
These caregivers/providers generally expend a great deal of time and energy performing these tasks, often to the exclusion of gainful employment, their immediate family’s needs, and their own independence. The law recognizes the value of these services by the caregiver/provider to the aging relative, who is able to remain in the community longer, and to Medicaid, which expends less money as a result.
In such situations, Amoruso & Amoruso LLP often recommends that the aging relative and the caregiver/provider enter into a special contract, called a Personal Service Agreement, which we draft for our clients. Through a properly negotiated and executed Personal Service Agreement, caregivers/providers are compensated for their time by the aging relative they assist. The payment for the services may either be lump sum or periodic. The payments are considered income to the caregiver/provider and must be reported as such on annual tax returns.
Time is of the essence as payment for past services is not permitted. The payment pursuant to a Personal Service Agreement is a transfer for compensated value and does not result in a penalty period if and when the aging relative applies for Medicaid.
Asset Preservation Planning: Purchase of Life Estate
A life estate is an interest in real property which gives the life estate holder the legal right to live in the property during one’s lifetime. This is considered advantageous for many of our clients who wish to remain in their homes without fear of being forced to leave had they transferred the real property outright (i.e., to their children).
Purchasing a life estate in another person’s property is a legitimate way of spending down and preserving one’s assets for the purpose of achieving Medicaid eligibility. Under Federal law, a purchase of a life estate will not create a penalty period provided that the individual resides in the property for a period of one year after the purchase. For example, a parent could purchase a life estate interest in the home of a child and live there for one year. Furthermore, the value of the life estate interest is zero for Medicaid eligibility purposes.
Asset Preservation Planning: Irrevocable Trusts
Irrevocable trusts may be used by grantors who wish to protect their assets from creditors and are ready to relinquish control over their assets to a loved and trusted family member. These trusts may be set up so that the grantor continues to receive the income from their assets in order to maintain their daily lifestyle or, if income is not needed, it is allowed to accumulate in the trust. This trust works well for seniors who do not typically access the principal of their assets and who are happy to turn over the management of the assets to the family member(s) who will inherit the assets when they die. The irrevocable trust is an excellent legal vehicle that allows the senior to secure government financial assistance to pay for costly long-term care (after a period of time lapses) and preserve his/her assets for their loved ones. If other sources of income provide sufficiently for the individual’s daily lifestyle expenses, then the income produced by these assets can remain in the trust and be added to the growing principal and will never have to be used to pay the grantor’s expenses. Furthermore, the assets in the trust typically remain intact throughout the grantor’s life to ensure the money will be there for emergency purposes while the grantor remains alive.
An irrevocable trust also is used to prevent creditors of the beneficiaries of the trust from accessing assets for attachment purposes and provides for multi-generational legacy planning so grandchildren, great grandchildren, and other descendants also receive inheritances and remembrances of the grantor. Tax planning also is accomplished through the use of this trust.
An irrevocable trust also is a useful way to plan for one’s homestead property. Under Federal law, the equity in a home is limited to $906,000 in New York (2021). This home equity cap can be addressed by placing the home into an irrevocable trust, so that the value of the home is no longer considered when determining one’s Medicaid eligibility. Another advantage of this approach is that it allows for the sale of one’s home during lifetime, without jeopardizing the individual’s eligibility for Medicaid benefits.
Asset Preservation Planning: Spenddown Planning
Amoruso & Amoruso LLP assists clients in spending down their assets to achieve Medicaid eligibility. This may include a very simple spenddown plan involving the purchase of prepaid funeral arrangements with the remainder of assets being spent down on the individual’s cost of care. In fact, many of our clients retain us to handle the filing of a Medicaid application without seeking asset protection (either because there are insufficient assets or the clients prefer to spend the money down on the individual’s long-term care needs). The Medicaid rules and regulations are notoriously complex and we strive to give our clients peace of mind knowing that their loved one’s Medicaid application will be handled by us. At an average cost of $13,000 per month for New York State nursing home care, we understand our clients’ desire to have someone guide them through the Medicaid application process.
We have established relationships with caseworkers at a number of New York State Departments of Social Services. This allows us to process applications more efficiently and address issues in connection with establishing a person’s Medicaid eligibility directly with a caseworker.
We also counsel clients on more complex spenddown plans which require advance planning and other legal documents to implement. These plans may involve some form of trust, personal care contract, or purchase of income-producing real estate.
Finally, we can accelerate an individual’s Medicaid eligibility through a transfer of asset gifting program. This type of spenddown, typically referred to as “crisis planning,” can be an effective way to establish a person’s Medicaid eligibility where other alternatives are not viable.
One of the most significant changes in Federal law governing Medicaid is the requirement to file a Medicaid application in order to trigger the running of a penalty period for Medicaid eligibility purposes. Another application must also be filed once the penalty period has expired and benefits are desired. This dual Medicaid application requirement has increased the complexity of the Medicaid application process. Amoruso & Amoruso LLP assists clients in navigating this process to achieve the best results possible.
Discover the benefits of our comprehensive, holistic approach to Medicaid and long-term care planning. From White Plains, NY to Greenwich, CT and the surrounding area, please contact us at your earliest convenience to schedule an appointment to discuss your particular needs and goals.