Tag Archives: Medicaid disqualification period

When is a Community Spouse Allowed to Make Disqualifying Transfers of Assets without Adversely Affecting the Institutionalized Spouse?

by: Brian E. Barreira, Esq.

Under federal Medicaid laws and MassHealth regulations, disqualifying transfers of assets (which are usually gifts or below-market sales) disqualify not only the person who makes those transfers, but also that person’s spouse. A prenuptial agreement or postnuptial agreement has no effect on the required disqualification imposed on MassHealth applicants under federal Medicaid law.

Any disqualifying transfers of assets made by a person are problematic because they can disqualify that person’s spouse for the next 5 years, which is the lookback period currently in effect for MassHealth. Therefore, gifts should not be made if a nursing home stay and MassHealth application are likely in the near future, and should especially not be made during the MassHealth application process.

The month after a MassHealth approval for an institutionalized spouse, however, a different set of rules applies. At that point, whatever the community (i.e., at-home) spouse does with real estate and other assets is not treated as having been done by the institutionalized spouse. This letter I received in 2000 from the federal government agency overseeing the Massachusetts MassHealth agency Medicaid letter post eligibility transfer by spouse confirms that a community spouse may transfer assets the month after MassHealth approval of the institutionalized spouse.

Should an Appeal Be Filed If a Denial for MassHealth Long Term Care Is Received?

by: Brian E. Barreira, Esq.

Usually when a MassHealth denial is received, it makes sense to file an appeal within 30 days of the denial date.  To have proof that you appealed timely, it is advisable that the appeal be sent via fax to the Board of Hearings.

In many cases, receiving a MassHealth denial means that the MassHealth eligibility worker requested something (known in MassHealth lingo as a “verification”) and did not receive it on a timely basis.  In those situations, submitting a missing verification during the following 30 days is treated as a new application for MassHealth.  Since a MassHealth application is retroactive for no more than 3-4 months, it is important to determine whether the new application will go back far enough.  If not, an appeal should be filed, and if all of the missing verifications are submitted at an appeal, the original application date will be preserved.

If a denial is received for any reason other than missing verifications, filing an appeal may or may not help the situation.  If there were disqualifying transfers, sometimes an appeal would be futile and a return of the assets to the MassHealth applicant makes more sense.  Sometimes, the denial refers to excess assets and there are financial steps that can be taken to “spend down” the excess assets.

What I have been seeing a lot of lately is a denial that is the result of an overworked MassHealth eligibility worker’s mistake.   This is also a just plain ridiculously stupid MassHealth process now in place, where you send your documents to MassHealth on a timely basis, then MassHealth sends the documents out to be scanned for electronic storage and doesn’t let the eligibility worker know when the documents were received, so the worker issues a denial because the worker doesn’t receive the scanned documents back on time.

When a denial is received and you file an appeal, MassHealth’s own regulations require that most appeals be heard and decided within 45 days.  Unfortunately, at present, it now takes the Board of Hearings 4-5 months just to schedule an appeal.  Nursing homes, which are not being paid during that time, are sometimes filing lawsuits against MassHealth applicants and their families before they even get a chance to have their appeal heard.  Thus, when you receive a MassHealth denial for any reason whatsoever, attaining the services of an elder law attorney within the following 2-3 weeks is now extremely important.  It shouldn’t be that way, but the MassHealth system seems to be out of control at this point.

When Are a MassHealth Applicant’s Intentions Considered in Determining Whether a Disqualifying Transfer Occurred?

by: Brian E. Barreira, Esq.

There are many exceptions to disqualifying transfers in federal Medicaid law that the MassHealth program has been required to implement.   If a potential disqualifying does not fit into the categories of permissible transfers, then MassHealth is required to determine what the MassHealth applicant’s intentions were when the transfer occurred.

One exception to a disqualifying transfer occurs when the MassHealth applicant had made the transfer exclusively for a purpose other than obtaining MassHealth eligibility.  This one situation where ignorance of the law can be an excuse for what was done.  Unfortunately, anybody can claim that he/she didn’t know about the law, so hearing officers expect a compelling case to be made, and if there is even a hint of MassHealth planning or knowledge, they can easily rule against the MassHealth applicant.

Another expectation to a disqualifying transfer involves an attempt to receive fair market value or other valuable consideration.

What Is Considered a Disqualifying Transfer When Applying for MassHealth?

by: Brian E. Barreira, Esq.

Under federal Medicaid law and MassHealth regulations, the past five (5) years of a MassHealth applicant’s assets are scrutinized to determine whether the applicant has made any disqualifying transfers.  As the term indicates, a disqualifying transfer makes the MassHealth applicant ineligible for MassHealth.

A disqualifying transfer is usually a gift (or something similar to a gift) that the MassHealth applicant made in the previous 5 years.   Any transfer that occurred more than 5 years ago (even just 5 years plus one day ago) is outside the Medicaid lookback period, and cannot be considered a disqualifying transfer.  A disqualifying transfer, however,  is not limited to gifts.  To put it as simply as possible, if the MassHealth applicant had ownership of anything on one day and did not have the same ownership the next day, a disqualifying transfer may have occurred.  Thus, any sale for less than fair market value can be a disqualifying transfer.  Paying a child or other relative for services, or even reimbursing them for expenses, can be treated by MassHealth as a disqualifying transfer.  Unrepaid loans can also be considered disqualifying transfers.

Sometimes the lawyers representing MassHealth make unfair stretches of the law.  For example, should a  bad investment be treated as a disqualifying transfer.  In one case that I handled that took 5 years to win, the MassHealth lawyers saw that a MassHealth’s applicant’s husband had made a risky investment that dropped in value.  Those lawyers attempted to convince a judge that he should have foreseen that the investment would drop in value, and therefore he had essentially made a disqualifying transfer.   Fortunately, a full 5 years after the MassHealth application had initially been filed, a Superior Court judge overturned the decision of a fair hearing officer who had sided with MassHeath’s silly argument.

Using Long Term Care Insurance to Cover the Medicaid Disqualification Period

by: Brian E. Barreira, Esq.

Many persons do not become aware of long-term care financing issues (including Medicaid transfer restrictions and the lack of coverage of long-term health care by Medicare and other health insurance) until it is too late to engage in anything other than choosing among bad options.  Some persons, however, have the foresight to engage in advance planning, but cannot afford long-term care insurance, so that need to resort to Medicaid planning.  They often are middle-class persons who own a home and limited funds that they need to live on, and typically their primary concern in engaging in Medicaid planning is to preserve their home for eventual inheritance by their children without losing the right to occupy their home.

Long-term care insurance is often the best solution to the long-term care problem, but if it cannot be afforded on a long-term basis, the only way to preserve the home is to transfer it.  (If the home is not transferred, it can still be deemed exempt upon a Medicaid application, but only during the applicant’s lifetime.  After the death of a Medicaid recipient who was a homeowner, however, an estate recovery claim for reimbursement can be made by the state Medicaid program.)

No matter how the transfer is structured, unless it is made to one of the limited number of permissible transfers under federal Medicaid law and state Medicaid regulations, a 5-year (or, in some cases, greater) period of Medicaid disqualification will result, beginning in the month of the transfer.  For example, suppose an unmarried person transfers a home worth $630,000.00 in a state where the average nursing home cost is $7,000.00. If a Medicaid application is made within 5 years of the transfer, the disqualification period would be 90 months, beginning at the time of the application.  If the application is made more than 5 years after the transfer, under federal Medicaid law no disqualification period would exist.

If the need for a nursing home stay became necessary during the Medicaid disqualification period, private payment of nursing home costs will be necessary, unless the transaction is undone at that point; this process is known in Medicaid parlance as a “cure.”  Since a cure will sometimes result in gift tax complications, it may not be advisable from a tax standpoint.  Further, unless a cure is made, the spouse of an institutionalized person may end up spending all of his/her liquid assets, and thereby become impoverished.

For example, suppose an unmarried person transfers a home worth $270,000.00 in a state where the average nursing home cost is $9,000.00. Medicaid law would then provide for a maximum disqualification period of 30 months if a Medicaid application were filed within 5 years of the transfer. If the transferor needs nursing home care after 5 years have passed, the transferor will be eligible for Medicaid. If the transferor required a nursing home stay after 50 months had passed, he or she would be disqualified for the remaining 10 months of the lookback period. The transferor’s monthly income would pay for part of each month’s cost during the lookback period, but the transferees would have to either undo the transaction or pay for the remaining 10 months, an amount of $50,000.00 in this example.

If the transferees in this example were at all able to pay for the remaining disqualification period, they have a great deal to gain. If they were unable or unwilling to cover nursing home costs during this time and were required to make a full cure of the disqualifying transfer, the transferor would be revested with the $270,000.00 home, and a new plan would be needed to attempt to save something.

One way around these problems would be for the person to purchase long-term care insurance at the time of the transfer. While insurance premiums can be very expensive for people in their 70′s and 80’s, the policy could merely be purchased to eliminate the downside risk discussed above. Thus, the person would purchase the policy with short-term interests in mind, and obtain the smallest benefit necessary to cover nursing home care during the disqualification period.

The transferor’s income and other assets would factor into the determination of the amount of insurance to be purchased. As time went on, the transferor could drop the daily amount of the policy to fit his or her needs, and may even choose to get rid of the policy before the disqualification period expires. Once the disqualification period expires, however, the policy would likely be dropped (unless Medicaid laws had changed and it would be advisable to maintain the policy).

Many persons reject long-term care insurance as a long-term planning measure because the premiums are very expensive, and many persons reject the insurance as a short-term measure for the same reason. If someone is balking at the cost of the insurance, or if they are so concerned about the Medicaid disqualification period that they do not wish to make any transfer, it would perhaps be advisable to involve the transferees in the discussion, as it is their eventual inheritance that is at stake here. When the transferees learn how the Medicaid disqualification period works, they may find it is in their best interests to pay the premiums for the transferor. The transferor may not like the idea of others paying the premiums, but since without this insurance the purpose of the transfer can end up being frustrated by fate, payment by the transferee(s) should at least be considered.