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Medicaid Care Planning with an Elder Law Attorney

McNair Dallas Law

Medicaid Planning Workbook

Learn how an elder care attorney can help you create a strategy to provide asset protection and access to long-term care with Medicaid planning.

As the demand for, and costs of, long-term care services grow nationwide, the Medicaid crisis for those receiving home care has come into sharper focus. The implementation of the federal Home and Community-Based Services (HCBS) final rule in March 2023, coupled with the end of unique pandemic-era funding sources and broader eligibility, new challenges have emerged for seniors and disabled individuals who rely on services and supports for their daily living.

In October, U.S. Senator Bob Casey (D-PA), chairman of the Special Committee on Aging, introduced a proposed Senate Bill called The Home and Community-Based Services (HCBS) Relief Act of 2023. By providing emergency funding to state Medicaid programs over two years, the bill would address the significant home-based care workforce shortage and greatly benefit disabled and senior Americans.

Long-term care, often essential for seniors as they age, can be financially burdensome. Medicaid offers a lifeline, covering costs that private health insurance or Medicare typically do not. Understanding this impact and developing Medicaid planning strategies are cornerstones of elder care planning, which is as important as retirement planning. Protecting your assets while qualifying for Medicaid is a delicate balance. An experienced elder law attorney can provide advice on legal strategies, such as using trusts or other legal instruments to safeguard your assets according to Medicaid planning purposes.

What are Home and Community-Based Services (HCBS)?

In 2014, the federal Centers for Medicare and Medicaid changed their Home and Community Based Services (HCBS) regulations to ensure that Medicaid beneficiaries can receive services and support for daily activities in their own home or a community setting rather than in institutions like nursing homes, hospitals, or other isolated settings. Individuals receiving care in an assisted living facility can receive support for daily activities, such as dressing, bathing, meal preparation, taking medication and mobility assistance, while still maintaining their autonomy.

These programs serve a variety of targeted population groups, such as seniors and people with intellectual or developmental disabilities, physical disabilities and/or mental illnesses.

Why Do States Need Additional Funding to Support HCBS?

A press release from Senator Casey’s office cites a 2022 report examining the challenges in providing the HCBS that most elderly and disabled Medicaid beneficiaries seek, noting that over 70 percent of direct home and community-based service providers have high staff turnover and cannot fill vacancies. The lack of a sufficient direct care workforce results in reductions in HCBS and the ability of beneficiaries to remain in their home for as long as possible.

How Do the Updated HCBS Regulations Affect the Medicaid Care Crisis?

To receive Medicaid reimbursement from the federal government for home health care and community-based services, states must ensure that the services and support are delivered in settings that meet the new regulations. Medicaid considers the new definition of HCBS as services and support provided in residential settings that ensure a resident’s personal autonomy, community integration and choice of services received. For instance, an HCBS setting must give the residents privacy in their living or sleeping units that ensure entrance doors are lockable by the individual, with only appropriate staff having keys to doors as needed and a choice of roommate in that setting. Assisted living residents whose Medicaid qualification occurs after they have been paying privately for services face additional issues.

What Types of Issues Exist for Medicaid Beneficiaries in Assisted Living Facilities?

One of the most contentious issues is the refusal by assisted living facilities to accept a change in payment terms from long-standing residents who become eligible for Medicaid benefits and transition from private pay. As the new resource explains, this stance is ethically questionable and on unstable legal grounds. Federal law stipulates that Medicaid-approved residents should not be charged privately once they qualify for Medicaid. However, complications arise due to varying state laws and policies.

In Texas, there has historically been very little Medicaid funding for Assisted Living care.  Waiting lists are long, and availability is scarce.  The HCBS Relief Act is intended supplement State funding for this level of care, so that more people can receive care at home or in a more residential setting.

Certain states permit “duration of stay” provisions, meaning residents might be obligated to pay out-of-pocket for a set period before Medicaid kicks in. However, hiring an experienced elder law attorney can provide crucial guidance, ensuring that your rights are not compromised by such agreements and advocating for your entitlements under Medicaid.

Would a Resident Face Eviction Based on Medicaid Status?

Another alarming trend is eviction based on a resident’s Medicaid status. Protections against such actions are woefully inadequate in many states, despite federal regulations mandating minimum eviction protections for Medicaid recipients in assisted living facilities. Residents should have comparable protections to those found in landlord-tenant laws, either directly or through equivalent agreements.

However, the reality is that states have variations in implementing these rules, leading to significant discrepancies in resident rights across the country. Relying on an elder law firm to help advocate for resident rights becomes indispensable here, ready to enforce these protections and challenge unlawful evictions.

How Many Americans Use HCBS?

The demand for long-term care services and support is growing exponentially as the population ages. A significant portion of individuals with disabilities and older Americans require assistance with daily activities, and they often pay for care services with Medicaid. Together, the combined groups of individuals aged 65 and older and those with disabilities comprise nearly half the U.S. population. However, the workforce shortage in direct care services is reaching crisis levels, causing substantial strains on the system. With the loss of COVID-era funding sources for home-care workers, service providers no longer have a source for hiring or staff retention incentives. In a recent article, the National disability advocacy group The Arc highlights various stories of disabled individuals who rely on HCBS to receive care at home that provides freedoms, like leaving the house and engaging in social activities, that would not be possible if they were living in an institutional setting.

What Would the HCBS Relief Act of 2023 Do?

Without sufficient staffing, service quality diminishes, and programs face the risk of shutting down, prompting the need for legislative intervention. If passed, the HCBS Relief Act of 2023 would bolster community Medicaid funds provided to states, aimed explicitly at stabilizing HCBS service networks and bolstering the direct care workforce. It would empower states with enhanced federal funding to provide greater benefits for direct care workers to increase pay and add benefits, such as paid time off and mileage, as well as funding for family caregivers. The funds could also help decrease or eliminate the waiting lists for HCBS by increasing available care programs.

How Does Medicaid Impact Long-Term Care for Seniors?

Qualifying for Medicaid benefits is often the single most important factor when it comes to long-term care for seniors. While many believe that Medicare will cover their nursing home or assisted living facility costs, the reality is that Medicare’s coverage is quite limited. On the other hand, Medicaid will pay for your care in long-term facilities or in-home care.

For seniors, the implications of Medicaid are profound. It often means the difference between receiving adequate care in nursing homes or being unable to afford the care they require. Elder law attorneys specialize in planning techniques that anticipate these needs and prepare clients accordingly, ensuring that the high cost of long-term care services does not impact their life savings.

What Is Medicaid Planning and Why Is an Elder Law Attorney Crucial?

Medicaid planning is a proactive approach to ensure that an individual can qualify for Medicaid to cover the significant costs associated with long-term care. It involves legal and financial strategies to structure one’s assets and income according to Medicaid regulations. The legal services of an experienced elder law attorney in this process are indispensable.

In the realm of elder law, where state and federal regulations often intersect and change, having a Medicaid planning attorney can help you align your financial strategies with the legal requirements to become eligible for Medicaid. Without professional assistance, many individuals risk becoming ineligible for Medicaid or face spending down their assets unnecessarily.

Planning Ahead with an Elder Law Attorney

Preparing for long-term care is not a mere suggestion but a necessity, especially with the complexities surrounding Medicaid. Consulting with a Medicaid specialist before seeking long-term care services is critical. Medicaid planning can feel like navigating a labyrinth for those with substantial assets. Yet, with the right legal guidance, you can protect your financial legacy and ensure access to the necessary healthcare services.

A Medicaid planning lawyer doesn’t just help with asset protection—they are key in crafting a strategy that balances an individual’s assets and financial security with access to necessary long-term care services. They stay abreast of the changing federal and state regulations, guiding the elder and their family through any shifts that might impact a Medicaid applicant’s eligibility.  Look for someone who has earned the National Elder Law Foundation’s Certified Elder Law Attorney designation.

Protecting Beneficiary Rights in Assisted Living Facilities

In addition, an elder law attorney can help safeguard the rights of Medicaid beneficiaries in assisted living care. By identifying potential issues in this Medicaid crisis, devising advocacy strategies and litigating when necessary, an elder attorney can ensure that residents are not unjustly deprived of their rights or benefits.

The Elder Law Attorney Advantage

McNair Dallas Law is committed to providing clients with up-to-date and comprehensive support to protect your assets from the cost of nursing home care and ensure independence and freedom as you age. Long-term care costs can be financially burdensome. Yet eligibility for Medicaid is complex, involving income and asset limits, among other factors. Our firm can assess your situation and determine your eligibility, ensuring that you access the benefits you need to pay for long-term care, while also protecting your nest egg for your loved ones.

Don’t navigate the complexities of Medicaid and assisted living alone – let our firm be your trusted partner in securing your rights and future.  Contact us today.

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