Recent GAO Report Finds Only Five Percent of Medicaid Applicants Transferred Assets to Qualify For Medicaid

In May 2014, the U.S. Government Accountability Office ("GAO") released the results of a study conducted to determine "the extent to which individuals may be using available methods to become eligible for Medicaid coverage for long-term care."

The GAO reviewed 294 approved Medicaid applications filed in Florida, New York, and South Carolina to determine what methods, if any, Medicaid applicants are using to attain eligibility for Medicaid long-term care services. As part of the investigation, GAO researchers made undercover calls to 17 law firms whose websites specified that the firms assisted consumers with Medicaid planning. The callers pretended to be adult children looking for information on how to preserve their parents' assets when seeking Medicaid coverage on behalf of a parent.

Upon conclusion of the research, the GAO issued its report to Congress.  Here are some of the key findings:

• Only five percent of all applicants had transferred assets for less than fair market value, with the median amount being transferred of $24,608, with the highest figure of $296,221. Of those transferring assets, all but one of the cases involved a New York applicant (the other was in South Carolina).
• Thirteen applicants used the spousal refusal technique to allow the community spouse to retain assets.
• Sixty-five percent of the applicants had annual gross incomes of $20,000 or less, while only five percent had annual gross incomes exceeding $50,000.
• Only two percent of the applicants used the "half-a-loaf" technique that involves gifting some assets (typically about half) to family members with a loan used for the remaining assets.  This technique results in a reduction of the Medicaid "penalty period" for asset transfers and results in the preservation of a portion of the Medicaid applicant's assets.
• Five percent of the applicants had entered into personal service contracts that permit payments to family members for the care of an elderly or infirm parent, with the payments being exempt from the imposition of a Medicaid penalty period.

The entire GAO report can be found here.

New York Appellate Court Affirms Determination that Impostion of Medicaid Penalty Period Was Proper

It is a black-letter rule that all non-exempt transfers of assets for less than fair-market value that are made within five years of applying for Nursing Home Medicaid coverage will result in the imposition of a Medicaid "penalty period."  One exception to the transfer penalty rules are transfers made "for a purpose other than to qualify for Medicaid.  When other exempt transfers (such as transferring assets to a spouse) are not available, this "catch all" exception is frequently argued by Medicaid applicants seeking to avoid the imposition of a Medicaid penalty period.

Such an argument was made in Corcoran v. Shah, which was recently before the New York Supreme Court's Appellate Division for the 4th Judicial Department.  In Corcoran, a Beatrice Corcoran and her husband had transferred $176,000 to family members.  Within five years of those transfers Mrs. Corcoran applied for nursing home Medicaid coverage, and the state imposed an 18-month Medicaid penalty period.

In challenging the state's determination, Mrs. Corcoran argued that the transfers were not in fact made for the purpose of qualifying for Medicaid and thus fell under that exception to the Medicaid penalty rules.  In  its June 20th, 2014 decision rejecting Mrs. Corcoran's argument, the Court noted that Mrs. Corcoran was required to rebut the statutory presumption that her transfer of assets "was motivated, in part if not in whole, by ... anticipation of future need to qualify for medical assistance" (citation omitted). 

The court noted that the evidence showed that Mrs. Corcoran had suffered from mobility issues for several years prior to the filing of the Medicaid application, establishing that she was long at risk for needing long-term care.  In addition, the court pointed out that there was no proof that Mrs. Corcoran and her husband had established a "pattern of giving," which, under the case law, has been frequently cited as an essential element to rebut the presumption that asset transfers made within the 5-year Medicaid look back period were made to avoid an asset spend down for Medicaid purposes. 

The brief opinion can be read in its entirety here.

U.S. Supreme Court Denies Bankruptcy Protection To Inherited IRAs

(I apologize for hot having posted for awhile ... it's been rather busy!)

In a 9-0 opinion issued today, June 12, 2014, the U.S. Supreme Court ruled that an inherited IRA is not an exempt asset for purposes of the federal Bankruptcy Code (11 U. S. C. §522(b)(3)(C)).  The court held that a traditional or Roth IRA is exempt from bankruptcy because, under the statute, a true retirement fund is intended to provide the account owner with a source of funds for sustenance "to provide for their basic needs during their retirement years." 

In contrast, the Court ruled that an inherited IRA has a number of characteristics that differentiate it from a traditional IRA, particularly the requirement that withdrawals from an inherited IRA must begin no later than the year after the original account owner's death, "no matter how far [the inheriting beneficiary] is from retirement."

For the past couple of years we have been recommending to our clients with large retirement accounts (i.e., in excess of $250,000) that they consider using a "stand-alone retirement trust" as a beneficiary of their retirement accounts, rather than having children or other beneficiaries inherit the IRA in their own names.  One reason for that recommendation has been out of a concern as to how accessible the IRA might be for the creditors of those who will inherit a decedent's retirement account.  After today's Supreme Court decision, our concern has proven to be justified, and the use of stand-alone retirement trusts will be more important than ever.

NY Court Invokes "Hardship Exception" for Medicaid Approval

Most people are familiar with the rule which provides that most types of asset transfers made during the 5-year "look back" period prior to applying for nursing home Medicaid coverage will result in a Medicaid "penalty period." Any such non-exempt asset transfers during the look back period will result in the Medicaid applicant being rendered ineligible for Medicaid coverage of their long-term health care costs for a period determined by calculating the amount of total non-exempt transfers made during the look back period, divided by the "Regional Rate" determined annually by the New York Department of Health.

For example, the 2014 Regional Rate for the "Northern Metropolitan" Region encompassing Orange, Sullivan, Rockland, Dutchess, Ulster, Putnam and Westchester counties is $11,137 per month.  If a Medicaid applicant made total transfers during the look back period of $100,000, the resulting period of Medicaid ineligibility is approximately nine months ($100,000 / 11,137 = 8.97 mos.).  Since a person cannot have more than $14,550 of countable resources for the penalty period to even begin to run, nursing homes in which Medicaid applicants reside are often left chasing those persons to whom the asset transfers were made -- typically the resident's children -- to recover the transferred assets so as to cover the cost of the resident's nursing home care during the penalty period.

However, there are many instances where assets transferred during the look back period cannot be readily recovered.  Often the children or other recipients have spent the money, and if they don't have other assets themselves, they will likely be "judgment proof".  In such cases, the nursing home's only option may be to seek Medicaid coverage on their resident's behalf under the "under hardship" exception to the Medicaid penalty rules that is incorporated in the federal and New York State regulations.

In the recent case of In the Matter of Tarrytown Hall Care Center v. Mcguire, a nursing home was able to convince the Appellate Division for the 2nd Department that Medicaid coverage was improperly denied by the Westchester County Department of Social Services.  In that case, Margaret Traino lived at the nursing home for almost three full years.  Because she had made gift transfers during the look back period, there was a penalty period imposed (the court's published decision does not state for how long).

The nursing home filed an Article 78 petition requesting that Medicaid coverage be provided notwithstanding the gift transfers because of the "undue hardship" exception.  As the court stated, undue hardship is determined to occur, "where the institutionalized individual is otherwise eligible for Medicaid, is unable to obtain appropriate medical care without the provision of Medicaid and is unable to have the transferred assets returned."

The court ruled that in this particular instance the nursing home provided ample evidence that each prong of the "undue hardship" test was demonstrated by substantial evidence, and therefore ordered the Westchester Department of Social Services to grant the nursing home's application on the resident's behalf.

Big Changes for New York's Estate Tax

On April 1, 2014, Governor Andrew Cuomo signed into law the first significant changes to New York’s estate tax in almost 15 years. The new rules will further reduce the number of New York estates that will be subject to a state estate tax.  But for the wealthiest New Yorkers, the new legislation may lead to a more significant estate tax burden than would have been in effect under the prior rules.

           

First, the good news.  From 2000 through April 1, 2014, New York’s estate tax exemption had remained fixed at $1 million per person. During the same time period, the federal exemption had increased from $1 million to the current exemption amount of $5.34 million per person. Since many states do not have a separate state estate tax, the increasing divergence between the New York exemption and the federal exemption was seen as creating an incentive for New Yorkers to relocate to states (such as Florida) that do not have an independent state estate tax.

           

With an eye towards being more competitive with other states, the increase in the New York State estate tax exemption is being phased in over five years as follows:

           

           For deaths occurring between:

• April 1, 2014 to March 31, 2015 -- $2,062,500
• April 1, 2015 to March 31, 2016 -- $3,125,000
• April 1, 2016 to March 31, 2017 – $4,187,500
• April 1, 2017 to December 31, 2018 -- $5,250,000

Beginning in January 1, 2019, the New York estate tax exemption will be indexed for inflation to match the existing federal exemption.

           

While the new law provides immediate and rapidly accelerating relief for most New York estates, estates of decedents with assets in excess of the then-applicable exemption may be in for a rude surprise because of what practitioners are referring to as the estate tax “cliff”.  Specifically, if the decedent’s taxable estate is more than 105% of the New York exemption then in effect, the result will be the loss of the entire applicable exemption.

           

For example, if a person dies July 1, 2018 with a taxable estate of $5,500,000 (which is just below 105% of the $5,250,000 basic exclusion amount then to be in effect), the estate will be able to use the applicable credit of $420,800, resulting in a New York estate tax of $30,000.  If, however, the decedent’s taxable estate was instead $5,513,000 – that is, just $13,000 more than the taxable estate in the prior example, but more than 105% of the $5,250,000 basic exclusion amount then in effect – the credit of $420,8000 is rendered useless, resulting in a whopping New York estate tax obligation of $452,360.  Thus, the bizarre result would be that for two taxable estates having just a $13,000 difference in value, the additional tax paid by the larger estate would be $422,360!

A further twist is that gifts made within three years of death, if made between April 1, 2014 and January 1, 2019, will be added back to the decedent’s taxable estate unless the decedent was not a New York resident at the time the gift was made. This rule applies even to gifts of real estate and tangible personal property located outside of New York State, even though such property would not have been subject to New York estate tax had the decedent owned the gifted property at the time of her death.

The bottom line: while the estates of a growing number of New Yorkers will be exempt from the obligation to pay New York estate tax, the wealthiest New Yorkers may have even greater incentive than before enactment of the new rules to establish residency in a state that does not impose a state estate tax.

Beware of Potential Liability When Signing a Nursing Home Contract

“Crisis” Medicaid planning typically involves the transfer of assets from the person seeking nursing home Medicaid coverage to one or more family members. While the transfer of assets to a spouse or disabled children constitutes “exempt” transfers that do not impact the donor’s Medicaid eligibility, transfers of assets to non-disabled children or other persons during the five-year “look back” period will result in a period of Medicaid ineligibility for those seeking nursing home Medicaid.

Even in a crisis planning situation, however, implementing a technique known as “half-a-loaf” planning makes it possible to preserve at least one-half of a nursing home resident’s assets when seeking Medicaid coverage for the cost of their care.  Unfortunately, too many people do not seek qualified professional advice when applying for Medicaid for a loved-one, and too often make assets transfers that result in significant financial penalties for not only the person applying for Medicaid coverage, but also for other family members to whom asset transfers were made.

A recent New York court case, Aaron Manor Rehabilitation and Nursing Center, LLC v. Diogo, decided on February 14, 2014, highlights this dilemma.  In that case, Grace Diogo was admitted in 2011 by her niece, Annette Louis, to the Aaron Manor nursing home.  Ms. Louis, who Ms. Diogo had designated as power of attorney, signed the nursing home admission agreement on Ms. Diogo’s behalf.  Under the terms of the admission agreement, Mr. Louis agreed to use Ms. Diogo’s assets to pay for Diogo’s cost of care, and to apply for Medicaid for Ms. Diogo.

In 2009 – two years before Ms. Louis signed the nursing home admission agreement for her aunt – Ms. Diogo gave Ms. Louis and her mother $24,000 apiece.  Since those transfers constituted non-exempt transfers that were made during the 5-year look back period, they resulted in a Medicaid “penalty period” of approximately 5 months, during which time the nursing home was not paid by either Ms. Diogo (who by 2011 was essentially out of money), or Medicaid.  

Evidently not pleased to be left holding the bag, the nursing home sued Ms. Diogo and Ms. Louis for over $62,000, asserting a number of contractual and tort claims including breach of contract, unjust enrichment, and fraudulent conveyance. Central to the nursing home’s position was the signed nursing home agreement that required Ms. Diogo (and her agent, Ms. Louis), to use Ms. Diogo’s funds to cover the cost of care. Among other claims, the nursing home asserted that the 2009 transfers constituted a breach of that promise, since those transfers during the penalty period left Ms. Diogo unable to cover the cost of her care during the resulting Medicaid penalty period.

In its recent decision, the Appellate Division for the Fourth Judicial Department denied the nursing home’s motion for summary judgment, stating that Ms. Diogo and Ms. Louis had raised genuine issues of fact as to whether the 2009 transfers actually constituted a “fraudulent conveyance,” and whether Ms. Louis had in fact acted in compliance with the nursing home agreement.  The matter was returned to the trial court for further proceedings, which likely will include a trial on the merits unless the parties are able to settle the case before trial.

But even though Ms. Diogo and Ms. Louis’ may have “won” the case at the appellate level, in a practical sense they have already lost.  They (most likely, Ms. Louis) have almost certainly spent many thousands of dollars on legal fees; and, if they don’t settle the case anytime soon, many more thousands of dollars in fees will be sure to follow, with no guarantee that they will prevail at trial.

           

All of this could have been avoided had Ms. Diogo and Ms. Louis retained experienced legal counsel to design and implement an appropriate “crisis” Medicaid plan to preserve as much of Ms. Diogo’s assets as possible.  An elder law attorney might have recommended a technique known as “reverse half-a-loaf,” under which a portion of the funds gifted in 2009 would have been returned to Ms. Diogo.  The returned funds would then have been loaned to Ms. Louis and repaid under a Medicaid compliant promissory note.  Such a strategy would have ensured that there were sufficient funds to cover a shortened Medicaid penalty period, while preserving at least a portion of the previously gifted assets.  Under that strategy the nursing home would have been paid from the loaned funds during the Medicaid penalty period, with no gap in payment since Medicaid would have begun paying the nursing home immediately upon the conclusion of the penalty period.  

While there is a cost to hiring an elder law attorney to design a crisis Medicaid plan, I can say with confidence that the cost pales in comparison to the cost of litigation, while producing superior results. As Ms. Diogo and her family discovered the hard way, it is rarely a good thing to see you name appear in a court caption!

Why are the Elderly are so Susceptible to Scams?

Here's a recent Forbes column that explains why the elderly are more likely than others to fall prey to telephone and internet scams.  Bottom line:  adult children and other family members must stay in close contact with their elderly loved-ones and be aware that the elderly family member is almost certain to be repeatedly targeted for scams.  The parent or loved-one should be repeatedly reminded to be skeptical if they are offered any type of deal on the phone or the internet by someone they don't know.  And, they should be told to report any suspicious activities to the child or other trusted family member.