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Ask Keystone - Past Questions

Ask Keystone - Past Questions

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Question from F. L.:

My question concerns an application for Medical Assistance, specifically, I want to know how to consider a joint bank account or joint CD for which the initial investment has stayed in the account and earned interest for a time frame greater than 5 years. Could only one-half of the total bank account or CD be considered to be an available resource for Medicaid Assistance, or must 100% of the money be included as belonging to the Applicant?

Dear Frank L,

The heart of the issue is “whose asset is it really?” If the Applicant can prove that the co-owner of the asset actually made an initial investment for the portion of the asset titled to the co-owner, then that portion of the asset would not be an available resource for Medicaid.

Question from R.U.:

My mother gave me ownership of her home by legal transfer of deed in December 2010. In May of 2011, my wife and I moved into that home with my mother to care for her. At what point is the home considered free and clear in the event we can no longer care for her and she goes into a nursing facility?

I wish every mother could be so lucky as to have a son and daughter-in-law willing to be a live-in caregiver! Unfortunately, the laws about gifting are strict, the exceptions are narrow and specific, and the evidence needed is real. If it were otherwise, you can only imagine the claims that would be made to get state Medical Assistance worth $100,000 per year and avoid losing the family’s home.

Your mother’s transfer of her home to you was unwisely premature. It was a gift and creates significant family liability until December 2015, 60 months after the date of transfer. If your mother needs to apply for Medical Assistance prior to that date, she will be denied during a penalty period. As an example, if your mother’s home was worth $162,240 when she transferred it to you 3 years ago, and she is otherwise eligible and in need of Medical Assistance today, the Department of Public Welfare would approve her application subject to a penalty period of 20 months ($162,240 home value divided by a penalty divisor of $8,112) during which time your family would need to otherwise find funds to pay, perhaps by mortgaging the home. If you unexpectedly would be sued, divorced, or have refinanced the home in relation to another financial need, you might not be able to return the gift of the home or obtain a mortgage.

A “caregiver exception” exists so that, if the facts as you state them would precede your mother needing Medical Assistance after May of 2013, and a doctor would substantiate that you in fact did provide care that enabled your mother “to reside at home rather than in an institutional care facility,” we could assist you with the transfer of the deed at that time from your mother to you without any penalty period or family liability for doing so.

In the meantime, there are other things that a mother can do to reward adult children who are truly sacrificial caregivers. With an appropriately prepared Care Plan and Caregiver’s Agreement, children can be paid taxable income for their services at fair market rates without creating a gifting problem. In some instances, a life estate is a good strategy. Every set of facts is different.

We can provide specific advice after gathering information in a private consultation.

David D. Nesbit, Esquire

Question from C.W.:

I received this today by e-mail – is it true?

(See response to see e-mail received.)

Your hospital Medicare admittance has just changed under Obama Care.

You must be admitted by your primary Physician in order for Medicare to pay for it! If you are admitted by an emergency room doctor, it is treated as outpatient care where hospital costs are not covered. This is only the tip of the iceberg for Obama Care. Just wait to see what happens in 2013 & 2014!

Beware of Age 76

Today, I went to the Dr. for my monthly B12 shot that I have been getting for a number of years. The nurse came and got me, got out the needle filled
and ready to go then looked at the computer and got very quiet and asked if I was prepared to pay for it. I said no that my insurance takes care of it.

She said, that Medicare had turned it down and went to talk to my Dr. about it.

15 minutes later she came back and said, she was sorry but they had tried every thing they could but Medicare is beginning to turn many things down for seniors because of the projected Obama Care coming in. She was brushing at tears and said, “Some day they too will get old”, I am so very sorry!!

Please for the sake of many good people… be informed please!


At age 76 when you most need it, You Are Not Eligible for Cancer Treatment * see page 272

What Nancy Pelosi didn’t want us to know until after the healthcare bill was passed. Remember she said,
“We have to pass the Bill so that we can see what’s in it.” Well, here it is.

Obama Care Highlighted by Page Number – THE CARE BILL HB 3200


Judge Kithil of Marble Falls, TX – highlighted the most egregious pages of HB3200. Please read this……. especially the reference to pages 58 & 59


** Page 50/section 152: The bill will provide insurance to all non-U.S. residents, even if they are here illegally.

** Page 58 and 59: The government will have real-time access to an individual’s bank account and will have the authority to make electronic fund transfers from those accounts.

** Page 65/section 164: The plan will be subsidized (by the government) for all union members, union retirees and for community organizations (such as the Association of Community Organizations for Reform Now – ACORN).

** Page 203/line 14-15: The tax imposed under this section will not be treated as a tax. (How could anybody in their right mind come up with that?)

** Page 241 and 253: Doctors will all be paid the same regardless of specialty, and the Government Will Set All Doctors’ Fees.

** Page 272. section 1145: Cancer Hospital’s will Ration Care according to the Patient’s Age.

** Page 317 and 321: The government will impose a prohibition on hospital expansion; however, communities may petition for an exception.

** Page 425, line 4-12: The government mandates advance-care planning consultations. Those on Social Security will be required to attend an “end-of-life planning” seminar every five years. (Death counseling..)

** Page 429, line 13-25: The government will specify which doctors can write an end-of-life order.

HAD ENOUGH???? Judge Kithil then goes on to identify:

“Finally, it is specifically stated that this bill Will Not Apply to Members of Congress.

Honestly, it is difficult to know every detail within the Affordable Care Act (ACA), and how details translate to Medicare coverage for our clients. There are several reasons for that. The ACA is over 900 pages long by the most minimal measurement. There are various parts of it that are subject to interpretation by the Center for Medicare & Medicaid Services (CMS). Politicians and television journalists have exaggerated and dramatized both the benefits and deficiencies.

As for your specific questions about whether a primary care physician must admit a patient to a hospital, on a practical basis, we have not even that to be an issue an cannot imagine it to be true The primary issue as far as hospital admission has to do with whether a patient is being held for observation, even on an overnight basis in a hospital room, or actually admitted. The details of that issue are complex. But Medicare pays more for admission than observation. Although hospitals catch the blame and frustration, they are generally following the federal policy as implemented by CMS, which usually has budgetary motives of reducing suspending when it denies Medicare coverage. This emphasis comes from the fact that the American public has neither wanted to pay for the cost of the coverage or private insurance in the past, nor is willing for their taxes to go up in the future. In short, we want more medical care that we are willing to pay for.

When it comes to the cost of health care and the confusion about Medicare, there is plenty to go around; and if we are going to play The Blame Game, it must include consumers and taxpayers at the core. But the text of the email you sent was mostly conservative propaganda taken out of context by someone who probably is a devotee of conservative talk radio and Fox News. I too am a conservative, listen to WHP 580 AM, often watch Fox News, generally am skeptical that government funding to expand social welfare programs is either efficient or affordable, and have doubts about whether the ACA actually will lead to better care. But the baloney that is being fed to you and the American public by conservative media and politicians is excessive and does nothing to provide real alternative answers to very difficult problems that deserve serious attention that they are not getting.

What I would encourage you to do is to obtain the very best Medicare supplemental program that you can afford that considers whatever medication you are taking, develop a good relationship with a primary care physician, appreciate that the time that physician can afford to spend with you in each appointment is limited by CMS and Medicare so you need to get to the point quickly, and develop a portable file of your medical records so that every doctor you see can know what is going on with your total health picture.

Treatment in a hospital emergency room should be only for emergencies. Admission to a hospital is not guaranteed. If a person is really sick or injured and is discharged from a hospital to a skilled nursing facility, there must be three consecutive midnights of admission (not observation status ) at a hospital or Medicare will not pay for care in the skilled nursing facility.

I don’t know if this answers your question, but it is the best and most honest response I can offer.

Dave Nesbit

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Keystone Elder Law

At Keystone Elder Law, we believe that the physical, social, legal, and financial considerations of our clients all intertwine. We utilize an interdisciplinary approach to evaluate each area, which allows for the creation of a plan that addresses the concerns of the individual as a whole as well as the family. To this end, our model of practice includes a Care Coordinator (usually a nurse or social worker), whose expertise complements our team of attorneys.

When the road of life is smooth, decisions about legal and financial matters are easy to push aside for “a rainy day.” Planning ahead, however, will allow for more options as you view the map of where you’ve been and where you want to go. Don’t let a crisis limit your choices or derail your plans.

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