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Elder Care Journey: Part 3 of 7

Parts one and two of this journey can be found here:

As part two of Bill and Sue’s elder care journey ended last week, Keystone Elder Law had helped Bill use the legal rights granted by little known federal regulations to prevent his wife, Sue, from being discharged from the Regal Rehabilitation Center, which is part of an upscale continuing care retirement community (CCRC). Regal was trying to avoid having Sue,
as a relatively young, 68-year-old woman, occupy one of its long-term-care beds, which Regal preferred to reserve for residents who had previously paid significant entry fees to Regal’s CCRC.

Bill was grateful that Keystone Elder Law was able to help him assert Sue’s rights without litigation or dramatic confrontation with the staff of Regal, which would have been upsetting for both of them. He and Sue continued to feel on good terms with Regal’s staff and the care plan they implemented for Sue.

As Sue stayed at Regal, the elder care attorney prepared Bill for the opportunity to restructure the couple’s resources so that they would immediately qualify to submit an application to the Department of Human Services (DHS) on behalf of Sue for Medical Assistance (MA). The MA funds from DHS is what federal Medicaid funding is called in Pennsylvania. Bill was curious
why Regal would not have told him about the ability to obtain Medicaid, but instead told him that he would need to pay $375 per day for care.

The attorney explained to Bill that the regulations related to MA funding would impose a limit on the amount that Regal could charge for its skilled nursing home services. The limits would result in Regal receiving around $50,000 less in revenue per year from a bed that was funded by DHS with MA funds, than Regal would otherwise get from a bed that was paid entirely by private pay. Neither federal nor state regulations related to Medicaid/MA impose any duty on nursing homes to help a resident to qualify for MA early by using legal techniques to accelerate the spend-down of resources which are above the MA limit.

Bill was confused by the process of applying to a state agency for federal money. The MA funds are administered by DHS branch offices, called County Assistance Offices (CAOs), which are located across Pennsylvania and staffed by employees of the Commonwealth. The application instructions said that he could call DHS if he had questions, but he quickly learned that the DHS CAO in Cumberland County has no long-term care caseworkers, and that the office which would process Sue’s application is located 100 miles away.

Bill and Sue had less than $200,000 of countable resources, more than half of which was the face value of Sue’s retirement. Sue had worked for a non-profit organization, which provided a retirement pension in the form of an annuity managed by a third party. The presence of the annuity as an apparent resource for Sue caused her to be ineligible according to Medicaid
regulations. On the surface of the facts, it appeared as if Bill would need to pay over $100,000 privately before Sue could receive MA.

Bill was relieved to learn that there was no question that he would be entitled to keep the house, a car, and his monthly income after Sue was enrolled in the MA program. Keystone’s lawyer help Bill convert what DHS identified as “excess resources” into additional income for Bill that DHS permitted Bill to keep. This allowed Bill to preserve assets, and for Sue to qualify for MA almost immediately.

The trickiest part was that Sue’s retirement annuity could not be totally withdrawn, and the third-party pension fund manager had strict rules which generally restricted Bill’s access to the funds. The lawyer helped Bill use Sue’s new financial power of attorney (POA). The third-party manager accepted the unusual language in the new POA document as legally adequate to permit Bill to restructure his wife’s retirement plan.

Eventually, the third-party manager provided many forms for Bill to complete. The process required more than four hours on the phone with the third-party fund manager over a multi-day period. Both Bill and the third-party manager were impressed that the Keystone attorney understood exactly what needed to be done. It was necessary to be politely assertive at times to
keep the paperwork moving in order to enable the maximum lump-sum to be available quickly to Bill, and create the lowest possible monthly payment for Sue. This strategy was preferred because Sue’s monthly income was required to be paid towards the cost of her care.

Bill had heard from a friend that, once Sue’s care was funded by Medicaid, her care would no longer be as good as the care Regal provides for patients who pay privately. The attorney reassured Bill that his friend was misinformed. If there was any evidence that Regal provided Medicaid-funded patients lesser care, such a circumstance would be a violation of federal law
and Regal would face harsh financial penalties. Over time, Bill recognized that the quality of Sue’s care did not change.

Bill was thrilled with the care that Sue received and visited her nearly every day. With the help of Keystone’s care coordinator, he participated actively with Sue’s quarterly care plan meetings. Sue stabilized at Regal, where she was reasonably happy and well-liked by the staff.

After a year of living without Sue’s cheerful presence in his house, Bill became increasingly lonely and depressed. A chronic disease that had given Bill occasional trouble before Sue’s stroke started to flare up. It negatively affected his balance and mobility, and he felt increasingly frail.

Bill asked the elder care guide if he could share his house with his son’s family, and whether this would cause any Medicaid eligibility issues for Sue. Next week, in part four of seven, we will explain the creative housing solution that the elder law attorney helped Bill to manage.