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To qualify for Medicaid coverage of long-term care, you must satisfy very complicated financial eligibility rules—rules that often can be traps for the unwary. One of the most significant traps is Medicaid’s right to recover its expenses from your estate after you die – a practice known as “estate recovery.”

Under current Medicaid law, states are required to attempt to recoup Medicaid spending for long-term care services. Since about the only asset you’re allowed to own and still get Medicaid coverage is your home, this right of estate recovery is the state’s claim against your home. In other words, if you own a home, Medicaid is really a loan. It will pay for your care, but your house will have to be sold when you die to repay the state for the services it provided.

Now, five elder advocacy groups are calling on Congress to eliminate Medicaid estate recovery after a congressional advisory commission concluded that the practice recoups only a tiny percentage of Medicaid spending while contributing to generational poverty and wealth inequity.

“The burden of estate claims falls disproportionately on economically oppressed families and communities of color, preventing families from building wealth through home ownership, which has been historically denied to communities of color through discriminatory public policy,” the five groups – Justice in Aging, the National Academy of Elder Law Attorneys, the National Health Law Program, California Advocates for Nursing Home Reform, and the Western Center on Law & Poverty – wrote in a jointly authored Issue Brief, Medicaid Estate Claims: Perpetuating Poverty & Inequality for a Minimal Return. “Congress should amend Federal law to eliminate Medicaid estate claims. Alternatively, the law should be amended so that states have the choice of whether to use Medicaid estate claims, as recommended in a recent report to Congress by the Medicaid and CHIP Payment and Access Commission (MACPAC).”

In its March 2021 report to Congress, MACPAC recommended that Congress amend Medicaid law to make estate recovery optional for states, rather than required as it is now. The group, a non-partisan legislative branch agency that provides analysis and recommendations to Congress, the U.S. Department of Health and Human Services (HHS) and the states, also recommends that HHS set minimum standards for hardship waivers under the Medicaid estate recovery program.  Currently, it’s up to the states to decide what qualifies as “hardship.”

Pointing out that estate recovery recoups only about 0.55 percent of total fee-for-service long-term care spending, MACPAC recommends that states not be allowed to pursue recovery against any asset that is “the sole income-producing asset of survivors,” homes of “modest value,” or any estate valued under a certain dollar figure.

In their Issue Brief, the five advocacy groups go a step further. Noting that “no other public benefit program requires that correctly paid benefits be recouped from deceased recipients’ family members,” they call for the elimination of estate recovery “so that low-income families are better able to retain wealth and pass it on to future generations. Or, at a minimum, federal law should be amended to make estate claims voluntary.”

The Issue Brief details how Medicaid estate recovery keeps families in poverty, exacerbates racial wealth gaps, and runs counter to efforts to create more affordable housing.

To read the Issue Brief, click here.

To read the relevant chapter of MACPAC’s report to Congress, click here.

Medicaid long-term care benefits traditionally pay mainly for nursing home care, but the federal government can grant “waivers” to states allowing them to expand Medicaid to include home and community-based services. The downside is that receiving care in a nursing home is an entitlement, while getting care at home is not.

Medicaid is a joint federal-state program that provides health insurance coverage to low-income children, seniors, and people with disabilities. In addition, it covers care in a nursing home for those who qualify. Each state operates its own Medicaid system, but this system must conform to federal guidelines in order for the state to receive federal money, which pays for about half the state’s Medicaid costs. (The state picks up the rest of the tab.) A Medicaid waiver allows states to waive some of the federal rules with the intention of providing services to individuals who wouldn’t normally be covered by Medicaid. The waiver must be approved by the federal government.

The most common type of Medicaid waiver expands Medicaid to cover home care to individuals who need a high level of care, but who would like to remain at home rather than enter a nursing home. Care that may be provided by a waiver includes personal attendants, home health aides, medical supplies and equipment, respite care, counseling services, transportation, homemaking services, hot meal delivery, and more.

Each state sets up its own waiver program, so the rules and requirements vary widely. Usually, to qualify an applicant must need a level of care similar to what is needed to qualify for Medicaid coverage in a nursing home. The point of the waiver is to allow an individual who would normally need nursing home care to remain at home, which is typically a far less costly form of care. States may also target different health conditions, such as HIV, Alzheimer’s disease, diabetes, cystic fibrosis, among others. Each state also sets its own income and asset levels for its waiver programs, which may vary from state to state, and may be different from the income and asset levels used for Medicaid coverage of nursing home care.

The downside of state waiver programs is that waivers are not an entitlement, meaning that states are allowed to limit the number of people who qualify for services under a waiver. Just because an applicant meets the criteria for eligibility does not mean the applicant will be approved for the services. As a result, waitlists for filled programs can run for months or years.

To find and apply for a waiver program in your state, contact your state Medicaid office.

We are pleased to announce that the Delaware Law firm of Crossland Heinle & Bryde will join our firm effective July 1, 2021.

The merger will add 4+ lawyers and 5 support staff to our well established Delaware office—raising our total to 12 lawyers in Centreville and Hockessin. Overall, our firm becomes one of the largest regional firms in Eastern Pennsylvania and Delaware with 42 lawyers practicing out of 5 offices.

The Crossland attorneys are highly experienced trusts and estates, business and real estate attorneys and their addition means that MacElree will have one of the largest and strongest practices in Delaware.

Said MacElree’s CEO Michelle Foster, “we are tremendously excited about this merger and the opportunities it affords our Delaware current and future clients. This merger is in furtherance of our Strategic Plan to only grow with exceptional lawyers who share our deep commitment to providing outstanding service to our clients. We are so pleased to have found a firm that indeed does share our values and has a culture of collegiality, integrity and professionalism close to our own.”

The following Crossland lawyers will join MacElree in Delaware:

• Daniel T. Crossland, Partner — Estate Planning/Probate, Business, and Real Estate
• Carolina R. Heinle, Partner — Estate Planning/Probate
• Danielle Sawyer, Associate — Estate Planning/Probate
• Courtney D. Heinle, Of Counsel — Elder Law
• Sean M. Quinn, Law Clerk – soon to take Delaware Bar

According to Crossland Partner Dan Crossland, “MacElree was exactly the kind of firm we were looking to join. It has exceptional attorneys in areas that complement our practice and in areas that will expand our offerings to our clients. It also has the same values and culture that we have diligently worked to cultivate. We are thrilled to make this move.”

 

With COVID-19 vaccine eligibility for children approaching fast, many parents may be concerned about whether their children should or should not get vaccinated. These questions get even more complicated for parents who are co-parenting with a former spouse or partner.

Getting a vaccine, like all medical decisions, is a legal custody decision. Generally, co-parents will have shared legal custody. This means they each parent has an equal voice in the decision-making process. So, what happens when one parent wants to vaccinate their child and one does not?

The short answer is you end up in court. When parents disagree on vaccinations or other medical procedures, a Custody Master or Judge will hold the tie-breaking vote. Medical decisions in this context are often tough and emotional as everyone wants best for their children. Both parents should do their homework and research. It is important that you understand all of the pros and cons of any medical procedure including a COVID-19 vaccine. Talk to your child’s doctors and do you own research so you are prepared to have an intelligent discussion. The COVID-19 vaccination decision may even be taking out of the hands of some parents as many schools and colleges are considering requiring a COVID-19 vaccine for admission in the fall.

If you have any questions or concerns about the legal questions surrounding vaccinating your child against COVID-19, or other custody related issues, please do not hesitate to contact a member of our family law team.

President Biden has introduced a plan to spend $400 billion over eight years on home and community-based care for the elderly and people with disabilities. The money would go to expand access to care and support higher-paying caregiving jobs.

As the elderly population grows, our long-term care system is becoming increasingly strained. The AARP found that in 2020, more than one out of every five Americans — 21.3 percent — were acting as caregivers, either caring for a relative or a close friend. Many women have had to drop out of the workforce to care for aging family members. In the meantime, paid caregivers are typically underpaid and overworked, with one in six paid caregivers living in poverty. And our elderly population is only expected to grow: By 2030, one in five Americans is projected to be over 65.

Recognizing that the United States is “in the midst of a caregiving crisis,” President Biden has proposed boosting funding for home and community based long-term care as part of his $2 trillion American Jobs Plan. While the plan does not have specifics, it proposes to expand access to long-term care services under Medicaid that help people stay at home and avoid care in an institution. Currently, only nursing home care is mandated under Medicaid, with states providing care at home or in the community at their discretion. Waiting lists for home and community-based services under state Medicaid programs can stretch on for years, and only a small fraction of those who need care receive these services, according to Kaiser Health News.

Among other things, President Biden wants to extend the Money Follows the Person program, which is a federal initiative designed to move people out of nursing homes and into home-based care. The program provides grants to states to create innovative home and community-based programs.

President Biden is also proposing that money be put toward creating well-paying caregiving jobs and that home health care workers be able to join a union and engage in collective bargaining. The White House states that this “will improve wages and quality of life for essential home health workers and yield significant economic benefits for low-income communities and communities of color.”

President Biden’s plan does not provide details, leaving It up to Congress to fill in the particulars when drafting its legislation. It is unclear how much of Biden’s proposed funding will make it into a final bill.

To read about the American Jobs Plan, click here.

For more about the home health care proposal, click here and here.