Medicare Savings Programs and Estate Recovery

Questions, even among experienced elder law lawyers, are (i) whether Medicare savings programs are subject to estate recovery after the program beneficiary dies, and (ii) whether making gifts causes ineligibility for Medicare savings programs.

The Medicare Savings Programs are:
1.  Qualified Medicare Beneficiary (QMB)
2.  Specified Low-Income Medicare Beneficiary (SLMB)
3.  Qualifying Individual (QI) [known as SLMB II in Maryland]
4.  Qualified Disabled and Working Individuals (QDWI).

At one time, States were allowed to recover Medicare Savings Program benefits through estate recovery, however, since 2010, when the Medicare Improvements for Patients and Providers Act MIPPA of 2008 went into effect, States are not allowed to recover for payments made for Medicare Savings Programs. States are, however, allowed to collect for Medicaid benefits other than Medicare Savings Program benefits.

For Medicaid benefits (other than Medicare Savings Program benefits) paid on behalf of an individual after such individual turned age 55, estate recovery is allowed for Medicaid payments that cover nursing facility services, home and community-based services, and related hospital and prescription drug services. In addition to estate recovery, the State can put a lien on the real property of a recipient of such benefits, however, there is a judicial process involved with placing a lien. Maryland generally relies on estate recovery and does not often place liens on real property in this context.

Regarding the implications of making a gift of one’s property, for Supplemental Security Income (SSI) benefits and for all Medicaid benefits other than Medicaid Savings Programs and for health insurance under the Affordable Care Act, a penalty is imposed when one gives away her assets, the penalty being a period of ineligibility for the benefit program as a consequence of the gift transfer. However, the rules to qualify to receive Medicare Savings Program benefits are silent regarding asset transfers, hence, there is no such transfer penalty with respect to Medicare Savings Programs.

William M. Gatesman assists clients in obtaining public benefits for their care needs, and advises clients concerning the implications of their actions with respect to their benefit eligibility.

The Secret Handshake – How Do I Find Out What Rules Apply?

The “Secret Handshake” refers to that gesture known only by the select few who are allowed access to an exclusive club.  I use that term in the title to this article because there are times when only those lawyers who closely follow Medicaid rule changes are aware of rules that impact clients. Everyone else is left in the dark.

One example relates to the use of a certain type of special needs trust. A person under age 65 who has high medical costs that would overwhelm that person’s income and assets may use a type of trust that allows such person to put his or her limited resources into the trust to enable such person to obtain Medicaid benefits to pay that person’s medical costs. This type of trust is useful where the amount of that person’s own assets cause such person to not be eligible for State medical care benefits, but which assets and the person’s income are too low to cover that person’s medical costs. I will call such person the “Beneficiary” for purposes of this article.

For many years, this special type of trust could only be created by the Beneficiary’s parent or guardian or by a court. If the Beneficiary’s parents were not living and the Beneficiary had no court appointed guardian, then there was an added cost, the cost of petitioning a court, to establish such a trust. It would be so much easier and less costly to the Beneficiary if the Beneficiary herself could be the person who created the trust.

And then, about 5 years ago, the rules changed, such that the Beneficiary could create such a trust and it would qualify to shelter the beneficiary’s assets so the beneficiary could obtain State benefits to pay for the Beneficiary’s high care costs.

But who knew? Who was privy to the fact that this rule had changed? Is it clear even today that this rule has changed? Consider this: Today, as was the case five years ago, the Maryland Medicaid eligibility manual, available online to anyone and the rule book used by public benefits case workers to evaluate applications for benefits, states at Section 800-16(c)4 that only those trusts that are created by a parent, guardian, or a court (and otherwise meet the special requirements for such trusts) are sufficient to shelter the Beneficiary’s assets.

Notwithstanding that the Maryland Medicaid manual no longer had accurate information after the rule changed, and still, to this day, has inaccurate information as to who may create such a trust, those lawyers who knew the “secret handshake,” that is, those lawyers who were privy to the discussions about Medicaid policy became aware of such rule change. This rule change was communicated to a select few Maryland lawyers by means of an email from the Office of Eligibility Services of the Maryland Department of Health. That email is reproduced below at the bottom of this article.

For a long time after the rule changed, even the Code of Maryland Regulations was not accurate, which regulations stated, like the Maryland Medicaid manual, that only those trusts that are created by a parent, guardian, or a court (and otherwise meet the special requirements for such trust) are sufficient to shelter the Beneficiary’s assets. The State of Maryland finally got around to updating its regulations, so that the regulation set forth at the Code of Maryland Regulations, Section 10.09.24.08-2 C, now correctly states that the Beneficiary herself may create the trust and it would qualify for the favorable treatment to enable such Beneficiary to obtain state benefits to pay high medical care costs.

But for years, the only guidance as to the issue in Maryland from the Maryland regulators was the obscure email shown below. And even today, the Maryland Medicaid manual, which is the rule book used by Medicaid caseworkers to evaluate applications for public benefits, is incorrect as to the issue of who may create such a trust.

Skilled public benefits lawyers bring a lot to the table to assist persons in need to enable them to participate in public benefits programs, not the least of which is such a lawyer’s access to timely and relevant information regarding the current state of the law and regulations that impact persons in need.

Saving a Charitable Bequest

A charitable organization approached me recently because a Maryland resident left a large bequest in her Will to the organization, but the language in the Will limited the gift to be used by a certain class of persons served by the charitable organization.

Unfortunately, over time, the organization that was to receive the bequest had discovered that there are so few of the types of people the bequest was intended to benefit that the organization had been directing its resources to assist others who suffered similar disabilities, just not the particular disability identified in the bequest under the Will.

Fortunately, Maryland law allows the recipient of such a bequest to obtain a Court Order expanding the scope of the Will so that the intended recipient of the bequest is able to use the gifted funds in furtherance of its charitable purposes.

William Gatesman was able to file a pleading with the Circuit Court and obtain a court order without the necessity of a court hearing, thereby enabling the charitable organization to make effective use of the bequest and fulfilling the deceased person’s charitable intentions.

The Gatesman Law Office stands ready to resolve problems that may arise in the administration of the estate of a deceased person in an efficient and economical manner.

Client Meetings and Social Distancing

In a time of crisis, people may wonder how they can address urgent legal needs with the least risk to themselves when governments are calling for avoiding large gatherings of people and other forms of “social distancing.”

For years, William M. Gatesman has given people the opportunity to engage in free initial consultations by means of telephone conferences and email exchanges. People have welcomed these methods, some because they are busy and appreciate the convenience of such meetings, others because they have found that some lawyers insist on high-cost meetings just to get the ball rolling, and still others for any number of other reasons.

In addition, William Gatesman has worked with clients by sending draft documents by mail or email, or both, and has addressed client questions and concerns by telephone and email. Video conference also may be used to facilitate the representation.

Often, Mr. Gatesman will wrap up the engagement with a single meeting with the client, once the preliminary matters have been addressed in the manner discussed in the paragraphs above, and sometimes, if necessary, there will be multiple additional meetings, but only if those are needed to meet the client’s needs. Some engagements, however, may be completed entirely through remote communications.

While some law firms now are struggling to try to figure out how to meet a client’s needs with less face to face interaction, the Gatesman law office has years of experience in meeting clients’ needs through various forms of communications, including face to face meetings, telephone and email consultations, and other means.

William M. Gatesman stands ready to assist you and your loved ones with your legal needs even where social distancing is the order of the day.

Please feel free to contact Mr. Gatesman by telephone at 301-260-0095, or by email at contact@gatesmanlaw.com

Making a Claim in a Decedent’s Estate

When making a claim in a decedent’s estate, may the claimant rely on information provided by the Register of Wills through it’s online website? Or is such reliance risky?

It is important that one who seeks to make a claim in a decedent’s estate do so within 6 months following the decedent’s death, and that the claimant follow all the rules for making such a claim. Unfortunately, there is a risk in relying on the information provided by the online estate docket for a particular estate published by the Registers of Wills in Maryland. A recent case handled by William M. Gatesman illustrates this point.

In that case, the State of Maryland filed a $120,000 claim in a decedent’s estate for Medicaid benefits paid by the State of Maryland for the nursing home costs of the decedent before she died. The rules of court governing such claims require that, if the claim is filed with the Register of Wills, it must also be sent to the Personal Representative of the estate.

In this particular case, however, the Personal Representative never received a copy of the claim, and so, she denied the claim. Maryland petitioned the probate court for allowance of the claim. During the court hearing, evidence was presented that the State of Maryland had relied on the Register of Wills web page which, at the time the claim was made, listed a particular post office box address as the address of the Personal Representative. However, that address was incorrect – apparently the Register of Wills clerk made a typographical error when entering the address on the online docket page.

The question boiled down to this: even though the State of Maryland as claimant did not send a copy of the claim to the Personal Representative at the Personal Representative’s actual address, could the claim nevertheless be valid under the rules governing claims in a decedent’s estate because Maryland sent a copy of the claim to the address of the Personal Representative shown on the Register of Wills web page pertaining to the particular estate? In other words, could the claimant rely on the information set forth on the online estate listing published by the Register of Wills?

The resolution of that question depended on a thorough analysis of the statute and rules applicable to claims in an estate, and to a review of case law regarding statutory requirements of delivery of claims in contexts other than decedent’s estates (there being no law directly on point with respect to such estates). At the probate court hearing, William M. Gatesman was prepared to present such an analysis.

In the end, the probate court ruled that Maryland failed to meet the requirement that it deliver a copy of the claim on the Personal Representative of the estate, and the Personal Representative’s denial of the $120,000 claim was upheld (i.e. Maryland was not allowed to collect on its claim).

What this story reveals is that there are technical requirements a claimant must meet in order for such claimant to collect funds owed to the claimant from a decedent’s estate, and that reliance on information published by the Register of Wills may lead to the claimant losing its opportunity to collect on its claim.

William M. Gatesman stands ready to assist clients, either as claimants in an estate, or as Personal Representatives seeking to defend an estate against claims that are not properly submitted.

Obtaining Estate Information

Any person can obtain information relating to a decedent’s estate in Maryland through an internet search. The Maryland Register of Wills website allows anyone with an internet connection to search for the estate by the decedent’s name or by the name of the Personal Representative or executor of the estate.

The result of such search will be a listing of the estate docket. The docket list will show all documents filed in the estate, including the Will (if any), the petition for probate, the list of interested persons, the Inventory, and the estate administration accounts. One may order copies of any of these documents for a small fee. Some counties even provide for online ordering with online delivery of the documents.

A new feature of this online process allows people to search for claims against the estate, searching either by the decedent’s name or the name of the claimant or creditor of the estate.

This process can provide useful information to any person interested in the estate. While such process of obtaining information regarding decedent’s estates is simple, William M. Gatesman can assist individuals in obtaining information relating to a decedent’s estate if the process seems cumbersome or counter-intuitive.

Keep Your Eye on the Ball

“Keep your eye on the ball,” and “don’t drop the ball” are two oft used phrases to warn people that bad things can happen if they do not pay attention and take prompt action. Such is the case when someone dies.

I have known of circumstances where a parent died owning real estate, and due to inaction by family members, the property was foreclosed upon by the mortgage lender thereby costing the family more money than was necessary. Indeed, even with distressed properties, with prompt action one may open an estate and sell the property at better terms than what one might recover after a foreclosure.

Another example is from a recent court case. In that case, it did not come to light until years after death that a disabled person’s guardian improperly transferred the disabled person’s house to himself, and the court, by means of an internal oversight, did not take action to protect the disabled person’s property. By the time the heir who was rightfully entitled to inherit such property became aware of the matter, it was too late to recover the asset. Again, prompt action would have resulted in a more favorable outcome.

It is important that you keep your eye on the ball to ensure that proper steps are being taken to administer the affairs of a loved one after that person dies. Even if someone else had been designated to take charge of your loved one’s affairs, if that person has done nothing, then you need to step up to take charge of the situation yourself.

The penalties for inaction can be harsh. Rightful heirs and those intended to inherit a deceased person’s property could lose out on the opportunity to inherit if prompt action is not taken to protect one’s rights.

William Gatesman stands ready to assist clients in taking such prompt action, and is prepared to assist clients to protect their interests even when much time has passed since the death of a loved one.

What is Medicaid Planning?

Our website has a new look! I hope that you enjoy the refreshing update to the Maryland Elder Law website. As part of our website update, we have added a new page that answers the question, “What is Medicaid planning?”

 

To find out the answer to that question, you may click on that question in the black bar at the top of this page if you are viewing this page from your computer. Or you may simply click on the question that follows: “What is Medicaid Planning?” and the page that answers that question will open in a new browser window. Call us at 301-260-0095 for more information.

 

Applying for Medicaid Gives State Access to Bank Records

In order to combat fraud and abuse, Congress passed a law in 2008 (referred to in this article as the “Asset Verification Statute”), which law just now is being implemented in Maryland, directing States to impose an electronic asset verification process to facilitate asset disclosure relating to Medicaid applications for long term care.

When Disclosure is allowed.  In most instances, under Federal law, banks may not disclose one’s financial records to the government except where there is a valid law enforcement or judicial subpoena or summons, or a search warrant.  However, that same federal law allows the account holders themselves to authorize such disclosure through a written instrument.

The Asset Verification Statute directs that States that provide Medicaid benefits to aged, blind or disabled persons to cover the costs of long term care in a nursing home, or care in assisted living or at home, require the applicants for such benefit programs to provide written authorization to the State to obtain documentation from banks and other financial institutions for accounts owned by the applicant or by any other person (such as the applicant’s spouse) whose assets are considered when one applies for such benefits. Continue reading “Applying for Medicaid Gives State Access to Bank Records”

Trustee’s Liability for Contractor’s Work

Whether you are a Trustee of a trust that owns real property, a Personal Representative of a decedent’s estate that holds real property, or simply a homeowner, it is important for you to know your potential liability when you engage a contractor to perform work on the property if an employee of the contractor gets hurt on the job.

Many home service contractors do not carry worker’s compensation insurance coverage for their employees.  This is especially notable with tree service contractors.  The same men who climb trees with powerful chain saws to cut limbs and tree trunks while hanging from a rope around their waists in one of the most dangerous home service professions often find it prohibitively expensive to pay the premiums for worker’s compensation insurance, and therefore do not obtain such coverage.

The problem with that is, if one of the workers is injured on the job, even if that person is an employee of the contractor, then the law may treat such injured worker as your employee for liability purposes.  And, unless you, as Trustee or homeowner, have worker’s compensation insurance to cover this particular type of worker – and obtaining such coverage for the once in a blue moon tree cutter or other home service contractor likely is not possible – then the potential liability is unlimited. Continue reading “Trustee’s Liability for Contractor’s Work”