Elder Law Center

One Essex Street

Saugus, Massachusetts 01906

Telephone 781.233.4444   Fax 781.231.2222

January 19, 2005

CHOICES FOR SENIORS

          Before I begin this week’s article, here is an update from Washington regarding the Medicaid changes that I have been discussing for the last few weeks; House Speaker Dennis Hastert has tentatively scheduled a vote for the fiscal year 2006 budget on February 1, 2006. This could become the enactment date of this new law. AARP has criticized the new law because of the devastating effect it will have on all seniors, except the super rich.

          What does this mean for seniors? It means that if you have been considering protecting some of your assets for your loved ones in case you need long term care, now is the time to do it! If you make changes prior to the enactment of the new Federal laws, you will be subject to the current more favorable laws.

          This week, I talked to Marge DiVirgilio, a program manager at Greater Lynn Senior Services.  We talked about Equal Choices, the most recent program that will help seniors that need nursing home care remain at home.

          The history of this innovative change can be traced back to 1999 when the United States Supreme Court heard the case, Olmstead v. L.C. and E.W. In this case, L.C. and E.W. were mentally retarded women who were told that they needed to move into a nursing home because they could not live on their own. Typically, nursing homes are restricted to those individuals who require skilled nursing care. Their doctors said that they could exist in a less restrictive setting. A law suit was filed under the Americans with Disabilities Act. Olmstead, the defendant, was the Commissioner of the Georgia Medicaid department. Justice Ginsberg said that states are required to place persons with disabilities in community settings rather than in institutions when:

 1.     The state’s treatment professionals have determined that community placement is appropriate

2.     The transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and

3.     The placement can be reasonably accommodated, taking into account the resources available to the state.

          Slowly but surely, states have been making changes to their Medicaid regulations to allow individuals who could be in a nursing home opt to receive services at home or to leave the nursing home and get services at home.

          Under the Massachusetts Equal Choices program, a senior who has been determined to need skilled nursing home care can make a choice to stay home and receive services paid for by MassHealth (Medicaid in Massachusetts).

WHAT DO YOU GET: Under the Massachusetts Equal Choice program you receive homecare by people hired and paid for by your local Aging Service Access Point (ASAP). For many of my readers, Greater Lynn Senior Services will by your ASAP. They cover Lynn, Saugus, Nahant, Lynnfield and Swampscott. To find your ASAP, call your local council on aging or look on the web at www.medicaireoutreach.org. There you will find a list of the 28 ASAP’s (I thought there were only 27?) in Massachusetts.

          In addition to homecare, daycare will also be paid for. Under the Choices program your ASAP will help you apply for MassHealth, hire the workers, direct the workers and review them to ensure that you are receiving adequate care.

HOW DO YOU QUALIFY? – The Income Test - There is both an asset test and an income test. If your monthly income is over $1,737 you must pay for the first expenses until you have reached your deductible amount. If you have supplementary medical insurance, those premiums can be used to reduce your monthly income to see if you are eligible. Here’s an example:

Example:      John has suffered a stroke and needs help to stay home. John’s monthly income consists of $1,000 social security and $1,000 from a pension. He has Blue Cross Medex Gold that costs $400 per month. Because his income, net of his health insurance premiums, is $1,600 and that is less than the $1,737 income cap, he is eligible.

John will be entitled to home care givers, hired by their local ASAP, directed by their local ASAP and reviewed by their local ASAP.

 The Asset Test – An individual may not have more than $2,000 to qualify for MassHealth and this program. Individuals that have only slightly more than $2,000 may use their excess funds to prepay their funerals. Married couples, where only one spouse needs help may take advantage of the Spousal Waiver. This is a fancy term for putting all of the couple’s assets in the healthy spouse’s name and leaving the sick spouse with less than $2,000. Other planning possibilities exist when there are excess assets, but those are beyond the scope of this article.

          WHERE DO I GET MORE INFORMATION – Call your local ASAP to get more information. They have caseworkers that will assist you in applying for MassHealth and the Equal Choice Program. Couples who have a sick spouse and are using the Spousal Waiver program should consult an elder law attorney to review their estate plan. By placing all of your assets in one spouse’s name, you may have inadvertently changed your estate plan. Individuals who are over assets can also benefit from consulting with their elder law attorney.

This article gives general information and not specific advice on individual matters. Persons wanting individualized advice on matters discussed should contact an advisor experienced in those matters. To the extent this article provides information on legal matters, it is based on law in effect in Massachusetts on the date of posting (laws in effect in other states are often quite different).

 Ronald H. Surabian is a CPA and attorney who works at the Elder Law Center in Saugus, Massachusetts. He also holds Masters in accounting and a Masters in tax law. He currently serves on the board of directors of the Massachusetts Chapter of the National Academy of Elder Law Attorneys. If you have any questions please call me at the Elder Law Center, One Essex Street, Saugus, MA 01906 (781)233-4444. To view this or any prior article, please visit our web site at www.elderlawcenter.org

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