Fong Law Group

Highlights of How the Omnibus Bill Will Benefit Older Adults

The Senate and House have cleared the passage of a year-end $1.7 trillion appropriations bill that will benefit older adults on a number of fronts.

The bill, which runs more than 4,000 pages and includes a wide variety of legislation, heads to President Biden next for his signoff.

Here is a breakdown of some of the highlights that relate to supporting older Americans:

Health and Housing

• Opt to age at home – The Money Follows the Person (MFP) Program has been helping older adults age in their own home or a community setting, rather than in nursing homes, since 1972. The newly passed bill extends MFP through September 2027.
   
• Age in place safely – The omnibus bill has also doubled funding for the federal government’s Older Adult Home Modification Program from $15 million to $30 million.
  
  For seniors with limited income, this program covers the cost of simple, low-cost home modifications – such as railings and temporary wheelchair ramps – that help them age in place safely.
   
• Provide for your healthy spouse if you are on Medicaid in a nursing home – Medicaid beneficiaries who must reside in a long-term care facility but have a spouse still living at home will continue to see their healthy spouse protected from poverty.
  
  Known as spousal impoverishment rules, these protections ensure that the healthy spouse receives income while their institutionalized spouse keeps their Medicaid eligibility. These protections, which are adjusted each year, will continue to be in place until September 2027.
   
• Continue to see doctors online – Lawmakers have extended access to telehealth services for Medicare enrollees for another two years.
   
• Find affordable housing with support services – The Housing for the Elderly Program has received a billion-dollar bump in funding as well.
  
  This program seeks to aid seniors with very limited income in securing housing that is within their means while also offering supportive services such as assistance with cooking and cleaning.

Retirement Savings

• Contribute more to retirement – For older workers, the omnibus bill raises what are known as “catch-up” contribution limits for retirement savings. Taxpayers ages 60 to 63 will be allowed to contribute an extra $10,000 to their 401(k) starting in 2025.
   
• Access 401(k) funds for emergencies – If you need to take money out of your 401(k) before reaching age 59½, under certain circumstances you will no longer have to pay the 10 percent penalty fee for withdrawing money early. As of the end of 2023, you will be allowed to withdraw up to $1,000 a year for unforeseen emergencies without incurring a penalty.
   
• Wait longer to withdraw money from your retirement accounts – Previously, you were required to begin withdrawing money from your retirement plan account starting at age 72. This mandatory withdrawal is known as a required minimum distribution (RMD).
  
  As of January 1, 2023, the new bill allows you to hold off until age 73 to take funds from these types of private retirement accounts.

Will Medicare Pay for Housekeeping Services?

Medicare is federal health insurance for people over 65, some younger people with disabilities, and those with end-stage renal disease. Coverage of housekeeping services under Medicare can depend on several factors.

Coverage Under Original Medicare?

Medicare is comprised of Part A and Part B coverage. It is often referred to as “original Medicare.”

Part A is free for most people and covers a certain number of days related to hospital inpatient stays, care in a skilled nursing facility, hospice care, and some home health care.

Part B covers doctors’ services, outpatient care, medical supplies, and preventive services. There is a monthly premium for Part B Medicare, plus cost sharing of any care received pursuant to Part A or B.

Original Medicare does not generally cover housekeeping services. Original Medicare labels these services as “homemaker” services, which also include shopping, cleaning, and laundry. If you cannot clean your home for medical reasons, then these costs would be out of pocket.

Coverage Under Medicare Advantage?

However, some Medicare Advantage plans may cover cleaning services. A Medicare Advantage Plan — also commonly referred to as Medicare Part C — is another way to get your Medicare coverage, except through a private insurance company. Many Medicare Advantage plans will cover things original Medicare may not cover and provide additional benefits. However, these companies must follow the rules set by Medicare.

Medicare now allows these private insurers to pay for some limited housecleaning if it is linked to a specific health issue. For example, if you suffer from asthma or breathing conditions, these plans may cover filtration or air cleaners, periodic washing of linens, vacuuming and carpet cleaning, and other similar services. If you suffer from an immune deficiency condition, it may be possible to get coverage for periodic disinfectant cleaning services. However, ongoing or regular services are not likely to be covered.

A senior’s eligibility for Medicare Advantage plan options will depend on what plan options are offered in their area. For more information on Medicare coverage, reach out to your attorney.

What You Need to Know About Medicaid’s Personal Needs Allowance

Seniors who rely on Medicaid and live in nursing homes receive a personal needs allowance — a monthly stipend the Medicaid recipient can use to pay for needs that Medicaid does not cover. Medicaid restricts the amount of the allowance and how it is used. If recipients do not use all the money they received in a month, they may risk losing their coverage.

What Can I Buy with My Personal Needs Allowance?

The items a Medicaid recipient can buy with their personal needs allowance are limited to things that Medicaid does not cover. A recipient can buy vitamins, hair care, snacks, clothing, and other personal-use items. However, since the nursing home facility is required to cover toiletries, the personal needs allowance generally cannot be spent on those types of items.

How Much Money Do I Get for My Personal Needs Allowance?

The Medicaid personal needs allowance has not adjusted for inflation for more than 30 years. In the 1980s, the federal government increased the Medicaid personal needs allowance to a minimum of $30 per month, which has not increased since. The monthly amount Medicaid recipients receive for their expenses varies from state to state. For example, in California, Medicaid recipients get $35 per month while senior citizens in Alaska receive $200 per month.

Am I Allowed to Manage My Personal Needs Allowance Funds?

The recipient may manage their funds. Those who are unable to manage their own money can have a guardian or the nursing home take charge of their personal needs allowance.

If the nursing home where the recipient resides manages their personal needs allowance, the facility must provide an accounting for how it spent the money. Medicaid prohibits the nursing home from using the money on anything that Medicaid provides.

Guardians can manage the recipient’s personal needs allowance on their behalf. The guardian is held to the same standards as the nursing home where the recipient resides and so must provide an accounting, usually some itemization of expenses.

What Happens If I Don’t Spend the Entire Allowance in a Month?

A recipient is not required to spend their entire allowance each month. Sometimes the money accumulates. However, recipients should be careful if they regularly do not spend all the money. Any money from the personal needs allowance a recipient does not spend is deemed an asset. Medicaid limits the value of assets that recipients are allowed to have, and if the recipient accumulates more assets than allowed, they may lose Medicaid eligibility. The Medicaid asset limit for 2022 is $2,000 in most states.

Savings for Seniors: Lower Medicare Part B Premiums in 2023

For the first time in more than 10 years, Medicare Part B enrollees will see some of their costs decline. In an announcement issued by the Centers for Medicare and Medicaid Services (CMS), the agency outlined changes to the premium, deductible, and co-payment amounts for numerous Medicare costs taking effect in 2023.

• Medicare Part B basic monthly premium = $164.90 = Savings of about $62 for the year
   
• Medicare Part B annual deductible = $226 = Savings of $84 for the year
   
• Other amounts, meanwhile, will rise slightly in 2023:
   
  • Medicare Part A deductible = $1,600 (up from $1,556)
  • Co-payment for hospital stay, days 61 to 90 = $400 per day (up from $389)  
  • Co-payment for hospital stay, days 91 and beyond = $800 per day (up from $778)
  • Co-payment for skilled nursing facility, days 21 to 100 = $200 per day (up from $194.50)

Note that beneficiaries with higher incomes pay higher monthly premiums. For further details, read the news release from CMS.

If you wish to make changes your coverage, Medicare’s Open Enrollment Period will take place October 15 through December 7. 

Majority of Adult Children Cannot Support Boomer Parents, Surveys Find

A recent survey by the American Advisors Group (AAG) finds that 55 percent of adult children say they are not financially prepared to help their Baby Boomer parents cope with rising inflation and living expenses.

“Americans want to see their parents age with grace and dignity and have the resources they need to live comfortably, but for many families the current economy is making that difficult,” AAG Chief of Marketing Martin Lenoir said in a news release.

AAG surveyed more than 1,500 adult children, ages 40 to 55, across the country. Known as the “sandwich generation,” this group faces the responsibilities not only of raising their children, but also of serving as caregivers for their aging parents.

Among the survey’s other key findings:

• More than a third of adult children say they worry that their parents will become a financial burden for them.
• Nearly 60 percent say they cannot afford any kind of professional elder care for their parents.
• Yet almost half admit they have never broached the subject of finances with their senior parents.
• A full 50 percent of them do not know how much debt their parents are carrying.

1 in 3 Adult Children Already Assisting Their Parents Financially

Another survey, conducted in 2020 by GoHealth, Inc., explored GenXers’ and millennials’ involvement in their parents’ financial and health care needs. It found that one in three GenXers and millennials are supporting their parents financially. Nearly the same number are managing, or helping to manage, their parents’ health care.

The survey’s 2,000 GenX and millennial respondents also reported the following:

• On average, they spend 11.5 hours per week managing their parents’ health care by providing transportation, scheduling doctor visits, and explaining insurance claims. They also estimate they’ll spend 14 to 16 years continuing to do so.
• 2 in 5 spent more than $10,000 of their own money supporting their parents in 2020.
• The vast majority (86 percent of GenXers and 82 percent of millennials) worry about having enough money to support themselves and their parents.

Squeezing the Sandwich Generation

Adult children will continue to feel the pressure for the foreseeable future. Every day, on average, 10,000 Boomers (those born between 1946 and 1964) reach age 65, and another 10,000 of them turn 75. According to research by the Blackstone Group, an independent research firm, nearly 80 percent of middle-income Boomers do not have any savings designated to cover their retirement care.

Meanwhile, 30 million Boomers retired from the workforce amid the COVID-19 pandemic. Saddled with college debt, as well as rising inflation and housing costs, those GenXers and millennials who still depend on their parents for financial assistance or housing may no longer be able to count on that support.

Have ‘The Talk’

It’s important for families to have an honest and respectful financial conversation before a medical event occurs or the need for care arises. Talking about money with aging parents can be a delicate matter, but it’s necessary to understand both the degree of care that may be needed and the financial resources available to provide it.

For help planning for the future of your Boomer parents, or for your GenXer and millennial children, consult your attorney.

Miller Trusts Can Help You Qualify for Medicaid

Many seniors find themselves in need of Medicaid to pay for their long-term care but are surprised to learn that their modest monthly income may disqualify them. The reason for this is that Medicaid is a “means-tested” benefit. In other words, you must not have income exceeding certain thresholds in order to qualify and receive Medicaid benefits. For example, in New Jersey, the monthly income limit for nursing home or community-based services is $2,523 for individuals and $5,046 for married couples.

Medicaid expects all of an applicant’s monthly income, besides a monthly personal needs allowance and Medicare premiums, to go toward nursing home costs. So, what if you have more income and other expenses? A Miller Trust may help you resolve this dilemma.

A Miller Trust is a Medicaid planning tool that can assist you in meeting the income limits and qualifying for Medicaid. Unlike other planning tools, Miller Trusts do not have specific disability or age requirements.

How Does a Miller Trust Work?

If your income exceeds Medicaid’s income limit, you can deposit the amount of your excess income into a Miller Trust – also referred to as a “qualified income” trust. Once it is deposited into this trust, it is not counted as income by Medicaid. However, to qualify, a trust must be irrevocable, which means you cannot cancel or change it. Once you put money into the trust, you cannot get it back directly. However, the trust can pay certain expenses on your behalf.

A Miller Trust is a good option for any Medicaid applicant needing long-term care services, whether at home, in their community, or in a skilled nursing care facility. This trust is created by the applicant, a guardian, or a person with a properly drafted power of attorney. A trustee is chosen to manage the trust and the income deposited. Anyone other than the Medicaid applicant can serve as a trustee.

Once the trust is set up, the trustee establishes a bank account to receive excess income from the Medicaid applicant. The income can only be used for certain expenses. For example, it may be used to pay the personal needs allowance of an individual in a nursing home, Medicare premiums, bills not covered by Medicaid, or supplement costs of a nursing home.

Another requirement of a Miller Trust is that the applicant’s state Medicaid agency will be the beneficiary of any remaining funds in the trust upon the death of the Medicaid applicant. The amount the state receives is limited to the total value the state paid in long-term care on behalf of the applicant. Any amount remaining after this payment may go to a person the applicant chooses.

Medicaid Income Cap

You should be aware that not every state allows Miller Trusts as a method to qualify for Medicaid. Currently, only about 25 states, known as “income cap” states, permit it. Other states do not impose an income limit for nursing home care, and so there is no need for a Miller Trust in these locations. For example, in Massachusetts, you would pay all your income, minus certain deductions, to the facility, and Medicaid would pay the remaining cost.

Before creating a trust, it is important to speak with an elder law attorney to ensure this option is right for you. If you live in a state where this is not allowed, there may be other options, such as pooled income trusts, which serve a similar purpose.

For guidance in Medicaid planning, consult your attorney.

Plan Ahead Before Seeking Nursing Home Care: Avoid Unnecessary Debt for You and Your Family

Many senior citizens may need the services of a nursing home or at-home care at some point in their life. You might assume that government assistance or health insurance will step in and cover the cost if you cannot afford these services. Unfortunately, neither health insurance nor Medicare covers long-term care. Because obtaining long-term care insurance can be very expensive, Medicaid could become your only option.

Medicaid coverage is not a given, however. If you have assets or recently transferred assets, Medicaid may determine you do not qualify for coverage until a certain amount of time has passed. If this happens, you and their family can face significant medical bills. If you cannot pay, nursing homes may take you to court to get reimbursed.

What steps can you take to avoid this? First, before applying for Medicaid, get a better understanding of the timelines in your state – known as lookback periods – that can affect your eligibility. Then you can engage in proper Medicaid or asset protection planning in advance of these timeframes. A good age to begin planning is around age 65, although everyone’s situation is different.

Individual states run Medicaid programs, and every state has different rules regarding Medicaid eligibility. These programs were designed as a payor of last resort — in other words, to qualify, you must meet strict requirements. There are two primary types of Medicaid benefits: home care and skilled nursing home care.

Lookback Periods

You must submit an application to your local Medicaid office to qualify for these benefits. As part of this process, the state will look at any money or property you may have transferred within a certain lookback period. In New York, for example, this period of time will soon be 30 months for home care and 60 months for skilled nursing care.

These lookback periods can have serious consequences. If you have not engaged in appropriate asset protection planning, you may not be able to qualify for home care or nursing home care for many months. The result is that many elderly individuals must then spend down their savings and liquidate their assets to pay privately for their home care before Medicaid starts covering anything. If a person no longer has resources and is subject to a disqualification penalty period, family members may have to step in and bear these costs on their own.

So, what can you do? The answer is to start planning as soon as is practical.

Options to Explore

Speaking with an elder law attorney can help you and your loved ones explore options available to avoid you or them being personally responsible for the costs of your care.

• Medicaid Asset Protection Trust — One common approach is placing assets in a Medicaid Asset Protection Trust. You may be able to use this to shelter various assets such as stock accounts, savings, a home with unprotected equity, and much more.
• Pooled Income Trust — Another option you may explore is contributing income that exceeds Medicaid allowances to a Pooled Income Trust. This can allow you to qualify for Medicaid while diverting excess income to a trust that pays qualified expenses on your behalf. This will enable you to benefit from the income and not spend it on things Medicaid could have otherwise covered.
• Spousal Refusal — Your spouse may also have options that can help you qualify for Medicaid. One such option includes exercising a right of spousal refusal — a process available in some states by which the income and assets of your spouse can be removed from consideration in your Medicaid eligibility analysis.

Finally, an attorney can help you understand if certain transfers are permissible under Medicaid rules without triggering a penalty period.

Without proper planning, individuals with assets and income exceeding specific state-set thresholds would have to spend this income and their assets on their care or exempt items before they can receive Medicaid benefits. For assistance in planning, consult with your attorney.

Which States Have Been Hardest Hit by the Nursing Home Staffing Crisis?

The COVID-19 pandemic has caused nursing home staffing shortages across the United States, even forcing facilities to close, but some states have been hit harder than others. A new analysis looks at which states are confronting the worst staffing problems. 

Overwhelmed by the stress of long hours, low pay and exposure to the COVID-19 virus, nursing home workers have been quitting in record numbers. According to the Service Employees International Union, more than 420,000 workers -- nearly 10 percent of the workforce -- left the long-term care industry between the start of the pandemic and January 2022. The labor hemorrhage has turned what was already a chronic staffing problem into a full-blown crisis as understaffed facilities struggle to care for patients, accommodate family visitation, and admit new patients waiting in hospitals to be discharged.

The online platform Seniorly, which helps families find senior living facilities, recently analyzed staffing data in all 50 states and identified which ones have been hardest hit. Overall, one-quarter of nursing homes in the United States had staff shortages as of the end of February 2022, but Minnesota was reporting the most, with 41 percent of facilities experiencing a scarcity of workers. Washington and Maine also had large numbers of facilities with insufficient staff (close to 38 percent in both states). 

According to Seniorly, the biggest shortages are among nursing workers (registered nurses, licensed practical nurses, and vocational nurses) and aides (certified nursing assistants, nurse aides, medication aides, and medication technicians). These are the employees who provide the most direct care to nursing home residents. Although fewer facilities (an average of 3.5 percent) are experiencing shortages of higher paid workers, such as physicians, physician’s assistants, and advanced nurse practitioners, the number of facilities with a dearth of even these types of workers has jumped almost a percentage point since 2020.   

While most states are enduring huge staffing problems, a few states are actually trending in the right direction. Arkansas, Connecticut, and Texas have fewer facilities reporting staffing shortages than in 2020. And California has the lowest percentage of facilities with staffing issues (about 2 percent). 

To read the full analysis and see how your state is doing, click here.  

Medicaid's Benefits for Assisted Living Facility Residents

Assisted living facilities are a housing option for people who can still live independently but who need some assistance. Costs can range from $2,000 to more than $6,000 a month, depending on location. Medicare won’t pay for this type of care, but Medicaid might. Almost all state Medicaid programs will cover at least some assisted living costs for eligible residents.

Unlike with nursing home stays, there is no requirement that Medicaid pay for assisted living, and no state Medicaid program can pay directly for a Medicaid recipient’s room and board in an assisted living facility. But with assisted living costs roughly half those of a semi-private nursing home room, state officials understand that they can save money by offering financial assistance to elderly individuals who are trying to stay out of nursing homes. 

As of 2019, 44 states and the District of Columbia provided some level of financial assistance to individuals in assisted living, according to the website Paying for Senior Care, which features a “State by State Guide to Medicaid Coverage for Assisted Living Benefits” that gives details on each state’s programs. According to the website, the Medicaid programs of Alabama, Kentucky, Louisiana, Maine, Pennsylvania, and Virginia are the only ones that provide no coverage of assisted living, although non-Medicaid assistance may be available.

Nevertheless, the level and type of support varies widely from state to state. Prevented from paying directly for room and board, some states have devised other strategies to help Medicaid recipients defray the cost of assisted living, including capping the amount Medicaid-certified facilities can charge or offering Medicaid-eligible individuals supplemental assistance for room and board costs paid for out of general state funds. States typically cover other services provided by assisted living facilities. These may include, depending on the state, coverage of nursing care, personal care, case management, medication management, and medical assessments and exams.   

In many states, this coverage is not part of the regular Medicaid program but is delivered under programs that allow the state to waive certain federal rules, such as permitting higher income eligibility thresholds than regular Medicaid does. To qualify for one of these waiver programs, applicants almost always must have care needs equivalent to those of nursing home residents. These waiver programs also often have a limited number of enrollment slots, meaning that waiting lists are common. In some states, the support programs may cover only certain regions of the state. And one state’s definition of “assisted living” may differ from another’s, or other terms may be used, such as “residential care,” “personal care homes,” “adult foster care,” and “supported living.”

If your state does not cover room and board at an assisted living facility, help may be available through state-funded welfare programs or programs run by religious organizations. If the resident is a veteran or the surviving spouse of a veteran, the resident’s long-term care may be covered.  

For Paying for Senior Care's page on assisted living benefits, including its state-by-state guide to Medicaid’s coverage of assisted living facilities, click here.

Closing of Social Security Field Offices Disrupted SSI Benefits for Thousands, Lawsuit Charges

Plaintiffs in a class-action lawsuit against the Social Security Administration (SSA) might describe it as an open-and-shut case. When the SSA closed its field offices at the onset of the COVID-19 pandemic, it remained open for the purposes of denying benefits. But, plaintiffs say, the agency was effectively shut for low-income elderly adults and people with disabilities who needed to validate claims, or who sought to challenge the agency’s denial of their claims. The result: thousands of beneficiaries whose benefits were wrongfully reduced or discontinued, according to the suit.

Supplemental Security Income (SSI) is the basic federal safety net program for the elderly, blind and disabled, providing them with a minimum guaranteed income. As of September 2021, some 2.3 million people aged 65 or older were receiving SSI payments.

SSI recipients are required to demonstrate that they meet income and resource limits each month in order to qualify for assistance, and they must promptly report any changes in their financial circumstances that might affect their status. Failure to perform this routine, which traditionally many have done in person at local field offices, can result in the denial of benefits and a demand for repayment of benefits already sent.

While the SSA made provisions for people to report their information by phone, fax or mail after closing its offices in March 2020, this was easier said than done for the elderly and people with disabilities, according to the lawsuit, filed in U.S. District Court, Eastern District of New York, by the advocacy group Justice in Aging and others on behalf of a group of SSI recipients whose benefits were unlawfully reduced or terminated.

“These recipients—who are disabled, elderly, or both—are at high risk for serious consequences from COVID-19, which limits their ability to venture into their communities to secure needed documentation, go to the post office or to send faxes to SSA,” the lawsuit reads. Furthermore, even when recipients did file their information on time, often the SSA failed to process it for months, only to rule later that the beneficiaries had been overpaid and would have their future benefits docked.

Even a no-fault waiver of overpayment debts that the SSA issued in August 2020 did not mitigate the issue, because it was too limited, the lawsuit argues. For instance, to qualify for the waiver, the overpayment had to have occurred before September 30, 2020, and must have been brought to the SSA’s notice by the end of that year. Many people weren’t informed about the waiver, the lawsuit claims, and therefore could not apply for it.

Nearly 300,000 people have stopped receiving SSI since the closure of the offices, during a pandemic that has hit the elderly and those with disabilities particularly hard, the lawsuit notes. “Adults 65 and older have been the most at risk of death from COVID-19 and have constituted almost 80 percent of COVID-19 deaths. In addition, the risk of death from COVID-19 for persons with disabilities has been three times that of the general population.”

The plaintiffs, who are also represented by New York Legal Assistance Group and law firm Arnold & Porter Kaye Scholer LLP, have demanded a jury trial.

For Justice in Aging’s press release on the litigation, click here.