Medicaid Eligibility Rules (Part I)

Approximately half of all long-term care in nursing homes is financed through Medicaid, but an individuals eligibility is governed by a maze of Federal and state laws, regulations and interpretations. This two-part article provides a road map to current Medicaid eligibility law for those who counsel the elderly. Part I includes a detailed analysis and discussion of the critical rules on timing the Medicaid application, transferring assets to preserve family wealth, using trusts under Medicaid provisions and understanding the tax consequences of asset transfers and the potential liability of the Medicaid applicants adviser.

Terry W. Knoepfle, J.D., CPA
Associate Professor of Taxation and Business Law
College of Business Administration
North Dakota State University
Fargo, ND

For more information about this article, contact Prof. Knoepfle at Terry.Knoepfle@ndsu.nodak.edu.

Executive Summary

• To qualify for Medicaid benefits, an individual must fall into one of the categories eligible for benefits (e.g., being institutionalized) and also meet strict income and asset limits.

• An ineligibility period is imposed if property is transferred within the 36 months preceding the Medicaid application date (60 months for trusts).

• There are a number of exemptions, application-timing strategies and property-transfer planning techniques that can reduce or eliminate ineligibility periods.

 

Medicaid is a cooperative Federal-state government program that pays for medical care and long-term care (LTC) for those who cannot afford it. The Medicaid program is administered by the states under state law. As long as state law conforms to Federal requirements, the Federal government will make substantial payments to fund the state programs. Because Federal Medicaid law gives some latitude to the states, each state may have slightly different rules.

The elderly are prime candidates for Medicaid, because they are caught between a rock (fixed retirement income) and a hard place (growing medical costs and the specter of nursing home care). For those who turned 65 in 1990, men had a 33% chance and women had a 52% chance of entering a nursing home sometime before death.¹ Given the statistics, many individuals and their children will likely turn to their tax advisers for counsel on protecting family assets as the prospect of LTC approaches.²

This two-part article provides an analysis of Medicaid eligibility rules and planning techniques. Part I analyzes and discusses the critical rules on timing a Medicaid application, transferring assets to preserve family wealth, using trusts under Medicaid provisions and understanding the tax consequences of asset transfers and the potential liability of the Medicaid applicants adviser.

The Medicaid Planning Environment

In 1997, Congress passed a law attempting to reduce government spending on Medicaid by deterring professionals from incorporating Medicaid eligibility considerations into their clients overall estate plans. Generally, anyone who counsels an individual for a fee to dispose of assets in a manner that results in imposing an ineligibility period for Medicaid is guilty of a misdemeanor.³

This law has been held unconstitutional in one Federal court,⁴ but has not yet been formally repealed. Various professional groups who represent the elderly (including bar associations) continue to lobby Congress to repeal this law. Nevertheless, because the law could theoretically result in a prosecution, those who counsel the elderly as to their Medicaid rights should consider several safeguards upfront up front.

First, advisers should disclose to clients that the law exists, but that the courts and the Department of Justice consider it unconstitutional. Thus, it is very unlikely that the law will ever be enforced. Second, advisers should document that they have so advised their clients. They should also inform clients about options that do not involve a planned asset transfer, such as properly timing the application for Medicaid assistance in light of past asset transfers.

In addition, advisers should counsel clients to consider several other LTC alternatives.⁵ For example, LTC insurance has become more attractive after legislation permitting partial deductibility of premiums.⁶ For some families, in-home care provided by family members may be another alternative.

Advisers should inform clients that Medicaid may limit their choices, as nursing homes in some states allocate only a percentage of their available beds to Medicaid-eligible residents.⁷ Private-pay residents and those who carry LTC insurance generally have the most freedom to choose among nursing home alternatives. In this context, elderly family members might have interests that conflict with other family members⁸ and should consider separate representation.

Medicaid Eligibility

Before Medicaid will cover an individuals medical expenses, 42 USC Section (Section) 1396a(b) requires that he or she must:

• Be a U.S. citizen or resident alien;

• Reside in a state that provides Medicaid benefits;

• Be 65 or older, blind or disabled and eligible for the Supplemental Security Income (SSI) program, or meet other state Medicaid requirements;⁹ and

• Have limited resources and income (the limits vary considerably from state to state).

In general, under Section 1396a(a) (17)(D), the families of the elderly cannot be required to pay for their medical expenses, including LTC. Likewise, states cannot consider the financial resources of family members (other than an individuals spouse) in determining Medicaid eligibility. The latter prohibition prevents states from being reimbursed by family members for services provided to an individual.

Recovery of Benefits

Definition of estate: Under Section 1396p(b)(4), for Medicaid purposes, the term estate means the probate estate, as defined under state law. At the states option, the term may also include assets conveyed through joint tenancy, tenancy in common, survivorship, life estate, living trust or other such arrangements. Advisers should determine the specific rules in their home states.

Although the statute also refers to assets in which the individual had any legal title or interest at the time of death (to the extent of such interest), state law generally provides that the holder of a life estate has no legal interest at the time of his or her death. Also, a joint tenant or a trust beneficiary (when the beneficiary is not the grantor) does not have any such legal interest on his or her death. Thus, the language is either meaningless or contradictory on its face.

Persons subject to estate recovery: Under Section 1396p(b)(1), states must attempt to recover benefits from the recipients estate or from the sale of property subject to a Medicaid lien (discussed below) if the recipient falls into one of the following groups:

• Recipients who received services in a medical institution (e.g., a hospital or a nursing home) and who were required to expend substantially all of their income for such services, if the state determined that the recipient could not reasonably expect to be discharged and return home.

• Recipients who were 55 years old or older when they received benefits for nursing facility services, home and community-based services and related hospital and prescription drug services (the state can expand its estate recovery to cover expenses for other services).

• Recipients who received Medicaid benefits for nursing facility and other LTC services and covered under a LTC insurance policy issued pursuant to a program that disregards assets and resources for eligibility purposes. LTC insurance issued under the Robert Wood Johnson Plan¹⁰ in California, Connecticut, Indiana and New York is excepted from this provision.

States ability to recover from estates can be quite broad, and is still unclear in many states. For example, in Est. of Knudson,¹¹ the Idaho Supreme Court held that the state could recover Medicaid payments from a spouses estate (when the spouse passed away after the Medicaid recipient died) if the recipients estate was inadequate to repay the full amount of the assistance received.

Property subject to lien: Under Section 1396p(a)(1)(B), a state must impose a lien on real property owned by an individual who is (1) institutionalized, (2) required to spend down his or her income and assets to receive benefits and (3) is not reasonably expected to return home. However, under Section 1396p(a)(2), no lien can be imposed on an individuals home if one of the following resides there: (1) the individuals spouse; (2) a child under 21 years; (3) a blind or disabled child; or (4) the individuals sibling who has an equity interest in the home and was residing there for at least one year immediately before the individuals admission to the medical institution.  Further, if the recipient is discharged and returns home, the Medicaid lien dissolves, under Section 1396p(a)(3).

Time for estate or lien recovery: Under Section 1396p(b)(2), the state cannot recover from the recipients estate during the life of the recipients surviving spouse, while the recipient has a surviving minor child or during the life of the recipients surviving blind or disabled child.

The state could not recover on a home lien if one of the following resided in the recipients home continuously since the recipients date of admission to the institution:

• The recipients sibling who was residing there for at least one year immediately before the recipients admission to the medical institution.

• The recipients child who lived there for at least two years immediately before the recipients admission to the medical institution and who proves he or she provided care to the recipient that enabled the latter to live at home rather than in an institution.

Undue hardship exception: Under Section 1396p(b)(3), the state will waive estate recovery in cases of undue hardship. Again, states have latitude in determining undue hardship. Health Care Financing Administration (HCFA) guidelines suggest that this includes an estate that is the survivors sole income-producing asset or a homestead of modest value.

Qualifying for Benefits

To qualify for Medicaid benefits, an individual must fall into one of the categories eligible for benefits (e.g., be institutionalized) and must meet strict income and asset limits.

Income limits: States may choose different options for determining Medicaid income eligibility limits. At one extreme, the income-cap states¹² specify that if an individuals income exceeds 300% of the monthly SSI benefit, he or she may not qualify for Medicaid. The monthly individual SSI benefit for 2003 is $552, so the Medicaid limit is $1,656. For residents in income-cap states in which the income limit can produce harsh results, Section 1396p(b)(4)(B) allows individuals to funnel excess income from Social Security pensions or other sources into a Miller trust (also known as a qualified income trust or QIT). However, such a trust must include a provision to repay any Medicaid benefits on the individuals death.

The majority of states are at the opposite end from the income-cap states. In these states, the individual may spend down his or her income on nursing home care and qualify for Medicaid. Another group of states¹³ has spend-down programs, but does not count nursing home care for spend-down purposes.

Resource (asset) limits: The maximum amount of protected nonexempt assets varies among the states from $2,000$5,000 for a single person and from $3,000$6,000 for a married couple residing together, when both apply for benefits. Satisfaction of the asset limit will not, by itself, ensure eligibility in income-cap states.

A married person whose spouse is institutionalized may retain additional assets. The law refers to the community spouse as the one living in a regular residence, and the institutionalized spouse as the one living in a nursing home. The maximum amount of assets that the community spouse may retain is called the community spouse resource allowance (CSRA). Each state can choose its own CSRA within limits set by the Federal government. For 2003, the minimum CSRA is $18,132 and the maximum is $90,660. These amounts are adjusted annually for inflation.

Planning Techniques for Singles

Direct Gift

An ineligibility period (sometimes called a penalty period) will be imposed under Section 1396p(c)(1) if a property transfer occurs within the 36-month period preceding the date of application for Medicaid benefits. The ineligibility period is calculated as follows:

1. Aggregate all transfers within the look-back period.

2. Calculate the uncompensated value of the transfers (the fair market value of the transfers, less the consideration paid).

3. Divide the uncompensated value of the transfers by the average monthly cost of care in the applicants state of residence, as determined by that state.

The result is the number of months the individual is ineligible for Medicaid. Any fractional month is truncated (not rounded). States have the option of using a regional average, rather than a state average, for determining the cost of nursing facility services. In New York State, for example, this option results in shorter periods of ineligibility than in New York City, where the average cost of nursing care is higher.

Example 1: The average cost of nursing home care is $4,000 per month. A gave away $10,000 on Jan. 5, 2002, and applies for nursing home care on Feb. 1, 2003. A made no other gifts. The 36-month look-back period includes the gift made on Jan. 5, 2002. Dividing the gift by the cost ($10,000/$4,000) equals 2.5 months, truncated to two months. The ineligibility period is Jan. 1, 2002 to  Feb. 28, 2002.

Example 2: The average cost of nursing home care is $4,000 per month. B applies for Medicaid on June 1, 2003. B gifted $180,000 to her children on April 1, 2000. The $180,000 gift is beyond 36 months and, thus, does not affect her Medicaid eligibility on June 1, 2003.

There is no cap on the number of months of ineligibility for transfers. If the transfer amount is so small that the penalty period would be less than one month, states can provide for either no penalty or a partial-month penalty. Because gifts within the 36-month period are aggregated, an individual gets no benefit from making consecutive, but smaller, gifts. However, consecutive gifts may be advantageous when the individual makes gifts smaller than the average monthly cost of care in his or her state. Such a gift will be treated as if it was made on the first of that month. Thus, each gift results in a one-month period of ineligibility that expires at the end of that month.

Advisers need to check the rules and practices of the Medicaid agency in their state to verify whether they are consistent with the Federal law interpretations and examples on transfers within the look-back period.

Exempt transfers: Under Section 1396p(c)(2)(B), the following transfers will not render an applicant ineligible for Medicaid:

• Transfers to or for the benefit of an individuals spouse (see below).

• Transfers to the applicants disabled child or to a trust for the benefit of such child.

• Transfers to a trust for the benefit of a disabled individual under age 65.

Recipients potential tax advantage from gift: Although a gift within the 36-month look-back period will trigger an ineligibility period, there might be an income tax advantage if the recipient uses the money to pay for the individuals medical expenses.

Example 3: Es income consists mostly of Social Security, interest and dividends. She is in a low tax bracket. Her son, J, has two pre-teen children with crooked teeth. J will pay orthodontic expenses such that his medical expenses will exceed the 7.5% adjusted gross income floor. E gifts her stock and bank accounts to J without exacting any promise from J to set up a trust or otherwise use the funds for Es benefit. Due to the gift, E becomes ineligible for Medicaid for 10 months. J pays Es medical expenses. J may claim additional medical expenses for the amount paid for a parent. Thus, E has incurred an ineligible period to ensure tax savings for J. If, on the other hand, J creates a trust for E using funds gifted from E, the government may deem it a trust created by E, and impose a 60-month look-back period.

Transfer by spouse to third party: Section 1396r-5(c)(4) provides that once the institutionalized spouse becomes eligible for Medicaid and throughout the period in which he or she remains institutionalized, none of the resources of the community spouse are available to the institutionalized spouse. Thus, the community spouse may freely transfer any resources he or she acquires after the institutionalized spouse becomes Medicaid-eligible.

Transfer to Trust

Advisers should use extra caution in contemplating the use or creation of a trust for the potential Medicaid applicant. The rules governing trusts and Medicaid eligibility are complex; potential pitfalls abound for both the tax adviser and client. Also, with rather limited exceptions, Federal law reflects strong Congressional resistance to the use of trusts as an asset-preservation tool for prospective Medicaid applicants. A brief discussion of some of the main considerations in exploring the use of trusts for this purpose follows.

A transfer of property to a trust is subject to a 60-month look-back period under Section 1396p(c)(1)(B)(i), rather than the 36-month look-back period for an outright transfer. In addition, a trust established by an individual affects his or her eligibility for Medicaid benefits under Section 1396p(d)(1).

Revocable trust established by an individual: Several factors set forth in Section 1396p(d)(3)(A) should be considered when contemplating the use of a revocable trust:

• If the trust instrument specifies that the grantor may revoke the trust, the grantor has virtually unfettered access to the trust corpus. Thus, the trust corpus is deemed a resource available to the individual, which increases his or her assets for Medicaid eligibility purposes.

• Payments from a trust to an individual or for his or her benefit are considered the individuals income, which increases his or her income for Medicaid eligibility purposes.

• Any other payments from the trust are assets disposed of by the individual, subject to the 60-month look-back period for transfers from a trust.

Example 4: D is a grantor of a revocable trust with $100,000 in assets. The only beneficiaries of the trust are Ds grandchildren. As the entire $100,000 is available to D, he has assets exceeding the Medicaid maximum.

Example 5: The facts are the same as in Example 4, except that the trust pays Ds debt to an unrelated person, so that Ds available assets are reduced below the Medicaid maximum. The debt payment on Ds behalf is income to D. If D is in an income-cap state, he would not qualify for Medicaid, because his income is too high. If he is in a spend-down state, the payment must be for Ds medical care for D to qualify for Medicaid.

To avoid this trap with a revocable trust, the grantor could revoke the trust or simply take the assets back, if permitted by state law. The grantor would then immediately gift assets to the intended recipients, subject to a 36-month (not a 60-month) look-back period; any revocable trust created within the previous 24 months would benefit from this technique.

Example 6: E created a trust 17 months ago. The trust assets are subject to the 60-month look-back period, which expires in 43 months. E revokes the trust and gifts the assets. The gift is subject to a 36-month look-back period, which saves E seven months.

If a trust is amendable but not explicitly revocable, the grantor could amend the trust to make it revocable, and then proceed to revoke it.

Irrevocable trust established by an individual: Section 1396p(d)(3)(B) sets forth rules applicable to irrevocable trusts. If the corpus or income could be used for an individuals benefit, even at the discretion of a trustee, that corpus or income is deemed a resource available to the individual. Payments from the available resources to the individual or for his or her benefit are also income. Payments from the available resources to any other person are assets disposed of by the individual, subject to the 60-month look-back period for transfers from a trust. The portion of corpus or income that cannot be used for the individuals benefit are assets disposed of by the individual as of the date the trust is established (or the date payments to the individual are foreclosed), and subject to the 60-month look-back period.

There must be no implied use of the assets for the grantor; if there is, the trust corpus will be deemed resources available to the individual. In Est. of Philippson,¹⁴ in which a trust settlement impoverished the grantor, the New York Surrogates Court held it was implied that the trust assets would be used for the grantors benefit.

Example 7: F, age 75, has $100,000 in cash and stock, which she conveyed to an irrevocable trust for the benefit of her two children. F retains title to her house and resides there. She executes a power of attorney specifying her intent to continue to use the house as her principal residence whether or not she becomes temporarily confined to a hospital or nursing home in the future. Fs only income after the transfer is from Social Security and is inadequate to maintain her house (i.e., pay taxes and utilities), although it can pay for her food and miscellaneous expenses. Fs children routinely pay the taxes and utilities for her house. Because the settlement of the trust made F unable to pay her usual expenses and the trust beneficiaries began paying them, it was implied the trust assets would be used for Fs benefit.

Example 8: G, age 81, has $150,000 in cash and stock. He conveys $100,000 to an irrevocable trust for the benefit of a class of persons, including all of his adult children. The trust agreement specifies that G may dismiss the trustee and appoint a new one at will. Because G effectively controls the trust by retaining the power to designate the trustee (or even designate himself as trustee), there will likely be an implied use of the assets for the grantor. As a result, G would incur a period of Medicaid ineligibility, assuming he is otherwise eligible.

A grantor can retain some measure of control over a trust through a limited (special) power of appointment (or perhaps as joint trustee) without necessarily jeopardizing Medicaid eligibility. A power of appointment gives the grantor the right to designate, in his or her will, who will enjoy the property after the grantors death. A limited power of appointment means the grantor may not appoint himself or herself, his or her estate or its creditors, or his or her spouse or creditors to receive any part of the trust.

A limited power of appointment accomplishes the following:

• It establishes control over disposition of the corpus.

• It causes a transfer to the trust to be an incomplete gift, so there is no gift tax.

• As a transfer is not a complete gift, it is part of the estate and gets a stepped-up basis.

• It prevents assets from becoming available under Section 1396p(d)(3) (B)(i), because no portion of the income or corpus can be paid to the settler or his or her spouse.

States might use their authority to define estate for Medicaid purposes to include a limited power of appointment. However, a limited power of appointment is more like a fiduciary interest than an ownership interest.¹⁵ It does not affect the fact of a transfer (which has already occurred), only the identity of the propertys recipients.

Trust exempt by statute: Section 1396p(d)(4) carves out three types of trusts that will not be counted as part of an individuals assets and will not affect Medicaid eligibility.

First, a trust is exempt if it contains the assets of a disabled individual under age 65, established for his or her benefit by a parent, grandparent, legal guardian or court. Also, to the extent any assets remain in the trust at the individuals death, the state must be reimbursed for all Medicaid benefits paid. It is unclear whether this type of trust loses its exemption when the beneficiary reaches age 65, or whether the mere fact of creation before age 65 gives it a permanent exemption. HCFA guidelines suggest that the exemption may continue past age 65.

Second, a trust is exempt if it is established for an individuals benefit, when the trust comprises only the individuals pension, Social Security or other income (and trust-accumulated income, if any). Again, the state must be reimbursed for all Medicaid benefits paid to the extent that any assets remain in the trust at the individuals death. In an income-cap state, this exemption authorizes use of a QIT. A Miller trust created after Aug. 10, 1993, will not affect an individuals Medicaid eligibility if it meets the above requirements and, on the individuals death, the state receives all remaining trust assets, up to the total amount of medical assistance paid on his or her behalf.

Third, a trust established for a disabled individual is exempt when (1) the trust is established and managed by a nonprofit association; (2) each beneficiary has a separate account (the accounts can be pooled for investment purposes); (3) trust accounts are established by the individuals spouse, legal guardian, a court or an administrative body; and (4) the state must be reimbursed for all Medicaid benefits paid, to the extent any assets remaining in the individuals account at his or her death are not retained by the trust.

Trust set up by a third party: A trust set up by a person other than the Medicaid recipient may protect the assets from claims for the Medicaid recipients healthcare expenses. However, under Section 1396p(d)(2)(A), an inter vivos trust set up by the Medicaid recipients spouse, legal guardian of the Medicaid recipient or his or her spouse, a court or by a person or court acting at the request of his or her spouse, may be treated as if the individual had used his or her own assets to create the trust. In that case, the 60-month look-back period will apply to the assets used to create the trust. However, a testamentary trust set up by any of the above-listed persons will not be deemed created by the individual.

Special-needs trust: A special-needs trust is one set up by a third party (such as an adult child) with sufficient restrictions on distributions such that its assets are not considered Medicaid-available. For example, New York Estate Powers and Trusts Law Section 7-1.12 provides that a trust may be set up to make payments only to supplement Medicaid or other government benefits. Payments from a special-needs trust may be for the beneficiarys food, shelter or medical care. Such payments will generally allow the beneficiary to live a more comfortable life than SSI and Medicaid alone would provide. Generally, a special-needs trust for a parents benefit should be created by will.

Comparison of Direct Gift with Transfer to Trust

The easiest (and most bulletproof) way to reduce assets without affecting Medicaid eligibility is for the individual to make gifts well in advance of the look-back period. The individual should then carefully time his or her initial Medicaid application to be beyond the look-back period. However, if the individual, like most people, does not want to relinquish control of his or her property, he or she will likely consider transfers in trust.

Although outright gifts provide a shorter look-back period than transfers to a trust, the following non-Medicaid considerations mitigate against outright gifts:

• The donor loses control over the assets if he or she gifts them outright. Unlike a transfer to a trust with a limited power of appointment in which the donor will retain the right (until death) to designate legatees, an outright gift makes a distribution without consideration for future changes in a family situation.

• The donor may change his or her mind after making a gift.

• The donor may need assistance earlier than anticipated.

• Any property given to a donee is subject to the donees creditors.

• If an outright gift makes the donor a pauper, there may be an implied promise from the donee to support the donor.

• A transfer by gift takes a carryover basis (adjusted for gift taxes paid, if any) under Sec. 1015, rather than a stepped-up basis under Sec. 1014. The stepped-up basis for inherited property will reduce the taxable gain when the property is later sold.

A testamentary trust is insulated from Medicaid, but a revocable inter vivos trust is not. In many states, advisers recommend using revocable inter vivos trusts to avoid probate, which are attractive to those who feel that going to a probate court will generate increased expense and complexity. An individual should weigh the expected cost of probate against the possibility that the donor of an inter vivos trust will lose Medicaid eligibility. In addition, in many cases, probate cannot be completely avoided by using these trusts. There may be a need for probate to distribute miscellaneous assets kept in the decedents name (e.g., bank accounts, furniture, clothing and jewelry).

Conclusion

There are numerous legal ways to protect an individuals assets in the likely need of Medicaid assistance, including the transfer of assets and the use of trusts. Part II, in the June 2003 issue, will consider several other planning techniques and strategies available to protect an individuals assets in the event of Medicaid assistance, and a number of additional techniques particularly suitable for protecting married persons.