Texas House Bill 54 and Medicaid Income limits

Texas Medicaid Long-Term Care Eligibility for Seniors

Income limits of a beneficiary’s monthly income ($2,742) , with the exception of a Personal Needs Allowance of $75 (increase effective 9/1/2023 pursuant to HB 54), Medicare premiums, and possibly an income allowance for a non-applicant spouse (stay at home spouse eligible for a minimum of $3,715.50 monthly income) applicant’s remaining income must go towards nursing home costs.

Applicant eligible for resource limit of $2,000 and spouse or non-applicant eligible for resource limit of $148,620 plus exempt items.

Treatment of Income for a Couple
When only one spouse of a married couple applies for Institutional Medicaid or a Medicaid Waiver, only the income of the applicant is counted. This means the income of the non-applicant spouse is disregarded and does not impact the income eligibility of their applicant spouse. The non-applicant spouse, however, may be entitled to a Monthly Maintenance Needs Allowance (MMNA) from their applicant spouse to prevent spousal impoverishment. In 2023, the MMNA in TX is $3,715.50 / month. If a non-applicant spouse has monthly income under this amount, income can be transferred to them from their applicant spouse, bringing their income up to this level. A non-applicant spouse who already has an income of $3,715.50 / month or more is not entitled to a MMNA / spousal income allowance.

WHAT YOU NEED TO KNOW ~

People who are older and require help with basic tasks of living – bathing, dressing, personal care, housekeeping or preparing meals – are candidates for long-term care services. Current estimates state that as many as 70 percent of people turning 65 can expect to use some form of long-term care during their lives.

Why Would I Need Long-term Care?

Reasons for needing long-term care include:

• Age. The older you are, the more likely you will need long-term care.

• Gender. Women outlive men by about 5 years on average and so they are more likely to live at home when they are older.

• Disability. Having an accident or chronic illness that causes a disability. 69 percent of people age 90 or more have a disability.

• Health status. A chronic condition such as diabetes or high blood pressure makes you more likely to need care.

• Living arrangements. If you live alone, you’re more likely to need paid care than if you’re married or living with a partner.

Where can I get Long-term Care Services?

If you have a medical issue or a disability, many long-term care options are available to you. You can get services in:

• Your own home.

• A daytime program in your community.

• A residential setting, such as a nursing home or assisted living facility.

In Your Own Home

Given the choice, most people would prefer to live in their own home or with their family. By getting help with everyday tasks, this often can happen. Some types of services you may be able to get at home are:

• Personal care services — Help with housekeeping, cooking meals or personal care tasks, such as bathing and dressing.

• Medical services — Provides medical supplies or equipment to help you be independent. These might include reachers to help you get things off high shelves or a scooter to help you move around. You also might get nursing care in your home.

• Transportation services — Rides to medical appointments if you do not have a car or can't drive.

• Caregiver services — Provides a break and other help for family members who help take care of you.

A Daytime Program in Your Community

Whether you live alone or stay by yourself when your family goes to work, you do not have to be lonely. If you go to a daytime program, also called adult day care, you can have fun, learn and be with others. You also may get help with some tasks, such as taking medicine.

In a Residential Facility

Sometimes it’s not possible to live by yourself or with your family. In those cases, assisted living or a nursing home might be right for you. These facilities are professionally staffed businesses that provide different levels of care, depending on what you need.

Assisted Living Facility

If you choose to live in assisted living facility, you will usually have your own room or apartment. You can bring your things with you to make it feel like home. You will usually eat with others. Services might include:

• Help bathing or getting dressed.

• Someone to make sure you get your medicine.

• Employees checking on you to make sure you are doing OK.

Nursing Home

If your doctor says you need full-time care from a nurse, a nursing home may be right for you. Nursing homes are the highest level of care most people will receive outside of a hospital. This type of care is sometimes called custodial care. In additional to a high level of medical care, residents get help getting into and out of bed and with feeding, bathing and dressing and other activities.

The cost of a nursing home in Texas ranges from $3,000 to $4,000 a month (University of Texas). If you do not have much income or other resources, Medicaid may pay for a nursing home. You can talk to a Texas Health and Human Services employee about Medicaid. You will have to live in a nursing home for 30 consecutive days before you can apply for services.

What can an elder law attorney do for me?

As an elder law attorney I can help with any one of the following:

-Develop a strategy to prepare for a Medicaid application for nursing home cost.

-Advocate on your behalf to get the help, care and assistance you need.

-Complete, file and persist with the approval of your Medicaid application.

-Communicate with the nursing home regarding your cost.

-Discuss the importance of wills and estate planning, including planning for a minor or adult with special needs..

-Create a durable power of attorney for financial decisions. Specifically create a unique document used in elder law for disability planning.

-Provide help with health care and planning, including long term care options, Medicare, and health care power of attorney.

-Financial representation: financial planning, long term cost forecasting and housing opportunities.

-Guardianship: help with the selection and appointment of a legal guardian.

-Help locate long term care facilities and manage assisted living cost.

-Asset preservation for nursing home cost.

-Draft a living will or other advance directives, including a durable power of attorney and long term planning documents.

Nursing home count down

Enhanced Life Estate Deed

            The Enhanced Life Estate Deed is a simple way to transfer real estate to a beneficiary after you have died. Generally, any transfer made within 5 years prior to your medicaid application for long term care will incur a penalty. Please note the Enhanced Life Estate Deed is an exempt transfer. But only when transferring an already exempt asset like your Homestead.

 The Enhanced Life Estate Deed works much like a life insurance policy or retirement account which transfers property without the need for probate. Importantly, nothing changes while you are alive, as the Enhanced Life Estate Deed only becomes effective upon death. You can sell or mortgage the property, or even give it away, while you are alive. The person or persons you have designated to receive the property after you have passed away will not acquire the interest you own until after your deaths, and at that time, the property will be received subject to all mortgages, liens, encumbrances, and other interests to which the property is subject.

The Federal government requires that states seek recovery from Medicaid recipients; however, Texas is not as aggressive as other states when it seeks to recover assets. In fact, the current policy in Texas is to recover only from assets that pass to a person's estate. Therefore, when an Enhanced Life Estate Deed is used (or a "Lady Bird Deed"), the property will pass automatically to the beneficiaries named, and the State of Texas will not try to recover it. If Texas becomes more aggressive in its estate recovery efforts in the future, Enhanced Life Estate Deed s will not avoid Medicaid estate recovery.

Advance planning for those you love ~

Living wills and other advance directives are written, legal instructions regarding your preferences for medical care if you are unable to make decisions for yourself. Advance directives guide choices for doctors and caregivers if you're terminally ill, seriously injured, in a coma, in the late stages of dementia or near the end of life.

Advance directives aren't just for older adults. Unexpected end-of-life situations can happen at any age, so it's important for all adults to prepare these documents.

By planning ahead, you can get the medical care you want, avoid unnecessary suffering and relieve caregivers of decision-making burdens during moments of crisis or grief. You also help reduce confusion or disagreement about the choices you would want people to make on your behalf.

Power of attorney

A medical or health care power of attorney is a type of advance directive in which you name a person to make decisions for you when you are unable to do so. This document is called a MEDICAL POWER OF ATTORNEY (AND HIPAA RELEASE AUTHORIZATION)

Choosing a person to act as your health care agent is important. Even if you have other legal documents regarding your care, not all situations can be anticipated and some situations will require someone to make a judgment about your likely care wishes. You should choose a person who meets the following criteria:

• Is available to respond immediately in case of emergency

• Is not your doctor or a part of your medical care team

• Is willing and able to discuss medical care and end-of-life issues with you

• Can be trusted to make decisions that adhere to your wishes and values

• Can be trusted to be your advocate if there are disagreements about your care

The person you name may be a spouse, other family member, friend or member of a faith community. You may also choose one or more alternates in case the person you chose is unable to fulfill the role.

Physicians Directive (living will)

DIRECTIVE TO PHYSICIANS AND FAMILY OR SURROGATES is a legal document that spells out medical treatments you would and would not want to be used to keep you alive, as well as your preferences for other medical decisions, such as pain management or organ donation.

In determining your wishes, think about your values. Consider how important it is to you to be independent and self-sufficient, and identify what circumstances might make you feel like your life is not worth living. Would you want treatment to extend your life in any situation? All situations? Would you want treatment only if a cure is possible?

You should address a number of possible end-of-life care decisions in your living will. Talk to your doctor if you have questions about any of the following medical decisions:

• Cardiopulmonary resuscitation (CPR) restarts the heart when it has stopped beating. Determine if and when you would want to be resuscitated by CPR or by a device that delivers an electric shock to stimulate the heart.

• Mechanical ventilation takes over your breathing if you're unable to breathe on your own. Consider if, when and for how long you would want to be placed on a mechanical ventilator.

• Tube feeding supplies the body with nutrients and fluids intravenously or via a tube in the stomach. Decide if, when and for how long you would want to be fed in this manner.

• Dialysis removes waste from your blood and manages fluid levels if your kidneys no longer function. Determine if, when and for how long you would want to receive this treatment.

• Antibiotics or antiviral medications can be used to treat many infections. If you were near the end of life, would you want infections to be treated aggressively or would you rather let infections run their course?

• Comfort care (palliative care) includes any number of interventions that may be used to keep you comfortable and manage pain while abiding by your other treatment wishes. This may include being allowed to die at home, getting pain medications, being fed ice chips to soothe mouth dryness, and avoiding invasive tests or treatments.

• Organ and tissue donations for transplantation can be specified in your living will. If your organs are removed for donation, you will be kept on life-sustaining treatment temporarily until the procedure is complete. To help your health care agent avoid any confusion, you may want to state in your living will that you understand the need for this temporary intervention.

• Donating your body for scientific study also can be specified. Contact a local medical school, university or donation program for information on how to register for a planned donation for research.

Top 10 Medicaid Myths

The Medicaid program is our country’s largest health and long-term care insurer, covering one in six Americans, including two-thirds of nursing home residents and one in five persons under 65 with chronic disabilities. A look at the facts about Medicaid uncovers many common misconceptions about the program that are simply myths. Today, we will take a look at and dispel some of myths about exactly who qualifies for Medicaid, what coverage it provides, and how you can plan for long-term care for yourself or for a loved one.

§  Myth #1: “Medicare will cover my nursing home expenses.” It is important to understand that Medicare, the public health insurance system for seniors over 65 and disabled adults, does not pay one penny for long-term care. Medicare only pays for medical care delivered by doctors and hospitals, and in certain cases short-term rehabilitation which might take place in a nursing home.   Medicare covers, at most, 100 days of short-term rehabilitation, and does not cover help with activities of daily life, such as eating and bathing, that the aged can need for years.

§  Myth #2: “Medicaid is for poor people.” Medicaid does serve as a program for millions of low-income Americans, but it also benefits many middle class seniors, primarily by covering the catastrophic costs of nursing-homes so families don’t have to deplete the assets it took a lifetime for them to earn.

§  Myth #3: “Medicaid Planning is Not Ethical” If you or a loved one become a client of Carol J. Renner, Elder Law Attorney; you may rest assured that everything we do is absolutely, unquestionably, 100% legal and ethical.  Attorneys in general have the highest ethical rules of any profession, and as a member of NAELA and an Elder Law Attorney, we serve with the highest ethical standards.

§  Myth #4: “I have to dispose of all my resources to get Medicaid.” While in general a Medicaid applicant can have no more than $2,000 in assets to in order to qualify, there are many assets that don’t count toward this limit, and with good legal representation you do NOT have to go broke in order to get Medicaid.  A married couple can legally and ethically protect assets for the spouse still living at home and avoid a “Medicaid divorce” to qualify.

§  Myth #5: To qualify for Medicaid, you should transfer your money to your children. By transferring assets within five years of your benefits application; you may disqualify yourself from receiving Medicaid benefits.  In fact, you will be assessed a transfer penalty which is a period of ineligibility for Medicaid. 

§  Myth #6: “Once I am in a nursing home it is too late to start Medicaid Planning.” Medicaid planning can be started while you are still able to make legal and financial decisions, or can be initiated by an adult child acting as agent under a properly-drafted Power of Attorney, even if you are already in a nursing home or receiving other long-term care assistance.

§  Myth # 7: “If my assets are owned by a Revocable Living Trust, they are protected from nursing homes.” A Revocable Living Trust (RLT) generally provides for the creator of the trust (and, if applicable, the creator’s spouse) to have full use of the trust income and principal for life. On the death of the creator, the assets may continue to be held in trust (or may be distributed) for the benefit of the named beneficiaries, such as the grantor’s children. The major benefits of the RLT are protection from probate and incapacity. Although an RLT does a terrific job of avoiding probate, what most people don’t realize is that an RLT does not protect your assets from creditors or from the expenses of long-term care. The proper planning tool is a unique trust called an Irrevocable Medicaid Trust. 

§  Myth # 8: “I will get better care if I private pay.” It is illegal to treat Medicaid patients differently than private pay patients and it is illegal to discriminate against Medicaid patients. There may be no “Medicaid wing” and no public identification of a “Medicaid bed.” Typically, the staff does not know which patient is a Medicaid recipient.   My practice is all about preserving dignity and quality of life for Elders.

§  Myth #9: “The rules that applied to my friend will also apply to me.” Medicaid rules change frequently, and the rules also vary from state to state. There may also be facts about the friend’s situation that the client does not know, and these facts may result in implementing different strategies than those that apply to the client’s situation.

Myth #10: “I don’t need any help.” Medicaid laws are the most complex and confusing laws in existence, and impossible to understand without highly experienced legal assistance. Without proper planning and legal advice from an experienced elder law attorney, many people spend much more than they should on long-term care, and unnecessarily jeopardize their future care and well-being, as well as the security of their family.