What You Need to Know About the End of Medicaid’s Public Health Emergency

What You Need to Know About the End of Medicaid’s Public Health Emergency

For the past three years, Medicaid has been operating under special procedures mandated by the Public Health Emergency (PHE) in response to COVID. Before the pandemic, people were required to undergo periodic eligibility checks (known as redetermination) in order to remain on Medicaid. They may also have had to pay monthly premiums to “power accounts” to receive the highest level of coverage.

PHE paused those requirements to provide everyone under Medicaid with continuous coverage. Under PHE, states are not allowed to disenroll anyone from the program. Instead, Medicaid recipients have been automatically re-enrolled.

Now, the PHE is scheduled to end on May 11, 2023.

What Does this Mean for People in Indiana and Michigan?

While this has not affected Indiana or Michigan as much as other states, the eligibility of every current Medicaid recipient in the state will need to be re-evaluated over the next 12 months. It is our understanding that these evaluations will be done as a part of the standard annual redetermination process.

Normally, annual redeterminations are mostly routine, with the notice of approval for another 12-month period often arriving before the redetermination form is due back to FSSA. Because of the end of the PHE, we are expecting these redeterminations to be more involved and require more thorough responses.

The Federal government has estimated that as many as 15 million people nationwide may lose Medicaid coverage and that half of those will be terminated incorrectly. This is a process that is likely to require patience and preparation.

What Do I Need to Do?

If you’re currently enrolled in Medicaid, you can proactively update your information before your redetermination to ensure they have your correct contact information, as well as any changes in income or assets. You can go to the FSSA Benefits Portal to do so.

Keep a watch out for reminders. The state will send an explanation reminder letter 60 days before they mail out paperwork for eligibility checks, then redetermination letters 45 days before the due date. Enrollees are also given 90 days to come into compliance to regain eligibility.

We’re Here to Help

Everyone’s situation is unique, and, as always, we’re prepared to help you navigate these changes. If you have questions, concerns, or want to know more about how this may impact you and your estate plan, please reach out right away.

We have prepared a list of the documents that are likely to be needed to complete the redetermination. As a general rule, save copies of bank statements and any notices that reflect a change in income (Social Security, pension, etc.) These do not have to be originals; you can scan and store electronic copies.

In the meantime, we will continue to monitor any changes in Indiana, Michigan, and Federal law related to PHE and reach out to inform you of what’s happening.

 

Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation. All THK blogs are considered advertising material by the Indiana Bar Association.

Estate Planning When a Loved One has Dementia or Alzheimer’s

Estate Planning When a Loved One has Dementia or Alzheimer’s

With Alzheimer’s, or another disease which causes dementia, estate planning takes on a new level of both urgency and complexity. For many families, it can feel like time is running out to ensure your loved one is taken care of well through the end of their life, and that their wishes will be honored once they’ve passed. 

The good news is that whether they’ve received an early or late-stage diagnosis, it’s not too late to get their estate plan in order and help everyone feel confident in the ability to carry out their wishes.

 

The Opportunity to Plan Ahead

With an early-onset diagnosis, you have the opportunity to plan for the future while your loved one still has the ability to make decisions and clearly express their wishes. 

It can be tricky to have the conversation at this stage. It may be awkward. The person with the diagnosis or other family members may be in denial, and it can be emotionally exhausting to deal with. But pushing through and making important decisions at this time is critical to ensuring there’s a safety net in place for when the affected family member is unable to to make decisions on their own. There are a number of online resources to help facilitate the conversation.

 

What Legal Capacity Means

Legal capacity is an individual’s ability to understand the meaning and consequences of a legal decision. And just like a person’s soundness of mind while dealing with Alzheimer’s or dementia, it comes and goes. This means that rather than a one-time event, legal capacity is evaluated at the time of a legal action. Legal capacity also varies depending on the decision that needs to be made or the document that needs to be signed.  A person may not have the capacity to agree to sell a house, but may be able to sign a power of attorney.

With a power of attorney in place, it’s important to know that the individual still has the right to make their own decisions if they have the legal capacity. A power of attorney gives someone else the ability to make decisions on their behalf, not instead of them. It’s a common misconception, which we dive deeper into here

Your attorney can help you determine what level of capacity is needed for a document, as the understanding necessary for a given document can vary. A medical professional can help evaluate your loved one and determine their mental capacity. And you and your family, who know the individual best, can help evaluate how they are doing based on their day-to-day functioning.

 

Documents You Need in Place

Every estate plan is unique, but there are basic documents that every plan needs. Make sure to review all of your options with your attorney while putting it all together.

Power of Attorney Documents

Power of attorney (POA) documents become critical with a dementia diagnosis. A power of attorney allows an individual to appoint someone they trust with the ability to make financial or healthcare decisions for them. It’s imperative that your loved one have these documents so that once they are no longer able to make their own decisions, a trusted person can step in on their behalf.

There are two kinds of POAs:

1. Financial Power of Attorney

This POA gives broad control over decisions regarding finances and property. Some refer to this as a “durable” power of attorney. “Durable” simply means that the powers continue even if the person giving the authority is incapacitated. Without this document, no one would have the ability to take even simple financial actions like paying bills without going through a court, which can be costly, time-consuming and still not turn out favorably for the family. 

Some of the decisions they can make include those related to:

  • Selling and buying real estate
  • Large expenses
  • Use of income
  • What to do with owned assets
  • Maintaining financial records
  • Filing and paying taxes

2. Healthcare Power of Attorney

This POA operates the same as the financial POA, allowing someone else authority over medical decisions, such as selecting doctors, choosing treatments, or end-of-life decisions.

Living Will

While your loved one is still able to do so, it’s important to have the conversation around end-of-life choices – as difficult as it can be. A living will lays out a person’s wishes for medical care for when they’re unable to make those decisions themselves. It can be as detailed or as simple as they want. Usually, living wills cover certain medical treatments and procedures like surgery or resuscitation, and establish wishes regarding palliative care. You may also wish to use another document, such as a Five Wishes declaration or a Physician’s Order on Scope of Treatment (POST) form, to make things as clear as possible for your family and medical providers. 

Last Will and Testament

A last will and testament establishes how the person wants their estate and assets to be distributed after death. It appoints an executor (the person responsible for managing the estate) and names beneficiaries (the ones receiving the assets). A will can also specify how children and/or pets will be cared for and funeral/burial arrangements. In many cases it will point to a trust, which will manage the estate rather than stating everything in the will itself.

Living Trust

A trust can be a more powerful tool than a will because it allows a trustee to manage the estate both during life and after death without the need to go through probate. The trustee can be the individual as long as they are alive and have capacity, with a substitute stepping up to manage the trust if they cannot. There are many options when it comes to establishing a trust, and when carefully drafted, a trust can protect and manage assets during many stages of the estate. 

A trust allows for your loved one to be taken care of once they are no longer able to manage their finances, can flex if the healthier spouse or trustee becomes ill or can’t manage the trust anymore, and can distribute the assets after death. It’s an essential tool for those with dementia or Alzheimer’s, as it both protects and directs the assets within the estate.

 

Planning for Life Ahead

The documents mentioned are the essential tools for creating an effective estate plan. But it’s how these tools are wielded, and the strategies considered, that constitute real estate planning

For instance, an effective estate plan should take into consideration the possibility of long term care. Advances in the care of Alzheimer’s and dementia patients now mean a much lower likelihood of a long nursing home stay. However, every situation is unique and you should look at whether it makes sense in your situation to take action to protect assets from being depleted by costly long term care. 

It’s also important to consider how the estate plan will affect the primary caregiver, often the healthier spouse. Caregiver burnout is real, and the caregiver’s quality of life is all too common a casualty in the effort to take care of the one affected by dementia or Alzheimer’s. Strategic estate planning takes into account not just the afflicted, but those caring for them, and the entire system of support. 

Getting organized and making sure all of the necessary information such as passwords, locations of documents and contact information for advisors is accessible to your family is an important part of putting the plan in place. Particularly with a diagnosis of dementia or Alzheimer’s, it is important to ask these questions and get this information secured to make life easier for caregivers in the future.

If the disease has progressed far enough that they’re unable to make decisions on their own, you can step in for them under a healthcare power of attorney. In that case, the family can get together to decide what that family member would want, and how to best take care of them as they believe they would want. It’s still an opportunity to make many important decisions before they happen, and you ensure their wishes are carried out with fewer complications and family disagreements after death.

 

Don’t Hesitate to Reach Out

An Alzheimer’s or dementia diagnosis can be a difficult time for the family, and often, mental illness is not fully evident at first. Once you and your family have come to terms with the diagnosis and have made initial care and treatment decisions, sit down as soon as possible with an attorney to review your legal options. A carefully thought out estate plan delivers confidence and peace of mind. 

Reach out to one of our offices to find an estate planning attorney who can help you take the first step.

Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation. All THK blogs are considered advertising material by the Indiana Bar Association.

Family Caregiving in Post-Pandemic World

Family Caregiving in Post-Pandemic World

Family Caregiving in the Post-Pandemic World

May is National Elder Law Month, so it seems like an appropriate time to take a look at how we can take the lessons we’ve learned over the past year and apply them to caring for aging and disabled loved ones.

Probably the greatest shift over the past year has been the use of technology to stay connected and informed. Whether it’s checking in over Zoom or monitoring or using any of the plethoras of available in-home cameras to monitor caregivers, we have learned to use tech gadgets in new ways to make caring for friends and family members easier.

Aside from the two mentioned above, here are some more ideas for using gadgets to monitor a loved one’s well-being.

  1. Most Amazon Alexa devices have a “drop-in” feature. You don’t need to push a button to call another device attached to your Amazon account. Just say “drop-in.” It’s a great idea for those people who are intimidated by technology.
  2. The USPS offers a service called Informed Delivery. Every morning, you receive an email with pictures of the pieces of mail that will be delivered to your house that day. This is a great way to keep on top of bills that may be arriving at a parent’s house without having to go over and physically check the mailbox every day.
  3. Most cable and satellite systems will let you control a cable box from a mobile device. This can come in handy when mom or dad is flustered that they can’t find their program.
  4. Amazon’s Alexa devices can also be set up to let you know when someone uses their Alexa for the first time each day and will send you an alert if no activity is sensed for a certain period of time. Some home security systems also offer this feature.
  5. Many smartwatches now contain an emergency call feature and location tracking. Some versions of the Apple Watch add fall detection and heart rate monitoring. This could be an alternative for older adults who reject the idea of the “I’ve fallen and I can’t get up” button.

The elder law team at THK is here to assist with a wide variety of elder law issues. Reach us through email at elderlawteam@thklaw.com.

Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation. All THK blogs are considered advertising material by the Indiana Bar Association.

Impact of Stimulus Check on Medicaid Eligibility

Impact of Stimulus Check on Medicaid Eligibility

Impact of Stimulus Check on Medicaid Eligibility

If you recently received a stimulus check from the Federal Government as a result of the CARES Act, we are writing to let you know that the stimulus check does not count as income and is an exempt asset for a period of twelve months after it is received.

If you are currently receiving Medicaid coverage (a “Recipient”) and received a stimulus check from the Federal Government as a result of the CARES Act, you may be concerned with maintaining your eligibility. Medicaid’s asset rule requires the bank account of a Recipient to remain below $2,000 as of the first moment of the first date of each month to maintain eligibility. In addition to the asset rule, Recipients must also report all changes in monthly income to FSSA.

How will FSSA treat the stimulus checks that thousands of Recipients are receiving in their bank accounts or mailboxes?

The stimulus check is an exempt asset for a period of twelve months after it is received and will not immediately disrupt eligibility. The receipt of a stimulus check is considered a federal refund under FSSA’s Policy Manual and therefore will not immediately count as an available asset.

In addition, Medicaid’s income rule considers the individual’s monthly income in the calculation of the monthly liability amount payable to a nursing facility. The one-time stimulus payment is not considered income and will not result in a change to your monthly liability amount.

What does this mean for you?

While it remains critical that the balance in a Recipient’s bank account NEVER exceed $2,000 on the first day of any given month, the stimulus check deposited is not included in this balance. While you can now essentially keep up to $3,200 ($2,000 asset limit + $1,200 stimulus check) in your account without penalty, we strongly recommend maintaining accounts at a balance of approximately $1,500.00 to avoid any unforeseen errors.

If you have any questions about the information provided or obtaining Medicaid eligibility for yourself or a loved one, please contact our office for assistance.

 

New Smartphone App for Health Care Decision-makers

The American Bar Association has launched a new app to help keep key health care decision-making information close at hand. Mind Your Loved Ones is available in all app stores and allows the user to keep copies of health care documents, such as powers of attorney, health care consents, living wills, and POST (physician’s order on the scope of treatment) forms on their smartphones, along with lists of medications, doctors and insurance information. Because there is no limit to the number of profiles in the app, you can keep this important information for your spouse, children, parents, and any loved one you are caring for. Documents stored in the app can easily be shared via email, text, or fax. For more information on the Mind Your Loved Ones App visit the ABA website. 

Kahlyn N. Ashcraft, Estate Planning & Elder Law Attorney, THK Law, LLP

Author: Kahlyn N. Ashcraft is an estate planning, estate administration, and elder law associate at Tuesley Hall Konopa, LLP. Kahlyn helps clients with wills, trusts, special needs trusts, guardianships, powers of attorney, and long-term care planning including Medicaid planning.

You can contact Kahlyn by calling 574.232.3538 or email kashcraft@thklaw.com.

Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation. All THK blogs are considered advertising material by the Indiana Bar Association.

Estate Planning & Elder Law Issues in Trying Times

Estate Planning & Elder Law Issues in Trying Times

Events of the COVID-19 pandemic have many people thinking about their estate planning documents and whether they and their family members are adequately covered. Despite the lockdown, the attorneys of THK Law, LLP, stand ready to answer client questions and assist with the creation of planning documents.

Estate Planning

In a crisis situation, your estate planning points of focus should be as follows:

  • First, do I have the necessary documents in place to ensure my wishes are carried out in the event that I cannot communicate with my health care providers?
  • Second, if I am unable to make financial decisions or handle routine bill-paying tasks, is there someone authorized to take over and do they have the information that they need?
  • Third, for those who are caregivers for a family member or other loved one, is there a plan in place to ensure continuity of care for those individuals?
  • Finally, are my final wishes and my plan for the management and distribution of my estate clear and properly documented?

If you already have documents in place, now is the time for a quick read through to make sure they still meet your needs. If you can’t locate your copies, don’t worry. If we prepared them, we have them on file and can get copies to you. Make sure that you have communicated your plan with the appropriate people so that everyone knows what their roles and responsibilities are.

If you do not have a plan in place, or if you have been sitting on draft documents that you just haven’t signed, we can help. While we are currently limiting in-office appointments to document signing meetings, we are continuing to hold meetings with new estate planning and elder law clients via video or teleconference.

Elder Law

As if the current pandemic wasn’t complicating life enough, effective March 1, our region began implementing a new case processing system for Medicaid applications. This is leading to increased delays in the Medicaid application process and more incorrect denials of eligibility. If you receive a denial notice that you believe is incorrect or are experiencing difficulties in the Medicaid application process, contact our office to see if we can assist with your situation.

Most, if not all, nursing home and assisted living facilities are currently on lockdown, either severely restricting visitors or banning them altogether. How can you be sure your loved one is getting the care they need and maintain contact with them? One option is to have an iPhone or an iPad delivered to the facility. You can have it pre-set up with FaceTime and if the facility has Wi-Fi, you can get the connection set up from the facility parking lot. Another option is the use of private home health aides. While some facilities are not allowing family members to visit, they may be allowing outside health care workers into the facility, and hiring someone to go in and check on your loved one periodically (and possibly help facilitate communication with the outside world) can help with your peace of mind.

Contact our estate planning and elder law team with your questions at 574.232.3538. We are open 8 a.m. to 5 p.m. Monday through Friday, and all our attorneys are available to assist you via phone and virtual meetings.

Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation. All THK blogs are considered advertising material by the Indiana Bar Association.

Supported Decisionmaking

Supported Decisionmaking

Supported Decisionmaking – a new alternative to guardianship

Effective July 1, 2019, Indiana now has the option for supported decisionmaking agreements to be used in lieu of guardianship proceedings for individuals who may need assistance in making certain types of decisions, but do not necessarily require a full guardianship to be established. It allows people with disabilities to maintain some level of a self-directed, independent life.

While, on its face, this seems like a huge step forward in disability rights, there are some lingering issues that will need to be hammered out before these agreements can really begin to make a difference in people’s lives.

Indiana is one of only a handful of states to have legislation authorizing these types of agreements. However, unlike in a number of other states, Indiana has no statutory form. Just as with the power of attorney documents, each supported decisionmaking agreement can be unique. Although this allows customization to make the document suit the situation, it can lead to difficulties in getting the document recognized and accepted. Schools, medical providers, and financial organizations may not see the agreement as a legally binding document.

In addition, these agreements are not a substitute for powers of attorney in the event of an individual’s complete incapacity. Rather, supported decisionmaking agreements are a tool in our toolbox that we can use to help facilitate a more independent lifestyle. Just as with any adult, power of attorney documents for health care and finances should also be executed to provide a decisionmaking chain of command in the event the individual is incapable of making a decision for him or herself.

The framework found at the link below can help start the conversation about supported decisionmaking and guide the creation of the document.

Charting the LifeCourse – Tool for Exploring Decision Making Supports

In addition, other states, such as Maine, Texas, and Delaware have statutory forms that can be used for reference in discussing the agreement. We recommend consulting with an attorney who has experience in special needs planning prior to signing one of these agreements to ensure that it meets all of your needs. If you would like us to review the special needs situation for your loved ones, please call 574.232.3538 to schedule an appointment.

Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation. All THK blogs are considered advertising material by the Indiana Bar Association.