When facing a diagnosis that will likely result in nursing home placement, it is important to get your ducks in a row. Not speaking to an experienced elder law attorney well in advance can be a costly mistake if you try to figure everything out by yourself.
As we all know, the State of Illinois has been battling budget problems for years. For the last few years, the Department of Human Services has found ways to save the State money by denying Medicaid applications for seniors who are qualified. However, there are certain rules in place that the agency is more strictly interpreting in order to avoid paying for nursing home care as long as possible.
Two recent examples are worthy of your attention.
If an adult child lives with their parent for 2 consecutive years to keep them out of the nursing home, the parent’s home can be transferred to the caregiving child without penalty.
This “loophole” in Medicaid law is mandated by federal law. However, the state is looking at the timing of the transfer to the child with more scrutiny than ever. In a recent administrative ruling, the Department of Human Services hearing officer opined that once a senior leaves their home and moves into a nursing home, the homestead property is no longer homestead property, but an available asset. Therefore, if the homestead was not transferred to the caregiving child before the parent moved to the nursing home, then the transfer is not allowed.
There is informal guidance that says application to the Medicaid Field Office that processes the application will consider the matter on a change of spend-down request, such requests often go months without response, if responded to at all.
Furthermore, to take advantage of this caregiving child “loophole”, there must be documentation of the parent’s disabling condition (i.e. a dementia diagnosis) that requires 24-hour care and supervision that is dated at least 2 years before the date of admission to the nursing home. Also, the caregiving child must have evidence of their residency (driver’s license, billing statements, tax returns, voter registration, etc).
Planning to take advantage of this provision to preserve the value of a residence should be done at the earliest possible time.
If your application is denied for failure to provide documentation, always request an appeal of this decision within 60 days of the denial notice.
Any denial by the Department of Human Services on a Medicaid application must be appealed within 60 days of the date of the notice. When an application is denied for failure to provide documentation, there is a process called a “re-open”. With a re-open, if all missing documentation is provided within 60 days of the date of the denial, then the case will be re-opened and processed.
However, what happens if you do not hear back from the state before the 60 days expires? Well, if your documentation didn’t include everything the agency wanted, then the application is denied. There is no requirement that the agency evaluate your re-open request within the 60 day appeal period. If you have not filed an appeal during that 60 days, the agency’s position is that you missed your window and you are out of luck.
Therefore, to preserve your rights, always file an appeal with the agency’s Bureau of Appeal Hearings. Failing to apply within 60 days of the date on the original notice causes the Bureau of Appeal Hearings to refuse to hear your case for lack of jurisdiction because the appeal was not timely filed.
Meeting with an experience elder law attorney well in advance to appropriately plan for nursing home placement can save you from costly mistakes in the end. Consider it a small investment that could save substantially more.
Tony DelGiorno is an elder law attorney and shareholder with Rammelkamp Bradney Law Firm, with offices in Springfield and Jacksonville. Visit the website or call to set up a consult at 217/522-6000. Mention this article and get a 15 minute free telephone consultation.
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