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Trends in Elder Law: Expanded Community Benefits

By Harry S. Margolis and Patricia C. D'Agostino

The practice of elder law has centered on MassHealth coverage of nursing home care since its beginning almost three decades ago.  While this remains a large part of the practice today – both in terms of planning in advance and responding to health care crises – new avenues are available help pay for home and assisted living care, the preference of most seniors.

The challenge, however, is that while there is a single MassHealth program that pays for care in virtually all nursing homes, the plethora of different programs and eligibility criteria for care in the community make it very difficult for families to find the best care options available.  Elder law attorneys and geriatric care managers often help guide them through the morass.

Following is a primer on the available community benefits under MassHealth, SSI and veterans benefits.

Community Coverage

MassHealth Eligibility

In order to be eligible for community benefits, seniors must spend down to $2,000 in countable assets and have monthly income between $903 and $2,022, depending on the program and clinical need.  Typically, to be eligible for MassHealth the income limit is $903.  However, many applicants qualify for the "waiver" program, which allows an increased income limit of $2,022.  To be eligible for the waiver program, applicants must clinically require nursing home care even though they are receiving the services at home.

The Office of Medicaid is not imposing a penalty period for community-based benefits at this time.  This means that the transfer of assets to get under the limit do not affect eligibility, though they would if the senior were to require nursing home care during the subsequent five years.

It is important to note, however, that the regulations do allow MassHealth to impose a penalty-period for community-based benefits, but it has not done so to date.  This could change at any time.

Some of the available community MassHealth programs are as follows:

Adult Foster Care ("AFC")

AFC is a program designed to provide payment of up to $1,500 a month to a caretaker other than a spouse who lives with the individual who needs services.  This income is non-taxable and can be of great assistance to family members who are caring for loved ones to replace lost income or to use to hire some part-time assistance.  The actual monthly stipend is based on the number of activities of daily living the senior needs assistance with.  Activities of daily living, for example, are dressing, eating, bathing, toileting, and transferring.

Applicants can learn more about the program and apply for coverage through their local Aging Service Access Point (ASAP) or at CaregiverHomes.com.

Personal Care Assistants ("PCA")

PCA is a program designed to provide individuals with disabilities with some relief in paying aides that they hire privately.  Family members can qualify as PCAs.  In order to be eligible applicants must need "hands on" assistance with at least two activities of daily living.  Mere monitoring or supervision is not enough.  In addition, either the beneficiary or someone else living in the household must be able to supervise the PCA.

To determine eligibility, the local ASAP or other contracted agency, such as the Boston Center for Independent Living, performs a clinical assessment of the applicant and makes a recommendation to MassHealth for the number of hours of care needed.  Once approved, MassHealth contributes $12 per hour to the cost of PCAs.  This payment can be deposited directly into the worker's bank account with a pay stub to beneficiary for her records.  Beneficiaries or their families can pay the PCAs for the difference between their rate and the $12 per hour or for additional hours of care not covered by MassHealth.

Community Choices ("Choices")

The Choices program is designed to provide seniors with a variety of at-home services, such as, skilled services, home health aides, housekeeping, laundry, meal preparation, and transportation to and from doctor's appointments.

Applicants must be eligible for the "waiver" program, as discussed above.  Similar to the PCA program, a representative from the local ASAP visits the applicant to determine the level and type of the services required.  The agency then makes a determination as to how many hours and what services it will provide.  These services must be provided through agencies and individuals that MassHealth has contracted with.  This is one of the differences between Choices and PCA, you do not hire your own workers under the Choices program.

ASAPs serve as the main access point for these programs, and can often be of great assistance.

Program for All Inclusive Care for the Elderly ("PACE") and Senior Care Options ("SCO")

PACE and SCO are so-called capitated programs, under which Medicare and MassHealth together pay health care providers a fixed monthly amount to provide all care needs of participating seniors.  These can be a great programs for the right patients, especially those who are quite frail because the programs are designed to look at the whole patient and to provide comprehensive care to keep the senior healthy.  The sicker the patient becomes, the higher the program's costs.

In order to do this, the PACE and SCO programs use a team approach of staff physicians, nurses and therapists and the patient must give up her own doctors.  In addition, the programs may use adult day health centers rather than provide home care during day, and will typically contract with particular assisted living and nursing home facilities when such care is needed, giving the patient and her family fewer options.  Each patient needs to determine whether the benefit of the comprehensive care outweighs these limitations.  Finally, PACE and SCO programs do not exist statewide.

Veterans Benefit - Aid and Attendance ("A&A")

Increasingly, veterans and their spouses are taking advantage of the Veterans Administration A&A program which will pay up to $1,800 a month towards home care or assisted living care for those who qualify.  In order to qualify, applicants are limited to about $80,000 in countable assets (though this amount varies depending on the applicant's age).  Similar to community MassHealth, the Veterans Administration does not impose a penalty period for transferring assets prior to application, but will terminate benefits for a year if assets are transferred while already receiving benefits.  For instance, this might occur if the veteran sold a house and transferred the proceeds to once again get below the countable asset limit.

In terms of income qualification, the A&A pension is available up to certain limits to cover the shortfall between the veteran's income and his cost of care.

Assisted Living Facilities

While PACE, SCOs and A&A can pay for assisted living facility care as well as home care,  MassHealth also offers a couple of programs to assist with the cost of care in assisted living facilies.  However, unlike nursing home care, not all assisted living facilities contract with MassHealth.  To be eligible, the assisted living facility must participate and also have spaces available.  Often they have an unwritten rule that they require two years of private payment before the resident is put on the waiting list for one of its subsidized units, and no one can be sure in advance how quickly the waiting list will move.  This is something to keep in mind when looking for the appropriate facility.

Group Adult Foster Care ("GAFC")/SSI-G

GAFC provides assistance with the cost of services provided at assisted living facilities and SSI-G provides assistance with the cost of rent.  Many facilities require that participating residents have both and one cannot have SSI-G without GAFC.  Those whose income is too high to be eligible for SSI-G, may still qualify for GAFC.

To be eligible for GAFC, residents must be eligible for MassHealth standard, which means their income is limited to $903 and their assets are limited to $2,000.  Again, the agency is not imposing a penalty-period for transferring assets for community MassHealth at this time.  However, unlike many of the other MassHealth community programs, assisted living residents cannot use the "waiver" to increase the income limit to be eligible for the GAFC program.  However, they may be able to meet a deductible and still qualify for benefits if it makes sense financially.

For SSI-G, on the other hand, to be eligible, there is a $2,000 asset limit and the Social Security Administration imposes a transfer-penalty period for transfers made within three years of application.  It also has a strict income limit of $1,148 per month against which there are no deductions.  So residents whose income is only a few dollars over the limit are ineligible.

The result is that some residents qualify for GAFC only if the facility is contracted with MassHealth, does not require dual eligibility for SSI-G, and if it makes sense financially to meet the deductible.

Conclusion

The good news is that there are more options than ever before to help pay for non-nursing home care and that the commonwealth has been creative in doing its best to leverage the available public benefits programs.  The bad news is that this has created a very complicated and uncertain terrain for those families trying to get care for their loved ones, as well as for the professional advising them.