Ronald Morton's Elder Law Blog

Mississippi AG Opposes Nursing Home Ratings System

The Mississippi AG along with AG's from 29 other states, has sent a letter to the Center for Medicare and Medicaid Services asking that it suspend its current state by state nursing home rating system.  Under the current rating system, nursing homes within a state are compared against one another for various criteria on a rating scale of 1 to 5.  The AG's have requested that the standards for this rating scale be set on a national scale under the theory that a state by state comparison is confusing to consumers.  What the request fails to recognize, however, is the reality that almost all nursing home searches by families are limited to a single state, due to residency requirements for Medicaid and proximity to family.  A national standard would likely result in a flat-lining of rankings within a given state, making it much more difficult for consumers to tell the best nursing homes within a given state from the worst.  While a nationalized standard for ratings would make it easier for a consumer to compare a facility in Mississippi to a facility in California, the reality is that few consumers have the luxury of actually choosing between homes in different states.  The current system is much better for the overwhelming majority of consumers who are looking within a single state, and it holds nursing homes accountable by comparing them to others within their same market. 

Child's Claim Probated Against McNair Estate

Steve McNair's two oldest sons have gone to court demanding their share of his estate.

Steven L. McNair Jr. and Steven O'Bryan McNair filed claims Thursday in the Probate Division of Davidson County Circuit Court.  Steve McNair did not have a will, and his estate will be divided under Tennessee's intestacy law.  The estate is estimated to be in excess of $19 Million.  A large portion of this will be unnecessarily paid in estate taxes to to McNair's failure to plan. 

Medicaid to Penalize those that Seek Planning Advice

Solomon tells us that "Plans fail for lack of counsel, but with many advisers they succeed."  Proverbs 15:22.  To this, the Mississippi Division of Medicaid would add, "...until Medicaid taketh away."  The Mississippi Division of Medicaid has circulated a directive to all of its regional offices instructing case workers to only allow up to $2,000 in legal fees in a Medicaid case.  Any fee over this amount is to be treated as an uncompensated transfer, or in other words a gift, resulting in a penalty or delay in Medicaid benefits. What this means to our elderly and disabled clients is that if they do any estate planning through lawyers to get their affairs in order within 5 years of applying for Medicaid, they may well be penalized by Medicaid in the form of non-payment of benefits for 1 month for every $4,600 they spend above the arbitrary $2,000 fee cap that Medicaid has declared to be "reasonable." 

Yet again, Medicaid has embarked on a system designed to encourage and reward people for being irresponsible.  As the system has always operated, responsible people who work hard and save their money for their retirement are denied benefits because they have too much money (anything over $4,000 is too much), while an irresponsible person who spends everything and saves nothing is covered by Medicaid from the first day of their institutionalization. 

Now Medicaid has added to this penalty by further penalizing responsible people who also choose to get their affairs in order before they die or become disabled.  An individual who's estate planning legal fees exceed $2,000 within 5 years of a medicaid application will be denied benefits for an additional period of time, while the irresponsible person who does nothing to plan for the well-being of their surviving spouse, or special needs children, will not suffer such a penalty.  The arbitrary policy further encourages the bizarre consequence of actually encouraging some lawyers to charge unreasonably high fees in certain circumstances.  For example, a responsible client who's planning requires only a simple will, powers of attorney, and/or healthcare directives will generally spend in the neighborhood of $500 to $1,000 for those documents in the local Mississippi market.  Yet, since Medicaid will allow up to $2,000 for such planning, it's policy encourages lawyers to overcharge for these basic planning services, and no doubt many will.  Conversely, a client with a complicated estate, such as potential estate taxes, or special needs beneficiaries, can reasonably be expected to pay significantly more than $2,000 for the customized documents and highly specialized knowledge required for such complex planning. To those responsible individuals who want to take care of their families and loved ones, Medicaid has declared that no good deed should go unpunished, and will assert a penalty for spending those reasonable fees.     

You Do Not Have to Pay a Lawyer To File A Medicaid Application ... and other words of wisdom from our government

Recently the Mississippi Division of Medicaid has decided to spend taxpayer dollars to engage in a campaign informing people that they don't need to hire a lawyer to file a Medicaid application.  I thought I might suggest other "'I'm from the government and I'm here to help you" type of advice.

"If Your are Charged with a Crime, You Don't Have to Hire a Lawyer to Enter a Guilty Plea"

"You Don't Have to Hire An Accountant to Prepare Your Taxes.  The IRS Will Prepare Your Return for You For Free!"

"You Don't Have To Hire A Lawyer To Appeal the Denial of Your Disability Claim. We'll Tell You How To Do It"

Of course, if you want independent, informed advice about all of your options when applying for Medicaid benefits, an elder law attorney is a prudent choice.  Often, in simple cases, a short complementary phone conversation can confirm that you already qualify for benefits.  Such a call can also often reveal planning opportunities that are available that will preserve assets many times those revealed by Medicaid.  It's your choice.  "Trust us, we're from the government ...", vs. an independent advocate that represents only your interests.