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A nursing home patient may be eligible for assistance in paying a portion of his or her skilled or custodial nursing home cost through the state of Florida’s institutional care program. However, there is a maximum amount of countable assets that a person applying for assistance and his or her spouse can own and still receive assistance. The institutionalized spouse entering a nursing home cannot own more than $2,000 in countable assets. In the year 2019, the community spouse who is not residing in the nursing home can not own more than $126,420 in countable assets. A person who has no spouse can only retain $2,000 in count- able assets. However, a person with an income of less than $891per month can have assets of $5,000.

There is also a maximum amount of monthly income that the institutionalized spouse can receive and still be eligible for nursing home assistance. The monthly gross income available to the institutionalized spouse cannot exceed the state monthly income cap of $2,313 in 2019. However, a nursing home patient with a gross monthly income in excess of $2,313 for 2019 can still qualify for the institutional care program by establishing an irrevocable qualified income trust. This trust is often referred to as a Miller Trust, after the name of the Colorado case that originally approved this concept. The nursing home patient’s income in excess of $2,313 is irrevocably assigned to the irrevocable qualified income trust that is used to pay the patient’s medical and nursing home expenses.

In determining the institutionalized spouse’s income available to pay the cost of the nurs- ing home, a community spouse is first permitted to retain a minimum monthly maintenance income needs allowance that is sometimes referred to as a MMMNIA. This means that the community spouse may retain his or her income plus the portion of the institutionalized spouse’s income necessary to allow the community spouse $2,058.00 in income per month with a maximum to include excess shelter and a standard utility allowance of no more than $3,161. This amount will increase on July 1, 2019.

Non-Countable Assets

All assets owned by the institutionalized spouse or by the non-institutionalized spouse are considered countable assets unless exempted by state regulation. An individual with an equity interest in his or her home in excess of $585,000 is not eligible for long-term care. Home equity is calculated using the current market value of the home minus any debt. The current market value is the amount for which it can be reasonably expected to sell on the open mar- ket in the geographic area. If the home is held in any form of shared ownership, only the fractional interest of the person requesting long-term care assistance should be considered. The home equity policy does not apply if the residence is being occupied by the nursing home resident’s spouse, a child under age 21, or a blind or disabled child is living in the residence. The home equity must be revalued each year that the applicant remains on Medicaid nursing home assistance. This home equity limitation may be waived when a denial of long-term care eligibility will result in a demonstrated hardship to the individual.

One vehicle is excluded in computing countable assets regardless of its age or value. A second vehicle is generally excluded if it is more than seven years old. If the total face value of the patient’s whole life insurance policies is $2,500 or less, the cash value of the policies is excluded as an asset. The full value of an irrevocable burial contract is excluded as an asset. Likewise, there is a $2,500 exclusion for bank accounts that have been designated for burial expenses.

It is also important to consider the exemptions and maximum allowances for tangible personal property such as clothing, jewelry, tools of a trade, pets, and household goods such as furniture and appliances. A community spouse is entitled to exclude all personal property, if his or her spouse is in a nursing home. A single person may exclude a wedding ring, one engagement ring, and any items required because of the individual’s medical or physical condition. A single person may also exclude household goods and personal effects up to a value of $2,000. It will be assumed that the household goods and personal effects are less than $2,000, unless the individual applying for personal assistance indicates he or she owns items of unusual value.

The total value of an individual retirement account (IRA) owned by an institutionalized spouse is not counted as an available asset if it is placed into payment status over the life expectancy of the institutionalized spouse. Likewise, the total value of an individual retirement account (IRA) owned by a community spouse is not counted as an available asset if it is placed into payment status over the life expectancy of the community spouse. Most districts of the Department of Children and Families require the IRA payments to be paid over Social
Security’s life expectancy tables. Other districts require the payments to be paid over the Social Security Administration’s life expectancy tables.

Life Situation

George has been in a nursing home for over twenty days. He will need to remain there because a massive stroke has disabled him to the degree that he will no longer be able to perform his daily living activities. George and his wife, Helen, own a residence having a fair market value of $250,000, and $140,900 in savings, and a 2006 car with over 150,000 miles. George’s monthly income is $1,000 from Social Security and $1,500 from a pension. Helen receives $700 each month from Social Security. Since a community spouse (the spouse living outside the nursing home) can only own $126,420 in countable assets and a nursing home spouse can only own $2,000 in count- able assets in 2019, George is presently not eligible for Medicaid nursing assistance. One way to obtain eligibility is for Helen to replace the 2006 automobile with a new one that will cost at least $11,480. This purchase will not disqualify George from Medicaid assistance since something of value was received by Helen and the new automobile is a non-countable asset. Since George’s income exceeds the 2019 monthly income cap of $2,313, he will need to establish a Qualified Income Trust (QIT). The trust will need to state that any monthly income over the monthly income cap of $2,313 is assigned to the trustee of the trust. The excess income of $187 per month that is paid to the QIT will be used for George’s care. Helen is entitled to a minimum monthly maintenance income needs allowance in 2019 of at least $2,058.00 each month and can divert $1,358.00 of George’s income allowed for the MMMNIA ($2,058.00 minus Helen’s $700 Social Security) to meet her living needs. George will be able to retain $130 each month for his personal needs allowance. George’s remaining income of $1,012.00 after Helen receives her minimum monthly maintenance income needs allowance and George receives his $130 personal needs allowance becomes George’s patient pay responsibility to the nursing home. The addition- al monthly cost of the nursing home will be paid to the nursing home facility by the state of Florida’s Department of Children and Families.

Lady Bird Deed

A life estate deed permits the present owner of real property to retain the use and enjoyment of the real property during the remaining lifetime of the owner while presently conveying the remainder interest at the death of the present owner to another person. Upon the death of the owner, the real property is automatically the real property of the person who received the remainder interest. No probate is required on the death of the present owner because the real property has already been conveyed during the lifetime of the present owner to the person who receives the remainder interest. Normally, a conveyance of a life estate results in a gift of the remainder interest and the person conveying the remainder interest must timely file a federal gift tax return if the fair market value of the remainder interest exceeds the annual
gift tax exclusion amount which is presently $15,000. In addition, the owner of the life estate must obtain the joinder of the owner of the remainder interest in order to convey this real property to a third person during lifetime.

There is another form of life estate deed known as a “Lady Bird Deed,” that permits the owner of the real property to retain the use and enjoyment of the real property during his or her lifetime, but to also divest the remainder man of his or her remainder interest without his or her joinder or consent. A Lady Bird deed permits the owner of the life estate to still convey or mortgage the real property to a third person. In addition, there is no gift tax return required despite remainder interest having a fair market value exceeding the federal gift tax exclusion that is presently $15,000. This is important because the Department of Children and Families will not find that a gift of any interest in real property has been made if the remainder interest is granted by a Lady Bird Deed interest and the real property conveyed by Lady Bird deed will still be considered the homestead of the owner of the life estate if he or she is residing there. Also, a judgment against the remainder man will not attach to the real property described in the lady bird deed during the lifetime of the holder of the life estate. There will still be a full “stepped-up” basis in the real property when the life tenant dies.

In order to establish a Lady Bird deed, the present owner must state in that deed that the present owner, as the grantor, is retaining a life estate, without any liability for waste, and with the full power and authority in said life tenant to sell, convey, mortgage, lease or otherwise manage and dispose of the property described therein, in fee simple, with or without consideration, without joinder of the remainder man, and with full power and authority to retain any and all proceeds generated thereby, and upon the death of the last life tenant, the remainder, if any, passes to a certain person as the grantee.
It is important to understand that if the remainder man predeceases the grantor, then upon the death of the grantor, the real property passes to the remainder man’s estate.

Transferring Assets

A gift to someone other than a spouse or a minor child or disabled child may cause the do- nor and his or her spouse to be ineligible for nursing home assistance for a period of time. Transfers made before November 1, 2007, to someone other than a spouse or a minor child or a disabled child for no consideration caused the nursing home patient to be ineligible for Medicaid assistance for a certain period determined by dividing the amount of the uncompensated transfer by the state determined average cost of nursing home care. Thus, a gift by the nursing home patient of $91,710 to someone other than a spouse or a minor child or a disabled child in October of 2007, resulted in an ineligibility period lasting for 10 months beginning with the month in which the gift was made if the transfer of asset divisor had been $91,710 in 2007. Since the transfer of asset divisor was less in 2007, the ineligibility period would have been greater.

Transfers made on or after November 1, 2007, to someone other than a spouse or a minor child or a disabled child for no consideration will cause the nursing home patient to be ineligible for Medicaid assistance on the later of the following dates:

(1) The first day the individual would be eligible for Medicaid long-term care were it not for imposition of the transfer period (this includes the filing of an application and meeting all other program criteria for long term care Medicaid), or

(2) the first day of the month in which the individual transfers the assets, or

(3) the first day following the end of an existing penalty period.

Thus, a gift by a person to someone other than a spouse or a minor child or a disabled child of $91,710 in November of 2018, who then enters the nursing home on April 15, 2019 with less than $2,000, will result in an ineligibility period lasting for 10 months beginning May 1, 2019, which is the first month after an application is filed and the person meets all other pro- gram criteria for long term care Medicaid. This means that the applicant who made the gift of $91,710 in November of 2018, will not be eligible for Medicaid nursing home assistance until February 2020. This is because the state determined average cost of nursing home care is $9,171. The look-back period for gifts is 60 months. Since the gift was made to someone other than a spouse or a minor child or a disabled child within the look-back period of 60 months from entry into the nursing home, the ineligibility period is 10 months from the month after entry into the nursing home with $2,000 or less in assets. There is no fine or penalty if the recipient of the gift repays the gift to the nursing home patient who then uses the funds to pay for his or her nursing care.

Promissory Notes, Loans and Mortgages

All promissory notes, loans and mortgages signed on or after November 1, 2007, are considered a transfer of assets without fair compensation, unless the promissory note, loan or mortgage has a repayment term that is actuarially sound based on Social Security’s life expectancy tables for the person making the gift, and has payments made in equal amounts during the term of the loan with no deferral or balloon payments and the note does not allow for debt forgiveness.

Undue Hardship

A nursing home patient who has made an uncompensated transfer subjecting him or her to a penalty period affecting eligibility and a person with a home equity interest exceeding $585,000 must be offered an opportunity by the Department of Children and Families to demonstrate that the imposition of the penalty period will create an undue hardship. This opportunity must be granted before the disposition of the application. Nursing home facilities are allowed to apply for an undue hardship waiver on behalf of an individual with the consent of the applicant or the designated representative. An undue hardship exists when application of the transfer of asset penalty or excess home equity penalty will deprive the nursing home patient of medical care such that his or her health or life would be endangered, or the individual will be deprived of food, clothing, shelter or other necessities of life.

Other federal and state laws prohibit a nursing home from evicting a resident without transferring the person to a safe place. Thus, the nursing home might be required to continue to provide care to an indigent patient without receiving public assistance until the undue hard- ship waiver has been determined.

Irrevocable Annuities

When an individual purchases an annuity, he or she generally pays to the insurance company that issues the annuity a lump sum of money, in return for which he or she is promised regular payments of income in certain amounts. The payments may continue for a fixed period of time (for example 10 years) or for as long as the individual (or another designated beneficiary) lives, thus creating an ongoing income stream. The annuity may or may not include a remainder clause stating that if the person who owns the annuity dies, the insurance company converts whatever is remaining in the annuity into a lump sum and pays it to a designated beneficiary.

Annuities, although usually purchased to provide a source of income for retirement, are occasionally used in conjunction with Medicaid planning. To avoid penalizing persons who validly purchased annuities as part of a retirement plan, but to capture those annuities that were purchased to shelter assets, a determination is made by the Department of Children and Families that the return to the is fairly computed. If the expected return on the annuity is commensurate with a reasonable estimate of the life expectancy of the beneficiary, the annuity is deemed sound for actuarial purposes and is not considered to have been purchased to shelter assets. The annuity must also be irrevocable and non-assignable. The periodic payments (including the interest portion) are counted as unearned income in the eligibility de- termination and patient responsibility. An annuity that is revocable or non-assignable is not considered a countable asset. If the annuity is revocable, the asset value is the amount the purchaser would receive from the annuity insurer if the annuity is cancelled. If the annuity is assignable, the asset value is the amount the annuity can be sold for on the secondary market.

To determine that an annuity is sound for actuarial purposes, the life expectancy tables, com- piled from information published by the Office of the Actuary of the Social Security Administration, are used. The average number of years of expected life remaining for the individual must coincide with the length of the annuity. If the individual is not reasonably expected to live longer than the guarantee period of the annuity, the individual will not receive fair mar- ket value for the annuity based on the projected return. In this case, the annuity is not actuarially sound and a transfer of assets for less than fair market value has taken place, possibly subjecting the individual to a penalty. The penalty is assessed based on a transfer of assets for less than fair market value that is considered to have occurred at the time the annuity was purchased. For example, a male at age 65 has a life expectancy of 14.96 years according to the table. Thus, if he purchases a $14,080 annuity to be paid over the course of 10 years, the annuity is actuarially sound. However, a male at age 80 has a life expectancy of only 6.98 years. Thus, if he purchases an annuity to be paid over 10 years, the amount that will be received for the last 3 years is considered a transfer of assets for less than fair market value, and that amount is subject to penalty.

The Medicaid laws still permit a spouse with countable assets in excess of the $123,600 community spouse resource allowance to purchase an annuity with the excess assets. The annuity must be paid to the community spouse over no longer than his or her life expectancy. However, the new law requires that the state be named the first beneficiary for at least the total amount of medical assistance paid on behalf of the annuitant and his or her spouse, except
when the owner of the annuity has a spouse, minor or disabled child. In this case, the State of Florida may be named as the secondary beneficiary after the spouse, minor or disabled child.


There is a method used to shorten the delay that a single person will otherwise experience in attaining Medicaid nursing home assistance by gifting countable assets. It is commonly referred to as “half-a-loaf.” The single person will give a portion of his or her assets to his or her children and purchase a Medicaid qualifying annuity with the remaining balance of his or her countable assets. The Department of Children and Families will determine the single person to be ineligible for nursing home assistance for the amount of the gift divided by the average cost of a nursing home that is $9,171 per month. However, the cost of the nursing home during the ineligible period will be paid by the Medicaid Qualifying annuity’s month- ly payment. By example, Mrs. Jones who is a widow owns $150,000 in cash and receives Social Security of $1,500 per month. If Mrs. Jones needs custodial nursing care, she could give her children $80,961. This will disqualify her for Medicaid nursing home assistance for 9 months ($80,961 divided by $9,171 = 8.82 months that is rounded up to 9 months). If the average cost of the nursing home is $9,171 and she receives $1,500 per month, she will need $69,039 to pay the nursing home the remaining balance of $7,671 per month for nine months. She could purchase before entering the nursing home an irrevocable annuity for $69,039 that will pay her Qualified Income Trust $7,671 per month for 9 months. If Mrs. Jones dies within the nine months, the remaining annuity payments will be paid to her beneficiary named in the annuity, since the Department of Children and Family never paid anything toward her care. This Medicaid Compliant annuity must be irrevocable, non-assignable, structured with an actuarially sound payout, providing equal monthly payments, naming the Department of Children and Families as the primary beneficiary to the extent of the custodial nursing care costs paid by the Department of Children and Families. Someone else can be named as the beneficiary of the remainder of the death benefit.

Personal Service Contract

Of great concern to a senior citizen is the right to continue to live at home despite the need for assistance and personalized care. Another concern is that there will be someone to advocate for him or her in the event of incapacity and the level of care increases or placement in a nursing home becomes necessary.

The assistance necessary to keep a person at home, and not in a nursing home, is often provided at no cost by a child, another family member or a friend. A subsequent reimbursement to a family member or friend who has spent months and perhaps years providing the care and assistance necessary to keep the senior at home may result in denial of Medicaid nursing assistance to this senior citizen. This is because an individual who makes an uncompensated transfer of assets within the look-back period for Medicaid assistance will be presumed to have made a disqualifying gift.

A period of Medicaid ineligibility will usually not result if the person in need of assistance initially contracts with a family member or a friend before these personal services are rendered. In such event, real or personal property estimated to equal the value of the services to be rendered to the infirmed person can be transferred in exchange for an agreement to pro- vide the personal services over the infirmed person’s lifetime. There is no disqualifying gift in this instance because the personal service contract provides that the infirmed person will receive services having a value equal to the property being transferred.

The personal service agreement must be in the form of a binding written contract that is signed by both parties. The contract should state that the services are to be provided solely by the caregiver and that these services cannot be delegated to another person. This contract should state that the services will be provided to the infirmed person as needed. The contract should recognize that the need for certain services will increase or decrease with time. At a minimum, the contract should confirm that the family member or friend will monitor the infirmed person’s health care, secure necessary health care, provide financial management and visit the person to provide the services on a periodic basis.

A personal service contract’s term is most often for the infirmed person’s life expectancy. This is necessary to avoid a concern that the person is not receiving sufficient care in return for his or her payment and that a gift is being made.

The method used to determine the maximum amount of real or personal property to be transferred in exchange for the promise of lifetime personal care is to multiply the reasonable wage in the community for these services times the number of hours per week reasonably expected of the caregiver times the 52 weeks in the year times the infirm person’s life expectancy, which is determined from the Health Care Financing Administration’s life expectancy charts.

It is important to remember that the person who agrees to provide the personal services will have to report, as income, any payment received or the value of any property received as a result of the contract. Also, the infirmed person who will be receiving the services may recognize a capital gain for income tax purposes when his or her assets are transferred in exchange for the personal services to be provided. The advice of a certified public accountant and an attorney before entering into a personal service agreement is recommended.

Exemptions to the Transfer Rules

Transfers to a spouse or to another person for the sole benefit of the spouse, or transfers from a spouse to another person for the sole benefit of the spouse are exempt from transfer penalties. Transfers to a disabled child or to a trust established solely for the benefit of a disabled child are also exempt in determining the transfer penalties. The transfer penalties do not apply to transfers to a trust established solely for the benefit of a disabled individual under age 65.

A transfer of an individual’s home is exempt if the recipient is the spouse, a child who is blind, disabled, or under age 21, a child who had resided at the individual’s home for two years prior to the institutionalization and had cared for the parent-applicant or a sibling with an equity interest who had resided there for one year prior to the institutionalization.

In the case of revocable trusts, the assets owned by the trust are considered a resource avail- able to the person applying for Medicaid, and payments to or for the benefit of the applicant will be considered income of the applicant. Any other payment from the trust (presumably payments to third persons) will be considered assets disposed of by the applicant and falling under the rules governing the transfer of assets (subject to the 60-month look-back period).

With an irrevocable trust, if there are any circumstances under which payment from the trust could be made to or for the benefit of the applicant, the portion of the assets of the trust or the income from which payment is made to the applicant will be considered resources available to the applicant. Payments from that portion of assets of the trust or income paid to or for the benefit of the individual will be considered a transfer of assets.

Supplemental Needs Trusts and Pooled Trusts

Individuals with mental and physical disabilities often lack the ability to support themselves due to the inability to work full-time on a recurring basis. Government benefits such as Supplemental Security Income (SSI) and Medicaid will help pay for a disabled person’s basic needs and medical care if he or she does not receive sufficient income and does not have sufficient assets to pay for these costs.

The maximum monthly countable income that a person can receive and be eligible for SSI benefits is $771 in 2019. In Florida, a person who is eligible for SSI benefits automatically receives Medicaid.

If the disabled person meets the income and asset guidelines, Medicaid pays for the cost of health care provided by physicians, hospitals, pharmacists and other health care providers. SSI may also pay for training programs.

Unearned income received from other benefit payments, financial gifts, annuity payments and payments from a trust fund paid directly to the SSI recipient reduces his or her monthly SSI payment dollar for dollar. Earned income is also counted but treated differently.

In calculating countable income, there is a general $20 disregard applied to most incomes. In calculating the earned income offset to SSI, the first $65 per month of earned income and one-half of the remaining work-related income is not counted. The remaining one-half of work-related income will be counted against a person’s SSI benefit. Payments made by an- other person for a recipient’s food and shelter reduces the SSI benefit up to a maximum of one-third of the benefit.

The asset limit for an SSI recipient is $2,000 unless the assets are in an ABLE Act account (see Chapter 21). Anything that can be converted to cash will be considered toward this $2,000 limit. This includes bank accounts, 401(k) benefits, cash values in some life insurance policies and trust funds where the trustee has the discretion to pay for the recipient’s support. A homestead, one car and some personal effects are not counted as assets.

If a trust is established to provide for the basic support needs such as housing and food, the recipient will be denied SSI because the trust assets in excess of $2,000 will be considered available to the recipient. A person applying for Medicaid only will be denied Medicaid assistance if his or her trust assets exceed $5,000. It is possible for a trust fund to be created to provide supplemental services to a disabled person without depriving the recipient of SSI and Medicaid benefits. The assets of the trust will not be counted if the terms of the trust agreement state that the trust funds are not to be expended for basic needs that are provided by SSI, but are only to supplement these benefits.

A Supplemental Needs Trust authorizes the trustee to pay only the expenses of goods and services that are supplemental to the beneficiary’s basic needs (food and shelter). Food and shelter expenses cannot be covered by the trust. Some examples of allowable expenses that can be paid from a Supplemental Needs Trust are medical equipment not covered by Medicaid; medical, nursing and dental care, tests not covered by another source; insurance premiums (Health, Dental, Life, Car, and Renter); clothing, personal assistance; private counseling or case management; guardianship and advocacy services; computer hardware and software; school or camp tuition; home appliances; furniture; telephone and internet charges.

Some of the charges that are not allowable to be paid from a supplemental needs trust are food and groceries; rent and mortgage payments; property taxes; condominium fees and utility charges.

The beneficiary of a special needs trust (also known as supplemental needs trust) must be an individual under 65 years of age who is determined disabled by the Social Security Administration. This means the beneficiary who is unable to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death, or which has lasted or can be expected to last for a continuous period of not less than twelve months.

A special needs trust is one that is established for the disabled person’s benefit by the disabled person, a parent, grandparent, legal guardian or the court with money due to the dis- abled beneficiary. The state paying the Medicaid benefits for a disabled person will receive all amounts remaining in the trust upon the death of the individual, up to an amount equal to the total medical assistance paid on behalf of the individual under a State plan. Court approval is not required and there need not be a pay-back provision in a trust created by a third party such as a grandparent.

Another type of trust can be established for the special needs of a disabled person without the assets being considered available. This is called a pooled trust. It is managed by a non- profit organization that pools the funds of that trust with the funds from all participants. However, there is a separate sub account for each beneficiary. A pooled income trust can be established for a disabled person, regardless of his or her age. At the beneficiary’s death, the amount remaining in the beneficiary’s account is paid to the state that provided the Medicaid assistance to the total amount of benefits provided. However, the remaining assets can be left in the pooled trust for other disabled persons and no payback is required.

Assisted Living Facility Medicaid Waiver Program

The State of Florida’s Assisted Living Medicaid Waiver Program pays for services provided to financially and physically eligible residents of assisted living facilities who would other- wise need placement in a nursing home. Some of the services covered under the Assisted Living Facility Medicaid Waiver Program include case management, personal care services, medication management, administration, intermittent nursing care services, occupational therapy, physical therapy, speech therapy, therapeutic social and recreational services, specialized medical equipment and incontinence supplies.

The rules governing the Assisted Living Waiver Medicaid Program changed as of July 1, 2003. This change is intended to align the Assisted Living Waiver Programs rules involving asset allocations and income allowances to spouses and dependents with the current Medic- aid nursing home institutional care program.

For persons applying for this assistance, the change affects the amount of assets the applicant and his or her spouse can own and still qualify for this program. Previously, only the assets of the person applying for the assisted living waiver were considered. The new policy requires that all countable resources owned solely by either the applicant or his or her spouse and the resources owned jointly by a married couple are considered in determining eligibility. Those countable assets that exceed the patient’s allowable resource limit of $2,000, and the 2019 community spouse’s resource limit of $126,420, will be considered available to the spouse applying for the Assisted Living Waiver Program. Thus, the husband and wife hav- ing countable assets in 2019 in excess of $126,420, will have to spend down the countable as- sets to the allowable amount before the spouse will be eligible for the Assisted Living Waiver Medicaid Program.

The resident applying for a Medicaid Assisted Living Waiver must be residing in an assisted living facility that is certified as a Medicaid provider and have a contract with the Department of Elder Affairs. The assisted living facility must provide semi-private rooms and bath- rooms and also have an extended congregate care (ECC) or limited nursing service (LNS) license. A person residing in an assisted living facility applying for an Assisted Living Medicaid Waiver must be 65 or older, or be age 60 to 65 and be determined disabled according to the Social Security standards. This person must also meet the nursing facility level-of-care criteria as determined by the Florida Department of Elder Affairs CARES team. This means the resident must require assistance with four or more activities of daily living (ADLs); or require assistance with three ADLs plus assistance with the administration of medication; or require total help with one or more ADLs; or have a diagnosis of Alzheimer Disease or another type of dementia and require assistance with two or more ADLs; or have a diagnosis of a degenerative or chronic medical condition requiring nursing services that cannot be provided in a standard licensed ALF but are available for an ALF licensed to provide limited nursing services; or extended congregate care services; or be a Medicaid-eligible resident awaiting discharge from a nursing home who cannot return to a private residence because of the need for supervision, personal care services, periodic nursing services or a combination of the three; and who is receiving case management and in need of assisted living services as determined by the community case manager and determined to meet eligibility criteria by CARES.

Regardless of the facility’s license status, residents living in an Assisted Living Facility can- not have conditions that require 24-hour nursing supervision. The only exception is for a resident who is receiving hospice services from a licensed hospice while continuing to reside in an Assisted Living Facility.

Medicaid Estate Recovery

The 1999 Florida Legislature passed the Medicaid Estate Recovery Act. The legislature stated that its intent in passing this law is to supplement Medicaid funds that are used to provide medical services to eligible persons. Medicaid estate recovery is to be accomplished through the filing of claims against the estate of deceased Medicaid recipients. A recent Florida stat- ute states that the personal representative (executor) of the estate of the decedent must serve Florida’s Agency for Health Care Administration with a copy of the notice to creditors within 3 months after the first publication of the notice of creditors. The claim amount is calculated as the total amount paid to or for the benefit of the recipient for medical assistance on behalf of the recipient after he or she reached age 55 years of age. There is no claim against estates of recipients who had not yet reached age 55 years of age.

This statute confirms that the claim for Medicaid funds will not be enforced if the Medicaid recipient is survived by:

  1. A spouse;
  2. A child or children under 21 years of age; or
  3. A child or children who are blind or permanently and totally disabled pursuant to the eligibility requirements of the Social Security Act.

This statute also clarifies that in accordance with the Florida Constitution, no claim will be enforced against any property that is determined to be the homestead of the deceased Medicaid recipient and is determined by court order to be exempt from the claims of creditors of the deceased Medicaid recipient.

The statute further states that the Agency for Health Care Administration is not to recover from an estate if doing so would cause an undue hardship for the heirs. The hardship to be considered by the agency in reviewing a hardship request is whether the heir:

  1. Currently resides in the residence of the deceased;
  2. Resided in the residence of the deceased at the time of the death of the deceased;
  3. Made the residence his or her primary residence for the 12 months immediately preceding the death of the deceased; and
  4. Owns another residence.

Other factors which will be considered are whether the heir would be deprived of food, clothing, shelter, or medical care necessary for the maintenance of life or health. Another factor will be whether the heir can document that he or she provided full-time care to the recipient which delayed the recipient’s entry into a nursing home. In such event, the heir must be either the decedent’s sibling or the son or daughter of the decedent and must have resided with the recipient for at least 1 year prior to the recipient’s death. Another factor is whether the cost involved in the sale will be equal to, or exceed, the value of the property.

Medicaid Managed Care

A statewide system of Medicaid Managed Care requires current and future Medicaid recipients to enroll in a Managed Care Plan that is administered by a Managed Care Organization (MCO). Each long term care Plan is required to offer, a t a minimum, coverage o f certain health care services that are vital to the Medicaid recipient’s needs. Although there are seven MCO’s that operate in Florida, each region may contain only a few.

Current Medicaid recipients first receive a pre-welcome letter, then a welcome letter, and finally a reminder letter. These letters alert recipients to their upcoming deadline to choose a Plan and explain that if they fail to choose one they will be enrolled in a default Plan. The Agency for Health Care Administration will determine in which default plan the person will be enrolled. The determination is required to be based upon whether the plan’s network of providers has the ability to meet the needs of the person, whether the person is already receiving services from one of the Plan’s providers, and whether one plan has providers that are closer to the person’s home than those of other plans.

Once a Medicaid recipient has chosen and enrolled in a Plan, that person will only have a limited amount of time before he or she is locked-in for the next twelve (12) months. After selecting a plan, individuals will only have a ninety day window in which to change. How- ever, after the ninety day window has closed, the Florida Statutes only allow an individual to leave the Plan during the ensuing year if they can show “good cause.” The Florida Statutes define good cause to include, but do not limit it to, poor quality of care, lack of access to necessary specialty services, unreasonable delay or denial of service, or fraudulent enrollment. Florida’s Agency for Health Care Administration (AHCA) is required by this statute to make the determination as to whether good cause exists. However, the statute also states that AHCA may require an individual to use the Plan’s grievance process before the agency will make this determination, unless there is immediate risk of permanent damage to the person’s health. While Plans may give recipients the impression that they must bring their grievances through the Plan’s internal appeal process, this is not legally accurate. If a Plan denies or reduces a recipient’s benefits, the recipient has a right under Federal law to a Medicaid Fair Hearing. These hearings are conducted by the Florida Department of Children and Families. Medicaid recipients have the right under Federal law to a Fair Hearing when their benefits have been denied or reduced and should not be required to appeal through the Plan itself. A recipient may annually select a new plan within sixty days of the anniversary of the selection or placement in the plan. Recipients can contact a choice counselor online at www. flmedicaidmanagedcare.com or by telephone at (877) 711-3662.

Just Say No

It is possible in Florida for an institutionalized spouse to receive custodial nursing home assistance from the Department of Children and Families despite the community spouse having excess countable assets exceeding the community spouse resource allowance if the community spouse refuses to make the assets available for the institutionalized spouse’s assistance. Florida’s Economic Self-Sufficiency Public Assistance Policy Manual states in part: If after declaring and verifying his assets, the community spouse refuses to make them avail- able to the client, the institutionalized spouse may assign his rights of support to the state and obtain institutional care benefits, and the institutionalized spouse assigns to the State any rights to support from the community spouse by submitting the Assignment of Support Rights form referenced in a form signed by the institutionalized spouse or their representative.

Also, if the couple has been separated for a long time and the community spouse cannot be located, there is no “community spouse” and the applicant for Medicaid nursing home assistance must be considered an individual when applying income and asset standards.

Community spouses who refuse to make their assets available to the institutionalized spouse are not entitled to a community spouse income allowance.

The Department of Children and Families is automatically subrogated to any rights that a Medicaid applicant, recipient, or legal representative has to any third-party benefit for the full amount of medical assistance provided by Medicaid.

In Connor v. Southwest Florida Regional Medical Hospital, Inc., 668 So. 2d 175, (Fla. 1995), the Florida Supreme Court abrogated the common law doctrine of necessities between spouses. Thus, an action by the Florida Department of Children and Families against a community spouse for the Medicaid assistance provided the community spouse would likely be dismissed since a spouse in Florida has no duty to pay his or her spouse’s creditors for necessaries.

Nevertheless, Florida Statute § 61.09 does state: “If a person having the ability to contribute to the maintenance of his or her spouse and support of his or her minor child fails to do so, the spouse who is not receiving support…may apply to the court for alimony without seek- ing dissolution…” While it is uncertain how the court will rule, the agent under a durable power of attorney for the institutionalized spouse may bring an action against the community spouse for the cost of the wife’s care in the nursing home and then assign that support right to the Department of Children and Families.