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Elder Law Series - Episode 5 - How to Stay Home

ost of my clients want to stay home as long as possible. The government also desires for your mother to be able to stay home if possible. Why? Because it cost the government a lot less to keep your mother out of a facility. There are two different types of programs which offer care to the elderly at home. One is financed through Medicaid the other is financed through Title 20 (block-grant) funds.

Title 20 (Block-Grant) Fund Programs

If your mother desires to stay home, the three major programs which could assist her are Family Care, Primary Home Care, and Community Attendant Services. They could provide for the following services for your mother. It is hard to pre-plan what services will be offered to your mother. The services will depend upon an assessment interview which will determine how many hours of services she will receive. The hours will be between 6 and 41. If she needs more than 41 hours, Medicaid will require that your mother be placed into a nursing facility or assisted living facility. Remember in order for her to qualify for this program she will have to score at least a 24 on the “Client Needs Assessment” questionnaire.

Client Needs Assessment Questionnaire

Here are some of the questions they will ask her:

  1. Do you have any problems taking a bath or shower
  2. Can you dress yourself?
  3. Can you feed yourself?
  4. Can you shave yourself, brush your teeth, shampoo and comb your hair?
  5. Do you have any problems getting to the bathroom and using the toilet?
  6. Do you have trouble cleaning yourself after using the bathroom?
  7. Can you get in and out of your bed or chair?
  8. Are you able to walk without help?
  9. Can you clean your house?
  10. Can you clean your house?
  11. Can you do your own laundry?
  12. Can you fix your own meals?
  13. Can you do your own shopping?
  14. Can you take your own medicine?
  15. Can you trim your nails?
  16. Do you have any problems keeping your balance?
  17. Can you open jars, cans, bottles?
  18. Can you use the telephone?
  19. During the last month, have you often been bothered by little interest or pleasure in doing things? Have you felt down, depressed or hopeless?
  20. During the last two weeks, on how many days have you had trouble concentrating or making decisions?
  21. Does the individual have the ability to make decisions independently?
  22. Does the individual appear to have short-term memory impairment?

Each one of these questions is scored between 0 and 3. 0 means that there is no impairment, 1 is a mild impairment, 2 is severe impairment, and 3 is total impairment. The next part of the test is to determine who going to help with services and how much time will be paid for by Medicaid. If the time exceeds the 8-hour day limit than your mother will not be allowed to get assistance at home and Medicaid will encourage her to go to a facility. If you are insistent that your mother say home, then you will be responsible for taking on more responsibility. Be Careful in this type of commitment because failure to provide services which you tell the government you will provide can be determined to be neglect of an elderly and is a crime in the state of Texas. Your attorney has a legal obligation to report any abuse, exploitation or neglect of an elderly person even if it violates attorney client privilege.

These programs might assist her in cleaning and other housekeeping tasks. Also, they could provide for personal care services. In order for your mother to qualify there income cannot be more than $2,205.00. Another significant limitation to this program is that your mother cannot become eligible by using a "Qualified Income Trust” to reduce her income. The asset requirements are different under the Community Attendant Services and Family Care. Community Attendant Services is the same as Medicaid ($3,00 for a couple and $2,000 for an individual). However, the Family Care program allows you to have up to $5,000 and $6,000 if you are married. If your mother wants to get on this program, we can do the gifting strategy without the “transfer penalty”. The last nugget of this program is that you get to keep your income, but you have to spend her money every month or she will become disqualified from the program.

WARNING: IF YOU MOTHER NEEDS TO GO INTO A NURSING HOME AFTER GIFTING IS MADE THE TRANSFER PENALTY WILL APPLY.

Medicaid Funded Waiver Programs

These programs are referred to the “waiver” program because it waives the requirement of residing in a nursing home or ICF-IID facility. Home and Community-Based Services (“HCBS”) beneficiaries will receive the same benefits as beneficiaries of Medicaid Long Term Care in a nursing home. If your mother is eligible for bother Medicaid and Medicare, she is considered “Dual-eligible”.

"Star+Plus Waiver" is probably the most likely program which your mother will use if she stays home. Since this program is funded by Medicaid, the eligibility requirements are the same as for nursing home. A key difference between this program and the one above is that the transfer rule applies, but you can use a “Qualified Income Trust” if your mother’s income is too high. If your mother uses a Qualified Income Trust any money above the income limit (as of 2018 it was $2,205) will have to go as a copayment for the home care services. Unlike the Client Needs Assessment test above, this program is determined if your mother’s needs can be met for not more than twice the cost of nursing home care.

Your mother can use this program to fund assisted living cost if she does not want to stay home but doesn’t want to go to a nursing home. This program does have an extensive waiting list (“interest list”). If this program is used to help with assisted living costs, your mother will need to give her income to the assisted living facility. She will be above to keep $85 ($25 more than a nursing home) for her personal care. If you believe your mother will be going to an assisted living facility in the future, call Texas Health & Human Services Commission (512-424-6500) and get her placed on a waiting list today.

How to Bypass the Interest List If your mother wants to stay home but needs immediate assistance, one strategy is to have mom move into a facility. When mom has been approved for the Star+Plus Waiver services, she can move home and receive benefits . Make sure she is approved before you move her because the “Money Follows the Person” rule does not apply if she has not been approved. However, the program might not be funded in the future. For that reason, please reference Star+Plus Handbook 3511-3526 to see the procedure for this rule.

OTHER HOUSING OPTIONS

The Housing Choice Voucher Program (Section 8)

If your mother is renting a residence that is not owned by a family member, a Public Housing Authority (PHA) provides the services needed to apply for assistance in paying rent. Some PHA allow participants to use section 8 vouchers on the participates own mortgage payments. You would have to contact your local PHA to see if they offer this program. There is a waiting list for this program but if your mother is homeless (living with you or another family member), in substandard housing, or paying more than 50% of her income towards rent, then she could be moved forward on this list. The program does not pay the full rent, but a partial payment referred to as a voucher. In limited situation a family member can be a landlord, but your mother would have to be disabled and only the family member can provide the accommodations necessary. Here are the following points you should be aware of: 1. The PHA will approve an application not locate a residence. It will be your responsibility to find your mother a residence who will agree must rent to your mother at a reasonable rate which will be inspected by PHA. The landlord will have to enter into an agreement with PHA. 2. There are three eligibility requirements for your mother: (1) she must meet the definition of a family, (2) within the household income limits established by HUD (not the Medicaid income limit), and (3) be a U.S. citizen or eligible alien. 3. The family definition is used to determine the household income requirement. The PHA in your area will have its own guidelines. 4. If you would like to know the income limit for your area, you can go to www.huduser.org. The direct link, as of the writing of this book, is https://www.huduser.gov/portal/datasets/il.html. However, the link has been subject to change, so you might need to search on huduser.org. 5. Your mother’s social security check will be income to her also any income she receives from her retirement accounts. If your mother is married and her spouse is in a nursing home, your mother’s spouse income is not counted as her income. 6. If your mother has more than $5,000 in countable assets, a calculation will be done to determine how much those assets would contribute to income if it was invested in a savings account or the actual income generated by the assets. They will use the higher of the two to determine income. 7. The last issue which you should be aware of is the transfer rule. Assets which were transferred within the past two years will be considered an asset for calculation of income. Your mother may choose to do a self-settled special needs trust and transfer her money into that trust with not penalty. However, the State of Texas would be the primary beneficiary of that trust.

Assisted Living Facilities

Assisted living facilities are not covered by Medicaid long term care but can be covered by the Waiver program under Medicaid if they are certified to provide services under the Community Based Alternative Program (“Star+Plus Waiver”). The State of Texas maintains a site of all the assisted living facilities which are under the five waiver programs: https://apps.hhs.texas.gov/LTCSearch/. There are three types of assisted living facilities: 1. Type A are facilities whose residents do not require assistance during nighttime sleeping hours and are able to follow direction in emergency situations. 2. Type B are facilities whose residents would need assistance in an emergency situation and who need some nighttime care. 3. Type C are facilities which are a four-bed facility which meet the requirements for adult foster care. 4. Unlicensed facilities are facilities which have four or fewer residence which are created for residence with less than $2,000 a month and don’t meet the medical necessity requirement to be in a nursing home.

OTHER GROUP LIVING ARRAINGMENTS

Board and Care Homes (Personal Care Homes)

These are homes with fewer than four residents who live together to cut down on costs. They are not per se illegal or bad. If fact, in some situations they could be a great place for your mother. They generally are structure not to provide with many different functions. However, in some situations these facilities can be better than a licensed assisted living facility. Usually, the cost will reflect the type of care you will receive. These facilities are also known as adult care facilities, adult foster care home, and residential care facilities. It is important to note that these are not licensed assisted living facilities. Some are being run illegally within the state.

Continuing Care Retirement Community

Your mother might want to spend her money on a larger facility which could take care of her for some time. These communities are designed for individual who have the money to pay but are not for government-based assistance programs. The problem with these places is that they can be expensive and go bankrupt. Determining to go into these facilities is a difficult decision because most people cannot afford to stay in them the remainder of their life.

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