Elder Law FAQ

Below are frequently asked questions we receive about Elder Law.

Should I sign my mother’s nursing home contract?
No – at least not in your individual capacity.   This where it becomes critical to us a financial power of attorney.

Should I sign my mother’s nursing home contract even if the admissions director says it is OK and promises that this only involves mom’s assets?
No. Do not believe them. If your mother’s assets run out, and the Medical Assistance application fails, they will come after who ever signed the nursing home contract. It is a business and the nursing home expects to be paid.

The nursing home admissions director is telling me I have to sign this contract now or they will not admit my mother. What do I do?
Call our office. It is a routine request to have an elder law attorney review the contract before a parent is admitted into the nursing home. Do not feel pressured to sign that contract.

What happens if I signed the nursing contract for my mother? Am I out of luck?
No. This is a tricky area of the law and this likely needs immediate attention by our office.

We haven’t planned for anything. We just received the nursing home bill for dad. How are we going to have enough assets for mom at her home? Do we have to give everything to the nursing home for dad’s nursing home expenses?
We often see families that have done no planning whatsoever. If you just received the first nursing home bill, likely Medicare has now run its course. Give our office a call as soon as possible. We can protect mom’s and dad’s assets from dad’s nursing home expenses. You do not have to give everything to the nursing home for dad’s expenses. You do not need an attorney to simply write checks and spend all of mom and dad’s money for nursing home expenses. Our office gets involved to protect the family unit’s assets from dad’s nursing home costs. If only mom or dad is still alive, we can often still protect a portion of the remaining parent’s assets from nursing home expenses.  We can also help pave the way for a smooth Medical Assistance process.  It is a common fear by most clients that since a parent is already in the nursing home that it is too late to plan to protect assets.  That is not the case!

We haven’t planned for anything, but we have this power of attorney from the internet, are we ok?
Probably not. The rules relating to powers of attorney changed dramatically for Maryland in October 2010. Internet driven powers of attorney are my worse nightmare. They often give a false sense of relief to the family in that they think they are covered. Then, when I review the document it is often entirely deficient in very critical ways. Often what may be worse is that mom or dad may no longer be competent to sign anything. Often, the only route for help is through court intervention. This could have all been avoided if there was a properly executed financial power of attorney drafted by an elder law attorney.

Is Medicaid and Medical Assistance the same thing?
Medicaid is the Federal program while Medical Assistance is the name given by the State of Maryland for its Medicaid program.

Are the Federal rules for Medicaid, the same rules that govern Medical Assistance?
They should be but they are not. The issue is that we have several rules that apply at the same time that may at times be very different. You have the Federal Medicaid Rules. You then have the COMAR rules in Maryland which is Maryland’s interpretation and basic implementation of the Federal Rules. Then you have the Maryland Medical Assistance Manual published by the Department of Health and Mental Hygiene which is a much more precise interpretation of the Federal provisions. However, it is not Maryland law. It is guidance to the Department of Social Services caseworker in processing the Medical Assistance application. In some cases, there is harmony between the Federal, State, and Maryland Medical Assistance manual provisions. In many cases, however, there are either notable differences or just outright stark differences. And, the Federal Rules, Maryland’s COMAR regulations, and the Maryland Medical Assistance Manual constantly change. The real interesting issue is which one do you follow? For that very reason, that is why a competent elder law attorney should be hired when a family finds itself with nursing home and Medical Assistance issues.

If my mother has no assets, will she automatically qualify for Medical Assistance?
No. Your mother still has to meet what I call the technical requirements for Medical Assistance and she needs to be sick enough to qualify for Medical Assistance. Even if you have no assets whatsoever, she will be denied Medical Assistance eligibility if she does not meet other criteria.

What happens if the Department of Social Services caseworker is not responding to my requests for a status? I am getting nervous. I have not heard anything from the caseworker in months. What do I do?
Under Maryland law, the caseworker is obligated to process the Medical Assistance application within 30 days. That never, ever happens. It is in your parent’s vested interest that the application is processed as soon as possible. What happens if the caseworker takes six months to process the application and ultimately it was denied as the caseworker makes a mistake and believes that the $50,000 transfer was for your benefit and not for mom’s benefit. The bigger issue is that the application was denied, it has taken six months for the caseworker to make the determination, and the nursing may not have been paid for the last six months. With an average cost for nursing homes ranging between $9,000 – $12,000 a month, you could be looking at an unpaid bill of $72,000. The nursing home wants to get paid. If the application is denied, they will put pressure on you for payment and may take the next step of trying to (or threatening) to discharge your parent from the nursing home. If this was truly a mistake on your part, your ability to correct that mistake is long gone (if you regift the asset, it is only effective on the date of return going forward). If the caseworker processed the application and denied it by reason of transfer within 30 days, and you transfer it back immediately, you have only lost one month of eligibility. The real problem is when the caseworker takes months to process a return. It is not uncommon for a Medical Assistance application to take 6 to 9 months to process. You need a good elder law attorney to move the process along and carefully navigate this process to avoid the what I call the nightmare scenario.

I just received a denial of Medical Assistance eligibility, what do I do?
You need to immediately call our offices. There are strict time guidelines when you can appeal your denial. The nursing home will also likely be very anxious about being paid. It is not uncommon that our office keeps the nursing home in the loop on a Medical Assistance appeal. Often, both the client and the nursing home are looking for the same thing – i.e. that Medical Assistance eligibility be granted.

I just received a denial of Medical Assistance eligibility. Do I need an attorney to represent me at the administrative law hearing?
Absolutely. The appeals worker for the Department of Social Services is not your advocate. Their sole job is to back up the caseworker in their determination of a Medical Assistance denial. By law, they are required to give the appellant the Department’s position on appeal way before the hearing. Often that never occurs. Having a good elder law attorney at your side is critical.