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The SMART Act SB 2840 will reverse many of the DRA changes Elder Law attorneys fought for on behalf of our clients.  The changes include the following:
  • Legal fees are no longer exempt for 3-month backdating.
  • Abolishes spousal refusal entirely.
  • A homestead in Trust is no longer an exempt asset.
  • Except for the Community Spouse Resource Allowance ($109,560) and Minimum Monthly Needs Maintenance Allowance ($2,739, HFS is no longer limited in how much it can seek when pursuing a support order against a community spouse.
  • Reverts to the old limits on prepaid funeral contracts.
  • Reduces the home equity exemption to the minimum allowed under federal law (base figure of $500,000, adjusted annually for inflation, rather than the $750,000 adopted in the DRA rulemaking).
  • No exception for prepaid funerals for 3-month backdating.
More to come.

The difference in relationships matters. Non-relatives sometimes have easier access or more cooperation precisely because they are NOT family members. Many times, loved ones are harder on their relatives than anyone else. Your mother probably feels she can act however she wants around relatives. Sometimes, loved ones don’t have good relationships to start with and this is just continuation of that dynamic. But usually a person will be on his or her best behavior for someone outside the family. That’s good news for aides, doctors and sometimes even strangers with whom they interact. Sometimes all the family contact, and familiarity it brings, is too much. You both might just need a break from one another, having spent too much time together already. This is not something you should take personally. Your mother still loves you. Just remember that she has a form of dementia. Many people don’t realize that almost all inhibition is eliminated with dementia. It’s a bit of a mystery, frankly, how some people can maintain such good manners with someone who is not as familiar with them as you. It’s important for caregivers (such as yourself) to learn to let things go. You should weigh things such as: If all she wants to eat is chocolate pudding, is it hurting anyone/anything? If she wants it for breakfast, it might not be the most nutritious thing for her, but it’s not going to harm her (unless medically contra-indicated, of course).  Learn to step back and evaluate the overall implications of odd requests or off-plan behavior. Choose your battles wisely. Often, if a loved one with Alzheimer’s doesn’t want to eat or dress or do some other common task, she or he will cooperate when you ask again later. For more information, please click here to download our FREE “Indispensable Alzheimer’s Kit.”

Even if an abuser has Alzheimer’s disease and can’t control his temper because of it, it is still difficult to put up with. But you can’t take it personally.  If his behavior is merely an extension of the way he used to treat people, you at least know what is happening. But if it’s a full personality change, it understandably could come as a shock. It will likely signal a period of mourning, where you will have to come to a point of acceptance that there has been a dramatic change.   Give your mother breaks since she is otherwise with him all of the time. It might mean hiring someone to come in and be with him, or using an adult day care center, or having family members rotate in. But you must realize that your mother needs breaks. The odds are he will act differently with non-family members. However, if he still verbally abuses home care workers or staff at the adult day care center, you have a bigger problem. Then, it might be time to get the doctor involved. See if the doctor has any suggestions — he might suspect depression or anxiety is in play and prescribe something for it accordingly. Often, Alzheimer’s patients act out due to an underlying cause such as depression, anxiety or pain.  You also can deal with this volatile situation with humor. You can’t control how your father acts out, but you can control your responses. The staff at one adult day care center simply refers to harsh words or verbal abuse as its “terms of endearment.”   You also might want to openly acknowledge your father’s feelings to him. This could lessen his frustration level. A person with Alzheimer’s loses so much independence, he may rail against those nearest to him, especially if he’s receiving different sets of advice or orders from different people.  Would-be advice givers need to be careful that they offer suggestions and directions in a non-threatening way. If your father resists, don’t press him and go back to the topic later. After an informal cool-down period, you may have better luck. To have success, you should also not talk down to him. He’s an adult and has his own personal history of independence and success. That should not be discounted. Your father will sense if he is being treated differently.   Another solution for you caregivers is to join a support group. Very often, there will be others in a group with the same or similar problems. They can either give you successful strategies or simply the comfort and understanding that you need to know you’re not alone in this battle. You and your mother also should journal feelings and frustrations about your dad’s behavior. By dealing with your feelings, you’re better able to help your father.  To find a support group near you click here.

This is a very good question because routines are very, very important. A steady routine will be familiar and comforting as a person with Alzheimer’s progresses into the disease and loses more memory. If you live with your loved one, make everything a part of a schedule or routine if possible. You should do this for both of your sakes.   Rituals, such as at bedtime, are critical. If your loved one always ate something particular before bed, or checked a door(s) or performed some other task, you should continue with it. If your loved one becomes restless before bed time or is having a hard time getting to sleep, allow him or her to get up and do anything in their ritual. This will help the person feel at home. To reiterate rituals and routines are very, very important.  A daytime routine might include specific medication or eating times, checking the mail, bathing, going to get a haircut, grocery shopping with you and just about anything else you want to include. Putting drinking water into the routine is great because it can add to a sense of process but also keep a person with Alzheimer’s hydrated, which can sometimes be an elusive task. You both should also be sure to include relaxation time in your regular schedules. Some other good things to include in a daily schedule could be: feeding a pet(s), folding laundry, reading the newspaper, going for a walk or drive, taking out the garbage, getting a snack, drinking coffee, etc.  It might be difficult, but while trying to keep a steady routine, you have to avoid becoming too rigid. If the activity you had planned isn’t working out well for your loved one, be flexible and don’t argue. Move on to the next thing and go with the flow. If you have an activity that simply must be done (such as dressing), take a break from it and try again late. For more information, click here to receive our FREE “Indispensable Alzheimer’s Resource Kit, ” which has additional information regarding caregiving issues.  In addition, attend an Alzheimer’s Support Group.  To find one in your area click here

There have been people with Alzheimer’s who have refused to do something until getting an answer from a TV character; others have thought music shows are actual concerts. This has worried family members, who have wondered whether they should cut off TV watching altogether for their loved one. But you have to think it over: Is this causing any harm? This is not an uncommon behavior for someone with Alzheimer’s. You have to weigh what the TV situations might be doing to your loved one. Does watching TV become distressing, or are the characters and stories seen as friendly? Often, it’s the latter, and you can never have too many friends! If TV scenarios and people become threatening to your father, then you must limit how much TV he watches. If there is a TV in his room, you can remove it. Odds are, it isn’t doing much good for him if stress is involved. If or when he sees other residents watching TV, his attention can be redirected toward other activities. If he’s not living at home, talk with the staff at his care facility and let them know of your concerns. Tell them you would like to have his TV time limited. They can help redirect him toward bingo or other activities instead. If there winds up being no TV in his room, ask staff members to take him to one of the facility’s common areas to watch a favorite show(s) there. If there is a VCR or DVD player, you can bring programming that you have purchased or rented so he can view it.    


Are you thinking of buying into a comfortable retirement community?


That is often a good idea but, think again carefully.


The new Illinois Medicaid law taking effect on January 1, 2012 dramatically change the treatment of entrance fees at Continuing Care Retirement Communities

Continuing Care Retirement Communities (CCRCs) are communities that provide a full continuum of care for its residents.  They have flexible accommodations designed to meet their resident’s health and housing needs as their needs change over time. They offer independent living, assisted living and nursing home care, usually all in one location.  As a requirement for admission to most CCRCs, residents are required to pay an entrance fee or a lump sum “buy-in” which, in addition to other things, guarantees the resident’s right to live in the facility for the remainder of their lifetime.  In addition to the entrance fee, residents also pay a monthly service fee. The entrance fee is often, but not always, reimbursable (at least partially) if the individual moves from the facility, if they pass away while a resident at the facility, or if they otherwise terminate the contract.  Many contracts also contain a provision wherein an individual is able to use a portion of their entrance fee toward their monthly resident charges if the resident exhausts his resources and becomes otherwise unable to pay. PRIOR LAW Prior to the new Medicaid law (the Deficit Reduction Act of 2005, hereinafter “DRA”), the entrance fee was generally not considered an available asset for Medicaid eligibility purposes. NEW  LAW Under the new DRA, that took effect on January 1, 2012, a CCRC entrance fee is considered an available or “countable” asset if: (1) the contract provides the entrance fee may be used to pay for care should the resident run out of money and become unable to pay their monthly charge; or (2) the individual is eligible for a refund of any remaining entrance fee when the individual dies, leaves the community or otherwise terminates the life care contract; and (3) the entrance fee does not confer an ownership interest in the CCRC. Also, under the new law, CCRC’s are given the authority to include in their contacts a provision which requires residents to spend all of their resources on their care prior to applying for Medicaid benefits (essentially disallowing any Medicaid planning or asset protection once the contract is signed). Thus,   when an individual applies for admission to a CCRC, the application may request full disclosure of an individual’s resources. Prior to the new law, regardless of the amount of resources an individual declared, the CCRC could not prohibit the individual from doing any long-term care planning or asset protection planning and then applying for Medicaid. PROBLEM CREATED BY NEW LAW Now CCRC’s can contractually require a resident to spend down all of the assets they declared at the time of admission before applying for medical assistance. This new provision will greatly limit the ability of CCRC residents to protect their assets once admitted to the community.  Some residents may not care about the ability to protect their assets once they are admitted to the community. But for those of you that do care about protecting assets from being lost to the devastating cost of long-term care, the inability to plan with your remaining dwindling resources is a big deal! CONCLUSION It is a good idea to consult with an experienced elder law attorney prior to entering into a contract at a Continuing Care Retirement Community. This ensures that you understand how your entrance fee/”buy-in” agreement may financially and legally impact your  long term care plan and any asset protection planning that you may have in mind. CCRC’s can do a nice job of providing care, but there is no substitute for getting the appropriate legal advice before you enter into a binding contract with anyone.

First, it’s important to be on common terms when discussing any word, concept or issue. This holds true for agitation. Many of us have experienced agitation at some point in our lives. When we get so emotionally overwhelmed, it leads to unrest. Let’s look at the meaning of agitation, as cited in several authoritative resources:

* “Extreme emotional disturbance.” (The American Heritage Dictionary of the English Language)

* “A mental state of extreme emotional disturbance, the feeling of being agitated; not calm.” (WorldNet 1.6)

* A stirring up or arousing; disturbance of tranquility; disturbance of mind that shows itself by physical excitement.” (Webster’s Revised Unabridged Dictionary)

Most people can identify such a feeling in themselves and use appropriate coping mechanisms. But this can be impossible for people with Alzheimer’s disease. Often, they are unable to get in touch with, or express, their feelings. When they experience agitation, therefore, it is hard for those around them — caregivers, family members and others — to understand or offer help. We won’t go in-depth into it here, but the issue of medication should be mentioned. Medication could be responsible for sudden changes in mood or behavior, and that includes agitation. A new medication or a changed dose might be the source of new levels of agitation. Keep notes and discuss them with your physician. Do not think you have to wait for your next appointment, which could be weeks or months away. Call right away for assistance. Realize that both prescription and over-the-counter medications can be responsible for heightened levels of agitation. Always consult a doctor before starting, stopping or changing any medication.

I.          Introduction This is an article summarizing the implementation by the Illinois Department of Health and Family Services (Department) of the Federal Deficit Reduction Act of 2005 (DRA). Much has been written about these rules over the last several years by various members of the Elder Law Section Council and also other Section Councils. This article will deal mainly with the final rules as adopted in the State of Illinois (ILDRA). This article will be issued in three parts, which will be found in three issues of the Section Council newsletter. The first part will deal with the scope of the federal changes and five specific areas of Illinois law that have been impacted by the new Illinois rules. The second installment will deal with six more areas in Illinois law that have been changed. The third and final installment will deal with the last three areas of Illinois law that have been changed by the adoption of these new rules. The author struggled with the choice of either making this article a short, cursory discussion of the DRA or a long version discussing the DRA and related rules in greater detail. Through discussion with the newsletter staff, we opted for the longer discussion. The reason for this decision is that a short discussion would not address the numerous issues and nuances found in the new provisions and, thus, be rather useless to a practitioner. The longer version, while more time-consuming to digest and use, will hopefully provide a way of reading the new law that is, perhaps, slightly more convenient than reading the statue itself, while not glossing over or missing any of the nuances and issues on which our clients’ cases often turn. This was our intention. Further, it should be noted that much of this article deals with changes that were not part of the DRA. However, because the practitioner reading this article is presumably interested in the Illinois Administrative Rules dealing with long-term care cases and how they are impacted by DRA, a discussion of some of the provisions not mandated by DRA, but nevertheless inserted into this rule change by the state of Illinois, will also be discussed for a more for complete discussion that is relevant for the practitioner. II.         Scope of Federal Changes In the federal DRA, the following 14 topical areas were addressed: 1.    LOOKBACK PERIOD EXTENDED TO FIVE YEARS   2.    COMMENCEMENT DATE OF PENALTY PERIOD  3.    UNDUE HARDSHIP  4.    DISCLOSURE AND TREATMENT OF ANNUITIES  5.    INCOME–FIRST  6.    HOME EQUITY CAP UNDER THE DRA  7.    IMPLICATIONS OF THE CCRC PROVISIONS OF THE DRA  8.    OTHER OPERATIONAL CHANGES TO THE IMPOSITION OF TRANSFER PENALTIES  9.    REQUIREMENT TO IMPOSE PARTIAL MONTHS OF INELIGIBILITY  10. ACCUMULATION OF MULTIPLE TRANSFERS  11. PROMISSORY NOTES, LOANS AND MORTGAGES  12. INCLUSION OF TRANSFERS TO PURCHASE LIFE ESTATES  13. EXPANSION OF STATE LONG-TERM CARE PARTNERSHIP PROGRAM  14. EFFECTIVE DATES FOR PROVISIONS OF THE DRA The effect of these federal rules has been discussed in numerous articles written by authors within the state of Illinois and nationwide.  As you will recall, the Federal Deficit Reduction Act was passed and signed by President Bush on February 8, 2006.  By contrast, the effective date for the implementation of the Illinois version of the DRA is January 1, 2012. The author would like to point out that one cannot simply look in the Illinois Administrative Rules and find these topical areas readily available for discussion as they are listed above. Rather, the content of the above rules is weaved into the Illinois Administrative Rules sections listed below. III.        Scope of Illinois Changes To understand the impact of the DRA on the sections of the Illinois Administrative Rules that will be affected by the implementation of the Illinois rules by HFS, see the new Illinois rules at Title 89, part 120 of the Illinois Administrative Code. Below is a list of the sections that are affected. Some of the sections are affected in small part, while some are affected in large part.  Some sections have been deleted in their entirety and are noted below. Find Discussion of the following Sections in Installment One: SUBPART B:              ASSISTANCE STANDARDS Section 120.10         Eligibility for Medical Assistance Section 120.20         MANG (AABD) Income Standard Section 120.40         Repealed SUBPART C:  FINANCIAL ELIGIBILITY DETERMINATION Section 120.60         Community Cases Section 120.61         Long Term Care Section 120.62         Repealed Section 120.63         Repealed Section 120.65         Repealed SUBPART H:  MEDICAL ASSISTANCE–NO GRANT (MANG) ELIGIBILITY FACTORS Section 120.308       Client Cooperation Find Discussion of the following Sections in Installment Two: Section 120.347       Treatment of Trusts and Annuities Section 120.380       Resources Section 120.379       Provisions for the Prevention of Spousal Impoverishment Section 120.381       Exempt Resources Section 120.382       Resource Disregard Section 120.384       Spenddown of Resources Find Discussion of the following Sections in Installment Three: Section 120.385       Factors Affecting Eligibility for Long Term Care Services Section 120.387       Property Transfers Occurring on or After August 11, 1993 and Before January 1, 2007 Section 120.388       Property Transfers Occurring On or After January 1, 2007 SUBPART I:  SPECIAL PROGRAMS Section 120.TABLE B –  Repealed As shown above, the list of Illinois changes seem as though they are a moderate overhaul of the prior Medicaid rules. However, the devil is in the details, and the remainder of this series of articles will deal with the above Illinois Administrative Rules sections that, in many cases, are replete with massive changes to the way Medicaid will be administered for long-term care in the State of Illinois. A numerical approach will be used to trace the above listed changes.  IV.       DETAILED ANALYSIS  Following is a discussion of changes in the Illinois Administrative Rules based on Illinois interpretation of the federal DRA. Section 120.10  Eligibility for Medical Assistance.  This is not part of DRA specifically, but is telling in that subsections (a)–(g) provide that financial eligibility for medical assistance for persons will be determined depending on their status for Medicaid. This Section is careful to distinguish between persons receiving medical assistance while living in the community, and financial eligibility for medical assistance for purposes of persons receiving long term care services. The various rules are directed to certain MANG (Medical Assistance–No Grant) programs, such as AABD (Aid to Aged Blind and Disabled), and TANF (Temporary Assistance for Needy Families). MANG means Medical Assistance – No Grant. Virtually all cases coming to elder law attorneys are of this type. These types of cases should be distinguished from MAG which is Medical Assistance – Grant. Rarely are these latter cases see by elder law attorneys, at least in the author’s experience. It should also be noted that discussion pertaining to TANF cases will also be “intentionally omitted” (IO) since the elder law attorney is not often concerned with cases of that type. Rather we will focus on AABD type cases which refers to Assistance to Aged, Blind and Disabled. The elder law attorney sees these types of cases frequently. In subsection (a), the basic proposition is that eligibility for medical assistance exists when a person meets nonfinancial requirements of the program and the person’s countable nonexempt income is equal to or less than the MANG standard. Also,  going one step further, in AABD cases, the state requires that the person’s nonexempt resources are not in excess of the applicable resource disregards found at Section 120.382, which is generally $2,000 for a person. Financial eligibility for medical assistance for other persons or family units living in the community is determined according to Section 120.60, discussed hereafter. Financial eligibility for medical assistance for persons receiving long-term care services, as defined in Section 120.61(a), is determined according to Section 120.61(a). Subsection (b) of Section 120.10 provides that, for AABD cases, a person’s countable income and resources include the person’s countable income and resources and the countable income and resources of all persons included in the Medical Assistance Standard. The person’s responsible relatives living with the child must be included in the standard. The person has the option to request that a dependent child under 18 in the home who is not included in the MANG unit be included in the MANG standard. Subsection (c) provides  for TANF. TANF discussion is intentionally omitted (IO) by the author for the remainder of this  article. The next two subsections address the concept of spenddown obligation in the case of both AABD and TANF-type cases. Subsection (d) provides that, for AABD cases, if a person’s countable nonexempt income is greater than the applicable MANG standard and/or countable nonexempt resources are over the applicable resource disregard, the person must meet the spenddown obligation determined for the applicable time period before becoming eligible to receive medical assistance.  Subsection (e) provides that, for TANF cases, (IO) Next, subsection (f) provides that a one-month eligibility period is used for persons receiving long-term care services. Nonexempt income and nonexempt resources over the resource disregard, described in Section 120.382 (discussed later in this article), are applied toward the cost of care on a monthly basis, which means they must be used and contributed to the cost of care. Subsection (g) deals with newborns and their status in TANF or a AABD cases. Section 120.20  MANG (AABD) Income Standard. This is not part of the DRA, but this provision indicates that the monthly countable income standard is 100% of the Federal Poverty Level Income Guidelines. Section 120.40  Exceptions To Use Of MANG Income Standard.  This Section was repealed. Section 120.60  Community Cases. This is not part of DRA, and is a very long section. This Section applies to persons or family units who reside in the community or community-based residential facilities or settings (such as Community Living Facilities, Special Home Placements, Home Individual Programs, or Community and Residential Alternatives). The discussion of incurred medical expenses that are defined in this section apply to the initial eligibility step for long-term care cases described previously in Section 120.10. Because this Section is so long and much of it deals with limited circumstances that will not be relevant to the practitioner on a day-to-day basis, the discussion of some of its provisions is curtailed below. The reader may always refer to the Administrative Rules for a more complete and exhaustive analysis of these provisions. Subsection (a) provides for the determination of when the eligibility period shall begin for community cases. The eligibility period shall begin with: 1)    the first day of the month of application; 2)    the first day of any month, prior to the month of application, in which the person meets the financial and non-financial eligibility requirements for up to three months prior to the month of application; OR 3)    the first day of a month, after the month of application, in which the person meets the non-financial eligibility requirements. Subsection (b) provides for eligibility without spenddown for MANG cases, and breaks down the cases between AABD cases and TANF cases. 1)    For an AABD case, if the person’s countable income during the eligibility period is equal to or below the applicable AABD income standard and nonexempt resources are not in excess of the applicable resource disregard (see Section 120.382), the person is eligible for medical assistance from the first day of the eligibility period. The Department will pay for covered services during the entire eligibility period.   2)    For a TANF case, IO.   3)    This paragraph indicates that the person is responsible for reporting any changes that occur during the eligibility period that might affect eligibility for medical assistance. If changes occur, appropriate action shall be taken by the Department, including termination of eligibility for medical assistance. If changes in income, resources or family composition occur that would make the person a spenddown case, then a spenddown obligation will be determined and subsection (c) of Section 120.60 will apply.   4)    A redetermination of eligibility will be made at least every 12 months. Subsection (c) addresses eligibility with spenddown for MANG cases, both AABD and TANF. This is a long section that has 9 parts. We will discuss only those provisions that seem most relevant to the practitioner on a daily basis and just briefly discuss those other provisions that do not seem to have as much day-to-day relevance for most practitioners. 1)    For AABD community cases, if the person’s countable nonexempt income available during the applicable eligibility period is greater than the applicable AABD income standard and/or nonexempt resources are over the applicable resource disregard, the person must meet the spenddown obligation determined for the eligibility period before becoming eligible to receive medical assistance. The spenddown obligation is the amount by which the person’s countable income exceeds the MANG AABD income standard and/or the amount of nonexempt resources in excess of the applicable resource disregard (see Section 120.384).  2)    For TANF cases, IO.  3)    A person meets the spenddown obligation by incurring or paying for medical expenses in an amount equal to the spenddown obligation. Persons also have the option of meeting their income or resource spenddown by paying or having a third party pay the amount of the spenddown obligation to the Department.  A)   Incurred expenses are expenses for medical or remedial services:       i)     recognized under state law;       ii)    rendered to the person, the person’s family or a financially responsible relative;       iii)   for which the person is liable in the current month for which eligibility is being sought or was liable in any of the 3-month retroactive eligibility period described in subsection (a) of this Section; and       iv)   for which no third party is liable in whole or in part unless the third party is a State program.                  B)   Incurred medical expenses shall be applied to the spenddown obligation in the following order:         i)     Expenses for necessary medical or remedial services, as funded by DHS or the Department on Aging from sources other than federal funds. The expenses shall be based on the service provider’s usual and customary charges to the public. The expenses shall not be based on any nominal amount the provider may assess the person. These charges are considered incurred the first day of the month, regardless of the day the services are actually provided.       ii)    Payments made for medical expenses within the previous six months. Payments are considered incurred the first day of the month of payment.       iii)   Unpaid medical expenses. These are considered as of the date of service and are applied in chronological order. C)   If multiple medical expenses are incurred on the same day, the expenses are applied in the following order:        i)     Health insurance deductibles (including Medicare and other co-insurance charges).       ii)    All copayment charges incurred or paid on spenddown met day.       iii)   Expenses for medical services and/or items not covered by the Department’s Medical Assistance Program.       iv)   Cost share amounts incurred for in-home care services by individuals receiving services through the Department on Aging.       v)    Expenses incurred for in-home care services by individuals receiving or purchasing services from private providers.       vi)   Expenses incurred for medical services or items covered by the Department’s Medical Assistance Program. If more than one covered service is received on the day, the charges will be considered in the order of amount. The bill for the smallest amount will be considered first. D)   If a service is provided during the eligibility period but payment may be made by a third party, such as an insurance company, the medical expense will not be considered towards spenddown until the bill is adjudicated. When adjudicated, that part determined to be the responsibility of the person shall be considered as incurred on the date of service.   E)   AABD MANG spenddown persons may choose to pay or to have a third-party pay the amount of their spenddown obligation to the Department to meet spenddown. The following rules will govern when persons or third parties choose to pay the spenddown:         i)     Payments to the Department will be applied to the spenddown obligation after all other medical expenses have been applied per subsections (c)(3)(A), (B) and (C) of this Section.       ii)    Excess payments will be credited forward to meet the spenddown obligation of a subsequent month for which the person chooses to meet spenddown.       iii)   The spenddown obligation may be met using a combination of medical expenses and amounts paid. 4)    This subsection provides for an additional eligibility determination for applications for medical assistance in cases eligible with a spenddown obligation that do not have a QMB (qualified Medicare beneficiary) or MANG(P) member.  This discussion is intentionally abbreviated by the author.   5)    Cases with a spenddown obligation that do not have a QMB, a MANG(P) member or person on a waiting list or who would be on a waiting list to receive a transplant if he or she had a source of payment, will be reviewed beginning in the sixth month of enrollment. There are several other rules applying to these limited circumstances. This discussion is intentionally omitted by the author.  6)    This subsection provides that the person is responsible for reporting any changes that occur during the enrolment period that might affect eligibility for medical assistance. If changes occur, appropriate action shall be taken by the Department, including termination of eligibility for medical assistance.  7)    For MANG AABD cases, if changes in income, resources or family composition occur, appropriate adjustments to the spenddown obligation and date of eligibility for medical assistance shall be made by the Department. Notification requirements are set out as well.  A)   If income decreases, or resources fall below the applicable resource disregard and, as a result, the person has already met the new spenddown obligation, eligibility for medical assistance shall be backdated to the appropriate date.  B)   If income or resources increase and, as a result, the person has not produced proof of incurred medical expenses equal to the new spenddown obligation, the written notification of the new spenddown amount will also inform the person that eligibility for medical assistance will be interrupted until proof of medical expenses equal to the new spenddown obligation is produced.   8)    For TANF cases, IO.   9)    Reconciliation of Amounts Paid-in to Meet Spenddown.   A)   The Department will reconcile payments received to meet an income spenddown obligation for a given month against the amount of claims paid for services received in that month and refund any excess spenddown paid to the person. Excess amounts paid for a calendar month will be determined and refunded to the person six calendar quarters later. Refund payments will be made once per quarter.   B)   The Department will reconcile payments received to meet a resource spenddown obligation against the amount of all claims paid during the individual’s period of enrollment for medical assistance. Excess amounts paid will be determined and refunded to the individual six calendar quarters after the individual’s enrollment for medical assistance ends.   C)   When payments are received to meet both a resource and income spenddown obligation, the Department will first reconcile the amount of claims paid to amounts paid toward the resource spenddown. If the total amount of claims paid have not met or exceeded the amount paid to meet the resource spenddown by the time the individual’s enrollment ends, the excess resource payments shall be handled per subsection (c)(3)(C) of this Section. Once the amount of claims paid equals or exceeds the amount paid toward the resource spenddown, the remaining amount of claims paid will be compared against the amount paid to meet the income spenddown per subsection (c)(3)(B) of this Section.   10)     The Department will refund payment amounts received for any months in which the person is no longer in spenddown status and the payment cannot be used to meet a spenddown obligation. The payment amounts shall not be subject to reconciliation under subsection (c)(9) this Section. Refunds shall be processed within six months after the case status changed. Again, the author would like to reiterate that there are numerous other new parts in this Section, but because they do not deal with DRA directly, they can be read at the reader’s convenience. Section 120.61  Long Term Care.  While this Section is not part of the DRA, the purpose of it is to provide, in long term care cases, for initial eligibility steps and post-eligibility steps. Because this Section deals with long term care cases, we will go into more detail, as it seems to be relevant for most practitioners handling long term care cases in the practice of elder law. Subsection (a) defines “long term care facility”. It provides that a long term care facility is: 1)    an institution (or a distinct part of an institution) that meets the definition of a “nursing facility”, as that term is defined in 42 USC 1396r. 2)    licensed Intermediate Care Facilities (ICF and ICF/DD), licensed Skilled Nursing Facilities (SNF and SNF/PED) and licensed hospital-based long term care facilities; and 3)    Supportive Living Facilities (SLF) and Community Integrated Living Facilities (CILA).  Note that the Department has added CILAs to this definition. Subsection (b) states that the eligibility period shall begin with: 1)    the first day of the month of application; 2)    up to three months prior to the month of application for any month in which the person meets both financial and non-financial eligibility requirements. Eligibility will be effective the first day of a retroactive month if the person meets eligibility requirements at any time during that month; OR 3)    the first day of a month, after the month of application, in which the person meets non-financial and financial eligibility requirements. The most controversial part of this subsection is that in order to obtain eligibility for any of the prior three months prior to the submission of the application, the state will require  that persons meet the financial eligibility requirements in any or all of the three prior months if eligibility is sought for any or all of the three months prior to the month of application. While this is not specifically required by DRA, the Department is requesting this. This will affect residents who need to pay for expenses during the application process. Subsection (c) addresses eligibility without spenddown 1)    This subsection indicates that a one-month eligibility will be used. If a person’s nonexempt income available during the eligibility period is equal to or below the applicable income standard AND nonexempt resources are not excess of the applicable resource disregard (described in Section 120.382), the person is eligible for medical assistance from the first day of the eligibility period without a spenddown.   2)    This subsection goes on to say that if, during the eligibility period, there is any change from the initial calculations made, this must be reported to the Department. Specifically, if changes in income, resources or family composition occur that would make the person a spenddown case, a spenddown obligation will be determined and subsection (d) of this Section will apply. Subsection (d) addresses eligibility with spenddown. 1)    If countable income available during the eligibility period exceeds the applicable income standard and/or nonexempt resources exceed the applicable asset resource disregard, a person has a spenddown obligation that must be met before financial eligibility for medical assistance can be established.  The spenddown obligation is the amount by which the person’s countable income exceeds the income standard or the nonexempt resources exceed the applicable resource disregard.   2)    A person meets the spenddown obligation by incurring or paying for medical expenses in an amount equal to the spenddown obligation. Medical expenses shall be applied to the spenddown obligation as provided in Section 120.60(c) of this Part. See prior discussion of Section 120.60(c).   3)    Projected expenses for services provided by a long term care facility that have not yet been incurred, but are reasonably expected to be, may also be used to meet a spenddown obligation.  The amount of the projected expenses is based on the private pay rate of the long term care facility at which the person resides or is seeking admission.   4)    A person who has both an income spenddown and a resource spenddown cannot apply the same incurred medical benefits to both.  Incurred medical expenses are first applied to an income spenddown. The next two subsections discuss post-eligibility income and deductions. Subsection (e) provides that, if non-financial and financial eligibility is established, a person’s total income, including income exempt and disregarded in determining eligibility, must be applied to the cost of the person’s care, minus applicable deductions provided under subsection (f) of this Section. Subsection (f) describes various deductions that can be used to reduce post-eligibility income. The effect of the deductions is that they increase the amount which the Department will pay for residential services on behalf of the person, up to the Department’s payment rate for the facility (approximately $3,500 per month). The deductions that are contemplated are: 1)    certain SSI benefits; 2)    a personal needs allowance (usually $30 per month); 3)    the community spouse income allowance ($2,739 in 2011); 4)    a family allowance; 5)    an amount to meet the needs of qualifying children under age 21 who do not reside with either parent, who do not have enough income to meet their needs and whose resources do not exceed the resource limits; 6)    amounts incurred for certain Medicare and health insurance costs not subject to payment by a third party; 7)    certain expenses not subject to third party payment for “necessary medical care” recognized under state law, but not a covered service under the Medical Assistance Program. The term “necessary medical care” has the meaning described in 215 ILCS 105/2 and must be proved as such by a prescription, referral or statement from the patient’s doctor or dentist. The following are allowable deductions from a person’s post-eligibility income for medically necessary services:   A)   expenses incurred within the six months prior to the month of an application, provided those expenses remain a current liability to the person and were not used to meet a spenddown. (The author understands that there may be some controversy in limiting medical expenses to those incurred within the six-month period prior to the month of application. It will remain to be seen how this will be resolved.) Medical expenses incurred during a period of ineligibility resulting from a penalty imposed under Section 120.387 or 120.388 of this Part are not an allowable deduction;   B)   expenses incurred for necessary medical services from a medical provider, so long as the provider was not terminated, barred or suspended from participation in the Medical Assistance Program at the time the medical services were provided; and   C)   expenses for long term care services, subject to the limitations of this subsection (f)(7) and provided that the services were not provided by a  facility to a person admitted during a time the facility was subject to the sanction of non-payment for new admissions.   8)    Certain expenses to maintain a residence in the community for up to six months, when the person does not have a spouse and/or dependent child, and the physician has certified that the stay in the facility is temporary and the individual is expected to return home within six months. The amount of the deduction must be based on the rent or property expense allowed under the AABD MANG standard if the person was at home and the utility expenses that would be allowed under the AABD MANG standard if the person was at home. Sections 120.62, 63, and 65. These Sections were repealed. With regard to Section 120.65, it should be noted that, before this rule was repealed, persons living in Community Integrated Living Arrangements (CILAs) were treated as living in the community. With this Section being repealed by this rule change, those persons will now be treated as long term care cases and provisions dealing with asset transfers and resource limitations will now apply to this group. SUBPART H: MEDICAL ASSISTANCE – NO GRANT (MANG) ELIGIBILITY FACTORS Section 120.308  Client Cooperation. This section is not part of the DRA, but it should be discussed. The thrust of this Section in subparagraphs (a)-(h) is to set out the terms of cooperation that an applicant is required to demonstrate and what cooperation is expected by HFS. Subsection (a) provides that cooperation by applicants is required in the determination of eligibility, including the acquisition and verification of information upon which eligibility may depend, and applying for all financial benefits for which they may qualify and to avail themselves of those benefits at the earliest possible date. Subsection (b) provides that clients are to avail themselves of all potential income and resources and to take appropriate steps to access and receive these resources, including those steps to be taken by the person’s spouse as later set out in Section 120.388(d)(2). Subsection (c) states that, when eligibility cannot be conclusively determined because the individual is unwilling or fails to provide essential information or to consent to verification, the client shall be ineligible. Subsection (d) requires that, at screening, applicants shall be informed, in writing, of any information they are to provide at the eligibility interview. Subsection (e) provides that, at the eligibility interview, or at any time during the application process, when the applicant is requested to provide information in his or her possession, the Department will allow 10 days for the return of information requested by the Department. There are specific rules that describe the beginning and ending of the 10 day period. There are also rules for returning information to the Department when requested. Subsection (f) states that, at the eligibility interview or at any time during the application process, when the applicant is requested to provide third party information, the Department shall allow 10 calendar days for the return of the requested information or for verification that the third party information has been requested.  If the applicant does not provide the information or verification that the information was requested by the date on the information request form, the application shall be denied on the following work day. 1)    Third party information is defined as information that must be provided by someone other than the applicant. 2)    The Department shall advise clients of the need to provide written verification of third party information requests and the consequences of failing to provide that verification. 3)    If the applicant requests an extension either verbally or in writing in order to obtain third party information and provides written verification of the request for the third party information, an extension of 45 days from the date of application shall be granted.        4)    If an applicant’s attempt to obtain third party information is unsuccessful, upon the applicant’s request, the Department will assist in securing evidence to support the client’s eligibility for assistance. Subsection (g) requires that any information or verifications requested under this Section must be returned to the Department or its agent’s office in the manner indicated on the information request form. Information mailed or otherwise delivered to an address not indicated on the form will not toll the timeframes for providing information under this Section. Subsection (h) provides that failure to cooperate in the determination of eligibility under this Section, including failure to provide requested information or verifications, is a basis for the denial of an application for benefits. The Department goes on to provide somewhat of a safe harbor by indicating that the Department shall not deny an application: –  when the delay is beyond the control of the person following a timely request to the third party, or – for failure to timely provide information in the applicant’s possession if the person has made a good faith attempt to retrieve the information and is unable to do so due to incapacity, illness, family emergency or other just cause.

New Rules As you may have read in recent columns, Illinois has adopted new rules for Medicaid coverage for long-term care for our citizens and the state of Illinois (“DRA”). These new rules took effect January 1, 2012.  The new rules are going to require that our clients engage in what we call “Five-Year Planning.” This “Five-Year Planning” has become  necessary because of the fact that there will be a new five-year lookback for all Medicaid applicants when there are asset transfers that take place after January 1, 2012. The Silver Lining What may come as a surprise to many of our clients is that the unintended consequences of these rules may be that long-term care planning for our clients may actually be enhanced in some ways. The silver lining in all of this is that while the lookback period and the need to plan further in advance is one of the negative aspects of the new law, the need to use trusts of a very specialized type in order to comply with the five-year look back may actually provide some very positive consequences. How to take advantage of the New Rule Following is an example of how the new rules could work in your favor.  Instead of leaving assets for their children outright, parents can now consider leaving assets in trust for their children. Leaving assets in trust for children carries with it the following benefits:
  1. the ability to protect the assets inherited by a child from the creditors and predators of the child, such as divorcing spouses, business creditors, tort creditors, etc.;
  2. the ability to allow the management of the assets to continue under the supervision of the parents’ financial advisor who may have assisted the parents over the years in accumulating a critical mass of assets that can provide for many years of security for the children;
  3. the ability to meet the five-year lookback requirement of the new Medicaid laws;
  4. and, finally, the ability to prevent the children from squandering or losing the assets that the parents carefully accumulated during their lifetime.
We are currently experiencing the greatest intergenerational transfer of wealth in the history of the world. However, there are often problems with transfers of wealth. Quite often, the parents pass away and the baby boomer generation will take funds in what used to be a well-managed and profitable brokerage account, and the money is randomly moved or, worse yet, squandered shortly after it is received. So I often ask both our clients and their financial advisors if they would  be interested in establishing a systematic relationship for the management of assets so that a client’s family can continue to retain the benefit from financial management even after parents pass away? The recent adoption by the state of Illinois of the DRA will provide an entrée and solution to this problem for all. In the past, this was sometimes difficult to do. The opportunity to avoid the unintended squandering and loss of assets at the death of the parents now exists with the increased usage and importance of so called Five- Year Planning as part of our “senior” estate planning process.  This planning always existed, but is now more critical than ever, with the passage of DRA in Illinois and the required “5 year or 60 month lookback period.” My preference is to work with clients and their advisors  who appreciate the wisdom of keeping client assets protected from creditors and under  management of the financial advisor. Call To Action If this interests you, then please call my office so that we can schedule a time to meet and I can discuss this new law with you. I think you’ll be amazed at the opportunities that the law presents to the older generation, as well as to the younger generation. You have our best wishes for the new year! I hope to speak with you soon.

First, you must realize what the definition of guilt really is. That helps frame this discussion. Guilt is defined as “being responsible for the commission of an offense; remorseful awareness of having done something wrong; or self-reproach for supposed inadequacy or wrongdoing.” Quite often, we assign guilt when we shouldn’t. If you are feeling guilty while caring for a loved one with Alzheimer’s, you need to “let it go.” In other words, put it into perspective and give yourself a break. Don’t let others who might try to make you feel guilty succeed. Rise above it and take control over how you respond. You can’t control everything you want to but you can control your responses. In brief, that’s life. Guilt can be very destructive and play havoc with your internal mechanisms. This, in turn, can make you less effective in everything else you do. It can be a very harmful cycle — if you let it. Think about what you are doing if you are a caregiver. In brief, it’s this: You’re doing the very best you can. Your best is good enough. Remember, too, that you can always be your loved one’s advocate. If he or she is in a facility such as a nursing home, you (and your loved one) still have a multitude of rights and powers. Educate yourself about them and use them to your advantage. One good suggestion is to record your feelings in a journal. This will make it easier to reflect on what you’re doing over time, and then make adjustments. Most of the time, you will realize you have no reason to feel guilty. You might have siblings, other family members or family friends who try to make you feel guilty. Don’t let them do it. You can’t control what they are doing, but remember: You can control your responses, so be determined that you aren’t going to let them get to you. After all, you are the one who has stepped to the plate and volunteered — possibly even as the primary caregiver. You didn’t ask for your loved one to have Alzheimer’s or any other form of dementia. But you have chosen to help.  That matters. Let go of the guilt. Give yourself a break. Here’s a good saying to remember: GUILT: Give Undeserved Illusions Little Thought. Here is something, however, that you should give a lot of thought to: “The Indispensable Alzheimer’s Resource Kit.” It will help you deal with any feelings of guilt, as well as with dozens of other subtopics.