Virginia Medicaid Care Planning

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November 10, 2023 •  The Estate & Elder Law Center of Southside Virginia, PLLC
Learn how an elder care attorney can help you create a strategy to provide asset protection and access to long-term care with Medicaid care planning.
Robert W. Haley, managing lawyer
Robert W. Haley
Certified Elder Law Attorney® Robert W. Haley brings over 27 years of legal expertise and knowledge to his firm, which concentrates solely on the areas of elder law, estate planning (Last Will & Testaments, Durable Powers of Attorney, Health Care Powers of Attorney, Living Wills, Trusts, etc.,.) Asset Protection/Medicaid Planning and fiduciary services. For many years, Robert practiced in real estate law, and in general practice, but decided to narrow his focus to elder law and estate planning when he realized the tremendous need for proper planning to be filled in Southside Virginia.

As the demand for and costs of long-term care services grow nationwide, the Medicaid crisis for those receiving home care has come into sharper focus.  The implementation of the federal Home and Community-Based Services (HCBS) final rule in March 2023 coupled with the end of unique pandemic-era funding sources and broader eligibility, new challenges have emerged for seniors and disabled individuals who rely on services and supports for their daily living. 

In October, U.S. Senator Bob Casey (D-PA), chairman of the Special Committee on Aging introduced a proposed Senate Bill called The Home and Community-Based Services (HCBS) Relief Act of 2023. By providing emergency funding to state Medicaid programs over a two-year period, the bill would address the significant home-based care workforce shortage and greatly benefit disabled and senior Americans. 

Long-term care, often essential for seniors as they age, can be financially burdensome. Medicaid offers a lifeline, covering costs that private health insurance or Medicare typically do not. Understanding this impact and developing Medicaid planning strategies are cornerstones of elder care planning, which is as important as retirement planning.  Protecting your assets while qualifying for Medicaid is a delicate balance. A Certified Elder Law Attorney® like Robert W. Haley can properly advise on legal strategies such as the use of trusts or other legal instruments to ensure your assets are safeguarded according to Medicaid care planning purposes, rules and regulations.

What are Home and Community-Based Services (HCBS)?

In 2014, the federal Centers for Medicare and Medicaid changed their Home and Community Based Services (HCBS) regulations to ensure that Medicaid beneficiaries are able to receive services and supports for daily activities in their own home or a community setting rather than in institutions like nursing homes, hospitals, or other isolated settings. Individuals receiving care in an assisted living facility can receive support for daily activities, such as dressing, bathing, meal preparation, taking medication, and mobility assistance, while still maintaining their autonomy.

These programs serve a variety of targeted populations groups, such as seniors and people with intellectual or developmental disabilities, physical disabilities, and/or mental illnesses.

Why Do States Need Additional Funding to Support HCBS?

A press release from Senator Casey's office cites a 2022 report that examines the challenges in providing the HCBS that the majority of elderly and disabled Medicaid beneficiaries seek, noting that over 70 percent of direct home and community-based service providers have high staff turnover and cannot fill vacancies. The lack of a sufficient direct care workforce results in reductions in HCBS and the ability of beneficiaries to remain in their home for as long as possible. 

How Do the Updated HCBS Regulations Affect the Medicaid Care Crisis?

In order to receive Medicaid reimbursement from the federal government for providing home health care and community-based services, states must ensure that the services and supports are delivered in settings that meet the new regulations.  Medicaid considers the new definition of HCBS to be services and supports provided in residential settings that ensure a resident's personal autonomy, community integration, and choice for services received.  For instance, a HCBS setting must provide residents with privacy in their living or sleeping units that ensure entrance doors lockable by the individual, with only appropriate staff having keys to doors as needed and a choice of roommate in that setting.  Assisted living residents whose Medicaid qualification occurs after they have been paying via private pay for services face additional issues. 

What Types of Issues Exist for Medicaid Beneficiaries in Assisted Living Facilities?

One of the most contentious issues is the refusal by assisted living facilities to accept a change in payment terms from long-standing residents who become eligible for Medicaid benefits and transition from private pay. As the new resource explains, this stance is not only ethically questionable but also on unstable legal grounds. Federal law clearly stipulates that a Medicaid-approved resident should not be charged privately once they qualify for Medicaid. Yet, complications arise due to varying state laws and policies.

Notably, certain states permit "duration of stay" provisions, meaning residents might be obligated to pay out-of-pocket for a set period before Medicaid kicks in. However, hiring an elder law attorney can provide crucial guidance, ensuring that your rights are not compromised by such agreements and advocating for your entitlements under Medicaid.

Why Would a Resident Face Eviction Based on Medicaid Status?

Another alarming trend is eviction based on a resident's Medicaid status. Protections against such actions are woefully inadequate in many states, despite federal regulations mandating minimum eviction protections for Medicaid recipients in assisted living facilities. Residents should have comparable protections to those found in landlord-tenant laws, either directly or through equivalent agreements.

But the reality is that states have varied in their implementation of these rules, leading to significant discrepancies in resident rights across the country.  Relying on an elder law firm to help advocate for resident rights becomes indispensable here, ready to enforce these protections and challenge unlawful evictions.

How Many Americans Use HCBS?

The demand for long-term care services and supports is growing exponentially as the population ages. Currently, a significant portion of individuals with disabilities and older Americans require assistance with daily activities, and they often pay for care services with Medicaid. Together, the combined groups of individuals aged 65 and older and those with disabilities comprise nearly half the U.S. population.  However, the workforce shortage in direct care services is reaching crisis levels, causing substantial strains on the system.  With the loss of COVID-era funding sources for home-care workers, service providers no longer have a source for hiring or staff retention incentives.  In a recent article, the National disability advocacy group The Arc highlights various stories of disabled individuals who rely on HCBS to receive care at home that provides freedoms like leaving the house and engaging in social activities that would not be possible if they were living in an institutional setting. 

What Would the HCBS Relief Act of 2023 Do?

Without sufficient staffing, service quality diminishes, and programs face the risk of shutting down, prompting the need for legislative intervention. If passed, the HCBS Relief Act of 2023 would bolster community Medicaid funds provided to states, aimed explicitly at stabilizing HCBS service networks and bolstering the direct care workforce. It would empower states with enhanced federal funding to provide greater benefits for direct care workers to increase pay and add benefits such as paid time off and mileage, as well as funding for family caregivers.  The funds could also help decrease or eliminate the waiting lists for HCBS by increasing the care programs available. 

How Does Medicaid Impact Long-Term Care for Seniors?

Qualifying for Medicaid benefits is often the single most important factor when it comes to long-term care for seniors. While many believe that Medicare will cover their nursing home or assisted living facility costs, the reality is that Medicare's coverage is quite limited. On the other hand, Medicaid will pay for your care in long-term facilities or in-home care.

For seniors, the implications of Medicaid are profound. It often means the difference between receiving adequate care in nursing homes or being unable to afford the care they require. Elder law attorneys specialize in planning techniques that anticipate these needs and prepare clients accordingly, ensuring that the high cost of long term care services do not impact their life savings.

What Is Medicaid Planning and Why Is the Right Elder Law Attorney Crucial?

Medicaid planning is a proactive approach to ensure that an individual can qualify for Medicaid to cover the significant costs associated with long-term care. It involves legal and financial strategies to structure one’s assets and income according to Medicaid regulations. The legal services of an experienced elder law attorney in this process is indispensable. 

In the realm of elder law, where Virginia state and federal regulations often intersect and change, having an experienced Medicaid planning attorney can help you align your financial strategies with the legal requirements to become eligible for Medicaid. Without professional assistance, many individuals risk becoming ineligible for Medicaid or face spending down their assets unnecessarily.

Planning Ahead with an Elder Law Attorney

Preparing for long-term care is not a mere suggestion but a necessity, especially with the complexities surrounding Medicaid. Consulting with a Medicaid specialist prior to seeking long term care services is critical. For those with substantial assets, Medicaid planning can feel like navigating a labyrinth. Yet, with the right legal guidance, you can both protect your financial legacy and ensure access to the healthcare services you need.

A Medicaid care planning lawyer doesn't just help with asset protection—they are key in crafting a strategy that balances an individual's amount of assets and financial security with access to necessary long-term care services. They stay abreast of the changing federal and state regulations, guiding the elder and their family through any shifts that might impact a Medicaid applicant's eligibility.

Protecting Beneficiary Rights in Assisted Living Facilities

In addition, an elder law attorney can help safeguard the rights of Medicaid beneficiaries in assisted living care. By identifying potential issues, devising advocacy strategies, and litigating when necessary, an elder attorney can ensure that residents are not unjustly deprived of their rights or benefits.

The Estate & Elder Law Center of Southside Virginia Advantage

At our Lynchburg elder law firm, the commitment is to provide clients with up-to-date and comprehensive support to protect your assets from the cost of nursing home care and ensure independence and freedom as you age. Long-term care costs can be financially burdensome.  Yet eligibility for Medicaid is complex, involving income and asset limits, among other factors.  Our firm can assess your situation and determine your eligibility, ensuring you access the benefits you need to pay for long-term care while also protecting your nest egg for your loved ones.

Don't navigate the complexities of Medicaid and assisted living alone—let The Estate & Elder Law Center of Southside Virginia be your trusted partner in securing your rights and your future. Book a call with our team to get started.

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