EP. 34 - Medicaid, Caregiver Contracts & Why Michigan Seniors Pay the Price

Ever wondered how the system could impose penalties on you for simply caring for your loved ones? Prepare to have your eyes opened by Amy Persails, Planning Services Director at Mannor Law Group. Amy brings her vast experience in handling Medicaid cases to this discussion, revealing how the state of Michigan imposes penalties on families seeking in-home care for their elderly relatives. We unravel the intricate web of rules, the hoops one has to jump through, and strategies to protect your assets while still qualifying for Medicaid.

We don't just talk theories, we bring you real-life stories. One such is that of Betty Jensen, a Michigan resident penalized for paying for in-home care with the intention of staying in her own home for as long as she could. We delve into the impact of Betty's case and how it brought about a change in the state's rules. The second part of our discussion focuses on the complexities of Medicaid care contracts and the pivotal role of legislative advocacy in this context. Through our conversations, we aim to light your path as you navigate the convoluted maze of Medicaid and elder care.

Advice From Your Advocates is brought to you by Mannor Law Group, PLLC

Host: Elder Attorney Bob Mannor, CDP
Guest: Amy Persails, CDP, CECC
Executive Producer: Savannah Meksto

Transcript

Amy Persails: 0:00

You're listening to advice from your advocates a show where we provide elder law advice to professionals who work with the elderly and their families.

Bob Mannor: 0:10

Welcome back to advice from your advocates. I'm Bob Mannor. I'm a certified elder law attorney in Michigan and today we will have with us Amy Persails, the client service I'm sorry the planning services director at Manor Law Group. Welcome, Amy.

Amy Persails: 0:27

Thank you.

Bob Mannor: 0:28

So you were on a recent podcast episode, so some people may have heard that, but if they didn't tell us what a planning services director does?

Amy Persails: 0:37

I mainly take care of all of our Medicaid cases, meet with our Medicaid clients to make sure that they qualify things are we get all the information from them for that to qualify for Medicaid in a nursing home or in an assisted living, independent living, depending on if they qualify for those services. And I also oversee our elder care navigators and which are also social workers in our office that take care of our life care clients.

Bob Mannor: 1:13

And just to remind people, medicare is a program that you get at 65 or some other reasons that you can get that. Medicaid is a program that you actually have to jump through some extra hoops to qualify for, and what we are often participating in it for for our clients is to pay for long-term care, meaning continuing care in the home, continuing care in assisted living, continuing care in a nursing home. Those tend to be some of the most expensive things that could occur in your later stages of life, and so sometimes that it's really important that we look at these Medicaid rules and make sure that we can qualify without going broke, because most, if you have not been paying attention to our podcast, you might think that you have to go broke to get Medicaid, and that is absolutely not true. There are many strategies that we use, legal strategies they're well accepted legal processes that we can use to protect your assets and still qualify for Medicaid to pay for a nursing home, pay for home care, those types of things.

Bob Mannor: 2:15

Yes, so we're going to talk about one particular thing, one particularly irritating thing. That is the rule in Michigan, and so first of all, let's kind of set the stage. So if you had a loved one a spouse or a parent, maybe even a sibling that needed continuing care so they can't independently live on their own or they need some help. Maybe they can live on their own, but they need certain hours of help, things like that. What would be the normal tendency of most families to do to make sure that that loved one is cared for, maybe in their home?

Amy Persails: 2:55

most would either supplement care within the family, if they're able to so?

Bob Mannor: 3:03

a child, a grandchild, a son-in-law, daughter-in-law, just anybody Taking turns.

Amy Persails: 3:10

That's what we did in our family.

Bob Mannor: 3:12

Me too.

Amy Persails: 3:12

We take turns and everyone chips in as much as possible. Seems pretty normal.

Bob Mannor: 3:20

And then sometimes we even bring some outsiders. They might not be a relative, but we and usually, even if it's a relative sometimes we got to compensate them if they're missing work or those types of things. Or if it's an outsider, we definitely probably have to pay them, whether it's a neighbor or somebody from church or whatever, we've got to give them something for their time to help us out with this crisis that we're having.

Amy Persails: 3:43

Right right, Paying the neighbor to take mom to the doctor.

Bob Mannor: 3:48

Seems pretty logical, seems like normal human behavior.

Amy Persails: 3:52

Absolutely.

Bob Mannor: 3:53

What does the state of Michigan think of that?

Amy Persails: 3:55

They don't like that.

Bob Mannor: 3:56

So what do they? How would they treat those payments?

Amy Persails: 4:00

As gifts.

Bob Mannor: 4:01

And meaning a penalty. Yes, so, Unless we jump through a bunch of hoops. So it is possible to do that. We're not. Don't hear that you can't do that. Absolutely you can do that. Unfortunately, the state of Michigan makes you jump through a bunch of hoops, including notary's contract. I'm thinking we'll get into in a minute, All right, when did this all start? So this has been a government policy in Michigan since about 2015,. I think it was. How did this all get started that they they started trying to penalize for what I would consider normal family behavior.

Amy Persails: 4:36

So there was a elderly woman her name is Betty Jensen and Betty needed some extra care that her family, outside of what her family, could provide to her, and so they had the neighbor and friends helping out, so helping pay for gas to take her to the doctor or going and buying groceries for her, doing a little bit of things around the home, normal things that she needed a little bit of help with, and just providing some companionship and care for her. And then Betty needed more care and needed to apply for Medicaid and over about 10 months that Betty had that in home assistance and care, she paid out about $18,000, $19,000. And when she needed Medicaid and to go to a nursing home facility for skilled care, she was penalized for the Medicaid for paying out for a caregiver to keep her in her home a little bit longer so that she could be home as long as possible.

Bob Mannor: 5:51

Which seems so crazy to me, because it seems like Medicaid rules should be designed to help people stay in their home, help people stay off of Medicaid, and now we're penalizing for somebody for trying to stay in their home longer, trying to stay off Medicaid longer, and we're penalizing them for that. So Betty probably was a multimillionaire, right? She was very rich, right. So they're just trying to get the rich people that are trying to take advantage of the system.

Amy Persails: 6:16

Not at all.

Bob Mannor: 6:17

But Betty had nothing. I mean, that was probably that was close to her last 19,000. When she applied for Medicaid. She applied for Medicaid without protecting assets. It was simply she had spent all the money on her home care and she needed to go into a nursing home. So, and she had a modest home. She was not rich. I don't want to say she was poor, but she wasn't. She didn't have assets, and so they're not going against the rich. They picked this case, the state of Michigan picked this case to prove a point and try to penalize her over now. $18,000 seems like a lot of money. Is it a lot of money for 11 months of care?

Amy Persails: 6:57

No, no, I have a skilled facility can cost anywhere from 12 to $15,000 a month.

Bob Mannor: 7:06

A month, yeah One month, so $100,000 to $150,000 a year, and she spent $11,000 or with $18,000, whatever it was and was very thrifty right. That's well below market right, Probably under by the hours that was reported that the person got paid. It probably was under minimum wage.

Amy Persails: 7:31

It was less than $2,000 a month.

Bob Mannor: 7:33

Yeah, and likely under minimum wage for the level of care that she needed. And had she gone into the nursing home, how much would the state have been paying? Probably in the range of like $8,000 or $9,000 a month. And they're penalizing her for spending $18,000 for those 10 months that they the state, if she had gone on Medicaid, would have paid. You know, thousands and thousands of dollars every month. But she tried to stay off Medicaid and do what she thought was the better thing and the responsible thing. Yes, and the state chose to penalize her for this. So that's an interesting court case. But how does Betty relate to the rest of us? Because that's just one crazy case that unfortunately went up to the court of appeals. It is an unpublished case, so for lawyers, when it says unpublished, it means that the court of appeals did not want to make this presidential value meaning. Everybody has to be kind of held to this, but it is considered persuasive. And so what happened after that court of appeals? What happened with the BEMS?

Amy Persails: 8:35

So we are required to do a care contract.

Bob Mannor: 8:39

Yeah, so let me get to the logistics of it. So the BEMS, we call it the bridges. Like Michigan has lots of bridges, so they called the bridges eligibility manual. They went back and that's the manual as to what we work with every day. Yes, it's the rules For Medicaid, the Medicaid rules. And they changed after that court case Betty Johnson. They changed the BEMS, they changed the Medicaid rules to make it so that there's a penalty if you pay for home care and don't have. Don't come through these extra hoops. So now let's talk about those hoops that they have to jump through.

Amy Persails: 9:13

So that's where these care contracts come into play. So if we can prepare a care contract with all of the caregivers, so it's cumbersome because we have. You know you may have three or four different people that help out, right, and maybe it's as simple as that the neighbor does this, the niece does this. You know you may have three or four different people, so you have to have a care contract for everyone to make sure that you're covering all your basis for all of your payments for caregivers and care.

Bob Mannor: 9:50

And so what are the? What are the specifics of the care contract? So it has to be a written contract, correct, what else?

Amy Persails: 9:58

All of your hours, so someone has to figure out how many hours this person is spending balancing your checkbook.

Bob Mannor: 10:05

What they're doing.

Amy Persails: 10:08

Exactly what exactly their job quote unquote is entailing.

Bob Mannor: 10:13

So you can't just say they work these hours. You have to say what services they're performing during those hours.

Amy Persails: 10:17

And it's very specific. It has to be specific to the point of you know, like I said, balancing the checkbook, who is responsible for making your meals and making sure that the house is picked up, providing your medicine, who's picking up the medicine from the pharmacy, taking your two doctor's appointments. All of those things are separate line items on these care contracts, so that the state is able to see where all of this money is being paid and why it's being paid out.

Bob Mannor: 10:54

So that's something that we, as underlaw lawyers, can help you with. It's very difficult to draft that, the contract to that level of specificity, without some experienced legal advice. And when I say experienced legal advice, you're not looking for just a contract lawyer. You have to have somebody that does Medicaid and understands these rules. Well, there's a few other rules, or two.

Bob Mannor: 11:13

Right, it has to be notarized, and the caregiver, the person who's providing the care, has to sign it and their signature has to be notarized. And then the person who's receiving the care either them or someone on their behalf, like the power of attorney or guardian has to sign it and that signature has to be notarized. Normally, when we have a home care agreement with one of these home care companies, is there a notarization block on that contract? So even those contracts probably don't meet these terms, even though it's clear we're paying a third party and you know somebody that is probably a stranger to us, that's professional caregivers, and those contracts probably don't comply with the Medicaid rules. And then, finally, what else? After we get the notarized signatures, who else has to sign it?

Amy Persails: 12:00

So we have to get a doctor's involved to make sure that we get a doctor's signature. It's very, very cumbersome and there's so much involved in these.

Bob Mannor: 12:12

So I do have. We're working really hard to change this. So this is not something that I want to have to charge for or be involved in. Obviously, we do have to charge for it if we do the legal services and put the time into it, but I would rather never have to. I would rather never get paid for another care contract again. I would like this rule to be abolished and more reasonable rules to be in place. And so the group that I'm involved in. I was the chair of this group a couple years ago and I just recently ended my immediate past chair. So I was still a voting member of the group and as a immediate past chair, but that has ended recently. So now I'm an alumnus of the State Bar of Michigan Elder Law and Disability Rights section. Why do you care about that? Well, because we have lobbyists and we have drafted legislation and we have some excellent legislators who are promoting our legislation and being sponsors of that legislation to get rid of this care contract. So we that might be something, if this is of interest to you, that you contact your state of Michigan legislator about to ask them to support this legislation, to make it so that this overreaching by the Department of Health and Human Services and the Medicaid office on paying caregivers and paying family members is overruled by the state legislature. So we've drafted legislation. It'll be proposed soon. We don't have a bill number yet, but we will soon and it might be something that you might want to contact To me.

Bob Mannor: 14:00

I don't know how anybody could oppose this, regardless of your political beliefs. And here's my thought. I know I'm going to get up on a soap box here for a second, but here's my thought on it. Some people say, well, I don't like Medicaid, it's a public benefit. But what this is like Betty Jensen. She was trying to stay off of Medicaid. She was trying to do the right thing. She was trying to stay in her home. She didn't want to do avoid Medicaid. She spent down to pretty much the last dollar that she had you know, close to it before she was forced to get on Medicaid. And the idea is then they penalize her for doing what everybody would say is the right thing. So I don't know how you could be on any side of the political aisle that would say Betty Jensen should be penalized for trying to stay in her home and paying well, under market value, probably under hourly rates, you know, minimum wage, to get the care that she needs, to stay off of Medicaid, to stay out of the nursing home, and that's what this is, and so I don't the those that support this position just doesn't seem. It seems like it's more of a bureaucracy thing than actually public policy position, because I'm not sure anybody that would rationally be able to make a public policy position as to why we would have penalized Betty Jensen in that situation. So it's something we're working hard on and the, the chair of the group last year, was able to get the legislation written and and we found legislators to sponsor it and we're working hard to make sure that that gets passed.

Bob Mannor: 15:37

So if you want more information, feel free to contact the office. We'll be happy to talk to you about it. Our office number is 800-990-6030. But other than that, the key on that is right now. You got to be careful. When we're paying caregivers, it's probably worth calling the office and making sure that we have the proper documentation in place. Whether it's a family member or a non-family member, we should probably get that documentation in place. Yes, well, thank you, Amy for joining us and explaining this very odd Medicaid rule, and we appreciate you listening to the podcast advice from your advocates. Don't forget, if you like the podcast to subscribe, you can subscribe at any of the places that you listen to podcasts or you can go to our website and subscribe there at www. mannorlawgroup. com. Thanks again.

Amy Persails: 16:27

Thanks for listening. To learn more, visit mannorlawgroup. com.