Medicaid Application Pending, 7 Things You Need to Know

So your application for Medicaid long-term care benefits is “pending” with the local County Assistance Office. Here are 7 things you need to know:

You or your attorney should stay in contact with the caseworker at the County Assistance Office while the application is pending.

Once the Medicaid application (Form PA-600L) has been filed, it will be assigned to a caseworker with the Pennsylvania Department of Human Services known as an “income maintenance caseworker.” This person will review your application and any supporting verification. The application will be denied if supporting verification is not received by the caseworker in a timely manner. The case can also be denied if the assets are over the resource limit, or there are gifts within the 5-year lookback that are not exempt.

Communicating with the caseworker on an ongoing basis by phone or email is important so issues can be identified and addressed quickly — before a denial notice is sent. The caseworker will be trying to learn the details of your case, but has dozens of other cases to review. Speaking with the caseworker provides the opportunity to quickly answer questions that the caseworker might otherwise have to spend significant time figuring out on their own. If you have an attorney handling the application process, they should keep you informed of all notices received, and should be actively communicating with the County Assistance Office to “follow the application” through the system.

Locate and promptly provide the documentation requested by the County Assistance Office.

The caseworker will normally send an “application acknowledgement” within 20 days of the application that sets forth what items of additional paperwork (verification) are needed. If you know there are bank statements, cancelled checks, or receipts missing, you should be working to gather these items from day one. It is best to submit complete documentation along with the application for benefits, but this is not always possible. An experienced elder law attorney will usually know what is missing before the caseworker requests it, and will be actively working to help you secure missing documentation so the application can be approved.

Know what effective date you are seeking.

An application for benefits is sometimes filed early, before the spend-down is complete. This is not necessarily a problem, but it is important that you precisely identify the effective date you are seeking with the pending application for Medicaid benefits.

If you do not know, then the nursing home may credit payments to the account in a manner that results in the wrong effective date being granted. With the daily cost of care often exceeding $400 per day, this can be expensive. An incorrect effective date can be corrected by working with the County Assistance Office, but this can take a while and the problem is normally easy to avoid by handling matters properly while the Medicaid application is pending.

Know the deadlines.

The caseworkers must generally make a decision within 45 days of the application. If you are denied benefits then you generally have 30 days from the mailing date of the denial notice in which to file an appeal. There are exceptions to the 30-day appeal deadline in certain situations, such as where the County Assistance Office might inadvertently send the notice to the wrong address or fails to send the notice to the applicant’s legal representative who was set forth on the Medicaid application. Sometimes the postmark date on the envelope is significantly later than the mail date on the notice, and this is also grounds for requesting an extension of the appeal period. (Save the envelope with the late postmark date.) Your attorney should be monitoring the application through the process and should be well aware of these deadlines.

medicaid application still pendingIs your application actually still pending?

If your application for Medicaid long-term care benefits has been denied for whatever reason, it is no longer pending. Rather, it is in denied status, and is not pending. The only way to keep it “pending” is by filing a timely appeal of the denial notice. Some people continue to work with the caseworker at the County Assistance Office after receiving a denial notice – which is good – but if the case has been denied and you are beyond the appeal period then a major problem can arise. Specifically, if the case is denied and has not been appealed, the caseworker’s ability to authorize retroactive benefits is impaired.

Generally speaking, the earliest possible effective date the caseworker can grant, assuming the eligibility criteria have been met, is the first day of the third month before the month in which the application has been filed. If the application is denied and not kept alive with an appeal, you may not be able to secure retroactive benefits, which can result in a large unpaid bill with the nursing home. We call these “gap cases” where there is a gap in coverage and an unpaid nursing home bill.

Make sure you receive updates from the person helping you with the Medicaid application.

We commonly receive phone calls from potential new clients who inform us that their application for benefits has been pending for “many months” and they are concerned that it has not been approved. If it has been pending for more than two months we know that the caller’s application has probably been denied and the family has not been informed of the denial of benefits, or they did not receive the denial notice from the County Assistance Office. This is not uncommon.

Often the nursing home resident and family representative have not seen copies of any notices, and believe the nursing home business office is “handling everything.” This is a dangerous place to be, since you are not able to make sure an appeal is filed timely, or play an active role in supplying paperwork to the County Assistance Office or explaining why certain asset transfers should be exempt from the transfer penalties.

Make estimated income payments to the nursing facility.

Most recipients of Medicaid long-term care benefits will have to remit a portion of their monthly income toward the cost of care. In general, this payment will be gross income minus documented health insurance premiums, any dependent or spousal allowances, and the $45 monthly personal needs allowance. Paying this monthly income to the nursing facility while the application is pending is reassuring to the nursing home business office and demonstrates that you know what you are doing or have hired an experienced law firm that knows what to do.

If you have not paid the monthly income to the facility, you will be on their watch list as they become increasingly anxious about the unpaid bill that is accruing while the Medicaid application is pending. An elder law attorney can compute the spousal allowance to be deducted from income and provide advice on the estimated payment to make while the application is pending.

Those who do not make the estimated payment are usually attempting to handle this on their own, and run the risk of potentially being surprised by the amount of income eventually due once benefits have been authorized. We make the income payment calculation for our clients and recommend that they send checks, noting in the memo line of the check to reflect that it is a payment of income.

As you can see, the Medicaid application process has many phases and can be overwhelming if you are trying to navigate it by yourself. We recommend contacting an experienced elder law attorney to help you through every step of this complicated process.

What to do if your Medicaid application is denied?

We take any denial of Medicaid long-term care benefits very seriously, and you should too. There are a variety of reasons that Medicaid applications are denied. Some matters are easily resolved, and others present a major challenge. Whatever the reason for the denial, you need to act, and act quickly:

medicaid application is denied It’s not over.

When an application for benefits has been denied, the applicant has the right to appeal the decision, but there are time limits. Most appeals take the form of a “Request for a Fair Hearing.”

While the case is on appeal, it is possible to work together with the caseworker at the County Assistance Office to resolve the issue. Sometimes more complex matters need to be discussed with the supervisor of the long-term care unit of the County Assistance Office or legal counsel for the Pennsylvania Department of Human Services.

Procedurally an appeal should be filed, even if you are working through the issues with the caseworker at the County Assistance Office. An appeal can always be withdrawn, but if it is not filed on time, it can be too late. It can be a mistake to think the matter is being worked out with the caseworker and not file an appeal. Caseworkers are not offended by the filing of an appeal. They know you have to take certain steps procedurally in order to preserve your rights.

Communication is Key.

The threat of a large unpaid nursing home bill creates justifiable anxiety for the applicant, the applicant’s spouse, the agent under power of attorney, the nursing home business office, and interested family members, notably children of the nursing home resident who are at risk of being named in a filial support collection lawsuit by the nursing home.

Sometimes the child who has stepped-up to serve as the agent under power of attorney finds himself or herself in the middle of a high-stakes Medicaid denial, fighting on three fronts:

  1. with the County Assistance Office which has denied benefits,
  2. with the nursing home which is demanding payment, and
  3. with worried family members who may not have helped with the process but who are there to second-guess decisions and sometimes retain their own legal counsel.

Communicating appropriately with interested stakeholders to let them know the scope of the problem and the plan on how to proceed can calm the situation and avoid needless lawsuits from the nursing home and minimize family angst.

The purpose of the Fair Hearing process.

A Fair Hearing is not necessarily a reason to panic. The option of a Fair Hearing is built into the system so that decisions are uniform  and so you have a fair and impartial forum for the review of your case. The best way to win a Fair Hearing is to avoid the hearing in the first place by resolving the issue in advance with the County Assistance Office.

Prehearing Conference.

You have the right to a pre-hearing conference before the fair hearing. Sometimes these pre-hearing conferences occur just moments before the hearing with the judge, but that is not the best way to conduct a pre-hearing conference. The best thing is to have the meeting or phone call in advance of the hearing, directly with the caseworker. You can narrow the issues on appeal and stipulate to certain facts in order to save time for disputed matters.

Many problems can be fixed.

Many instances of denied Medicaid benefits can be corrected with the assistance of an elder law attorney.

For example, if benefits were denied due to missing medical documentation that verifies that the applicant in fact requires long-term care, that denial notice can be appealed and the documentation provided to the caseworker. If that is the only issue, then this is an easy fix, the caseworker should be able to authorize benefits once the medicals have been received. Other problems are more complicated, particularly those that involve asset transfers or payments of cash to home health aides.

Corrective Action.

If new information is provided to the County Assistance Office after the denial, and during the appeal, the caseworker is supposed to reevaluate the decision and take corrective action based on the new information.

The question on appeal, therefore, is not whether the County Assistance Office acted properly at the time of issuing its determination, but whether the applicant was eligible for benefits at the time at issue based upon the evidence the client is able to provide at or before the hearing. It can be said that in some ways the appeal process is an extension of the application process.

The best time to plant a tree.

It’s been said the best time to plant a tree was 20 years ago, and the second-best time is now. The same concept applies to retaining legal counsel.

It’s best to hire a lawyer on the front side, before an application is filed let alone denied. If benefits are denied, you should certainly secure some professional help before it is too late. All other things being equal, you do not want to have to try to fix problems after the fact, when assets have been spent-down, Medicaid benefits have been denied and the nursing facility is pursuing collection activity.

Nunc Pro Tunc Appeal and the Late Timely Appeal.

Okay, so your application was denied, but you missed the appeal deadline; what can be done?

This is a tough situation, but there are some relatively rare situations where there may still be something that can be done.

  • Nunc Pro Tunc Appeals. Some appeals can be filed late, such as where there is a serious breakdown in the administrative process. These appeals are called “nunc pro tunc” appeals and are not easy to win.The term “nunc pro tunc” is a Latin term in the law that describes an appeal that is filed “now for then.” In other words, the appeal is late, but there is some factor that suggests a late appeal is appropriate now, normally to correct an error of the court. This type of appeal may be allowed only where delay in filing was caused by extraordinary circumstances involving fraud or some breakdown in the administrative process, or non-negligent circumstances related to the appellant, legal counsel, or a third party.
  • Late Timely Appeal. An exception to the normal 30-day appeal deadline applies in certain relatively uncommon cases. In situations where the County Assistance Office failed to send a required written notice and notice of the right of appeal, the appeal period is extended to six months. This scenario sometimes occurs when the County Assistance Office mails a denial notice to the wrong address due to a clerical error, to only the nursing facility, or sends the notice only to an incapacitated nursing home resident and not the designated representative.Pennsylvania’s regulation, 55 Pa.Code §275.3(b)(3), provides that when the County Assistance Office fails to send the required written notice of the action taken and the right of appeal, or because of administrative error, ongoing delay, or failure to take corrective action that should have been taken, the usual 30-day time limit will not apply, and for a period of 6 months from the date of the action of the County Assistance Office (or failure to act) the applicant shall have the right to appeal and shall exercise that right in writing.
  • Really Late Timely Appeal. If the six-month time period goes by, there is still a slim chance that an appeal could be possible. The appeal permitted under 55 Pa.Code §275.3(b)(3), mentioned above, can be filed after the six-month timeframe if the applicant signs an affidavit stating:
    • The applicant did not know of his right of appeal, or believed the problem was being resolved administratively.
    • The applicant actually believes the county office erred in its actions.
    • The appeal is being made in good faith.

 

Mitigate the Damage.

Sometimes substantial gifting within the 5-year lookback gives rise to a major transfer penalty, and although there can be ways to address transfer penalties, such as returning all of the gifted assets, there are cases where there is simply no practical way to undo the problem and a period of ineligibility for Medicaid long-term care benefits is unavoidable.

You will want to “mitigate the damage” by not incurring ongoing nursing home bills the Medicaid long-term care benefits will not or may not cover. Normally these cases arise in situations where families did Medicaid planning on their own, or made gifts within the 5-year look-back without consulting an attorney. We can discuss options in these situations.

Appeals Courts.

Sometimes issues cannot be resolved at the Fair Hearing level of appeal. If you do not win at the Fair Hearing, you can request reconsideration by the Secretary of Human Services, and failing a successful outcome there, file a petition for review with the Commonwealth Court. Some cases can be challenged in federal court. Before making a federal case of the matter, a business decision needs to be made at each level of appeal because of the legal costs involved, uncertainty as to outcome, and ongoing emotional cost of being involved in litigation with the Commonwealth of Pennsylvania, Department of Human Services.

Normally the sooner the problem is identified, the sooner steps can be taken to address it, and the greater the chance you have of avoiding a denial and the need for appeal in the first place. The best way to win an appeal is to avoid the denial. The key to this is securing early advice from capable legal counsel.

Now you know what to do if your Medicaid application is denied.

The best way to deal with a Medicaid denial is to contact an experienced elder law attorney. You have legal rights and an appeals process to navigate and both are overwhelming. You do not have to go through it alone; we’re here to help.

Help Applying for Medicaid

Seven ways to help applying for Medicaid in PA go smoothly

We receive many phone calls from potential clients who have run into challenges with applying for Medicaid in PA or the Medicaid application process and we see a number of recurring problems. The fewer of these issues in your case, the better. For what it is worth, we offer these suggestions hoping they will make your life easier in the event of a future need to apply for Medicaid long-term care benefits.

 

Don’t throw away old bank statements.

When reviewing an application for Medicaid long-term care benefits, most caseworkers at the County Assistance Offices require copies of complete bank statements for the immediate past 24 months, as well as the January and July statements going back for the remaining three years of the five-year lookback. It is a good idea to save copies of all financial statements, in paper form or digitally, as well as copies of deposited items and checks that are $500 or more and receipts for large expenditures. Most banks provide online access to old bank statements, but some only provide free access for a few years back, and some charge significant fees to provide copies of past bank statements and copies of old checks. Without these old statements the Medicaid application can be denied on the grounds of “failure to provide verification.”

Help apply for medicaid in paMinimize cash withdrawals from the bank.

Some caseworkers at County Assistance Offices view cash withdrawals as suspect, particularly large cash withdrawals. Specifically, they can presume that the cash was gifted, and impose a period of Medicaid ineligibility. Gifting within the “5-year look-back” prior to a Medicaid application can give rise to a period of ineligibility for Medicaid benefits. We’ve done a clear outline on Asset Limits for Pennsylvania Medical Assistance (Medicaid) Long Term Care Benefits.

In most cases people do not save receipts for cash expenditures, so it can be very difficult to prove that the cash was not gifted or stashed by mom in the freezer. The law provides that the Medicaid applicant has the burden of proving eligibility. A great way to make a Medicaid application go smoothly is to reduce the number of cash withdrawals from bank accounts. It is best to use checks or a credit card and save receipts.

Do not pay home health aides with cash.

This may be a repeat of the prior point to an extent, but paying caregivers in cash is a very a common situation, and is therefore a recurring problem for those applying for Medicaid long-term care benefits in PA. When the caseworker at the County Assistance Office reviews the application, all they see are the cash withdrawals, not the payments to the caregivers.

Better approaches include:

  1. working with a homecare agency and pay them by check, saving copies of the company’s invoices, or
  2. if you must pay a friend, neighbor or relative, have a written caregiver agreement in place that was prepared by an elder law attorney and is signed before a Notary Public.

Document the need for care, document the payments, and make sure the amounts being paid are reasonable in amount. Even though it may seem like it costs more, paying aides through an agency can be preferable in the long run because the agency handles the taxes, insurance, training, and employment issues. If you’ve already paid the caregivers in cash, give us a call, we can help.

Get a written loan agreement in place before lending money to parents or advancing funds to help them.

If you loan money to parents, have a lawyer prepare a loan agreement that is dated and signed before a Notary Public. Often children loan money to parents expecting to be paid back from the eventual sale of the parent’s house, but there is rarely a written loan agreement in place.

The lack of a written loan agreement makes the Medicaid application more complicated because the caseworker needs to be certain that the payment to the child was a reimbursement, not a gift. Unless there is a pre-existing written loan agreement, the PA Department of Human Services can presume that the funds used to help the parent were given out of love and affection, as gifts, not as loans with the expectation of repayment.

We can overcome this presumption by having the right written loan agreement signed and notarized before funds are lent to a parent, and before items are purchased by a child for a parent.

Do not have a parent pay to build an in-law suite on your home without first considering how to structure the transaction.

It can be done, but there are a number of ways the financial arrangement can be structured, each with its own pros and cons. There are many complexities that can arise from this well-intended living arrangement, and this is definitely a transaction that can cause issues in the Medicaid application process.

One way to handle this is to structure it as a rental arrangement where the caregiver takes on the cost of building the addition and then accepts reasonable rent and payment for caregiving. Alternatively, the parent in need of caregiving could purchase a life estate in the caregiver child’s home for fair market value, or loan the funds to build the addition and then reduce the loan by the ongoing value of rent and caregiving services.

What seems like a simple transaction becomes complicated very quickly, and the financial arrangement is scrutinized carefully by the Pennsylvania Department of Human Services County Assistance Office during the process of applying for Medicaid long-term care benefits.

Substantial gifts should generally not be made if you are in ill health and likely to need nursing facility care.

Gifting assets away can cause periods of Medicaid ineligibility as has already been discussed. This issue remains a frequent problem for those who call our office for help, so we recommend the exercise of caution when gifting if you have a sense that nursing home care may be needed within the next 5 years.

There are exceptions for certain asset transfers, notably for gifts for the benefit of disabled children or to trusts for disabled persons, and where monthly gifting does not exceed $500 in aggregate. Gifting is the source of many denials of Medicaid long-term care benefits, so secure legal counsel if it appears nursing home placement and an application for Medicaid benefits could occur in the 5 years following a gift.

Children should not add parents to their own bank accounts as joint owners with the right of survivorship.

In the Medicaid application process, jointly owned bank accounts are presumed to be 100% owned by the parent applying for Medicaid long-term care benefits. Assets are potentially at risk of the Medicaid spend-down or the imposition of a transfer penalty if the child later moves the funds to his or her name alone. This presumption can be rebutted by proving that the child contributed the funds to the account. The best way to win this fight is to avoid it by not adding a parent to your own account as a joint owner.

Still overwhelmed and need help applying for Medicaid in PA?

We are here to help! The Medicaid application process can be confusing with many pitfalls. That’s why we strongly recommend hiring an experienced elder law attorney. Contact us with getting help applying for Medicaid and we will be happy to be your Medicaid guide.

Super Lawyers 2021 Top 100; Robert C. Gerhard Makes the List!

I bumped into a friend and fellow attorney, Katherine, at the Jersey shore in late July and to my surprise she congratulated me for making the 2021 Pennsylvania Super Lawyers Top 100 list. I had not known, so this news made my day. Katherine was even so kind as to drop a copy of the 2021 Super Lawyers magazine in my mailbox so I could see for myself.

elder law attorney philadelphia Gerhard What is a Super Lawyer?

The Super Lawyers Top 100 is an alphabetical listing of the lawyers who ranked top of the list in the 2021 Pennsylvania Super Lawyers nomination, research, and blue-ribbon panel review process. Being on the Top 100 list is an honor and professional recognition that I truly appreciate, especially because of the peer-review aspect of the evaluation.

I realize that as the leader of our firm I receive much more credit than I deserve for the talent and amazing work of our office team. I believe our continual efforts to stay current with changes in the law, making every effort to help our clients, extending courtesy to fellow attorneys, and investing in technology at our law firm are the key factors that garnered this recognition.

I enjoy the problem-solving nature of this work, knowing a small and technical area of the law, and using this knowledge to help clients through challenging situations. I extend my sincere appreciation to the research team at Thomson Reuters and the attorneys on the blue-ribbon panel who provided the supportive peer-review evaluations.

Robert C. Gerhard, III is a partner with the Montgomery County, Pennsylvania elder law offices of Gerhard & Gerhard, P.C. located in Jenkintown, Pennsylvania. Attorney Gerhard is an elder law specialist and an authority on Pennsylvania Medicaid law as it relates to long-term care. He devotes his law practice exclusively to elder law matters, emphasizing asset protection for seniors facing nursing home care.

If you are in need of help from an elder law attorney, contact a top 100 Super Lawyer in Philadelphia and get the dedicated attention and expertise you expect.

Should you hire an attorney for a Medicaid application?

Does the Medicaid application process intimidate you? The application can be very overwhelming if you’ve never completed the process before. Terms like “five-year lookback” and “spousal benefits” can make you realize that you don’t really know much about Medicaid. That’s when an elder law attorney can be a valuable guide for you and your family. Read on to see why hiring an attorney might be the best solution.

Hire Attorney for Medicaid Application?Legal fees are permissible as part of the Medicaid spend-down.

Legal fees are a common part of the Medicaid spend-down. You are permitted to retain the assistance of an elder law attorney to provide advice and assistance with the process. If you do not hire an attorney in the beginning then you may not have money to do so when a problem arises after the funds have already been spent-down to the nursing home.

In the case of Mulherin v. Department of Public Welfare, 935 A.2d 40 Cmwlth 2007, Pennsylvania’s Commonwealth Court permitted reasonable legal fees to be paid without interfering with retroactive Medicaid eligibility. Securing legal counsel and proper advice is not just a luxury for the wealthy, this case permits anyone to be able to afford a capable law firm at any stage of the Medicaid application process, particularly if long-term care benefits have been denied. Clients retain our firm because we save them time and money, and legal fees are a proper and allowable spend-down item.

Do you trust the nursing home to advise you on how to protect assets and qualify for Medicaid long-term care benefits?

Nursing facilities receive much more money per day from private pay residents than from those who successfully qualify for Medicaid long-term care benefits. Why would the nursing facility advise you about exempt assets, exempt transfers, or spend-down strategies?

The longer you pay their bill privately, the more money they make per day. We wrote a in-depth article about Nursing home working with people on their Medicaid application. It’s just not their job to provide legal advice on how to legally protect assets and accelerate eligibility for Medicaid long-term care benefits. Furthermore, there are estate planning strategies which are the practice of law, and which only attorneys can advise and implement.

At Gerhard & Gerhard, P.C., we work for you at as an elder law attorney, not the nursing home, and give you independent advice about the legal ways to protect your assets and qualify for Medicaid long-term care benefits.

The law firm handles the paperwork and saves you time.

One of our major goals is to save you time whenever possible. When applying for these benefits, the caseworkers at the County Assistance Offices tend to request financial statements going back 5 years and require you to supply other supporting documentation to verify that the information on the application is true. Some caseworkers even request copies of checks of $500 and over.

We review the financial records you have in your possession, identify what we believe the caseworker will request, and help you obtain what you are not able to locate. If we can save you time and obtain this paperwork for you, then we will do so. The caseworker will set a deadline to receive this paperwork or they will deny the application. They are required to make a decision within a certain time period, generally 45 days. Our office will do all we can to help meet that deadline. If you have missed the deadline and find your application denied on appeal for “failure to provide verification,” then please call us; we would be glad to help.

The law firm guides you through all stages of the application process.

We have traveled this path of applying for benefits many times with our clients. We are working on Medicaid applications in our office on a daily basis. It’s what we do.

We know what papers to file, when to file them and where. We follow-up with the caseworker reviewing the application at the County Assistance Office on an ongoing basis and communicate with you regularly so you are aware of the status of your case. When necessary, we are able to contact a supervisor at the County Assistance Office or legal counsel for the Department of Human Services. We are often able to resolve issues ahead of time, avoiding a denial of benefits and the need for an appeal. Another goal of ours is to compress the time period where the application is pending so you can get back to focusing on the caregiving, and not spend all your time on these financial matters.

Have a legal team on standby to handle appeals.

If an application for benefits is denied, many times there are things that we can do in order to ultimately have the case approved. Our law firm will provide options to deal with a problem, and appeal denied cases as appropriate by requesting what is called a Fair Hearing with the PA Department of Human Services Bureau of Hearings and Appeals.

We are able to assess the merits of your case, based on our years of experience. Many can be resolved before the hearing since we continue to work with the County Assistance Office and DHS legal counsel while an appeal is pending. If benefits have been denied and you are on appeal then there is a major financial threat to be taken seriously, and we recommend that you have legal representation.

In conclusion – why wouldn’t you hire an attorney for Medicaid application?

As you can see, having an advocate on your side can save you time and anxiety. During an already stressful time, why wouldn’t you hire an attorney who is an expert in the Medicaid process? You can rely on us to be on your side every step of the way.

Pennsylvania Medicaid Long-Term Care Numbers and Fact Sheet

Pennsylvania Medical Assistance (Medicaid) Long-Term Care Numbers and Fact Sheet

According to the Pennsylvania Department of Aging, there are over 2,400,000 Pennsylvania residents over age 60.  More than 240,000 Pennsylvania residents are over age 85.  Out of the fifty states, Pennsylvania has the third highest percentage of elderly residents. One in five older Pennsylvanians live in or near poverty. The Deficit Reduction Act (DRA) has been implemented in Pennsylvania.  Here are Pennsylvania’s Medicaid Numbers. Stay tuned for additional updates

Read more “Pennsylvania Medicaid Long-Term Care Numbers and Fact Sheet”