Both chambers of the Florida Legislature are considering legislation that would make it more difficult for Florida families to secure Medicaid benefits for long-term nursing care for their elder members.


Florida Senate Bill 1356, and its companion House Bill 1289, if passed, would eliminate two key Florida Medicaid planning techniques that have saved many families from being impoverished by long-term nursing home costs. These techniques would be eliminated effective July 1, 2011.

The details of the proposed modification to the Florida Medicaid statutes:

PERSONAL SERVICE CONTRACTS WOULD BE CONSIDERED GIFTS

Historically and currently, in Florida’s Institutional Care Program (ICP), an elder person’s funds that are used to prepay a loved one for providing caregiving services, pursuant to a properly drafted personal services contract, are considered to be a transfer for value and thus will not constitute an improper transfer for Medicaid eligibility purposes. Passage of SB 1356 and HB 1`289, would deem such contracts to be gifts to family members, and thus would cause a delay in, or eliminate, receiving Medicaid benefits, effectively denying the elderly person the right to receive Medicaid long term care benefits. (Qualifying for Medicaid Benefits and Preserving Assets for Family – The Personal Care Contract: )

If the Florida legislature makes Personal Service Contracts gifts, it will be a significant disincentive for adult children who want to personally care for an aging or disabled parent. Adult children often must leave jobs, reduce hours, or even relocate, to provide in-home care for a parent.  Compensation from the parent’s funds is the only way those adult children can afford to leave their jobs and careers. If the legislature’s actions cause such transfers to be treated as gifts, thus effectively denying the parents’ Medicaid eligibility, it will make such caregiving arrangements impossible for many, if not practically all, such families. Then, rather than relying on their own family members for long term care, parents will be forced to turn to strangers for care, who can still be compensated without fear of being penalized and having Medicaid benefits penalized, or denied outright.  Otherwise, such elderly persons will need to leave their homes and enter a skilled nursing facility earlier than otherwise necessary.  Parents will thus be deprived of the care and attention of their families.  Perhaps the legislature, rather than taking action that will penalize families who try to provide for their own care, the legislature should follow Rhode Island’s lead and attempt to get a bulk waiver for the Medicaid program and seek to provide support for families to keep their elderly loved ones at home, where care is less expensive, rather than practically forcing the elderly into the nursing homes at much greater expense.

SPOUSAL REFUSAL WOULD NO LONGER BE RECOGNIZED

The other part of this proposed legislation seeks to effectively impoverish married spouses when one spouse is unable to continue providing care for the disabled spouse, and the disabled spouse is forced into a skilled nursing home facility.  In Florida, it is legally permissible for someone to decline to use his/her assets to pay for a spouse’s nursing home bills. If a Medicaid applicant transfers assets to a spouse, the transfer is not considered a gift, and the well spouse need not use those assets to pay for the nursing home. The proposed Florida Legislation would eliminate Spousal Refusal as a Medicaid planning technique, thus exposing more families to impoverishment.

POLITICAL ACTION IS APPROPRIATE, BUT LEGAL ACTION IS NECESSARY

All Florida families with elderly parents, disabled spouses, or other family members who may be unable to care for themselves, either now or in the future, should contact your local House and Senate representatives and encourage them to vote no on SB 1356 and HB 1289.  Florida has enough senior citizens who will be negatively impacted by these undesirable changes to impact the result of this proposed action by the Florida legislature.  Don’t delay – take such political action immediately!

Florida seniors concerned about losing their remaining financial resources to skilled nursing home costs are well advised to seek the advice of a Florida Elder Law Attorney immediately, even if there is no pending family crisis concerning long term care. While Medicaid planning techniques may still be possible after passage of these bills if a family member is in a nursing home or about to enter one, advance planning affords a family more options and greater possibility and flexibility for preserving more assets to help provide for effective long term care for the elderly.

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