UPDATE: Ohio Medicaid Eligibility Changes to Significantly Increase Need for Qualified Income (Miller) Trusts
Income requirements for Medicaid eligibility will change as the result of rule amendments recently announced by the Ohio Department of Medicaid. Previously, only individuals with a disability who fell into a specified income range were eligible for Medicaid. Under the new rules, individuals who qualify for federal Supplemental Security Income (SSI) will automatically qualify for Medicaid.
Ohio will convert from a "209(b)" state to a "Section 1634" state starting August 1, 2016.1 This means that, when determining Medicaid eligibility, Ohio will implement an income cap equal to three times the SSI Federal Benefit Rate.2 The Federal Benefit Rate represents an individual's SSI income limit and the limit for their maximum monthly Federal SSI payment.
This change significantly impacts Ohio nursing care providers serving Medicaid patients. As a part of the change, the option to allow individuals with incomes above eligibility thresholds to use medical bills to "spend down" their assets to achieve Medicaid eligibility will no longer exist.
However, Qualified Income Trusts (QIT), also known as Miller Trusts, can be used to bring a resident's income below the cap.3 After August 1, 2016 every resident with an income exceeding $2,199 per month4 will need to establish a QIT to become or remain eligible for Medicaid benefits.
What is a Qualified Income Trust?
A QIT is a form of irrevocable trust into which some or all of an assisted living facility resident's assets are transferred for a short time each month before being expended for the resident's care.5 Assets in the trust are not counted toward income when calculating individual Medicaid eligibility. However, the assets, and any interest earned on the assets, are counted in post-eligibility calculations, including patient liability. When the resident dies, all assets remaining in the trust are distributed to the state, up to the amount of Medicaid benefits provided, and consistent with Medicaid Estate Recovery policies.
To establish a QIT, a resident must:6
- Have a trust instrument drafted and executed according to specific requirements;
- Open a separate account for the trust;
- Transfer income into the account;
- Make withdrawals and payments from the account each month;
- Not directly deposit income into the trust account; and
- Maintain a separate personal deposit account in which to directly deposit that income.
A trust is a legal instrument necessitating professional legal advice from an attorney in order to be drafted and executed. If a Medicaid resident has granted Power of Attorney (POA), the POA instrument should be reviewed to ensure the POA has the power to grant irrevocable trusts. If not, or in circumstances where a recipient of Medicaid is not competent and has no POA, an order from the probate court may be required to create an irrevocable trust, such as a Miller Trust.
It is unclear whether the standard retroactive 90-day Medicaid eligibility applies when a Miller Trust is used. Current law states eligibility cannot start until all of the elements of eligibility are fulfilled. This could affect an assisted living facility's willingness to admit an individual before eligibility is determined.
In summary, Ohio nursing care providers must be aware that beginning August 1, 2016, Medicaid patients with incomes exceeding $2,199 per month will need a Miller Trust in order to become or remain Medicaid-eligible. This change will substantially increase the need for QITs among nursing home residents. Because of this, the Ohio Department of Medicaid has contracted with Automated Health Systems to establish a support hotline and assist Medicaid applicants in setting up QITs. Automated Health Systems can be reached at 844.265.4722, from 8 a.m. to 5 p.m. Monday through Friday.
An attorney with experience in elder and Medicaid law can also assist with creating an irrevocable trust and help explain in greater detail these changes and the impact they have on nursing home and assisted living facilities. Please contact Weltman if we can assist you with any questions about updates to Ohio Medicaid eligibility requirements.
Thomas R. Kendall is an attorney in the Cincinnati office of Weltman, Weinberg & Reis Co., LPA who focuses his practice in commercial and consumer litigation. He can be reached at 513.723.6052 and tkendall@weltman.com.
Sara M. Donnersbach is a shareholder in the Cleveland office of Weltman who practices in multiple disciplines with an emphasis on healthcare collections. She has been recognized in Ohio Super Lawyers’ list of Ohio Rising Stars and in Crain’s Cleveland Business’ list of Forty Under 40. Ms. Donnersbach currently serves on the Ohio State Bar Association’s Healthcare Committee and is a frequent presenter on healthcare related topics. She can be reached at 216.685.1039 and sdonnersbach@weltman.com.
1 Public notices are published at: http://medicaid.ohio.gov/RESOURCES/PublicNotices.aspx
2 New OAC 5160:1-3-03.5(B)(4), published at http://www.registerofohio.state.oh.us/pdfs/5160/1/3/5160$1-3-03$5_OF_N_RU_20160415_1444.pdf.
3 OAC 5160:1-6-03.2; OAC 5160:1-3-05.2.
4 The SSI Federal Benefit Rate and cost-of-living adjustment provisions are found at 20 CFR § 416.405 and § 416.410. The latest rate is published at: https://www.ssa.gov/oact/cola/SSI.html.
5 OAC 5160:1-3-05.2; ORC 5163.21.
6 New OAC 5160:1-6-032, published at http://www.registerofohio.state.oh.us/pdfs/5160/1/6/5160$1-6-03$2_FF_N_RU_20160623_0953.pdf.
