Testifying at the State House
September 7, 2011
Earlier this summer, I made the big trek to Boston, all the way to the State House. (We are so lucky on the South Shore, we get to take a boat to Boston!) Along with some colleagues, I testified on some bills that we have before the legislature. “We” being the Massachusetts chapter of the National Academy of Elder Law Attorneys (MassNAELA).
You may already know that MassHealth has a 5-year “lookback.” That means that if you ask MassHealth to pay your nursing home bill, they look back over the last five years to see if you have made any transfers, or gifts. If you have, then MassHealth will deny your application for benefits, the rationale being that you should have known that you would need a nursing home within five years and would need that money.
Technically, the law instructs MassHealth to deny applications where the applicant gave her money away with the “intent” of qualifying for MassHealth. But what about the situations where people are healthy, don’t anticipate medical deterioration in the near future, and are following the natural instinct to help their kids, for example, with college, a wedding, or tough times?
I was asked to testify on a case I have currently, which I can’t describe much because of client confidentiality. Let’s just say that Mrs. Beautiful has lived a very difficult life, financially and emotionally. About three years ago, she won a settlement in a class-action lawsuit, and even though she had so little money of her own, she immediately gave it to her grandchildren for college. She was determined that they would have a better shot at life than she had. At that time, her health was fine, with no hint of an upcoming turn.
About six months ago, her health suddenly declined and her mind slipped. Staying at home didn’t work, and she moved to a nursing home. She and her husband have very little money, so they applied for MassHealth. They of course denied her application, since she had given money to her grandchildren. Despite what the law says, MassHealth didn’t bother to consider whether Mrs. Beautiful gave that money away for the purpose of getting out of paying her future nursing home bill, or if she did it driven by an instinct to do right by her grandchildren, during a time when her health was fine.
MassNAELA’s bill would clarify the law and create a more precise process by which MassHealth must determine whether an applicant transferred assets with the intent of qualifying for MassHealth or whether they made gifts to their family during times of good health, for all the right reasons that families help each other.