Medicaid – Holland Elder Law

What is Nursing Home Level of Care?

Michael L. Holland — Mon, 24 Feb 2025 22:43:47 +0000

Navigating the Medicaid system for nursing home care can be a huge challenge for families. Does Medicaid pay for nursing home care? Yes, Medicaid can help with significant nursing home and long-term care costs. The state uses Nursing Home Level of Care (NHLOC) to determine healthcare eligibility for nursing home coverage. This guide will go in-depth on how Texas Medicaid evaluates a nursing home resident and their care needs and financial resources so families can make informed decisions.

Key Takeaways

Key Point

Description

Medicaid Eligibility for Nursing Homes

Medicaid can cover long-term nursing home care, but eligibility requires meeting specific medical and financial criteria, including NHLOC.

Nursing Home Level of Care (NHLOC)

NHLOC determines whether someone requires skilled nursing care and qualifies for Medicaid coverage in a nursing home.

Asset Protection

Families can use legal strategies to preserve assets while qualifying for Medicaid—helping avoid the costly consequences of Medicaid’s financial limits.

Comprehensive Evaluation Process

The Texas Medicaid NHLOC evaluation involves a review of medical needs, abilities, and financial resources, ensuring families get the right care for loved ones.

What is the Nursing Home Level of Care (NHLOC)?

The Nursing Home Level of Care (NHLOC) is a set of rules that Medicaid uses to decide if a person needs skilled nursing care in a facility. Meeting NHLOC requirements is necessary to qualify for Medicaid coverage of long-term nursing home care in Texas.

In Texas, the NHLOC criteria look at older adults’ immediate medical and long-term care needs. This evaluation determines if a person should live in a skilled nursing home or use other Medicaid programs for independent living. Meeting these standards allows people to get Medicaid benefits that cover nursing home costs, reduce financial stress for families, and get the medical care and help they need. These benefits are only available in a Medicaid-certified nursing facility.

Confused about Medicaid rules and worried about losing assets? I help families keep their savings and homes while securing nursing home care. Call me now at 713-970-1300 for a free, one-on-one consultation.

NHLOC Key Points

Medical Necessity: The person must have a medical condition that requires 24/7 care. This means they need monitoring and medical help, which is crucial for their safety and well-being. People needing 24/7 care often need the specialized services a Medicaid nursing facility provides.
Functional Limitations: Difficulty with basic activities of daily living (ADLs) like bathing, dressing, walking, or eating. These limitations can greatly impact the quality of life and make it hard for individuals to live independently without help.
Cognitive Impairment: Conditions like dementia or Alzheimer’s that require supervision. Supervision is vital to prevent harm and to provide a structured environment that meets their daily needs.

Texas NHLOC Criteria and Medicaid Eligibility

While NHLOC and eligibility requirements are different from state to state, Texas has its own rules to determine who qualifies.

Texas Medicaid NHLOC Requirements

The care recipient must need help with at least two ADLs or have serious cognitive problems. This means they have trouble with daily tasks like bathing, dressing, eating, walking, or using the bathroom on their own. Serious cognitive problems could be major memory loss or confusion that requires regular supervision to keep them safe.
A doctor must confirm the need for skilled nursing care. This involves a detailed exam by a healthcare professional who can confirm the need for 24/7 medical monitoring and treatment. This could be managing chronic illnesses, giving medications, or providing special therapies that can’t be done at home.
The Texas Health and Human Services Commission (HHSC) handles NHLOC evaluations. HHSC ensures all assessments are fair and accurate. The review considers the applicant’s medical history, current health, and abilities. This way, those who need nursing home care get the right Medicaid benefits. Their health care is supported, and financial stress is relieved.

Nursing home costs can wipe out a lifetime of savings. You can protect your family’s assets and get Medicaid coverage with the right legal strategy. Call me at 713-970-1300 now for a free consultation.

NHLOC Assessment in Texas

Step-by-Step Assessment

Application Submission – Families start by applying through Texas Medicaid services. This involves filling out forms and providing detailed information about the applicant’s health, finances, and living situation.
Comprehensive Evaluation – A state-appointed nurse or doctor evaluates the applicant’s medical condition and abilities. This includes in-person assessments, interviews with family members or caregivers, and reviewing recent hospital stays or medical treatments.
Review of Medical Records – This involves gathering important medical documents like hospital discharge summaries and notes from specialists to prove the need for nursing home care and the level of skilled nursing required.
NHLOC Determination – HHSC determines if the applicant is medically eligible for nursing home care. This decision is based on a thorough review of all information, including evaluation findings and medical records.

Tools Used in Assessment

Minimum Data Set (MDS) – Assesses a nursing home resident’s health, physical, psychological, and social functioning to determine care needs.
Pre-Admission Screening and Resident Review (PASRR) – Identifies individuals with mental illnesses, intellectual disabilities, or related conditions to ensure they receive appropriate services.
STAR+PLUS Assessments – Evaluates applicants for Medicaid-managed care services, ensuring they get coordinated, comprehensive care.

Factors Considered in NHLOC Determination

Activities of Daily Living (ADLs)

Bathing – Ability to get in/out of a bathing area and perform the task safely.
Dressing – Managing buttons and zippers and choosing appropriate clothing.
Eating – Preparing meals, using utensils properly, and eating safely.
Toileting – Managing personal hygiene and mobility related to bathroom use.
Transferring – Moving safely in/out of a bed or chair.

Cognitive Impairments and Behavioral Issues

Dementia and Alzheimer’s – Requiring constant supervision for safety.
Memory Loss – Increasing the risk of injury or wandering.
Behavioral Disorders – Conditions like aggression or disorientation affecting self-care ability.

Medical Conditions Requiring Skilled Nursing Care

Chronic Illnesses – Parkinson’s, multiple sclerosis, or severe diabetes.
Wound Care Management – Specialized care to prevent infections and promote healing.
IV Therapy & Ventilator Dependency – Indicating a need for 24/7 medical supervision.

Challenges and How to Overcome Them

Common Barriers

Mild impairments – Some applicants may not meet NHLOC criteria and need alternative care options.
Financial eligibility conflicts – Medicaid’s strict asset limits require legal planning to avoid losing savings.
Denied applications – Lack of proper documentation can result in Medicaid denial.

Tips for a Successful NHLOC Application

Keep accurate medical records – Ensure all diagnoses and functional impairments are well-documented.
Request a physician’s assessment – A letter from a doctor supporting NHLOC eligibility can strengthen the application.

Every day you wait puts more at risk—your savings, your home, your family’s financial security. I’ll help you navigate Medicaid and protect what you’ve built. Call me now at 713-970-1300 for a free consultation.

Conclusion

To qualify for Medicaid nursing home coverage in Texas, you must meet NHLOC requirements. Understanding Medicaid eligibility, asset protection strategies, and application best practices ensures families can secure care while preserving financial security.

Miller Trusts Texas. What they are. How they work.

Michael L. Holland — Tue, 04 Feb 2025 16:50:35 +0000

In some states (Texas being one of them), when the income of an applicant for Medicaid exceeds the monthly limit, a special type of document is necessary to meet income eligibility rules. Known as “income cap” states, they cap monthly income to $2,901 (for 2025). In these states, if your income is more than the monthly amount Medicaid permits, special rules allow you to redirect your income to a Qualified Income Trust. Most folks know it as a “Miller Trust” (so named for the family that brought the court action that now makes the solution possible) and as a “QIT.” In Texas, this arrangement is commonly referred to as a Miller Trust Texas solution, helping applicants qualify for Medicaid despite exceeding income limits.

Why Miller Trust Texas Solutions are Needed

A Qualifying Income Trust is set up for one reason and one reason only. In it’s most basic form a person gains income eligibility by depositing specific income received into a checking account titled in the trust name.

It’s used to process the Medicaid applicant’s income so that it fits Medicaid’s income rules. The trust must follow special rules for managing the monthly income of the person seeking Medicaid’s help. The instructions contained within the document are what make up the trust. Only income may be deposited into these types of trusts. The trust bank account is prohibited from accepting anything other than income. That is why they are generically referred to as income trusts.

Regulations require depositing income into a Miller Trust checking account authorized by the trust. Rather than using an existing account, I recommend fresh bank accounts with a zero balance. You can use a current account, but it’s too risky. In my practice, I always help clients set up a new account, which is easier and safer.

Medicaid policy limits the monthly income people can receive and still get nursing home benefits. The Federal government adjusts this upper limit for inflation each year. If the applicant’s income exceeds the limit, special rules allow them to be put into a Miller Trust.

When deciding eligibility, the Medicaid agency ignores the income deposited into the Miller Trust bank account. Using this approach reduces countable income. The apparent income reduction helps the person in need of long term care meet the strict income rules.

How Income Flows Through the Trust

A qualified income trust in Texas helps people qualify for Medicaid but it doesn’t shelter income. Money deposited into trust bank account typically flows out of the trust to pay the nursing home. It’s designed to cover part of the care costs. The balance of the nursing home payment comes from Medicaid. If any money remains in the trust after death, the state keeps it to help defray their costs.

Here’s an example of how a QIT works in Texas

Let’s say your dad needs nursing home care. He gets a monthly Social Security payment of $2,950. His income exceeds the Medicaid eligibility limit of $2,901 but is not enough to pay for the care he needs. The rules say he won’t qualify for Medicaid, but the QIT provides a way.

The first step is to hire an attorney to create a Medicaid qualified income trust. You then deposit the Social Security check into the account. This drops the amount of income the state counts against his eligibility. His Social Security income will pay part of his care. Medicaid makes up the difference.

Expenses Allowed Using The Miller Trust Texas Solution.

The Medicaid agency figures out how much of the long-term care costs an individual must pay. They add up the amount of income received each month. From that, they allow payments for health insurance premiums. Examples include premiums for

Medicare Part B,
Prescription Drug plans (Medicare Part D),
Group retirement health insurance
Medicare Supplements
Vision insurance and
dental coverage.

Payment of medical expenses not otherwise covered by Medicare and Medicaid is also allowed through the trust. The trustee (the person managing the trust) cannot use trust funds for any other purpose than what Medicaid allows.

Your dad also gets to keep a $75 out of the $2,950 for his personal needs.

If an applicant has a spouse, the trust may be able to distribute part of the income to the spouse. This allotment is called the Minimum Monthly Maintenance Needs Allowance. The Spousal Income Protection rules determine the size of this monthly allowance. For 2025, the largest allocation in Texas is $3,948 per month.

Payback Provision

The trust will typically distribute all deposited funds each month to cover the items detailed above. There is little chance the balance will grow in the qualified income trust.

Typically, money flows into the trust and right back out each month. If a person dies with a balance in the Miller Trust bank account, the state can recover what it spent on the applicant’s care. After the state is repaid, the trustee can distribute the rest to beneficiaries named in the document.

Setting up and managing a Miller Trust is not a “do-it-yourself” project. The rules are too complicated.

If you set it up the wrong way, you face a real risk of losing thousands of dollars’ worth of benefits. Remember that once you lose those benefits, they are lost to you forever. If you have income that’s too high to qualify for Medicaid, a Qualifying Income Trust makes sense. But, you must execute each step the right way.

Find an experienced Miller Trust attorney to guide you. A skilled attorney will prepare the specific instructions needed for the trust. You’ll get advice on how the trust should be set up and how to fund it. It’s the best way to avoid the pitfalls and get all the benefits from qualified income trusts in Texas.

Make Sure You Get Medicaid—Call Me Today!

A Miller Trust can help you qualify for Medicaid in Texas, but setting it up the wrong way could cost you thousands in lost benefits. Don’t take that risk!

📞 Call me now at (713) 970-1300. Get your questions answered. The call is FREE!

As an elder law attorney, I will walk you through the process step by step, making sure everything is done right. Get the care you need—call today!

Texas Medicaid Nursing Home Benefits: Do You Need an Elder Care Attorney?

Michael L. Holland — Tue, 04 Feb 2025 16:50:35 +0000

Applying for Texas Medicaid nursing home benefits is complicated. Even small mistakes can lead to costly delays. Understanding income and asset limits, Medicaid rules, and how to protect your home requires careful planning.

This article explores whether you should hire an elder care attorney, how they can speed up the process, and why their guidance can help protect your assets and secure Medicaid approval faster.

Whether or not it’s advisable to hire a Houston Elder Law attorney to prepare and submit your application for Texas Medicaid nursing home benefits turns on several questions:

How complicated is the applicant’s financial picture?
How well-organized are you?
How much time do you have available?
How comfortable are you dealing with a government bureaucracy?
Can you afford to lose a month or more of eligibility if you are denied eligibility because of an error?

Medicaid offers a variety of financial support programs. The application process for non-nursing home programs is relatively simple. Most people can apply without help. Nursing home benefits are a different matter.

Nursing home Medicaid is a form of insurance for long-term care costs. Because the cost of nursing home care is so high (over $6,500 monthly in Texas), most middle-class families need this program to help cover the monthly fees. The long-term nursing home coverage application process is complex and confusing to the inexperienced. Relying on the skills of an experienced Elder Law attorney is a near necessity.

Successfully applying for Medicaid requires meeting strict guidelines on income and assets. It also requires you to understand the terminology and definitions unique to the program. Like all government agencies, the Texas Department of Health and Human Services (which runs Medicaid in Texas) has its own definitions for the terms used in its regulations.

How they define “income,” for example, differs from the definition used by the Internal Revenue Service or the Veteran’s Administration. The agency counts some forms of income when determining income eligibility. It ignores other.

For example, the “aid and attendance” income portion of a Veteran’s enhanced pension is not “countable income.” Social security, pensions, interest, dividends and IRA distributions count.

If the applicant’s countable monthly income exceeds the limit, an Elder Care attorney can draft a special document called a Qualified Income Trust. But, drafting the document is only half the battle.

You’ll also need to attach a bank account to the trust. The bank account receives the income, but not necessarily all of it. The State also has rules regarding how and when money must be deposited into the trust and how it’s paid out.

Handled improperly, Medicaid can disqualify the trust, costing a family thousands of important Medicaid dollars.

Texas also limits the amount of assets a person can keep and still qualify for benefits. As with income, certain assets are not counted. Examples include the personal residence, prearranged funeral plans and one automobile.

Yet, to exclude these items Medicaid requires other rules to be met. The Medicaid caseworker is legally required to count these otherwise excludable resources when they fail to meet all the requirements for exclusion.

How Medicaid treats a personal residence is another complicating factor. Just because the house is not counted when determining eligibility doesn’t mean it’s protected. Medicaid considers the money provided by the agency like an advance.

It’s not a gift from the government.

That means the State has a legal right to recover the amounts they’ve spent once the person passes on. Since the home is typically the largest asset a person owns when they die, you face the very real possibility of the state forcing the sale of your home get repaid for the funds used to pay for your care.

A good Elder Care attorney plays a valuable role. Hiring a Houston Elder Care attorney has several advantages:

* Expert guidance on the best way to qualify for Texas nursing home Medicaid
* How to get benefits sooner
* How to keep your share of costs as low as possible
* Experience dealing with complications as they arise
* Serving as your advocate through a challenging application process
* Protecting the family home

A drawback to hiring an attorney is the fee you’ll incur. Given the high monthly cost of Texas Nursing home care, if an attorney can speed up eligibility by as little as a month or two, you’ll generally cover the fee and then some.

For some families the peace of mind that comes from knowing the application is in capable hands is enough to justify hiring an attorney. Also keep in mind the funds used to pay the attorney would have likely been paid to the nursing home anyway.

Medicaid Gift Rules vs the $19,000 Yearly Gift Exemption

Michael L. Holland — Mon, 03 Feb 2025 16:50:36 +0000

Many people mistakenly believe that the $19,000 annual gift tax exemption protects assets from Medicaid penalties—but that’s not the case. This article explains how the Medicaid gift rule works, how gifts can delay eligibility, and why consulting an elder law attorney is important for asset protection and Medicaid planning.

A client asked the following.

The health of my widowed 74-year-old mom is starting to decline. My sister and I understand mom must have limited assets to qualify for Medicaid. She owns an annuity and bank accounts worth about $100,000. A coworker tells me she can give each of us $19,000 yearly without a Medicaid penalty. Is this right?

Answer:

Your coworker is confusing a rule dealing with income and gift tax rules with Medicaid rules – a common and financially dangerous mistake.

Your co-worker refers to an exemption under the Federal Internal Revenue Code. Under that code, the first $19,000 of gifts made in a given year to an individual are exempt from gift tax. The exemption allows families to distribute wealth by reducing the size of their estate taxable at death.

However, that exemption does not apply to situations when applying for Medicaid benefits. Families wrongly believe the annual gift tax exemption shields them from Medicaid’s transfer penalty if nursing home care is needed sometime in the future.

It doesn’t. In fact, the opposite is true.

When an application is filed, you must list all gifts and property transfers made in the five years preceding the application. The gifts are then added to determine how long the penalty will last. In Texas, for approximately each $7500 gifted, Medicaid delays eligibility for a month. A gift of $100,000 could delay benefits for 13 months. When gifts like these are made with the belief that the money is protected, the recipients spend rather than save it. If Medicaid imposes a penalty, where will the money come from to pay for your mom’s care during that time? The result can be a terrible hardship on the entire family.

Giving away assets can be an effective Medicaid asset protection strategy used properly. Even if you’ve already made such gifts, an Elder Law attorney experienced in Medicaid estate protection planning can guide you on the right steps to take now that protect assets and increase your chances of qualifying for Medicaid assistance.

7 Costly Nursing Home Payment Mistakes & How to Avoid Them

Michael L. Holland — Mon, 03 Feb 2025 16:50:33 +0000

Paying for nursing home care is overwhelming. Making the wrong financial moves can cost you thousands. This article highlights common Medicaid mistakes, myths about asset protection, and financial traps to avoid. Discover how an elder law attorney can help you protect your savings and secure long-term care without unnecessary financial loss.

Maybe you’re the adult child of an ailing parent. Maybe you’re a spouse whose husband or wife needs long-term care. Whatever your situation, learning what you need to know about paying for nursing home care is a tough task. Some people take the time to study up and plan in advance of actual need. Most likely, you’re reading this now because you need to make some quick decisions about paying nursing home costs.

Beware of trying to make critical financial decisions too quickly. The combination of emotional and financial stress can bully you into a financial trap. And wrong decisions can cost you dearly. Texas nursing homes are expensive.

Mistakes can be devastating, costing tens of thousands or even hundreds of thousands of dollars. Below, I’ve listed some common pitfalls to help you avoid them. Other families had to learn these lessons the hard way, but you don’t have to.

*Worried about the high costs of nursing homes? I help spouses make care affordable.
I can help. Schedule your free strategy session now. (713) 970-1300

Now, let’s explore the top mistakes so you can avoid them.

Mistake #1: Relying on Medicare or health insurance to pay for long-term care.

Though Medicare may cover a portion of a stay in a nursing home, what they provide is limited to rehab – not long-term care. If your spouse or parent spends at least three days in the hospital for medically necessary care, Medicare may pay for certain types of rehabilitation in a Medicare-certified facility. Payments can last up to 100 days. The 100 days is not guaranteed. Continued coverage depends on the ability of your loved one to participate in and progress from the services.

Mistake #2: Expecting a will or living trust to protect your assets.

You’ve made a costly mistake if you have set up a revocable living trust to protect your assets from nursing homes. A will describes how assets will be distributed after death. While residing in a nursing home, you are still alive. The will is not yet effective. You see, a revocable trust is not so much an asset protection device as an asset management tool. The money in the trust can be used to pay nursing home expenses but will not help when you apply for government benefits to help pay the bills. To Medicaid, the trust is transparent, and all the assets are reachable to pay for nursing home care.

Mistake #3: Transferring your assets without solid advice

If you transfer your assets to others (or even into an irrevocable trust) within five years of needing nursing home care, you’ll be caught by the five-year “look back” rule. This rule puts a penalty on gifts or transfers of assets made within sixty months of the date you apply for Medicaid. The Medicaid agency determines the length of any delay based on the amounts transferred. The penalty could prevent ever getting help paying for care.

Mistake #4: Selling your home.

For most people, their home is their largest asset. There is also a common myth Medicaid expects you to sell the home to qualify for financial support. In Texas, you can keep your home. Selling the home is not necessary. In other words, selling your home can be an expensive mistake. You have additional options, including transferring the home to a spouse or creating a Lady Bird Deed (which works for both single and married applicants).

Mistake #5: Expecting others in your family to help pay nursing home bills.

Even if your relatives have deep pockets, the costs of nursing home care add up. Costs can balloon well beyond what anybody expects. The average daily rate for nursing home care in Texas keeps rising. Genworth, the giant insurance company, found that the 2023 average cost of a private room in Texas is $83,038 per year. The annual cost for semi-private rooms was $53,876. Rates in large cities like Dallas, Austin, and Houston are generally higher. Rural areas and smaller towns are less.

But make no bones about it: rates this high can bankrupt you.

Mistake #6: Going it alone

Medicaid rules are insanely complicated. Add to that complexity the limited training the state provides caseworkers, and you have a recipe for financial disaster. Even if you think your situation is “simple,” trying to figure out the best solutions yourself puts you at financial risk.

Mistake #7: Not Protecting the Healthy Spouse’s Finances

Don’t assume that if one spouse enters a nursing home, the other will have enough money to live on. Medicaid’s rules limit how much income and savings the healthy spouse (the “community spouse”) can keep. Without proper planning, the healthy spouse may struggle to afford everyday expenses. The good news is that Medicaid allows certain protections to help the healthy spouse keep more assets. Most people don’t know about them. Talking to an elder law attorney can help make sure both spouses are financially secure while still qualifying for Medicaid assistance.

Most elder law firms offer a free assessment of Medicaid eligibility. Some charge a modest fee for that meeting. Spending time with an experienced elder law attorney can save you hours of future heartache. If you have assets to protect, discover how to get care while protecting your assets.

Take Action Now – Protect Your Family’s Financial Future

Nursing home costs and Medicaid rules are complex, and making the wrong move could cost you thousands. Don’t risk your family’s financial security—get expert guidance today.

📞 Call now for a FREE strategy session: (713) 970-1300

Whether you’re planning ahead or facing urgent decisions, an experienced elder law attorney can help you protect assets, qualify for benefits, and avoid costly mistakes. Don’t wait—call today!

How to Find The Right Elder Law Attorney To Help You

Michael L. Holland — Sun, 02 Feb 2025 16:50:34 +0000

To find the right Houston Elder Law Attorney can feel overwhelming, especially when you’re dealing with Medicaid planning, rising nursing home costs, or protecting your family’s assets. The truth is that the wrong choice could lead to unnecessary stress, financial loss, and missed opportunities for securing care. That’s why it’s so important to find an attorney who truly understands your needs.

In this article, we’ll walk you through five key traits to look for, helping you find a trusted advocate who will guide you through this complex process with confidence and peace of mind.

When you find yourself in need of an Elder Law Attorney, you usually won’t have much time to make a decision. Maybe you just found out that Medicare only covers the first 100 days in a nursing home. Perhaps you’ve just been told you’re ineligible for Medicaid. Maybe the hospital just informed you they are discharging your loved one to a long-term care facility, and you’re frightened by the high cost of care.

There’s almost always some dire financial emergency looming in front of you and your family. The sooner you find a solution to your problem, the better.

However, you can’t allow a stressful situation to get in the way of finding the right Elder Law Attorney for you. After all, this person will be responsible for protecting your family’s financial well-being! To get the most out of your legal advice, it must come from someone you can confide in and trust.

5 Traits to Look for in a Houston Elder Law Attorney

Sounds like a pretty tall order, right? Here are five traits to look for to find the right Houston Elder Law Attorney:

1. Focused in Elder Law

It might seem obvious, but this should your ideal attorney’s first and most important trait: their law firm should focus on elder law.

Many folks will turn to general purpose attorneys for Elder Law-specific advice. Doing so can be a a huge mistake. The sheer volume of State-specific policies associated with elder care, and with Medicaid in particular, makes it extremely important to work with an attorney experienced in this area of the law.

Here’s a good rule of thumb: if less than 25% of your prospective attorney’s cases involve Elder Law, consider working with a more experienced attorney. The more experienced, the better – competent elder law advice will always pay for itself.

2. Eager to Help You

Elder Law tends to be time-sensitive, so it’s important that you find an attorney who’s going to help you identify an optimal solution quickly. If you find yourself facing down eminent monthly nursing home costs, for example, then an eager Elder Law Attorney will be the one who makes sure you get the maximum short-term and long-term health care coverage.

In addition, an eager attorney will be easy to get a hold of. It’s stressful to need immediate legal advice and be unable to get in touch your attorney. If you get the feeling that your prospective attorney is overbooked, or if they make you feel like “just one more client then find a Houston Elder Law Attorney who’s going to pay attention to your problems.

Which brings me nicely to the next trait…

3. Compassionate Toward Your Specific Needs

A good Elder Law Attorney is compassionate. In other words, he or she genuinely cares about your problems and wants to help you solve them. He or she treats you the same way they’d treat a close friend or loved one.

A compassionate Elder Law Attorney is always on your side, and makes it a point to help you and your family as much as possible. This is particularly important during Medicaid planning or application because of the many fine-print policies that can make an enormous difference in asset protection. A truly compassionate attorney will do everything in their power to maximize the coverage that Texas’s Medicaid program will provide for your loved one.

4. Offers Transparent Legal Advice

While it’s important for you to trust that your attorney is 100% on your side, it’s also important for your attorney to be completely upfront with you. When your life’s savings are at stake, you want to know exactly which incomes and assets are on the table. The better Elder Law Attorneys know one of the most important ways to help a family cope in times of a financial crisis is by setting realistic expectations.

Keep in mind that this transparency should also apply to your attorney’s fees. Ideally, your attorney makes their payment-structure intuitive and easy to understand. If you have a billing question, you want a straightforward, no-nonsense answer.

5. Official NAELA Member

There’s an organization for Elder Law Attorneys called the National Academy of Elder Law Attorneys. It’s a group dedicated to the improvement of legal services for the elderly and the disabled. Its members make a commitment to continued education in elder law. They also tend to support other organizations that help the people they serve.

In short, NAELA serves as a benchmark for quality Elder Law Attorneys, and its members are much more likely to demonstrate all of the traits listed in this post.

If you want trustworthy legal advice on anything from Medicare, Medicaid, long-term care insurance, estate planning, guardianship, social security, or anything related to elder law, look for the NAELA badge, just like the one at the bottom of this page.

In the end, remember that an Elder Law Attorney should be there to help you.

By following the traits outlined in this article, you’re much more likely to find that “perfect” Elder Law lawyer – the one who’ll make your life easier, secure your financial legacy, and ultimately provide your family with more freedom and peace of mind.

The Holland Elder Law team does its best to uphold these traits. If you have a question or legal issue, discover what a good Elder Law Attorney can do for you.

Take Action Now – Secure Your Family’s Future!

Figuring out Medicaid, nursing home costs, and asset protection can be confusing, but you don’t have to do it alone. Making the right choices now can save you money, time, and stress down the road.

📞 Call us today at (713) 970-1300 for a FREE consultation!

We’ll help you understand your options, make a solid plan, and protect your loved one’s care and finances. Don’t wait—call now and get the guidance you need!

7 Mistakes That Will Kill Your Miller Trust.

Michael L. Holland — Thu, 09 Jan 2025 22:02:39 +0000

One of the most persistent myths is that a Miller Trust in Texas can protect assets from Medicaid.

I don’t know why this misunderstanding persists, but it does.

The truth is simple: you cannot use a Miller Trust in Texas to shelter assets. If you try, you invalidate the trust and lose benefits. The consequences can be serious for families who don’t know the rules.

*Been told income is too high to get Medicaid? Use my 100% guaranteed Miller Trust. Put an end to high nursing home bills and sleepless nights. 713-970-1300

How a Qualified Income Trust Will Help You Get Medicaid in Texas

Federal and Texas law limit how much gross income you can have and still qualify for Medicaid nursing home benefits. The income limit is low, well below the average monthly cost of nursing home care. Years back, this restriction would keep patients from becoming Medicaid eligible.

The income cap for Medicaid nursing home care in Texas is a critical factor, as individuals with income above this cap may not qualify for Medicaid benefits.

In 1993, Congress established laws to address the problem by allowing applicants to set up a special purpose income trust, known as a qualified income trust, to determine Medicaid eligibility. The new rules allow applicants to set up a special purpose income trust – a Miller Trust.

Thankfully, they won.

The legal description for this type of document is a Qualifying Income Trust. The name spells out the only purpose of the trust. It’s designed to help someone become income-eligible for Medicaid benefits.

Miller Trusts Ensure Income Eligibility

A basic limitation of Qualified Income Trusts is that only the income of the person needing care can go into it. Medicaid’s income limit for 20245 is $2,901 per month. This limit changes each year. If a person has income over the threshold, the only way to become eligible is to set up a Texas Miller Trust. If you have too much income to qualify but too little to pay the large nursing home costs, a Miller Trust can help you qualify for Medicaid even if your income exceeds the Medicaid income limit.

Without a Miller Trust, you can’t.

That is why it’s so important to put one of these income cap trusts in place. But you must do it in the right way. Unless you’re using a Medicaid planning attorney in Texas skilled with these documents, you can get this wrong. Only the income of the person needing care can be deposited. Medicaid rules consider assets in the trust as “wrong money.” If the “wrong money” gets deposited into Texas Qualified Income Trusts Medicaid will deny the application.

Denials are costly mistakes. They ruin your chances of qualifying for Medicaid money to pay for high nursing home costs.

How Income Trusts Work for Medicaid Eligibility

The Miller trust document establishes a special checking account. Qualified income trusts, also known as Miller Trusts, are used to help individuals qualify for Medicaid long-term care services when their income exceeds the Medicaid income limit. The terms of the trust legally redirects monthly income away from the care recipient. Instead, the patient directs his or her income into a new checking account. When properly managed the character of the income changes under Texas Medicaid Income rules

Excess income no longer prevents eligibility. A Miller Trust does not shelter income; instead, it acts as a funnel. Rules restrict how the income deposited in the trust account can be used, and the funnel follows those rules to flow money from the patient to medical providers.

This approach works because the language of the trust recycles the money back out to help the patient pay nursing home and medical expenses. Income is no longer considered for eligibility purposes. It is considered, however, when the state calculates how much the patient pays for care.

Income deposits into the trust may also provide funds to a spouse if the patient is married. In Texas, Miller Trust funds can also be used to pay for health insurance and Medicare premiums. Medical costs not covered by Medicare and Medicaid can also be paid from the trust. Rules also allow a $75 personal needs allowance for the patient.

Misconceptions About Qualified Income Trusts

A frequent mistake families make is setting up the trust incorrectly. The benefits of a Miller Trust in Texas can be lost by not understanding the language required to establish the trust in the first place. The rules for Texas Miller Trusts are precise. The problem is most don’t understand the rules.

Another mistake I see has to do with the amount of money people put into the Medicaid trust. Sometimes they “round off” the amount. Sometimes they put only a part of a Social Security or retirement check into the trust. When the deposited amount differs from what the law requires, a Medicaid agency attorney can void the trust. Caseworkers may view an incorrect deposit as an attempt to protect the income.

This small change can mean losing thousands of dollars of financial help.

Another mistake is people try to put funds other than income into their trust account. Miller Trusts are income-only trusts. The monies that go in must only come from the patient’s income. Putting other money into the trust account is a big mistake. When you place other anything else in the trust you run the risk of voiding the entire trust. Examples of disqualifying income include income tax refunds, some annuity payments, vocational rehabilitation, or some financial help from the Veteran’s Administration. This simple mistake translated into losing Medicaid eligibility.

If you need a Texas Miller Trust, work with an elder law attorney who understands how Medicaid rules work with the income cap. A skilled elder law attorney will help you avoid small mistakes that lead to big problems. Something as simple as not depositing income by the last business day of the receipt month can cause problems. Some pension benefits are received on the last day of the month. If the deposit isn’t made during the same calendar receipt month, Medicaid policy requires the State to count the income. Eligibility can be lost.

Setting up and funding a Miller Trust account can be tricky. Simple missteps lead to losing thousands of dollars of benefit eligibility. ..money you can’t recover. There’s an easy way to avoid each of these serious blunders. If you need a Miller Trust to qualify for Texas Medicaid, hire an elder care attorney. Follow the advice of a lawyer with extensive Texas Miller Trust experience. You’ll be able to qualify faster, save money and reduce the emotional stress of the process.

The Medicaid Look-Back Period In Texas

Michael L. Holland — Thu, 26 Oct 2023 10:50:36 +0000

The Medicaid “look back rule” is a big source of confusion regarding the use of gifting as part of a Medicaid asset protection plan in Texas. The term “look-back period” is Medicaid lingo for the period of time a person’s financial records can be reviewed. This period begins with the date of the application and covers the 60 months immediately before.

Most people believe the period is an exclusion period. It’s not. The look-back is a review period. Transfers during that time are not necessarily going to disqualify, but they must be reported to the Texas Department of Health and Human Services (TDHS). TDHS is the state agency responsible for managing the Medicaid program for the state of Texas. Caseworkers from that agency review the application and supporting documentation then either approve or deny an application based on how the information provided interacts with Medicaid’s complicated rules.

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Federal law requires the full financial disclosure of all financial transactions during the 5-yr look back. Caseworkers have the right to demand proof of all deposits as well as all transfers of assets through gift or sale. Currently, the practice in the Houston area is to request financial verification of activity during the immediate 4-6 months. You also need to supply proof of all transferred assets, the value of those assets when transferred and who received the resources. If the person working the application gets suspicious about transactions he or she may request copies of every page of every financial statement received on every asset for the past 5 years.

How Medicaid Gifting Penalties Work In Texas

Medicaid Eligibility Workers also request copies of all checks over $500. Without adequate proof otherwise, expect the caseworker to presume the withdrawals are gifts and subject to penalty. As an example, if during the examination the agency discovers withdrawals equaling $43,000, unless proven differently, Medicaid will assume the funds were gifted. For each $4300, money from Medicaid will be delayed about a month. The person needing care would be denied Medicaid eligiblility for about 10 months.

Bear in mind not all transfers during the five year look-back period are subject to a penalty. Rules provide for a limited number of “exempt transfers”

between spouses,
for the benefit of a disabled children,
of the homestead to a caretaker child and
of the homestead to a sibling with an equity interest

Even though the above transfers are exempt, you still have the legal requirement to fully disclose them on an application. If you’ve made transfers that are subject to penalty, there may be steps you can take to reduce the penalty you’d otherwise receive. An experienced Houston Elder Law attorney can help.

Remember that the 5-year look back establishes the period of time the state can examine financial affairs. A transfer during that period does not always mean you’ve lost benefits forever.

The Case of The Missing Miller Trust and a $15,000 Nursing Home Bill

Michael L. Holland — Thu, 26 Oct 2023 10:50:36 +0000

The phone rang at 3:30 Friday afternoon. A nursing home business office manager who refers business to me from time to time quickly reintroduced herself and said she had a problem she hoped I could help her with. She asked how quickly I could turn around a Miller Trust for one of her residents. “In as little as 72 hours,” I replied. “How soon do you need it?” I heard her draw in a long breath and let out a sigh. “Can you finish it by Monday morning?” she asked hopefully.

When a call like this comes in during the last week of the month, I realize the need to move that quickly. But, in the middle of the month, something else is causing the urgency.

And there was.

The patient applied in January. The business office manager told the patient’s daughter she would be happy to submit the application and told her what documents to provide with the application. When the application and documents arrived, the business office manager quickly reviewed the statements, said everything looked fine, and sent the packet.

But everything wasn’t okay.

Medicaid denied it in mid-April for excess assets. The business office manager said total assets were slightly higher than $2,000 monthly. The denial put the daughter on the blunt end of a hard lesson about how strictly Medicaid applies the rule on asset limits. Her dad could have no more than $2,000 of countable resources as of the first day of each month. The bank sent statements mid-month; neither the daughter nor the business office manager confirmed the end-of-month totals.

Because the case was denied, the business office manager told the daughter she needed to pay the full private pay amount for not only February, March, and April but May as well. To keep her dad in the nursing home, the daughter pulled out every penny she had saved in her IRA to cover the nursing home costs…nearly $15,000!

Once again, the business office manager reviewed the bank statements. She noticed the balance on the checking account was well below $1,000 and felt comfortable about the assets. Then, she checked the patient’s deposited income. Seeing that the only deposit was from Social Security for less than $2,901 (the income limit for 2025), she again submitted the application.

This time, the application was denied, but not for excess assets. The patient had too much income. The business office manager made a common mistake. To determine Medicaid income eligibility, the caseworker uses the gross amount of income. Gross means the amount before any deductions. Social Security deducts premiums for Medicare Part B and Medicare Part D for most recipients.

The nursing home business office manager missed the need for the Miller Trust. That mistake has cost the family $15,000 so far. They need to get the Miller Trust set up by the month’s end to avoid additional expenses.

There are two morals to this story. First, there are no simple cases. Just because the asset and income picture is not complicated doesn’t mean the Medicaid solution is “simple.” In this situation, the lack of understanding of how asset and income levels work complicated the solution.

The second lesson is to involve an Elder Law attorney experienced in Medicaid matters from the beginning, even if you think your situation doesn’t require an attorney.

You might be right.

If so, the worst you’ll be out is a few hundred bucks for a consultation.

Or, you could be wrong.

And, like in this case, you could end up spending $15,000 you didn’t need to because of something that was missed. Ultimately, you need to decide what your peace of mind is worth.

Medicaid Planning: Don’t Try This At Home

Michael L. Holland — Thu, 26 Oct 2023 10:50:35 +0000

A few months back an article in the Dallas Morning News warned against doing Medicaid planning without professional guidance. As an attorney, it’s no secret I’m going to advise families to seek competent legal advice. I became a lawyer to help people understand their rights under Texas and Fedeal laws. Medicaid laws are some of the most complicated ever written.

Not-So-Obvious Planning Pot Holes Derail Savings

What most people don’t realize is the number of other laws that need to be considered along with the Medicaid rules. Medicaid asset protection collides with with laws related to gifting, taxes, protecting assets, business succession, insurance, capital gains and income taxation. Most of the issues are not obvious. Which is why who you turn to for Medicaid asset protection advice needs to be well-experienced.

As America’s population ages, the number of so-called “Medicaid planners” increases. Financial planners see Medicaid planning as fertile ground for profits. The problem is too many of them don’t understand the complexities. Not understanding the complexities leads to denied applications, lost time, lost money, and benefits you can never recover. Perhaps more important than the financial losses are the additional emotional stresses you suffer that could have avoided.

Experience matters

Planning doesn’t occur in a vacuum. Medicaid planning is more than “spending down” assets. Most of my clients want to preserve assets for a spouse or their children but want to do so while getting good care in a decent setting they can afford. When you hire someone to help with your Medicaid planning, experience counts. Make sure the person you choose knows more than one way to gain eligibility and has a track record to prove it. Look for a person with a depth of knowledge who can create an effective Medicaid asset protection plan.

You can read the Dallas Morning News article by clicking this link.