Long Term Care and Medicaid
Portia B. Scott, J.D., L.L.M. • April 1, 2021

Look Backs and Bright Lines - What you need to know.

You may already know that when applying for Long Term Care through Florida’s Medicaid Program, there is a “look back” period of 60 months, That is, Medicaid may temporarily disallow benefits otherwise payable for Long Term Care (such as for skilled nursing facilities) if there were disqualifying transfers of assets in the 5 years immediately preceding the claim. Certain transfers are allowed, which is part and parcel of some Medicaid Plans, but out-right gifts are usually disqualifying events. 

 

Until recently, there was no comparable look back period for Veterans’ benefits such as War time Pension, with or without Homebound enhancement or Aid and Attendance enhancement.

 

That changed October 18, 2018. The VA now has a look back period and it seems the VA is going to keep it. The VA benefits, when received, remain “needs based,” payable monthly and are tax-free. However, the VA will consider all transfers made during the 36 months immediately before the application is submitted.

 

Also, there is a “bright line” asset limit. Until November, 30, 2021 that asset cap is $130,773.00 and it will be subject to COLAs which are tied to Social Security COLAs. Those assets do not include homestead, furnishings or a car but do include the applicant’s annual income. This bright line replaces the old case-by-case analysis where the VA would be asked to determine if it seemed “fair” for the applicant to receive a pension, though the general rule of thumb was an asset cap of around $50,000.00 to $75,000.00.

 

Only if the applicant has assets above the $130,773.00 figure (including those gifted or transferred at less than full market value during the 36 month look back period) is there a possible disqualification period. 

 

If the applicant, for example, had $100,000.00 in assets in January and gave $14,000.00 to each of his 5 children in February and submitted his application in March, he would not have a disqualification period for his pension. (The $100,000.00 total assets less the 5 gifts of $14,000 results in a balance of $30,000,00 remaining assets. However, since he was not above the asset cap to begin with, there is no Disqualification.)

 
By contrast, if another applicant had $200,000.00 in assets and gave comparable gifts, she would be looking at a disqualifying period during which she would not receive a pension. The amount of time she would be disqualified is, currently, the amount over $130,773.00 she gave away divided by the maximum pension awardable at the time of the application. So, $200,000.00 - $130,773.00 = $69,227.00 this is the maximum amount she will be determined to have disqualifyingly transferred. That $69,227.00 is divided by the maximum pension which results in the disqualifying period. That disqualifying period will begin on the first day of month immediately after the month in which the transfers were made.

 

There are, of course, tools which can be used to allow an applicant to qualify, including regaining possession of the disqualifying transfers and then making the transfers in a manner which is not disqualifying.

 

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The time for using unregulated Lady Bird Deeds might be ending.

By By Portia B. Scott, J.D., L.L.M. • September 24, 2026
The time for using unregulated Lady Bird Deeds might be ending.

MY MOTHER, THE GRAMMAR TEACHER, WOULD BE SO PROUD: We Have Our Own "Comma" Case

By Portia B. Scott, J.D., L.L.M. • July 22, 2026
One of the most absurd things for law students to grasp in that all-important first year, is the idea of what can be considered "ambiguous." (Ambiguity is "an uncertainty of meaning or intention, as in a contractual term or statutory provision.") If language is deemed "ambiguous," what happens next depends on where this ambiguity is found. The ambiguity can be subject to interpretation of a Court - if it is in a statute. If the Court has to use interpretation, there are several tools they can use to derive meaning and intent from the writers of the statute. This search for "Legislative intent" is sometimes easy if there is a part of the statute stating specifically what the Legislature was trying to do. Without that, however, judges will look at what the plain and simple language would mean. If that does not help, then they can look at the surrounding language, the other terms, what might be excluded, what would make the language harmonious with the other laws on the topic... All kinds of factors are examined to determine what the law is trying to say. However, if the ambiguity is found in a contract, the options are different and depend on whether the ambiguity is an obvious mistake ("Art is the Buyer" and then, later "The Buyer, Bert" is written in the same contract) or whether it is a more sneaky ambiguity. Here is where the comma comes into play. The Tariff of 1872 misplaced a comma, resulting in fruits not being subject to the tax. The tariff was trying to say that fruits and fruit plants would be subject to the tariff, but, by placing a comma where it did not belong, fruits become tax free and only fruit-bearing plants were subject to the Tariff. Another is a case where there would be no overtime payments for work done for "...drying, marketing, storing, packing for shipment or distribution" of foods. Because there was no comma between "shipment" and "distribution," the Court found it questionable if "shipment and distribution" were one joint act or two separate ones. The result? Workers got their overtime payments. Now, we have a case, decided July 22, 2026 by our appellate court, that a comma found between "construed according to the laws of the State of Florida" and "with venue in Collier County," created an ambiguity allowing venue to be set in another County (Martin). The comma controlled and there is an ambiguity, allowing the action to be filed in Martin County, rather than Collier. The benefits of filing in one county verses another, well, that would be an entirely different article.  Just remember: Watch those punctuation marks folks! Ambiguities may be found everywhere!