Q. My wife and I are both on SSI and Medi-Cal and we just received $1,200 under the federal stimulus program, and hope to receive another round if Congress and the new administration approve more. Will these payments mess up our public benefits, which we depend upon?

A. The short answer is “No”. Some background may be helpful:  As you may know, the basic Medi-Cal and Supplemental Security Income (“SSI”) rules are  that both income and assets are considered in terms of eligibility. If the stimulus payments were considered income, they would potentially undermine that eligibility or at least increase the Medi-Cal recipient’s Co-Pay (“Share of Cost”) for health care services. Also, since the value of countable assets of recipients on SSI and/or Medi-Cal must be under the permissible resource ceilings, there was also concern that these stimulus payments would put many over these ceilings and result in their termination from these vital public benefit programs.

Because of these concerns, immediately after the last round of stimulus payments in April, 2020, the Commissioner of Social Security issued an important statement  which recited, in part, as follows:

“Please note that we will not consider economic impact payments as income for SSI recipients, and the payments are excluded from resources for 12 months”. [Emphasis added]

Because federal public benefits law provides that state Medicaid (Medi-CAL) programs cannot impose eligibility requirements that are stricter than SSI requirements, the Commissioner’s pronouncement of favorable treatment for the SSI program essentially resulted in the extension of the same treatment to the Medi-Cal program. Thus, the stimulus payments will not count as income, nor will they count as resources for at least 12 months after receipt. This should give you and your wife some measure of comfort.

In accord with federal law, the Medi-Cal folks in Sacramento then issued a statewide directive to all counties further clarifying this matter, essentially affirming the Secretary’s statement of ‘no effect’. While they have not yet issued another statewide directive with regard to the last round of stimulus payments a few weeks ago, my contacts at the Department of Health Care Services in Sacramento assure me that the same treatment will apply, again, and that a further written directive to that effect will issue soon.

There is one caution, however: if the stimulus payments are saved, and not spent within the 12 month grace period, then they will thereafter count as resources, and that circumstance could then undermine a beneficiary’s ongoing eligibility.  However, if the stimulus payments are spent in the interim, or used to purchase exempt resources (e.g. funeral plan, clothing, automobile, home repair, etc.), then there would be no adverse effect even after that 12 month grace period.

Further, these stimulus payments will not be counted as income for purposes of the various subsidies available to qualify for health insurance under plans available through Covered California. However, Pandemic Unemployment Benefits will count.  See the resource listed below for further detail.

Lastly, for folks reading this article, please do not confuse economic stimulus payments with unemployment assistance payments. The latter will count as income in the month received, and if not spent in the month of receipt will count as an asset as of the next following month. So be careful to distinguish these subsidies.

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For readers wishing more information, please see the resources listed below, along with hyper-links to the articles:

References:  Medi-Cal ‘All County Welfare Directors’ Letter’, ACWDL 20-09 (04/27/2020);

Treatment of Stimulus Payments by Covered California; Treatment by IRS;

Q & A’s prepared by Neighborhood Legal Services of LA County;

Statement by Commissioner of Social Security (04/03/2020);

Health Affairs Blog entitled “Coverage Provisions in the 2021 Appropriations & COVID 19 Stimulus Package”, (01/04/2021);

Nursing Home Residents, Medicaid, and Stimulus Checks: What You Need to Know, by National Center on Law & Elder Rights (“NCLER”);

Summary prepared by the Social Security Administration (5/14/2020), “Economic Impact Payments for Social Security and SSI Recipients—Steps to Take and Schedule of Payments”

Q.  In talking with friends, I discovered a lot of misunderstanding about how the Medi-Cal program works if one needs help with the high cost of nursing home care. I wonder if you would clarify matters.

A. Sure. I have also discovered much misunderstanding, even among care professionals. Here are the most common “myths” regarding the Medi-Cal program for those needing help with the cost of care:

Myth #1Nursing home Medi-Cal is just for persons at or near the poverty level.

Fact: Not necessarily. Persons with substantial assets can often qualify for a Medi-Cal subsidy, providing planning is in place and that proper steps are taken at the time of need.  This is especially true in the case of married couples, where both federal and state law include Spousal Impoverishment provisions designed to subsidize the cost of care for the Ill Spouse, while preserving a “nest egg” of income and marital resources for the At Home spouse.

Myth #2The state can force you to sell your home in order to qualify for a nursing home Medi-Cal subsidy.

Fact: False. Your home is an exempt asset during your lifetime and the state will not force you to sell your home in order to qualify for a Medi-Cal nursing home subsidy. However, the home exemption usually expires on death (or upon the later death of the surviving spouse or disabled child), and Medi-Cal may then seek to recover benefits paid out on your behalf, often by placing a lien on the home.  Good news:   By taking appropriate steps during your lifetime, you can fully protect your home from a post-death Medi-Cal payback claim. One option is to place the home in a Living Trust.

Myth #3If you give all of your savings to your children, you can immediately qualify for Medi-Cal.

Fact: False.  Medi-Cal has a “look back” period, which is currently 30 months in California, and which will ultimately be extended to 5 years. Significant gifts made within that “look back” will usually result in a period of disqualification.  However, if gifts are handled in a very special way, they can still be made in a manner which is both compliant with the Medi-Cal rules and which will not result in disqualification.  However, to avoid running afoul of the gifting rules proper guidance from an Elder Law attorney is essential.

Myth #4If you put all of your assets into a Living Trust, they do not count when applying for a Medi-Cal subsidy.

Fact: False. Placing assets into a Living Trust does not shield them from being considered at qualification, as you normally retain the right to revoke the trust. The Living Trust is therefore disregarded when Medi-Cal considers your resources. However, it can shield those same assets from post-death Medi-Cal “recovery” claims (“pay-back”), and hence is often a recommended option for Medi-Cal beneficiaries.

Myth #5If you convert from private pay to Medi-Cal, the nursing home can ask you to leave.

Fact: False. If the nursing home is Medi-Cal certified, it is illegal to evict you when you seek a Medi-Cal subsidy.

Myth #6Medi-Cal planning is illegal or unethical.

Fact: False. Medi-Cal planning is perfectly legal and ethical. In our view, it is akin to tax planning in which the wealthy engage. Both types of planning do impact the public treasury. To be sure, tax avoidance planning has a far greater impact than Medi-Cal planning.

Q.  I understand that the recently passed Proposition 19 on the California Ballot will make major changes in the property tax structure.  Is that true?

A. Yes, indeed. California voters just narrowly approved Proposition 19, overhauling our property tax rules originally stemming from the passage of Proposition 13 in 1978. Most notable are the new restrictions to the parent-child exclusion established by “Prop 58” in 1986.

Here are some of the features of the new law, with the corresponding “winners” and “losers”:

The “Winners”:

Seniors over age 55, persons who are severely disabled, and victims of wildfires or natural disasters, are the “winners”, as the new law allows them to transfer their home’s low property tax rate to the purchase of a replacement home anywhere in the state, albeit with only modest adjustment in property tax if the replacement home’s taxable value is more than the original residence. Under existing law, seniors could only opt to do so if they purchased a replacement home within their own county (or within nine (9) designated other counties who opted into the program), and then only once in a lifetime.  After April 1, 2021, this new right may be exercised up to three (3) times during lifetime by seniors’ and the disabled, and unlimited times by victims of natural disasters, all so long as the re-purchase occurs within two (2) years of the sale of their original residence.

The “Losers”:

Children, who had hoped to inherit their parents’ home and up to $ One Million of other property, along with their parents’ low property tax rate, are the losers.  Since the passage of Prop 58 in 1986, children have been able to retain their parent’s low tax rate when property passed from parents to children via sale, gift or inheritance. That blanket rule has now been substantially modified: Under newly enacted Prop 19, a child will not be able to assume his parents’ low property tax rate for their home, unless the child actually moves into the parents’ home and claims it as his own principal residence within a year of the transfer. This will pose problems for children who already have their own homes. Further, even if the child moves in, the carry over tax rate will still be increased if the value of the home upon transfer to the child is greater than $One Million more than the parent’s taxable value. Still further, there will be no carry over tax benefit at all for the transfer of non-residential property.

This move-in requirement and the prospect of some property tax increase even then, will make it more difficult for children to inherit and keep their parent’s home and other real property.  Many will be forced to sell.

Window of Opportunity:  The effective date of the new rules regarding the Parent–Child Exclusion is 02/16/2021. This delayed effective date creates a short window of opportunity for those parents who wish to pass their homes and other property, along with their low property tax rate, to their children under existing law.  But before any parent does so, he or she should first consider the “downside” of doing so, including the following:

(1) Capital Gains Taxes:  A present transfer surrenders the adjustment to the property’s cost basis at the parent’s death, which would otherwise eliminate all taxable appreciation from the time of the parent’s original acquisition to the time of the parent’s death. This loss would substantially increase the capital gains tax payable when the child later sells the property;

(2) Long Term Care Needs:  The possible effect of such a transfer on the parent’s eligibility for a Medi-Cal subsidy to help finance long term care.

Need for Amendment to Estate Plans? Given the looming disparity in property tax treatment of residential versus non-residential (investment) properties after 2/16/2021, there may also be need for parents — who own both kinds of properties — to reconsider their existing estate plans, so as to preserve fairness among their children who wish to retain their inherited properties, thus “burdened” with increased property taxes.  Alternatively, in order to discourage post-death challenges by disgruntled children, parents may wish to include recitals in their trust and related documents that they have at least considered these potential disparities in making their bequests to their children.

Q.  My wife and I are considering making large gifts to our two children and four grandchildren, and we would like to do so in a way that is “tax wise”. Do you have any advice for us?

 A. Yes. Many people mistakenly believe that one cannot gift more than $15,000 per year/person without incurring a gift tax. Not so. In fact, an individual can actually currently gift more than $11 million during lifetime without incurring a gift tax. Here is the way gift taxes work:

Annual Exclusion Gifts: No Gift Tax Return Required:

1) $15,000 Per Year:  You and your spouse can each gift up to $15,000 per year per recipient without the need to file a Gift Tax Return. Such gifts are called Annual Exclusion Gifts and you can make such gifts to as many individual persons as you wish each year, provided that you make only one such annual gift to each recipient.

2) “Doubling Up”:  If you and your wife are in a position to do so, together you can actually double that amount for each gift recipient. So, together, you could gift a total of $30,000 to each recipient for a total of $180,000 to your loved ones ($15,000 x 2 donors x 6 recipients), again without the need to file a Gift Tax Return or incur any actual gift tax.

3) Year End Straddle: On or after January 1, 2021, you and your wife could do the same thing once again, as you would then be in a different tax year.  So, over the course of a period as short as a calendar week – provided that the week straddles both the last days of this year and the early days of next year — the two of you could gift a total of $360,000 ($180,000 x 2 Donors) to your 6 recipients without the need to file a Gift Tax Return or use any of your lifetime exemptions. I call this strategy the Year-End Gift Straddle. 

Gifts Above the Annual Exclusion: Gift Tax Return Required

1) Lifetime Exemption: If you choose to make gifts above the Annual Exclusion Amount (“AEA”), then you can still make them gift tax free by using a portion of your Lifetime Exemption (also called the “Unified Credit”). That Lifetime Exemption is currently $11.58 million per person for U.S. citizens, and increases to $11.7 million per person next year. AEA gifts do not count against this exemption, and they can be made in addition to Lifetime Exemption gifts.  Also, by making a timely election after the death of a spouse, the surviving spouse can opt to preserve the deceased spouse’s unused Lifetime Exemption for the survivor’s own later use, thereby effectively doubling it. This is called “portability”.

2) Gift Tax Return:  To the extent that your gifts exceed the Annual Exclusion Amount, you must file a Gift Tax Return even though no actual gift tax would be due, so long as less than the Lifetime Exemption. Reason: the IRS wants to track your use of your lifetime exemption, so that it knows how much you have left to use upon death. Example: if you used $1 million of your lifetime exemption to make excess gifts during life, then your remaining exemption to apply against estate taxes upon death would be $1 million less.

Cautions:  Before making large gifts, be sure that you can afford to do so. Lastly, if there is a possibility that either of you may need to apply for a Medi-Cal subsidy for nursing home care in the near future, you should consult a professional with special knowledge about the Medi-Cal program before making those gifts: Gift transfers may adversely affect your ability to qualify for a Medi-Cal subsidy unless those gifts are handled in a very special manner.

 

Q.  Has there been any word as to whether there will be a cost-of-living increase in Social Security in 2021?

A.  Yes. Just recently, the Social Security Administration announced a 1.3 percent rise in benefits in 2021, an increase even smaller than last year’s cost-of-living increase.

Cost-of-living increases are tied to the consumer price index, and a modest upturn in inflation rates and gas prices means Social Security recipients will get only a slight boost in 2021. The 1.3 percent increase is similar to last year’s 1.6 percent increase, but much smaller than the 2.8 percent rise in 2019. The average monthly benefit of $1,523 in 2020 will go up by $20 a month to $1,543 a month for an individual beneficiary, or $240 yearly.

The cost-of-living change also affects the maximum amount of earnings subject to the Social Security tax, which will grow from $137,700 to $142,800.

For 2021, the monthly federal Supplemental Security Income (SSI) payment standard for those beneficiaries living independently will be $954.72 for an individual and $1,598.14 for a couple, which amounts include the California supplement.

In some years, a small increase in the Social Security benefit has meant that the additional income is entirely consumed by higher Medicare Part B premiums. But this year, that shouldn’t be the case. The standard monthly premium for Medicare Part B enrollees is forecast to rise $8.70 a month to $153.30. However, due to the coronavirus pandemic, under the terms of the federal short-term spending bill recently signed, the increase for 2021 will be limited to 25 percent of what it would otherwise have been.

Most beneficiaries will be able to find out their specific cost-of-living adjustment in December of this year by logging online into my Social Security . While you can still receive your increase notice by mail, you have the option to choose whether to receive your notice online instead of on paper.

For more on the 2021 Social Security benefit levels, visit https://www.ssa.gov/news/cola/

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Gene L. Osofsky wishes to thank Harry Margolis, Esq., of MA for permission to revise and publish this article.

 

 

 

Q. My wife suffers from dementia and has been in a nursing home for some time. About a year ago, we put everything in my name so she could qualify for a Medi-Cal subsidy to help pay for her care. We currently have only simple wills which leave everything to the survivor of us, and then to our two children. Is this the best plan?

A. Probably not, and here’s why: if for some reason you predeceased her, then all of your assets would go to her. These assets would then put her over the $2,000 Medi-Cal resource ceiling for an unmarried individual, and she would be terminated from the program and lose her subsidy. She would then have to use these very assets to pay for her care, potentially depleting a lifetime of savings and leaving little or nothing as an inheritance for your children.

A better plan would be to change your own will and trust so that if you predeceased her, your assets would go into a Spousal Special Needs Trust (“S-SNT”) for her benefit. The S-SNT is a special trust which would hold these assets in the name of a “friendly” trustee, who would use them to pay for extra things for your wife not provided by Medi-Cal, such as a TV in her room, occasional outings, and perhaps companion visits. Because the assets would be owned by the trustee, they would not count as hers and would thus not undermine her continued eligibility for Medi-Cal. One of your children could serve as trustee.

Upon her later demise, the balance remaining would go to your children or other designated beneficiaries.

This special S-SNT requires that your plan be structured in a very special way. Because of a quirk in the law, it must be created by Will, and not by trust. In this sense the S-SNT created for a spouse is very different from the Special Needs Trust sometimes created for a child or grandchild on public benefits.

Your plan could still use a trust and companion will. They would be structured so that they worked together but contained a kind of “toggle switch”:  If your wife predeceased you, then upon your own later demise they would pass everything to your children by trust.  But, if your wife survived you, the “switch” would trigger and trust assets would, instead, transfer to your Will to create the S-SNT for her.

Because the S-SNT for a spouse must be created by will, it requires some involvement by the probate court after your demise. Fortunately, this requirement does not necessarily mean that your estate would need to go through a full probate. It only requires that, after your demise, a petition be filed in the probate court seeking an order formally establishing the S-SNT and authorizing its funding from your probate estate. Once the order is granted, your estate assets would be so transferred, and the probate could then be closed.

This plan does require that it be in place before your demise and its design and implementation does require special skill by an attorney with specialized  knowledge regarding Medi-Cal planning.

Note:  A variation of this plan would be suitable for a couple, presently in good health, who wish to plan for the possible future long term care needs of the survivor of them.

Q.  I am thinking about giving my home to my son now, so that probate can be avoided and my affairs simplified when my time comes. Any comment as to whether this plan makes sense?

A.  Caution: Giving your home to your son during your lifetime can have adverse income tax consequences. Example: assume that you purchased your home many years ago for $50,000, and suppose it is worth $750,000 today. If you give it your son during your lifetime, he “steps into your shoes” and the IRS will treat the home as if your son had acquired it for $50,000.  This is called “carry over basis”. If he then sells the home for $750,000, he will be obliged to recognize the $700,000 difference ($750K – $50K) as capital gain and pay tax accordingly. This could result in a whopping tax bill for him and actually lessen the net value of your gift.

True, there would be some relief from this tax situation if your son moved into the home and lived in it for at least 2 years before sale.  In that event, he would be entitled to exclude a part of the capital gain, i.e. $250,000 if he is then single and up to $500,000 if married. However, this 2 year principal residence requirement is often impractical if your son already owns a home, and even more impractical for parents who have more than one child to whom they wish to give their home.

By comparison, if you hold the home until your death and pass it to your son as an inheritance, this tax problem can be avoided. The IRS will then treat the home is if your son had acquired it at its date of death value.  In tax parlance, the home’s tax basis would be “stepped up” to its market value at the date of your death. Example: if it is worth $950,000 at your death and your child then sells it for $950,000, his capital gain would then be “0” and no tax would be due.  Quite a difference!

In your situation, you may wish to consider a Living Trust, which would accomplish your objective of avoiding probate while simultaneously obtaining the favored tax treatment which accompanies transfers upon death. This arrangement would also allow you to retain home ownership in case you later need to obtain a reverse mortgage to help with your future long-term care expenses.

Sometimes parents who have received long term care benefits from the Medi-Cal program, consider a gift of their home in order to avoid a Medi-Cal recovery claim after their passing . However, if that is the motivation, there are ways to both avoid a recovery claim while still preserving favored tax treatment.  If this is a concern, professional guidance from an attorney knowledgeable in Medi-Cal planning is extremely important.

Important Note:  the Real Estate Property Tax consequence of gifting real property is an entirely different matter from the Income Tax Consequences addressed in this article, and will be the subject of a future article very soon, especially in view of the recently passed California Proposition 19.

Q. What options would I have this year regarding my IRA Minimum Required Distributions, which I would normally take by year end?

A. Good question. Here are three. While not intended as an exclusive list, they are top of mind for me:

Option #1: Skip MRD’s Altogether This Year.  This is a new option for IRA owners who would otherwise be required to take Minimum Required Distributions (“MRD’s”).   In response to the Corona Virus Pandemic, Congress passed, and the President signed, three major bills this year aimed at lessening the economic impact of the Covid Pandemic and restoring economic vitality to the nation’s economy.  One of them is called the Coronavirus Aid, Relief, and Economic Security Act (i.e., the “CARES Act”). One of its provisions allows IRA owners–who are of an age that would otherwise require them to take Minimum Required Distributions (“MRD’s”) before year end–to skip the MRD withdrawal altogether this year.  This is really something new.  For IRA owners who can afford to do so, and who would prefer to see their IRA grow and/or would prefer to forego the additional taxable income this year, this may be an excellent choice. If you have already taken your distribution and would prefer to return that to your IRA, check with your financial advisor or IRA Custodian to find out if you can still do so, as there are special rules that would apply in that situation.

Option #2: Make A Qualified Charitable Donation With Your MRD’s: You can arrange to allocate all or some of your IRA MRD’s to a charity of your choice. The contribution would still count toward the required MRD’s, but the distribution will not be included in your taxable income. However there are special rules that would apply: Notably, the contribution must be made directly from your IRA to the charity; it cannot be made to you initially, with you later turning around and sending the funds off to the charity. Check with your IRA custodian to see if it offers this service. I understand that Fidelity, Vanguard, T. Rowe Price, Charles Schwab and Wells Fargo offer this option to their customers. Important Note: the charity must receive the contribution and cash the check before the end of the tax year to make this work. Although you will later receive a Form 1099–R, it is up to you – not your IRA custodian – to properly report the contribution as a nontaxable Qualified Charitable Donation.

Option #3: Fund a 529 Plan for Your Grandchild. If you have been thinking of funding, or contributing to, a 529 educational plan for your grandchild, this might be an excellent place for the money. True, this distribution will be taxable income to you initially, but once you fund your grandchild’s 529 plan, the contribution will grow, and can ultimately be withdrawn, income tax free so long as used for qualified educational purposes.

If none of these appeal to you, check with your financial advisor, as there may be other options for you to consider.

Q. I lost my job due to the Covid Pandemic, and now find that I am having difficulty paying my rent. I am worried about being evicted from the home my wife and I are renting. Is there any advice you can offer?

A. Yes. County and State-wide eviction moratoriums have just been extended to the end of the year, at a minimum. Further, the Federal Government, acting through the Center for Disease Control (“CDC”), has just issued a nationwide halt to all residential evictions throughout the country until December 31, 2020, for eligible renters. The qualifications for this relief differ slightly with regard to each set of emergency orders, but qualifying under at least one Emergency Order (“EO”) should be relatively easy for most folks.

Here is a more detailed breakdown:

Alameda County’s Emergency Order: Under Alameda County’s EO, a landlord may not evict a tenant for failure to pay rent between March 24 and September 30, and also grants the tenant a full year to pay the overdue rent.  The moratorium now runs through December 31 “or 60 days after the state of emergency is lifted”, whichever is later. Of note is that some cities, notably Oakland, have their own moratoriums, with even stronger tenant protecitons.

State of California EO:  On August 31, 2020, Governor Newsom signed an EO protecting tenants from eviction and property owners from foreclosure due to the economic impact of the COVID-19 crisis.  The Order offers eviction relief which varies slightly depending upon when the rent arrearages accrued:  (1) for a COVID-19 hardship that accrued between March 4 and August 31, 2020, the tenant must provide a declaration of hardship; and (2) for one that accrues between September 1, 2020, and January 31, 2020, the tenant seeking relief must pay at least 25% of the rent due in order to avoid eviction. Landlords must provide their tenants with notice of their new rights under the Act and must provide hardship declaration forms.  This bill (AB 3088) also extends anti-foreclosure protections to homeowners under the Homeowner Bill of Rights Act.

Federal CDC Nationwide EO: Under its authority to control the spread of COVID-19, the CDC has also just issued its own moratorium on residential evictions, and the ban has nationwide effect. Its order, just issued a few days ago, is effective immediately, and prevents the eviction of tenants through the end of this year. To qualify for this relief, the tenant just sign a declaration as to income: a single tenant must declare that he/she earns no more than $99K a year, while couples filing taxes jointly must declare that they earn less than $198K per year.  They must also declare that they cannot pay their rent in full; that, if evicted, they would become homeless or be forced to move into congregate housing; and, that they made an effort to receive government assistance.  Note:  a previous federal eviction moratorium granted as part of the CARES Act ended in late July, 2020, and only applied to federally-funded or mortgage backed housing. Now, the newly issued CDC Order applies to all residential housing throughout the country.

As soon as available, we hope to have the requisite Emergency Orders and Declaration forms available for download by accessing this article on our website.

So, to your question: you have at least three layers of government moratoriums, County, State and Federal, to look for help.

References: CDC Ban as it appeared in the Federal Register. Scroll down to Attachment “A” for the wording of the necessary CDC Declaration;

Governor Gavin Newsom signs statewide eviction ban and foreclosure protections; California’s “Tenant, Homeowner, and Small Landlord Relief and Stabilization Act”; Text of California’s AB 3088: for the necessary recitals for the Declaration, scroll way down to § 1179.02(d) of the amendments to the Code of Civil Procedure.

“A Guide to Oakland’s Moratorium”.

“Resources for Advocates Assisting with Eviction Prevention”, by National Center on Law & Elder Rights.

Q. My wife has been in nursing home for about 6 months, and I haven’t been allowed to see her since March due to COVID-19. The facility has been in “Lockdown” and won’t permit visitors. I really miss her. Is there any way to get around this?

A.  Yes, there may well be a way to work around this blanket ban on visitation. The California Department of Public Health (“DPH”) just released a new directive which provides for both indoor and outdoor visitation, depending upon conditions. That directive is addressed to “Long Term Care Facilities” and, on its face, would primarily apply to nursing homes, but its directives should also guide other facilities, such as Assisted Living Facilities. In part, that directive provides for “Exceptions” to the visitation ban, and mandates rules for both “inside facility visitation” and for “outside” visitation, which I summarize as follows:

Exceptions: The list of exceptions to the ban includes health care workers, the Ombudsman, visitation for end of life, and –most interesting to me and my colleagues—visitation to take care of “legal matters that cannot be postponed.. such as estate planning”.

Inside Visitation: The directive requires the Nursing Home (more properly called a “Skilled Nursing Facility” or “SNF”) to allow the resident to designate one visitor for inside visitation, but subject to conditions, among them: absence of new COBID-19 cases in the SNF for 14 days. The SNF “shall” also offer alternatives for other visitors, e.g. virtual visits by phone or video communication.

Outside Visitation: If the conditions for inside visitation are not met, then the SNF “shall” provide outdoor and other visitation options, including:  allowing visits on the facility premises where there is 6 feet or more of physical distancing and with the wearing of masks. The outdoor visits may also include visits through a resident’s window.

In all cases, safety guidelines must be observed, such as visitor screening for fever and COVID-19 symptoms, physical distancing, and the need to disinfect visiting areas after each resident – visitor meeting.

The person to person visitation – whether inside or outside—should be arranged in advance with the facility.  If you receive pushback, you might consider sending a written request.  A sample letter, prepared by California Advocates for Nursing Home Reform (“CANHR”) is on its website, and a link to same is on our own website as apart of our on-line version of this article.

Likewise, a copy of the most recent directive from the California Department of Public Health is available on our site, and you may wish to include a copy in your letter. It is identified as AFL 20-22.4 (issued 8/25/2020) and is entitled “Guidance for Limiting the Transmission of COVID-19 in Long Term Care Facilities”.

For those readers whose loved ones are not in SNF’s, but are in other senior care facilities such as Assisted Living Facilities (“ALF’s”), I would suggest referring to CANHR’s guidance on topic, which is in the form of a checklist entitled “Visitation Rights in California Long Term Care Facilities During the COVID-19 Emergency”: page 2 has a checklist for visitation rights in “Residential Care Facilities For The Elderly”, which would include ALF’s. More recently, the CA Department of Social Services has issued “Updated Guidance” for Assisted Living Facilities, which is referenced below and was issued under date of 10/06/2020.

Visitation by loved ones is crucial to the well-being of residents, and I would encourage those visits, albeit with appropriate safety precautions.

References: CMS Guidance to Nursing Homes of 09/17/2020

CA Dept. of Public Health Guidance (8/25/2020); CANHR’s “Visitation Rights In California Long Term Care Facilities During the COVID-19 Emergency”; CANHR’s  “Visitation Guide for California Long Term Care Facilities and Hospitals”; CANHR’s “Sample Letter to Nursing Homes to Demand Outdoor Visitation

CA Dept. of Social Services “Updated Guidance” regarding Visitation for All Adult and Senior Care Program Residential Licensees; 10/06/2020; PIN 20-38-ASC

Visitation Exceptions for legal and other specified matters. See this summary from the CANHR website

Note:  This article appeared in the print versions of the Castro Valley Forum and the San Leandro Times on September 2 and 3, 2020, respectively.