State efforts to impose work requirements for Medicaid benefits is subject of lawsuit

Under the federal Medicaid statute 42 USC 1396__ there is a provision called “Section 1115 waiver” which is designed to enable States to try out variations on their Medicaid programs to reach broader segments of the population. The pertinent section of the Waiver is:  QUOTE HERE

In mid-January this year, CMS announced a policy in which it authorized States to develop programs that would require certain Medicaid-eligible persons (non-elderly, non-disabled, non-pregnant adults) to be employed or to participate in ‘community engagement activities” such as skills training, education, volunteering, job-searching or caregiving, as a condition for ongoing receipt of Medicaid insurance benefits. Ten states have responded to date. The first such waiver request that was approved is Kentucky’s. Poor adults must be work or person community engagement activity  20 hours a week to retain their health insurance under Medicaid. Kentucky is also imposing cash premium obligations on these Medicaid recipients, copayments for non-emergency use of an emergency room, and elimination of payment for non-emergency medical transportation. No doubt a significant increase in the State’s Medicaid bureaucracy will be required to create or implement all of these community engagement programs and to monitor the participation and prevent erroneous terminations of benefits. I wonder if the cost of all that has been compared to the cost of the lost Medicaid benefits.

The Kentucky waiver has been challenged in federal district court. There are 15 individual plaintiffs who are adversely affected by the new requirements. Click HERE for discussion and details. A major basis for the challenge is that the CMS invited and approved waiver requests that violate the purpose and objectives of the Medicaid Act that were articulated by Congress. The critical requirements for Medicaid eligibility have been resources, income limits, settings for delivery of services, and in many cases, transfer penalties. Under the existing statute, which is part of the Social Security Act, the Secretary of CMS can waive a state’s compliance with certain Medicaid requirements when a State proposes an “experimental, pilot, or demonstration project which, in the judgment of the Secretary is likely to assist in promoting the objectives of” the medicaid program. Stated another way, a Waiver needs to further the objectives of the Act, not reduce the availability of services to otherwise-eligible individuals. NAME OF SUPREME COURT CASE?? So, for example, States have implemented Home and Community-based Services or Assisted Living services under the Medicaid waiver, or have enabled people whose income exceeded three times the federal poverty limit (the “income cap”) to receive Medicaid services.

The new process appears to be encouraging States to come up with ways to restrict the number of needy people who can receive Medicaid health care benefits. The obligations will be onerous or impossible for some people. A person may have no control over his/her ability to secure 21+ hours of employment. A person with a poor employment history and limited skills may find it impossible to find community volunteer work.

There’s no indication that New Jersey is pursuing any of these onerous obligations. We shall see what emerges on the national front.


Beauty and pleasure of growing old with a positive attitude

New York Times writer John Leland wrote a marvellous, lengthy article that was published by the Times on December 31st. Three years ago, he began following the life activity of six New Yorkers who are in their 90’s. I just loved the article and wanted to give it a “shout-out” here. Click HERE for link to read the piece for yourself. One woman told him, “What keeps me going is when you’re lively. You’ve got to be lively.You can’t be an old beckyhead.” I’m not sure what that word means, but she found a new romance at the nursing home where she must live — another resident who is also in his 90’s.

I wrote this song in honor of people like these. I call it “Two O’Clock.”

“This nursing home’s a lovely place, I walk the halls with style and grace. My sweaters match my pants and scarf. A nice red bracelet tops it off.

“They help me dress, they help me groom. I lose my way, can’t find my room. At dinnertime, they come for me. They bring me cookies with my tea.

“You think I’m just like her, or her. Aged body, mind a blur. But I’m still here, please don’t forget: I was a dancer. I’m not gone yet.

I once was up there on the stage, my name in lights on Style page. I leapt, I whirled, was caught mid-air, a bird in flight, such brilliant flair! And I performed in many halls, adored the thrill of curtain calls. I had such fans, they followed me, from town to town and big cities.

“Now every day is just the same. I can’t remember my last name. And sometimes when they look at me, I wonder what it is they see, BUT!! Two o’clock is time to dance! I’m in the limelight, it’s my chance,  to whirl, to reach, to take a bow, I was a dancer, I’m still here now. Yes two o’clock it’s time to dance, and I’m still here, it’s still my chance…  to whirl, to reach to take a bow, I AM a dancer, I’m still here now.”


Call for elder care planning for a good old age … 732-382-6070



CCRC Refund Bills are under consideration in NJ Legislature

When a person moves into a unit in a Continuing Care Retirement Community (CCRC),s/he is paying hundreds of thousands of dollars up front for the privilege of exclusively occupying a certain unit. There will also be  ongoing monthly service fees, and typically an extra fee if another person resides in the unit such as spouse or friend. The contract must contain explicit provisions explaining what the refund policy is for when the individual vacates the unit, whether that happens as a result of death or choosing to move out. The percentage to be refunded is related to the price paid for the unit, and generally there are a few choices in that regard. Also, the timing for release must be specified in the contract. Click HERE for the New Jersey consumer handbook on CCRCs.

The main problem people run into is that the refund is contingent upon the unit being re-leased to a new individual. At times when the market is very slow, this has caused extravagant delays which have an adverse impact on either the individual or the heirs of their Estate. Legislation was again introduced in the New Jersey legislature this session to try to put limits on how long a CCRC could hold back the release of the deposit. The bills would require the deposit to be refunded no later than 60 days after the unit is resold or one year from the date the individual vacates the unit, whichever is sooner. 

I think the bills should be supported. It it is imminently reasonable to put some frame around the refund process, because there are interests on both sides, and so far, it’s been one-sided. If this issue is of interest, spread the news to your colleagues and senior citizen social groups. Contact your legislators. The bills are S1411 and A880. 

Call for review of CCRC contracts, senior life care planning, and individualized long term plans … 732-382-6070

Tips on Residents’ Rights in Nursing Homes: Individualized Plan of Care Required

Once a person has moved into a nursing home, they are situated in a health care facility and receiving patient care, but they are also living there, and are therefore referred to as a “resident” rather than as a “patient.” The critical laws governing Residents’ Rights are the federal Nursing Home Reform Act, 42 USCS ‘ 1395i-3(b) and 42 CFR ‘ 483.10, and its state counterpart statute (N.J.S.A. 30:13-1 et seq.) and regulations.  It is plain that some of the rights contained in the law reflect privacy rights that pertain to a citizen no matter where he or she lives.

A nursing home is required to provide services for each resident in manner designed to preserve the resident’s dignity and to attain and maintain highest practicable physical, mental and psycho-social well-being of the individual resident based on his or her individual needs, and must abide by the Nursing Home Resident’s Rights Act, 42 USC 1395i-3(b), (c), 1396r; 42 CFR  483.10 et. seq., 483.12, 13, 15; 4.25, 483.30B; 483.60, 483.65, and 483.70; NJS 30:13-1 et. seq.; NJAC 8:39-4.1. For case discussions, see; In re Keri, (NJ Supreme Court. 2004); Profeta v. Dover Christian Nursing Home, (N.J. App. Div. 1983).

The federal regulations implementing the Nursing Home Reform Act, 42 CFR ‘ 483.12, requires the facility to develop an individualized plan of care that will maximize the well-being of the individual resident. Services must be provided without discrimination based on payor source. This means that the same level of service must be provided to the private pay resident as to the Medicaid recipient. Input from the resident, resident’s next of kin or fiduciary, and the attending physician and registered professional nurse responsible for the resident’s care should be obtained whenever possible. 42 USC 1395i-3(b)(2), 42 USC1396r(b)(2). An initial plan of care is developed and is then reviewed at regular intervals.

The resident has an enforceable right to have a specific level of care to maintain or assist the resident to perform daily living activities which include but are not limited to maintaining nutrition and hydration and avoiding accidents.  This means that if the resident cannot feed herself, the facility must include manual feeding in the personal plan of care. The facility cannot maintain that it’s too time-consuming to do so. Similarly, if the resident tends to try to get out of bed or walk on her own, the facility has to include safety arrangements such as higher supervision within her plan of care. The facility cannot insist that the family provide extra personal aides to deliver services that are needed to protect these residents’ rights.