For many senior citizens, being able to “age in place” and stay in their home is a really high priority. The obligation to use Medicaid dollars to support aged and disabled individuals in the least restrictive environment has been a cornerstone of federal policy since the Olmstead decision was issued by the Supreme Court in 1999. In addition to that there is the obligation to utilize “person-centered planning” and to individually tailor the services being provided. The New Jersey Medicaid Long Term Services and Supports (MLTSS) program which provides Home and Community based Services (HCBS) is required to develop procedures that will adequately address the needs of the individual so that he or she can be adequately supported in the community environment.
The Centers for Medicaid and Medicare Services issued an interesting “FAQ” on the subject of how to address the individual needs of a Medicaid recipient who has a tendency to “elope,” “wander” or “exit-seek.” While that FAQ is geared to program administrators and policy makers, it seems to me that it provides useful guidance to any of you who are engaged in senior care planning for someone who has this problem. For example: ” •Assessing the patterns, frequency, and triggers for unsafe wandering or exit-seeking through direct observation and by talking with the person exhibiting such behaviors, and, when appropriate, their families. •Using this baseline information to develop a person-centered plan to address unsafe wandering or exit-seeking, implementing the plan, and measuring its impact. •Using periodic assessments to update information about an individual’s unsafe wandering or exit-seeking, and adjust the person-centered plan as necessary.”
What I have learned over the years from the thousands of families I have advised is that, in an organic way, they are instinctively engaged in Person-centered service planning for their loved one. They try hard to sustain the activities that the loved one enjoyed and avoid the things that the person loathed. Out of a sense of respect and honor, they try hard to incorporate what has always mattered to their parent. Yet Elder care planning often needs to deal with new situations and behaviors that present themselves as a result of underlying dementia. Sometimes it isn’t clear whether the behavior is willful and intentional or is just an erratic problem triggered by unpredictable things as a result of Alzheimers or other dementia. In either case, the caregiver needs to find strategies to keep the person as safe as possible.
Call us for advice on elder care planning legal issues … 732-382-6070
When a senior or disabled patient who is on Medicare transfers to a skilled nursing facility for “rehab” after a hospitalization (of 3 days or more), a treatment plan is developed based on the physician’s orders, which incorporates all of the skilled care services which need to be provided in an inpatient facility by licensed personnel. Medicare Part A will pay for up to 100 days of such skilled inpatient care, provided that the patient meets the Medicare criteria. Once the criteria are no longer met, a termination notice is given, but the patient must act fast to appeal. As soon as you receive the notice, contact the Beneficiary Family-Centered Care Quality Improvement Organization (BFCC-QIO). They must act within 72 hours. If they affirm the termination/denial. you must contact them by noon the next day! Unbelievable, but that’s what it is. There’s a terrific packet of information and guidance provided by the non-profit Centers for Medicare Advocacy.
Restoration potential is not the sole basis to receive skilled care benefits. It’s a question of the patient’s clinical needs — the Medicare recipient must require “skilled nursing or skilled rehabilitation services, or both, on a daily basis.” This means 5 to 7 days a week, and the type of service is distinguished from custodial care which can be provided by non-licensed personnel. The old “rule of thumb” that certain conditions would only need “x” days to reach maximum improvement was never the law, as reaffirmed by CMS in the Jimmo case in 2013.
If the patient has missed the deadline to appeal, there is still the possibility of reinstating benefits. You need to ask the treating physician to prescribe ongoing skilled care if the 100 day limit isn’t exhausted and the doctor feels the patient requires that level of services. And in the meantime, therapy can be provided as “outpatient services” for the nursing home resident, there in the facility and billed to Medicare part B.
Senior care planning takes vigorous advocacy. As in most things, the squeaky wheel gets the oil, and family advocates should get familiar with these Medicare rules to helkp them navigate this complex system.
Call us for elder care planning and advocacy … 732-382-6070
When a person applies for Medicaid under the NJ MLTSS program after having made gift transfers during the most recent 5 years, there will likely be a penalty period in which Medicaid will not pay for the care that this person needs (unless the transfers were exempt, such as transfers to a spouse or disabled child). This transfer penalty is mandated by federal law, and the greater the amount that was transferred, the longer the transfer penalty will be. If an applicant addresses this issue before the end of his spend-down period, there may be opportunities to protect the applicant by using some of the spend-down funds to purchase an annuity contract that can provide the income needed to pay for care during the penalty period.
The type of annuities that fit the bill are highly restricted and are not designed to maximize the rate of return the way conventional annuities might be. The reason that the technique works is because under federal and state Medicaid law, a distinction is made between “income” and “resources.” Resources must be reduced to a certain level before the person can even apply for benefits. Income, on the other hand, is usually received on a monthly basis and is turned over to the facility as a contribution towards the cost of care (with certain deductions). For the annuity plan to work, the contract cannot be countable as a “resource” as defined by Medicaid law. We had successfully litigated an IRA annuity case with the NJ Division of Medical Assistance and Health Services (DMAHS) in 2009-10 (the P.K. case) PK FAD A few years later, after several cases were decided in out of state venues,Lopes 2nd Cir ; Carlini we successfully litigated a non-IRA annuity case against DMAHS in 2013 (the M.W. case; M.W. FAD 1-28-140001M.W. Initial ALJ decision ) leading to confirmation that if properly structured, an annuity effectively transforms countable resources into an irrevocable stream of income. If properly done, this technique can provide protection for the Medicaid applicant as well as his/her community spouse, and can also help to assure that there is a way to pay for care during an anticipated Medicaid penalty period.
Seniors who are planning for their care have many tools in their toolbox; the question is always which tools to use and how to get the results that the senior needs.
Call us to discuss a Medicaid spend-down plan that suits your circumstances … 732-382-6070
The new transition plan gives more opportunities to new residential service providers to explain how their congregate settings will integrate residents into the community while also balancing issues of safety and service provision. Previous rules limited the number of disabled individuals who could reside together in one place This seems like a common-sense approach to complex issues of balancing the needs of the disabled person with the values of community integration.
One area that we will continue to monitor is the rights of residents in assisted living facilities. The transition plan addendum states, “The DOH will take whatever steps are necessary, including potentially revising NJAC 8:36, to ensure that an agreement between an AL facility and each resident is in place and that the document provides protections that address eviction processes and appeals comparable to those provided under New Jersey’s landlord tenant law.” Having systemic landlord/tenant protections for residents of assisted living facilities (ALFs) is vital because ALFs fall in between the legal areas of landlord-tenant law and nursing home law, leaving ALF residents unsure of how the law protects them against wanton eviction.
Call us for advice regarding legal planning to protect the rights of persons with disabilities …… 732-382-6070