Linda Ershow-Levenberg, Esq.

About Linda Ershow-Levenberg, Esq.

Linda is the managing partner at Fink Rosner Ershow-Levenberg, LLC. She takes care of legal problems involving people who are aged or who have disabilities, by protecting access to government benefits and helping them make the necessary arrangements for life-long assistance or care. Linda has been certified in Elder Law (C.E.L.A.) by the National Elder Law Foundation since 1999. She strives to provide her clients with responsive representation delivered with personal attention, compassion, and commitment. Find out more about Linda Ershow-Levenberg

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.


Tips on Residents’ Rights in Nursing Homes: Bed Holds

The Federal Nursing Home Reform Act and New Jersey Nursing Home Residents Bill of Rights along with their regulations create numerous enforceable rights and protections for nursing home residents. Among these are the obligations to keep the bed available for certain amounts of time if a resident is temporarily out of the facility.

There are times that a resident must be transferred to a hospital or psychiatric facility. As part of the admissions agreement, and again at the time a patient transfers to a hospital or elsewhere for therapeutic treatment, the facility must provide specific written notice of all bed-hold procedures that would apply in situations where a patient was transferred elsewhere for care. 42 CFR 483.12(b)(1). That notice must explain exactly how long the nursing home will hold the resident’s bed open. At the time of an actual transfer, another notice must be given to the resident and a family member or representative about bed hold policies and the duration of the hold for that absence.

When a NJ resident is transferred to a general or psychiatric hospital, New Jersey regulations require that the nursing home hold the bed open for up to 10 days. NJAC 8:85-1.14(a)(1). If the resident is receiving Medicaid, then Medicaid pays for the bed-hold days at the per diem rate. If the resident is private pay, the days are billed to the resident at the customary rate. If the resident stays away longer than the 10 days, the resident will receive the next available bed. NJAC 8:85-1.14(a)(3). If a physician certifies that the resident requires a “therapeutic leave” for rehabilitative home and community visits, the bed hold protections cover up to 24 such days out of the facility per year, separate and apart from the 10 bed-hold days for hospital care. . NJAC 8:85-1.14(b)(1) – (3). For Medicaid recipients, if the resident requires more than 24 days therapeutic leave in one calendar year, authorization can be sought from NJ DMAHS to pay bed holds for additional days. NJAC  8:85-1.14(b)(6). Of course, a private pay resident can simply make arrangements with the facility to keep the bed available, and will pay the normal daily rate.


For contract review, advice and representation in selecting a nursing home, navigating the admission process, protecting residents’ rights, and evaluating payment options, call us at 732-382-6070