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

3-night stay requirement waived for Medicare Part A subacute benefits

Medicare Part A covers post-hospitalization, subacute skilled care and rehabilitation benefits for individuals who were admitted to the hospital and remained as inpatients for at least three overnights. Upon discharge to a subacute facility with a need for ongoing skilled nursing or rehabilitative services, Medicare would cover up to 100 days of treatment including the room & board costs, subject to co-payments and deductibles. In other posts, we have written about some of the issues that would come up for patients receiving such benefits.

In light of the exigencies caused by COVID-19 and the urgent need to transfer patients from hospitals to subacute rehabilitation facilities, Medicare has waived the three-overnight requirement for people in the hospital to get to subacute rehab. There have been demonstration projects around the country for several years involving waivers of the 3-day stay requirement. Medicare 3 day waiver. The March 13th announcement by the CMS Administrator specifies that ” Therefore, SNF care without a 3-day inpatient hospital stay will be covered for beneficiaries who experience dislocations or are otherwise affected by the emergency, such as those who are (1) evacuated from a nursing home in the emergency area, (2) discharged from a hospital (in the emergency or receiving locations) in order to provide care to more seriously ill patients, or (3) need SNF care as a result of the emergency, regardless of whether that individual was in a hospital or nursing home prior to the emergency. In addition, we will recognize special circumstances for certain beneficiaries who, prior to the current emergency, had either begun or were ready to begin the process of ending their spell of illness after utilizing all of their available SNF benefit days.” CMS’ 2020 SNF secn 1812f waiver

The patient and their advocate will need to be proactive as always in working with the physician and the SNF assessing staff to develop a treatment plan that provides the fullest possible range of services to meet the needs of the patients. Keep in mind that “failure to progress” is not the sole criteria for continued Medicare coverage for subacute care. However there is an increasing trend by Medicare insurance intermediaries to pressure the facilities to terminate coverage after just a few weeks. What do advocates need to do? Be vigilant, be vocal, be aware. Make sure that the patient you are assisting has signed HIPPA releases to enable you to access their protected health information and talk with the personnel on the team. Be vigilant, be vocal, be there.

NJ DMAHS announces initiatives to protect the most vulnerable

The State of New Jersey Department of Human Services has announced some initiatives designed to help assure continuity of care, access to medicine and nutrition assistance, for individuals who are dependent on programs such as SNAP, group homes, charity medical care, MLTSS home care and services in certain DDD-funded programs. As always, the real test will be in the details for how these initiatives will be administered, but many of the ideas sound great. Some of the efforts  that were announced through a press release on the 18th are these:

“Cash, Shelter and Food Assistance

  • Automatically extending for 60 days WorkFirst New Jersey cash assistance to individuals whose case is up for renewal in March or April;
  • Extending all Emergency Assistance cases through April 30;
  • Deeming the current state of emergency as a good cause exemption for the work requirements in WorkFirst New Jersey and SNAP and suspending all adverse actions for non-compliance;

“NJ FamilyCare/Medicaid

  • Covering COVID-19 testing, visits for testing, and testing-related services at no cost;
  • Waiving costs for COVID-19 testing, visits for testing, and testing-related services in the Children’s Health Insurance Program (CHIP);
  • Covering 90-day supplies of prescriptions for maintenance medications and early refills of prescriptions in Medicaid and CHIP; and
  • Directing hospitals to waive cost sharing for uninsured individuals who are eligible for charity care for medically necessary testing and testing-related services for the COVID-19 virus.

Supporting Older Residents

  • Mobilizing nurse care managers at Medicaid health plans to call high risk populations to identify and address their critical needs including supplies such as durable medical equipment and food;
  • Allowing older residents receiving prescription drugs through Medicaid or the state prescription drug assistance program (PAAD and Senior Gold) to refill their prescriptions early and receive 90-day supplies of   maintenance medications;
  • Working with our county partners to ensure that those receiving home-delivered meals continue to have access to food;

“For those receiving DDD services, 

  • Temporarily closing congregate day programs for individuals with intellectual and developmental disabilities and supporting this transition;
  • Providing flexibility to families to quickly hire workers and working closely with program providers and direct support professionals during the closure; ……. “

Tremendous partnership efforts will be needed across all sectors of government and society to take care of our most vulnerable citizens at this difficult time. Hopefully the DHS will focus on flexibility and practicality, minimize red tape and streamline the steps it takes to accomplish these laudable goals.

 

Call us for help with your urgent elder care problems ………… 732-382-6070

COVID-19 Testing available for Medicare beneficiaries

Medicare Part B generally covers medically necessary outpatient testing for beneficiaries. CMS has recently advised that if testing is ordered by the patient’s physician and the test is performed on or after February 4, 2020, it will be a covered service under Medicare Part B. Read more here.

The Centers for Medicare and Medicaid Services is issuing fact sheets and alerts that address corona virus-related concerns raised by Medicare beneficiaries as well as health care providers. Some of them are: guidance to home health care providers — anyone who hires a home care provider might want to study this and share it with their employee — expanded tele-health services to enable people to contact professionals for advice by phone; and specific guidance for specific health care settings such as nursing homes or dialysis centers. 

The Center for Medicare Advocacy (CMA) is an excellent source for updates about Medicare and for advocacy on legal problems with Medicare coverage that are encountered by enrollees. Another great source of help can be found at your local SHIP office — the State Health Insurance Assistance Program (SHIP).

Call us for help with your elder care law problems …… 732-382-6070

Restrictions related to Covid-19 particularly impact elders and people with disabilities

Everything is happening so fast it’s making our heads spin. The frail, dependent aged and disabled people in our communities are having a tough time of it. Starting today, Social Security Offices are only accepting telephone contacts and online contacts. COVID – 19 SSA press release     Health care providers are overwhelmed. County welfare offices are urging people to do their business on-line and avoid coming into the offices. Based on the CDC guidelines – click HERE — nursing facilities are barring the door except for end-of-life situations, and preventing concerned family members from entering the facility to oversee the care being provided. There are inadequate quantities of protective gear for the staff members who are caring for nursing home residents or patients who need home health care. Staffing levels are being affected. Under proposed regulations by the federal government, nursing homes will be able to cut their infectious disease staffs in  the interest of “less regulation.” What will this mean for the safety of the residents, in terms of infection control, potential bedsores, fall prevention and more?

Meanwhile, applications for crucial government benefits must be processed and new applications continue to flow in. County offices that are processing MLTSS/medicaid applications still expect people to produce missing documents in ten days under threat of a denial of eligibilityThe paperwork requirements for certain programs is staggering. The Centers for Medicare and Medicaid Services issued CMS FAQs that enable States to to address some current issues raised by this crisis. CMS covd-19-faqs-20200312 Clearly there’s a need for the Division of Medical Assistance and Health Services (DMAHS) to exercise its muscle and  ease certain requirements as an accommodation to the present emergency. I’m not talking about the core standards for eligibility, but rather, the reams of paper documentation that are required to prove eligibility for MLTSS/medicaid. The State could direct the counties to ease up on the short deadlines they give to the applicants to submit requested verifications. The State could direct the counties to accept reasonable explanations that show the impossibility of complying with a request. For example. if the applicant is mentally incapacitated and house-bound, and the Agent under Power of Attorney has contracted the corona virus or is quarantined, it may be utterly impossible to obtain some requested bank records or to produce proof about some transaction happened several years ago.

So many issues need to be urgently addressed so that people in need of benefits will not be denied due to inability to meet administrative requirements. And there needs to be a way to assure those who watch over their loved ones in nursing facilities to still be able to perform that crucial role.

We are here to help with your family’s elder law crises …… call for consultation 732-382-6070 

 

Arbitration Clauses in Nursing Home Contracts may be upheld

Under some circumstances, courts have refused to uphold arbitration provisions in nursing home contracts. Oftentimes, these provisions are upheld. There are a variety of considerations, including the legal authority of the person who signed the contract; the adequacy of notice; the opportunity to read and consider the contract before signing; and other factors. In Estate of Ruszala vs Brookdale Living Communities, the Appellate Division of  NJ Superior Court delved in detail into the competing considerations between “our State’s laws protecting the elderly and infirm against a national policy favoring arbitration as an alternative forum for resolving civil disputes.” Federal law concerning arbitration clauses in nursing home admissions contracts requires  — among other things — that arbitration be optional not mandatory, and that the resident’s right to remain in the facility cannot be contingent on signing a binding arbitration agreement,

42 CFR 483.70(n) spells out the requirements:

(n) Binding arbitration agreements. If a facility chooses to ask a resident or his or her representative to enter into an agreement for binding arbitration, the facility must comply with all of the requirements in this section.

(1) The facility must not require any resident or his or her representative to sign an agreement for binding arbitration as a condition of admission to, or as a requirement to continue to receive care at, the facility and must explicitly inform the resident or his or her representative of his or her right not to sign the agreement as a condition of admission to, or as a requirement to continue to receive care at, the facility.

(2) The facility must ensure that:

(i) The agreement is explained to the resident and his or her representative in a form and manner that he or she understands, including in a language the resident and his or her representative understands;

(ii) The resident or his or her representative acknowledges that he or she understands the agreement;

(iii) The agreement provides for the selection of a neutral arbitrator agreed upon by both parties; and

(iv) The agreement provides for the selection of a venue that is convenient to both parties.

(3) The agreement must explicitly grant the resident or his or her representative the right to rescind the agreement within 30 calendar days of signing it.

(4) The agreement must explicitly state that neither the resident nor his or her representative is required to sign an agreement for binding arbitration as a condition of admission to, or as a requirement to continue to receive care at, the facility.

(5) The agreement may not contain any language that prohibits or discourages the resident or anyone else from communicating with federal, state, or local officials, including but not limited to, federal and state surveyors, other federal or state health department employees, and representatives of the Office of the State Long-Term Care Ombudsman, in accordance with § 483.10(k).

(6) When the facility and a resident resolve a dispute through arbitration, a copy of the signed agreement for binding arbitration and the arbitrator’s final decision must be retained by the facility for 5 years after the resolution of that dispute on and be available for inspection upon request by CMS or its designee.

A recent case illustrates the analysis of a situation in which the aggrieved plaintiff’s effort to avoid arbitration was rejected by the Court. The decision is “not approved for publication,” and is not precedential; its decision is limited to its facts, but is still useful because it illustrates how these situations arise. Estate of Greenstein v. Regency Heritage Nursing & Rehab Ctr., LLC, N.J. Super. App. Div. (per curiam) (12 pp.) involved a situation in which Greenstein was admitted to a skilled nursing facility in 2013 and later developed medical complications. At the time of admission, HER daughter met with the admissions officer and was given a large stack of documents to sign which included notices about arbitration. Several years later, a suit was filed against the facility for damages due to alleged negligent treatment, and the facility moved to dismiss the suit and to enforce the arbitration provision of the contract. The Court found that the daughter had legal authority to sign the contract, and rejected her claim that there had been inadequate notice or inadequate opportunity to review the contract before signing. The dismissal was sustained.

One point that piqued my interest was that the trial judge found that  the daughter “had authority to sign the document as the responsible party acting on behalf of Greenstein,”  but in the appellate decision, there was no explanation of just what “authority” the daughter had. There’s no mention of her being a Guardian, or an Agent under Power of Attorney. So she may have voluntarily accepted obligations as “Responsible Party,” which is a voluntary assumption of obligation by a third party that is found in most admissions contracts for skilled nursing facilities and assisted living facilities. For more about that, see my previous posts. 

For review of admissions agreements and advice on nursing home care issues, contact us at …… 732-382-6070