Court upholds Revocation of CNA Certification for tying nursing home resident’s wheelchair to handrail

A Certified Nurses’ Aide who worked in a New Jersey nursing home has lost her Certification for tying a resident’s wheelchair to the hallway handrail, causing agitation, distress and confinement of the resident. The act was found to constitute abuse & neglect, and this finding has been placed next to her name on the New Jersey Nurse Aide Registry.

An administrative hearing was conducted on her initial appeal of the revocation and listing by the Department of Health. The Administrative Law Judge found, after hearing testimony of witnesses, that she had caused abuse or neglect, and affirmed the Department’s decision. On appeal, the Appellate Division of Superior Court upheld the decision, saying “It is the public policy of the State “to secure for elderly patients, residents and clients of health care facilities serving their specialized needs and problems, the same civil and human rights guaranteed to all citizens . . . .” N.J.S.A. 52:27G-1. Thus, a resident of a long-term care facility “has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion.” 81 FR 68688, 68855 (2016); see also N.J.A.C. 8:39-4.1(a)(5). Such individuals are entitled “[t]o be treated with courtesy, consideration, and respect for the resident’s dignity and individuality.” N.J.A.C. 8:39-4.1(a)(12). To this end, “abuse” is defined as “the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish.” 42 C.F.R. § 488.301 (2003); see also N.J.S.A. 52:27G-2(a). “Neglect” is defined as the “failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness.” 42 C.F.R. § 488.301 (2003).” 

The case is Carmen Amador vs New Jersey Department of Health, A-4259-16T2, decision issued June 7, 2018. The written decision is not precedential (is not approved for publication) and is limited to its particular facts.

Call us for advice concerning nursing home placement, care plans and disputes …. 732-382-6070

New guide available for appeals of Medicaid Managed Care Decisions

Medicaid services are now provided through managed care organizations (MCO’s), which are required by federal law to provide a grievance and appeal process for the enrollees. An enrollee may be dissatisfied with the number of hours of service, or the services being provided, or a host of other issues. Three major nonprofits have collaborated on a new guide for advocates to help them in efforts to advocate for good regulations or to pursue these cases.

Justice in Aging , the Disability Rights Education and Defense Fund (DREDF), and National Health Law Program (NHeLP) have produced their ” Advocates Guide to Accessibility in Medicaid Managed Care Grievances, Appeals, and State Fair Hearing.” States are in the process of developing regulations and procedures on this issue, and the Guide is designed for those who are involved at any part of the process. You can download it through the website for Justice in Aging HERE.

The Guide provides useful general guidance on the typical procedures for these appeals. Of course, individual state laws will vary, and the guide doesn’t constitute legal advice that would apply to any particular case. If an adverse decision is received from an MCO, the individual must swiftly pursue the administrative remedies, as the appeal period is short, and it can be difficult to obtain waivers of that time limitation.

Contact us for representation on Medicaid eligibility or denials of services ……. 732-382-6070

Trouble afoot for Special Needs Trusts in New Jersey

A trend is developing in the State of New Jersey when it comes to the State’s review of the payments made by Trustees of Special Needs Trusts. Trustees are reporting that the State is raising objections to numerous types of disbursements made by the trustees. New Jersey rules require the trustee to file an annual accounting with the Division of Medical Assistance and Health Services, as well as a notification when a trust disbursement exceeds $5,000. Long after the fact, Trustees are receiving letters objecting to disbursements, threatening to disqualify a beneficiary from benefits if payments aren’t reimbursed by the trustee or by the third party vendor who received the payment.

The fundamental problem here is that the very purpose of a Special Needs Trust under federal and state law is to hold funds owned by and deposited by the disabled person before his/her 65th birthday, to be used for “sole benefit of” the disabled person “to supplement but not supplant” (replace) the services and benefits that are available from the governmental programs. Trustees are already diligent to make sure that the trust beneficiary has applied for all available services and supports. This is the express requirement of the New Jersey instructions. Yet now the State is saying that the trustees can’t spend trust funds to provide services that go beyond what the State programs authorize!

Consider for example the MLTSS [Medicaid] Home-and-Community-Based Program.  The State only allocates enough dollars to cover part-time care in a home setting. Even a person who would otherwise be in a nursing home will only receive enough of an allocation to cover part-time care. The criteria for clinical eligibility for MLTSS-nursing home care and MLTSS-home care are identical. But due to its budgetary choices, New Jersey will not pay for 24/7 services even for an individual who is bed-bound, or wheel-chair bound, who cannot feed themselves or bathe themselves or move their wheelchair on their own. A person like this may require a specially-equipped vehicle, which may cost a lot more than a conventional vehicle. The person may be receiving a modest income of $1500/month or less, of which 70% is consumed on the cost of shelter alone. There may be a person who will provide the necessary extra hours of service for a fee. But the State is now warning trustees that it cannot use SNT funds to pay for any hours in excess of what the Managed Care Organization authorizes — which is obviously not 24/7 care. This would result in the need to confine such persons to a nursing home – the most restrictive alternative, probably a violation of the Americans with Disabilities Act and the US Supreme Court’s Olmstead decision.

Trustees are encountering other problems as well, such as State objections to legal advice, or refusal to approve the trustee’s payment for preparation of income taxes which are a legal obligation of the beneficiary. The State is suggesting that if the Trustee pays a third party vendor a fair market fee for services, the trust isn’t for “sole benefit” of the disabled beneficiary and instead is “benefitting” the vendor. The result of all this is that the State is threatening to count disbursements are either income or a resource for the beneficiary, which will wreak havoc with his/her benefits, cause overpayments of benefits and disrupt contractual arrangements and payments that were already made.

If you are encountering objections by DMAHS (or SSI) to SNT expenditures, I encourage you to get in touch with the New Jersey Chapter of the National Academy of Elder Law Attorneys (NJ-NAELA) to report the issues. Contact the current President Lauren Marinaro at lmarinaro@finkrosnerershow-levenberg.com.

Call us for advice about special needs trusts … 732-382-6070

Tenancy by the Entirety – a form of ownership with special protections

In the recent case of  Jimenez v. Jimenez, N.J. Super. App. Div.(MAY 8, 2018) (approved for publication), the NJ Superior Court, Appellate Division rebuffed the efforts of a creditor to force the sale of a home owned by the debtor and his spouse as tenants by the entireties. Relying upon a New Jersey statute, the Court held that the legislature has prohibited spouses from severing their tenancy without the written consent of the other spouse, and therefore, the creditor of one spouse may not force such a severance in order to satisfy the debt. The statute is NJ Rev Stat § 46:3-17.4 (2013), which says: “Neither spouse may sever, alienate, or otherwise affect their interest in the tenancy by entirety during the marriage or upon separation without the written consent of both spouses. ” Before that statute was adopted in 2013, the Courts had discretion as an equitable matter to order a partition under certain circumstances. Newman v. Chase, 70 N.J. 254, 262 (1976).  The Jimenez Court did make a cautionary point: “That said, we do not preclude a remedy by a creditor against property held by tenants by the entirety when the title was deeded as a fraudulent conveyance in order to avoid known debts to creditors.”

What is Tenancy by the entireties? This  is a form of real property ownership reserved for lawfully married couples. The Deed normally uses language such as “X and Y, husband and wife,” or “X, married and Y his wife,” or perhaps “X and Y, wife and wife.” It must designate the marital relationship. In New Jersey, a couple who reside together but are not married cannot own property by the entireties. They may own the property jointly with survivorship, or they may own it together as “tenants in common” without survivorship. If the property is owned by a married couple by the entireties, then they each own 100% of all rights in the property, as neither spouse can transfer his/her interest without consent of the other spouse.  State law presumes that if a married couple acquire property, it is held by the entireties unless the Deed expressly states that they have a different form of ownership.

There are times that a married couple will choose to “sever” their ownership by transferring the property from entireties to tenants in common. However, all angles should be considered, since certain creditor protections could be lost while other objectives are accomplished.

Call for advice about senior care planning and property transfers ……… 732-382-6070