Will Medicare ever pay for nursing home care?

Consumers of health care in old age likely consider nursing home care to be part of the continuum of health care that a patient may require. Yet health insurance plans do not pay for nursing home care because it isn’t defined as “treatment.”  Instead, it is classified as long-term care rather than “health care,” because the care is maintaining the individual and not really treating-to-improve a chronic or permanent health condition.

The 2017 Long-Term Care trends poll of the Associated Press-NORC Center for Public Affairs Research Survey revealed that more than half of those polled believe that Medicare and health insurance companies should cover some or all of these costs and that the federal government should be doing more to provide financial support to those who are providing the care in the home setting. This was the survey’s finding among those who identified as Republican as well as those who identified as Democrat.

A bill to start addressing an aspect of this issue was introduced in Congress by Sen. Orrin G. Hatch, R-UT, and is S-870.— “Creating High-Quality Results and Outcomes Necessary to Improve Chronic (CHRONIC) Care Act of 2017.” So far, the bill has been approved/passed by the full Senate. The Act  is designed to give some Medicare providers additional flexibility in the way they care for people with chronic conditions. This could be a first step toward including chronic, non-improving conditions in the category of “health conditions” for which Medicare dollars could be applied.  Co-sponsors include Ron Wyden (D-OR), Johnny Isakson (R-GA) and John Warner (D-VA). Read the legislation.

If this issue is of interest to you, contact your Representatives.

For advice and representation on nursing home care planning and challenges, contact us at …… 732-382-6070

Section 8 housing rules for live-in caregivers

Did you know that if a person with physical or cognitive disabilities resides in section 8 funded HUD housing, the law requires the Public Housing Agency (PHA) to allow a necessary home health aide to reside with the tenant? The concept is that the PHA is required to make a reasonable accommodation for the tenant’s needs pursuant to the Americans with Disabilities Act, to enable the participating tenant to reap full benefit from this federal housing program to enable them to dwell in the community and avoid nursing home placement. The regulation is in surprisingly plain English:

             “24 USC § 982.316 Live-in aide. (a) A family that consists of one or more elderly, near-elderly or disabled persons may request that the PHA approve a live-in aide to reside in the unit and provide necessary supportive services for a family member who is a person with disabilities. The PHA must approve a live-in aide if needed as a reasonable accommodation in accordance with 24 CFR part 8 to make the program accessible to and usable by the family member with a disability. (See § 982.402(b)(6) concerning effect of live-in aide on family unit size.)”

Normally, the income of other occupants of the apartment will be counted in the household income calculation for Section 8. However, if the person resides there because s/he serves as the live-in aide, his/her income is not counted. The criteria for exclusion of that person’s income are in the federal regulations and are basically that (1) the aide’s services are essential to the care and well being of the person(s); (2) the aide is not under a legal obligation to support the person(s) with the disabilities, and (3) the aide would not be living in the unit except to provide the necessary supportive services. The tenant needs to formally request the accommodation by submitting an application to the PHA. The tenant who is applying for this special accommodation would need to provide relevant and necessary medical proofs as to the disability and need for a live-in aide, including physicians’; opinion reports, and evidence concerning the identity of the aide and services to be provided. A sample detailed explanation of the requirements for this application are here, from the Georgia Department of Community Affairs.

The person being proposed as the live-in aide must still be eligible to reside in HUD housing based on other federal criteria, but that is a different topic.

Senior care planning involves looking at the opportunities to enable a person to age in place in his or her preferred environment. There are a wide array of legal questions that are relevant to that planning, including the public benefits that might be available.

Call us for advice about planning for senior care …. 732-382-6070

 

Start your long term care planning before the reverse mortgage is used up

I have encountered the following crisis too many times. A frail elder is living at home, and since the home is safe and nice, is happily aging in place. Once the homeowner reaches the point of hiring a home health aide, they start using  up their savings. At that point, they  place a reverse mortgage on the home. This provides a significant amount of cash that can be drawn out month after month to enable her to stay at home. It can be drawn down gradually like a line of creditSo far so good. 

Someone needs to be minding the store to make sure that planning for the next phase begins well before the homeowner has exhausted the cash that’s available through the reverse mortgage.If the homeowner starts to develop Alzheimers dementia and has no one standing by to help, there can be a real crisis when the funds run out.

I have had several cases where the homeowner required 24/7 care, but the homeowner didn’t ask for help from their power of attorney, or the agent under power of attorney didn’t realize soon enough that the reverse mortgage was exhausted.  There was no money to pay for an aide, and even an MLTSS/ Medicaid application could take months to process and wouldn’t provide 24/7 care at home. To get into a nursing home would be practically impossible at that point. Fortunately, we were able to work things out. But it was a major crisis for all involved, and totally avoidable.

Careful planning can prevent a crisis!

Call us about elder care planning and aging in place … 732-382-6070

Medicaid applicant gets penalty period for cash transactions

Followers of this blog know that if a person applies for Medicaid to pay for nursing home care (or assisted living or home care), they have to provide five years’ of financial records and prove to the agency just what they spent every dollar on during the five year look-back period which immediately precedes the application. If the applicant can’t  prove that the dollars were spent on himself or herself, the agency presumes that the money was given away (“gifted” or “transferred.”) That in turn raises the presumption that the purpose of the gift was to qualify for Medicaid. And that in turn will usually result in a transfer penalty period. Medicaid won’t pay for the care during a penalty period.

This is an overwhelming challenge for most people. Although the general burden of proof in administrative agency cases is “prove by the mere preponderance of the competent evidence,” the burden on the applicant in Medicaid cases is “convincing evidence.” It’s not quite clear just what that means. The standard of proof in criminal cases is “beyond a reasonable doubt,” and the standard in court cases such as guardianship, Will contests and trust disputes is generally “clear and convincing evidence,” which is some place between the criminal standard and the administrative standard. In a new decision by our Appellate Division, the court sustained the agency’s finding that the applicant had failed to provide convincing evidence that the funds were spent and not gifted. N.K. vs. Div. of Med. Assistance & Health Services, July 19, 2016 (Sppellate Div.).

The applicant, N.K., lived in the community with a home health aide. She said that she paid the aide $1,000 a week [not an unusual wage for that work]. She had withdrawn $69,200 in cash from her checking account over the course of the look-back period, and could not prove just how she spent her money. As a result, a 7 month, ten day penalty period was imposed.

Five years is a long time, and for elderly individuals living in the community with a cash lifestyle, it may be impossible to prove just what they spent their dollars on. They go to the store; they go out for dinner or a movie or a show; they pay for a car repair; maybe they take out a hundred dollars and keep it in the car to pay tolls with. The person who is developing Alzheimers dementia may be prone to discarding all stray papers. The Medicaid applications are particularly problematic when aides are paid in cash with no records or receipts, or when a child pays for everything out of his or her own account and then takes regular reimbursements without saving each receipt. The Agency regards every transaction with suspicion.

When entering that phase of life where the need for nursing home care is a distinct possibility — however one hopes to avoid it — you need to handle the financial arrangements carefully, always thinking about how you will prove that you have been spending, and not gifting, your funds.

Call us to prepare and file your Medicaid application, or for asset protection planning, or to represent you on an appeal of a Medicaid penalty …. 732-382-6070

Aging in Place: Make a Plan, Assemble your Team

“No matter what, please keep me out of a nursing home!” How often do people hear their parents say this, as the parents enter their most senior years. The reality is that aging in place is a complex but achievable endeavor for most people. Whether you are the person who hopes to “age in place,” or you are the person who will have responsibility to make it happen, you need a plan, and you will need a team. There are so many details to consider, and developing a general plan in advance can really help you and your family when the time comes that you really can’t do it all on your own.It’s crucial that you face the issues honestly and make practical choices.

This post uses “you” as the aging person/parent, but if you are already the power of attorney for them, you need to deal with these issues as well. I’ve included links to some businesses as examples, but I am not specifically endorsing them or vouching for them.

Legal matters: Meet with an elder law attorney. Make sure you have a Durable General Power of Attorney (POA), Health Care Proxy and a Last Will and Testament. Include everything necessary to customize your plan for the lifestyle you want. Discuss your family concerns confidentially with your lawyer so that your plan meets your particular needs and you can try to ward off potential fights among your family members. If you have been appointed to the job of POA, health care representative or Executor of the eventual estate, talk to a lawyer to get a thorough understanding of your responsibilities and the extent and limits of the authority you’ve been given.

Pick your first responder: Who will be the first responder in case of a medical emergency? Be practical. The most beloved eldest child who lives overseas may not be the sensible choice. Fill out HIPPA forms for your doctors and hospital so that your first responder can see the chart or call in for information.

Pick your trusted fiduciary: Who will manage your assets, hire caregivers and pay your bills if you develop dementia? Again, be practical. Being Power of Attorney is a JOB, so make sure the person you select is willing and capable of doing it.

How’s the home? This is the time to bring in someone to examine your premises and help you make all the necessary changes so that you can live safely  in your home over time. Some interior designers specialize in this kind of thing, and bring in the contractors for the necessary safety repairs. Geriatric care managers can also do the assessment and make suggestions. With increased physical frailty or confused thinking there is increased risk of falling, which can cascade into serious disability. Consider everything — Stairs;Railings; Worn out carpet; Hard doorknobs; Grab bars; Walk-in tubs; location of the washer & dryer.

Transportation: Who will take you to your doctors’ appointments?  Find out if any taxi services will  escort you between your door and their vehicle. Have a plan in case you cannot walk well or can’t manage your own wheelchair. How will you get yourself from the parking lot into the doctor’s office, Non-medical Home assistant services are available, and can accompany you to appointments and errands, but usually you have to book them ahead of time on a schedule with a 2-hour minimum per shift.  Often you can find volunteers  through your religious congregation as well.

Grocery shopping: In some locations there are stores that will assemble and deliver the order to your home every week. Otherwise, you need an arrangement with someone to do the shopping for you.

Prescriptions: You may want to use a local or mail order pharmacy that can get all your renewals onto a consolidated schedule and deliver everything to the home. This can take a few months to establish, but can go very far to make the whole medication issue more manageable and prevent medical problems. Some pharmacies will even create blisterpaks with pre-set pill combinations for each time of the day.

In-home services and someone to run your errands: Clothes and shoe shopping can be done on line, and you can often arrange for the returns to be picked up at the house.  Some dry cleaners will do pick-ups and drop-offs. Some hairdressers may make house calls. Some physical therapists will treat the patient in the home. The list goes on and on.

Tidy up and De-clutter: get someone in to help you go through all of the things you’ve accumulated during your long and wonderful life. Call the kids and grandkids and have a celebratory “take it, keep it, or recylce/pitch it out” event.

Careful planning can prevent a crisis. Making sure the home is safe  is crucial. Making sure your legal affairs are organized is crucial. Investigating all the in-betweens that a person needs help with, and making lists of services that you can call upon in a pinch, will make it easier in the event that you suddenly realize that you need help. Even a plan that is partially used is better than no plan at all.

For elder law advice on estate planning and planning for a good old age, call us at … 732-382-6070