Find your parents’ Long-Term Care Policies so you can help them plan

There is plenty of debate about the benefits and drawbacks of buying long-term care insurance.  The premiums are expensive for a person in their 70’s who is first considering a purchase. Potential buyers worry that they will pay premiums for years and never have to use the policy. The industry has been in flux and there aren’t too many carriers around. What I do know is that over the years, long-term care insurance policies have been a lifesaver for many of my clients, particularly if the policy pays for in-home care. The annual premium cost has always been well less than a single month in a nursing home. So LTC policies can be an important component of long-range planning for a person who will eventually enter what I like to call “the elder zone.”

All too often, the need for 24/7 care drops on the doorstep when there’s been no prior planning, and concerned family members are faced with making arrangements without any good information. Elsewhere on this Blog I’ve written about strategies such as assembling the team, compiling your financial & insurance data,  and getting legal help for an updated estate plan and power of attorney. Today I suggest that you dig out those long-term care policies from wherever they are being stashed, read them and get familiar with what the policies provide. Contact the company for an updated statement of benefits. What’s the daily rate? Compare that to the anticipated cost of care  in a nursing home ($350+ in most places) or at home ($165 /day or more). Ask questions about what it takes to start the typical 90-day elimination period — what documentation is required? Can it start when the patient enters the hospital if s/he will then transition to long-term care? Can it start if the patient has already had an in-home Aide who was paid off the books? Find out if premium payments can be switched to auto-debit from the checking account, to avoid the risk of lapse if the policy-owner starts forgetting to pay bills.

The Medicaid home care program under MLTSS/HCBS  does not provide 24/7 full-time care. Knowing what the benefits are in your parent’s  long term care insurance policy can make a huge difference in how you approach the discharge planning from hospital or “rehab” back home for senior planning. It may be the ticket to asset preservation.

Call us for advice about long-term care planning and asset protection for peace of mind …. 732-382-6070

Medicaid Eligibility – What if the Services aren’t delivered?

After a Medicaid long-term care application is approved and the Plan of Care (PoC) for  home and community-based services is approved (MLTSS-HCBS), the individual may be faced with a wait. The New Jersey Medicaid HMO’s that provide the services for the State of New Jersey are required by the State contract to have a deep enough provider pool to service the need. However, clients are reporting that they are being told to “just wait until we can find someone who can service your area.” This is obviously unacceptable, and the question is, what remedies are available.

Disability Rights New Jersey is a nonprofit organization that has attorneys who are tackling these issues now. Lawsuits may be the only remedy, and there may be procedural football between the HMO and the State Department of Health and Human Services/ Division of Medical Assistance and Health Services (DMAHS). Who exactly bears the responsibility when promised services are not delivered to approved, eligible individuals? Section VIII, Paragraph 53 of the Special Terms and Conditions in the federally-approved Comprehensive Medicaid Waiver says that ” A “Plan of Care” is a written plan designed to provide the demonstration enrollee with appropriate services and supports in accordance with his or her individual needs. All individuals receiving HCBS or MLTSS under the demonstration must be provided services in accordance with their plan.” (emphasis added)

One approach could be that  failure to provide services would be appealed through the administrative “fair hearing” process at the NJ Office of Administrative Law.  The other approach could be that a mandamus action has to be filed in state or federal court.

The individual should be entitled to a Notice of Inadequacy when the HMO claims it has an inadequate provider pool. After a time, the applicant should call the HMO if services are not forthcoming. If the HMO reports network inadequacy as the reason, then the approved individual can (1) contact the Office of Quality Management and request to be placed into a different HMO or (2) can select a Person-Employed Provider option which would enable them to select their own aide but will add additional obligations on them as a household employer, state plan mn hcbs, or (3) wait some more, or (4) go to a nursing home or (5) borrow money from a friend or family member to hire private care, or (6) consider legal options.

The open question is whether a failure to provide services to an approved Medicaid applicant gives rise to a cause of action through the civil courts to compel the provision of services. Another open question is whether the failure to provide approved services is an adverse action by a government agency that gives rise to a right to an administrative fair hearing under the state’s Administrative Procedure Act (APA). In any event, a person who has been approved for Medicaid Home and Community-based Services who isn’t receiving services in a timely way should consult with elder law counsel to map out their options.

Call us for representation on regarding New Jersey Medicaid applications and appeals … 732-382-6070

Family caregiving should be encouraged and supported as a matter of national policy

Every day, families are struggling to care for their loved ones at home. The patient may be young with severe disabilities, special needs and nursing needs, or may be aging and unable to live alone due to dementia, confusion or physical weakness. The patient may be dependent on complex durable medical equipment such as  a ventilator, and may require frequent attention from trained attendants, or they may just need the watchful presence of a caring person to assure safety. Current means-tested programs are limited in the scope of support provided to caregivers. If a child gives up their job to care for an aging parent and keep her out of a nursing home, the Medicaid/MLTSS program provides just a very modest payment through the Home and Community-Based Services (HCBS) program (formerly known as Global Options).

I just came across a good article that reviews the last 20 years of federal policy concerning family caregiving.Here it is.family_caregiving_ifbrief I think you’ll find it to be enlightening.

The NJ Medicaid regulations (based on federal statute) allows an applicant to transfer their home without any transfer penalty to the child who resided  with them for the prior 2 years and “has provided care to such individual which permitted the individual to reside at home rather than in an institution or facility.” N.J.A.C. 10:71-4.10(d)4. The care has to ‘exceed normal support,”  the care had to be “essential to the health and safety of the individual,” and the person’s condition had to be such as to ‘require special attention and care.” In recent months, certain counties have begun superimposing extra requirements on this regulation, such as an expectation that the child not be employed at all during the 2 years, or that the Medicaid applicant’s care plan include actual 24/7 supervision. . Adult children who are going mad juggling their job and their 24/7 responsibilities for the welfare of the parent they live with then find that the agency doesn’t consider them to be the “caregiver child.” Yet the MLTSS/ HCBS program itself only provides part-time home health aides for such a person


The long-term care and health care systems need to better support family caregivers, since so many people feel that community-based care and aging in place are the preferred arrangements for their loved ones.


Call us for representation concerning Medicaid eligibility, home care planning, Medicaid applications and special needs planning ………….. 732-382-6070

Yeah But Can We Preserve the Millennium Falcon for Chewbacca’s Benefit?

Elder Law has really broken out into mainstream popular culture this year!  There was the first season of Better Call Saul, where the attorney who would be Saul Goodman on Breaking Bad gets into elder law and sues an assisted living facility in New Mexico.  And now, on the heels of the new Star Wars Trilogy coming out, we have a galactic elder law fact pattern with a script spec called Old Solo.  Apparently, Han’s golden years are not so golden, and he needs long-term care and has fallen out with his long-time caregiver, Chewbacca.  Old Solo has issues of caregiver burnout, health care decision-making, ex-spouses, and what setting is the least restrictive (being at home in Corellia with Leia and her new husband Wedge or in a Cloud City assisted living facility–tough call!).  And most importantly, will Han have to sell the Millennium Falcon to pay for his long-term care– and what does the Republic think is fair market value for it?

It may be funny to consider what old age is like in a galaxy far, far, away, but if you are having your own real life elder law issues, contact us!


Advocates for the Aged – upcoming events

If you are active in the social services or political action fields concerning issues that affect the aged members of our society. you may be interested to attend these upcoming programs.The White House Conference on Aging is holding three regional forums in New Jersey this year – Friday May 12th in East Windsor, Wednesday June 10th in Cherry Hill, and Friday June 26th in Whippany. See attached flyer.   There will be four break-out sessions, on Retirement Security; Health Aging; Long-terms care services, and elder justice /fraud, abuse and neglect. Advance registration is encouraged – call 609-421-0206. In addition, the New Jersey Foundation for Aging is having its 17th Annual Conference on Wednesday June 3rd in Jamesburg. The Foundation addresses economic issues that affect the poor elderly and implements policy initiatives and legislative efforts.

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There are many opportunities to put your volunteer energy to work for our elders. These presentations will no doubt be lively and engaging across a broad spectrum of advocates and aging issues.