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

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 annuity planning is alive and well in NJ

When a person applies for Medicaid under the NJ MLTSS program after having made gift transfers during the most recent 5 years, there will likely be a penalty period in which Medicaid will not pay for the care that this person needs (unless the transfers were exempt, such as transfers to a spouse or disabled child). This transfer penalty is mandated by federal law, and the greater the amount that was transferred, the longer the transfer penalty will be. If an applicant addresses this issue before the end of his spend-down period, there may be opportunities to protect the applicant by using some of the spend-down funds to purchase an annuity contract that can provide the income needed to pay for care during the penalty period.

The type of annuities that fit the bill are highly restricted and are not designed to maximize the rate of return the way conventional annuities might be. The reason that the technique works is because under federal and state Medicaid law, a distinction is made between “income” and “resources.” Resources must be reduced to a certain level before the person can even apply for benefits. Income, on the other hand, is usually received on a monthly basis and is turned over to the facility as a contribution towards the cost of care (with certain deductions). For the annuity plan to work, the contract cannot be countable as a “resource” as defined by Medicaid law. We had successfully litigated an IRA annuity case with the NJ Division of Medical Assistance and Health Services (DMAHS) in 2009-10 (the P.K. case) PK FAD  A few years later, after several cases were decided in out of state venues,Lopes 2nd Cir ; Carlini we successfully litigated a non-IRA annuity case against DMAHS in 2013 (the M.W. case; M.W. FAD 1-28-140001 M.W. Initial ALJ decision ) leading to confirmation that if properly structured, an annuity effectively transforms countable resources into an irrevocable stream of income. If properly done, this technique can provide protection for the Medicaid applicant as well as his/her community spouse, and can also help to assure that there is a way to pay for care during an anticipated Medicaid penalty period.

Seniors who are planning for their care have many tools in their toolbox; the question is always which tools to use and how to get the results that the senior needs.

Call us to discuss a Medicaid spend-down plan that suits your circumstances … 732-382-6070

For Qualified Income Trusts, Not All Bank Accounts Are Created Equal

Medicaid Long Term Services and Supports (MLTSS) in New Jersey pays for nursing home care for people with alzheimers disease, catastrophic disabilities and other serious difficulties with self care. The program requires any applicant with more than $2205 (three times the SSI amount–new for 2017) of gross income to make a Qualified Income Trust.  Our office assists applicants with this process all the time.  After the Trust document is completed, we usually send the trustee to the applicant’s bank to set up a QIT bank account.  But things can get hairy here.  Most people, reasonably, want to open bank accounts that avoid fees and penalties.  However, QIT accounts are not most accounts.  They are for the applicant’s gross regular monthly income ONLY, and the income is supposed to go into the account and leave the account every month.  Medicaid allows up to $20 per month in fees as a deduction from the applicant’s income; trustees should therefore pick the checking account product with reasonable fees but no minimum deposit.  If the account is set up with $0 in it, even if that costs a little money, that’s good; the assigned income will go in and fund the trust account in the month of the application date sought–this is what caseworkers are looking for initially.  Some banks will waive even these costs if you show proof of a regular direct deposit.

Unfortunately, many applicants’ Medicaid eligibility has been tripped up by technical processes related to Qualified Income Trusts since they began in December of 2014.  To do better, we all need to up our game and learn exactly what the caseworkers want before they ask.  Come talk to us about this and your other Medicaid questions.  We’re here to help.

Call us for Medicaid applications and senior care planning … 732-382-6070

Smoothing the way for a nursing home admission

The need to place a beloved family member in a nursing home may be one of the most harrowing and heartbreaking decisions a person has to make. Not only is there a terrible sense of guilt and failure, but the sheer cost of a single month in a nursing home is staggering, and leaves the family with a bleak view of their future security. They feel vulnerable, because they are at the mercy of forces they cannot control, and are thrust into a world full of acronyms, shorthand and procedures they have never encountered.

At the time of application for admission, the applicant needs to provide medical information that reports the individual’s clinical condition, diagnoses, relevant recent medical history, and treatment needs, so that the facility can make an informed decision about whether it can meet the needs of the resident. This will need to be coordinated with the physician(s) at home or the hospital discharge planner, as the case may be. Although all facilities are licensed to provide the full range of services needed for a long-term nursing home resident (with the exception of ventilator services; not all skilled nursing facilities provide this service), certain facilities are known informally for better handling certain kinds of situations. It could be that an applicant is denied admission due to presence or recurrence of infection, or some documented, serious behavioral disorders. For instance, a particular resident may require a private room or extra supervision. Or a resident may require psychiatric placement instead of an ordinary nursing home.

Admissions contracts should be signed by the resident himself, but can also be signed by the spouse, a Guardian or an Agent under Power of Attorney. When a fiduciary signs on behalf of a resident, the fiduciary is signing in their fiduciary/representative capacity, and is assuring the facility that they will manage the income and assets as authorized by law. Generally, there is no need for a family member to personally take on the duty to pay the nursing home bill. Commonly, a facility will ask  the person who is handling the resident’s income and resources to sign as Responsible Party. This would amount to a personal guarantee. No one should sign as responsible party unless they voluntarily intend to personally guarantee the payment out of their personal assets. The Nursing Home Act (NHA), NJSA 30:13-1 to -17 prohibits a facility from requiring a third party to guarantee the bill, as does federal law with respect to a person on Medicaid.

The person agreeing to be Fiduciary for the resident needs to be aware that they still have obligations to arrange for the nursing home bills to be paid using the applicant’s funds, and to apply for Medicaid benefits in a timely way. See generally, Manahawkin Convalescent v. O’Neill,  (fiduciary failed to turn over the income; facility sued; fiduciary counterclaimed for violations of Consumer Fraud Act; counterclaim dismissed, but Supreme Court expressed the need for contracts to be clearly worded).

If a resident is not Medicaid eligible, the nursing home’s rates can be determined by any factors it considers appropriate. The rate schedule has to be clearly and plainly disclosed in the contract.  42 CFR ‘ 483.12(c).

A nursing home cannot obligate a Medicaid-eligible resident or a third party on their behalf to sign a private pay contract to gain admission or to continue residing in the nursing home. NJAC 8:85-1.4(b). On the other hand, if the resident has not yet been determined to be Medicaid eligible, and has not yet applied for Medicaid, he or she may voluntarily sign a private pay contract at time of admission. Once the individual becomes Medicaid eligible, that contract will be void. NJAC 8:85-1.4(c).

Typically, a nursing home will ask the new resident for the first month’s fee plus a one-month security deposit, at the time of admission. If the resident expects to apply for Medicaid, s/he needs to be sure that the security deposit has been spent on the care prior to the end of the spend-down period, so that once the resident thinks they are financially eligible for Medicaid, it doesn’t turn out that they have an excess resource sitting in the facility’s trust account.

Caring for seniors requires planning, knowledge  and advice. Call us to help you in reviewing admissions contracts and negotiating nursing home admissions, to make sure your loved on gs the care they are entitled to. … 732-382-6070