New Jersey Takes Action to Modify Medicaid Program for COVID-19


New Jersey’s Medicaid program normally has a lot of rules and red tape.  Some of the rules relate to who meets the level of care for Long Term Services and Supports (LTSS) and some relate to financial eligibility.  All of these rules require travel and manpower to implement that may not be available during this pandemic emergency.
Federal Medicaid law has a type of waiver of Medicaid rules for emergencies, like COVID-19, or before that, Superstorm Sandy.  These are called 1135 waivers, and they can be obtained much more quickly than other types of Medicaid waivers.Waivers were just granted making it easier for certain individuals to get the care they need through the Medicaid program. Two provisions particularly stand out.  First, if a person is approved for the MLTSS Home and Community-Based Services Program (formerly known as Global Options) and wants to hire her own privately-selected employee as her “Care Provider,” “Provisional provider enrollment” can be granted  if certain information for the employee is given, assuming there will be regular enrollment after the emergency is over.  This may be useful for family member providers or volunteers helping families ride out quarantine.Second, the necessity to have a PAS completed before a Medicaid-eligible person is admitted to a nursing home. Pre-Admission Screenings are now waived for 30 days for new admits, and are not required for facility to facility transfers.

Our state Medicaid director, in a letter dated March 19th, asked for such waiver authority to modify or suspend certain normal Medicaid rules retroactive to March 1st, such as:

  • Suspending Prior Authorization requirements
  • Waiving Pre-Admission Screenings as a requirement for nursing home placement (these are done by state nurses physically visiting applicants at their facilities)
  • Letting a nursing home get Medicaid payment even if they are providing services in an alternate facility due to an evacuation.
  • Making it easier for family members to serve as Medicaid-paid personal care assistants
  • Relaxing rules for filing deadlines for fair hearings
  • Allowing more Telehealth and telephonic reimbursement by Medicaid

Monday, CMS replied to Director Jacobs, clarifying that the nationwide 1135 will allow for most of these requests but that some require state plan amendments:

  • Prior authorization is a function of the state plan and will require an amendment but previous prior authorizations can be extended due to the emergency
  • Pre-Admission Screenings are waived for 30 days for new admits, and are not required for facility to facility transfers
  • MCO decision fair hearing appeals will get 120 days to be filed if it happens within the emergency period
  • Expanding eligible providers to include Medicare providers who may not have been Medicaid enrolled for the duration of the emergency
  • Provisional provider enrollment if certain information for an employee (like a family member) is given, assuming there will be regular enrollment after the emergency is over
  • Medicaid will be able to pay facilities even if they have to move residents to alternative settings during the emergency.

We strive to stay as informed as possible on Medicaid Eligibility and Medicaid benefits so that we can best guide our clients who need senior care urgently.  We will continue to ask questions and monitor the day-by-day and hour-by-hour developments during this health care crisis.

Call us for advice about Medicaid eligibility, spend-down plans, applications and appeals ……………………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

What Can Your Elder Law Attorney Do for You?

If your family is struggling with the difficult decisions regarding nursing home placement or ongoing disability, Medicaid eligibility, or a need for in-home care, the elder law attorneys at FRE-L can assist you with many of the steps in that process. You may be wondering whether to engage an elder law attorney or to work with an application processer recommended by a nursing home. First and foremost, your elder care attorney works just for you, and applies and interprets the many intertwining laws and regulations to achieve your goals, without conflicting interests. Your particular case will likely involve an array of legal issues that may not be readily apparent. Here is a sampling of how we can help:

— Review & negotiate admissions contracts for Continuing Care Retirement Communities, Nursing Homes and Assisted Living Facilities

— Review & negotiate employment contracts for home care agencies

— Prepare employment contracts for household caregivers

— Help to find an appropriate facility, especially for unusually troublesome situations

— Advocate for you with the facility business office and admissions director to assist in the admissions process

— Accompany you to the family Care Planning meetings which are required to be held by state licensing laws, to advocate for the resident’s needs

– Advise you on lawful means to preserve family assets and become eligible for government benefits such as Medicaid

— Assemble, prepare and file the Medicaid application and provide necessary legal analysis for caseworkers.

— File or defend court proceedings for guardianship (in cases of incapacity), or to create or correct a trust, or to obtain protective orders when there are family disputes about the care of elders.

— Evaluate your existing estate plan if any, and prepare an appropriate legal plan with a Will, Power of Attorney, Trust, Deed or Health Care Directive to preserve and protect your home, your independence, your family and your assets.

— identify available benefit programs such as Social Security Disability and advise you on evidence needed for the application.

— Prepare Special Needs Trusts or Supplemental Benefits Trusts for benefit of adult family members, to preserve assets and eligibility

We are here to make these stressful processes easier, so that you can take care of the other needs of yourself, your family or your job. We provide “full service” for our elder care clients, and we are committed to providing individualized solutions to complex problems, responding promptly to the needs of clients,  keeping clients informed, keeping up to date with developments in the law, and developing relationships with clients based on mutual trust, undivided loyalty, and respect

How may we help you? For an appointment call 732-382-6070