Ideas on Overseeing the Care in a Nursing Home When You Can’t Enter the Building

Advocating for our clients in nursing homes during this pandemic has been uniquely difficult, but we continue to utilize whatever tools are at our disposal to help the family members oversee the delivery of care to their loved ones. Many rights are guaranteed, and right now much creativity is needed to protect those rights. Care plan conferences with the treatment team (nursing, dietary, recreation, physical therapy, medical) can be set up in which the family member/ health care representative/ POA (and the attorney, if desired) are on a conference call. Dietary staff can communicate with family about menu selections at the start of the week, using scans or faxes + emails.  It is important to monitor diet because the lack of communal eating and snacking may be causing significant weight loss in residents.

Arrangements can be made for the resident to be brought down to the Lobby so that the concerned health care proxy/involved family member can actually see them through the glass windows or doors. Arrangements can be made for nursing staff to call the family at scheduled times with a report from the shift.  As the weather warms, facilities should be scheduling outdoor visits with family on a regular basis.

Access to the medical record can be arranged, and state law requires the facility to provide access to records to the resident and their authorized requester. Ordinarily, a patient’s advocate/family member who has HIPAA authorization can review the chart during their visit to the nursing facility, in order to stay up to date with the care that’s being delivered, how the resident is functioning, whether there were any incidents and what medications the person is taking. Right now, no third parties are allowed on the premises of the skilled nursing facilities. Since the facility is obligated to keep the families informed about the condition of the resident, creativity and cooperation are needed. Have a discussion with the administrator about a reasonably convenient way that the facility can send this information out – perhaps once a week via fax or scan.

Updates on the COVID-19 situation as it affects seniors and those who care for them can be found here and here.  Many towns have put special programs in place to provide support for frail and housebound community members who are suffering due to the pandemic. The local Aging & Disability Resource Centers can also be useful as an access point for information and services, even though service delivery is not swift during these times.

For help with your unique senior care legal problems, call us at … 732-382-6070

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

Keep a close eye on your loved one’s care in a nursing home

It almost goes without saying that if your loved one is admitted to a health care facility, somebody outside of the institution needs to immerse themselves in the treatment & care planning process, read the chart on an ongoing basis, know what’s being prescribed, speak with the care providers or treatment team frequently, and demand answers to reasonable questions about What is being planned, Why it’s being recommended, How it will affect the patient, Where the follow-up care will be, and Who needs to be available to implement a safe follow-up plan. If the family member who is known as the “first responder” is having trouble gaining access to this information, the patient or his/her agent under power of attorney can sign a HIPAA authorization.  Somebody has got to keep an eye on what’s going on: there can be a lag time between the time a request is made and when the physician or nurse can act on it; the addition of a new medication can create new symptoms and imbalance for the patient; if the resident exhibits dramatic changes in demeanor such as lethargy, falling, stupor, or increased confusion, the family needs to be able to address it right away. And of course, often, a decision by the family is being demanded in a big rush.

Another reason somebody has got to keep watch over the patient is that there are times when inappropriate or unnecessary treatment is being provided. CNN did a disturbing expose recently about the off-label over-prescribing of a medication called Nuedexta to nursing home residents who have Alzheimers’ disease and other dementias, but also have symptoms of depression. The article says:

The pill, called Nuedexta, is approved to treat a disorder marked by sudden and uncontrollable laughing or crying — known as pseudobulbar affect, or PBA. This condition afflicts less than 1% of all Americans, based on a calculation using the drugmaker’s own figures, and it is most commonly associated with people who have multiple sclerosis (MS) or ALS, also known as Lou Gehrig’s disease. … Since 2012, more than half of all Nuedexta pills have gone to long-term care facilities. The number of pills rose to roughly 14 million in 2016, a jump of nearly 400% in just four years, according to data obtained from QuintilesIMS, which tracks pharmaceutical sales. … Nuedexta is approved by the Food and Drug Administration (FDA) to treat anyone with PBA, including those with a variety of neurological conditions such as dementia. But geriatric physicians, dementia researchers and other medical experts told CNN that PBA is extremely rare in dementia patients; several said it affects 5% or less.

The report goes on to discuss, among other things, severe adverse consequences experienced by many patients who are receiving the drugs inappropriately.

The main point is not that I’m expressing a position on the bona fides of any particular practitioner’s prescribing patterns. It is, rather, to emphasize the extreme importance for every patient and every nursing home resident to have an attentive advocate watching over what is happening.

Call us for advice about elder care, nursing home placement and long term planning .. 732-382-6070

 

Don’t count on the Medicaid representative at the County Board to remind you to Spend Down

An application for Medicaid benefits cannot be approved before the applicant (and spouse, if any) has completed the spend-down, because benefits are not payable unless the applicant is financially eligible. It is not uncommon for someone to initiate an application for Medicaid without having any idea whether they are eligible or not. The nursing home may start the process; a nonattorney representative may start the process; a hospital social worker may suggest that  they apply. They may leave the intake interview with a List of Required Documents, but not be told that they have to spend down to “X” level before the application can be processed. Sometimes, months go by and the hapless applicant is running up nursing home bills without actually being Medicaid eligible because they didn’t “spend down.”

Despite the fact that the regulations of the State Medicaid Manual  at N.J.A.C. 10:71-2.2(c) specifically obligate the County Welfare Board to assist the applicant in this process, all government agencies are reticent to provide advisory opinions on what measures will comply with a program’s rules. There may be substantial opportunities to shelter assets for the family, but the CWA cannot be counted on to provide that sort of advice. Also, given the huge volume of cases, there may be many procedural tangles that prevent the applicant from receiving necessary advice through the CWA. Unfortunately, if the applicant sits back and waits for guidance, they may discover that they and their spouse are incurring tremendous financial obligations that they have no good way to pay.

The spend-down may be a combination of expenditures, exempt transfers and replacement of existing assets. The math is precise and until the spend-down is completed, there can be no eligibility. By getting individual legal advice early in the process, an applicant can take advantage of the opportunities that the rules provide to protect his family and achieve eligibility at the soonest possible time.

Call for representation regarding Medicaid eligibility spend down planning …. 732-382-6070

Elective share and Medicaid can lay a trap for the unwary

In New Jersey, a surviving spouse has the right to claim his or her “elective share” of the deceased spouse’s estate if the deceased left him/her an inadequate inheritance. The calculations are made using the step-by-step process of a set of state statutes, N.J.S.A. 3B:8-1. If the individual receives Medicaid benefits and is widowed, failure to claim the “elective share” can result in a loss of benefits because it is treated by the Medicaid program as an uncompensated transfer of assets. If a person receives benefits when they are not actually eligible, they may be subject to a claim or lien for reimbursement. Federal and State law (N.J.S.A. 30:4D-7.8) requires states to place liens for reimbursement against the estates of deceased Medicaid beneficiaries. All of these issues came together in a recent Appellate Division decision called  In the Matter of the Estate of Arthur E. Brown, N.J. Super. App. Div. (Simonelli, J.A.D.) (32 pp.) A-1086-14T4.

  • The case involved a widower who had been disinherited by his wife. The marital assets had been transferred into her name, and he received nursing home care that was paid for by Medicaid. When she died, he didn’t file a claim for the elective share. He continued to receive Medicaid benefits. Upon his death, the State took the position that the value of the claim which he had failed to pursue was an asset of his estate, which was subject to the State’s lien for reimbursement. The Court held that the value of the claim was correctly included as an asset of his estate subject to lien.

The estate had also argued that the deceased wasn’t entitled to an elective share at all because he and his wife had been living separate and apart at the time of her death, and the couple ceased to cohabit as man and wife under circumstances that gave the wife a cause of action for divorce under N.J.S.A. 2A:34-2(d) or (f). The elective share statute lists this as one of the reasons that a person can be barred from seeking an elective share. Residing in a nursing home due to Alzheimer’s dementia might be sufficient grounds for the spouse to seek a divorce, but the Court wasn’t ready to go so far as to hold that the “living separate and apart” as used in the law was intended to encompass this sort of reason for the separation.

When Estate planning is being done for the community spouse of a person who needs nursing home care, the impact of the estate plan on the ill spouse’s Medicaid eligibility needs to be considered.  Failing to consider the interplay of the elective share and the Medicaid rules can result in unintended consequences. Not only can there be an adverse impact on eligibility, there can be complicated impacts later which result in surprising litigation which adversely affects the heirs of the estate.

Call us about Medicaid eligibility planning and elder care estate planning … 732-382-6070