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

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

Homemade Powers of Attorney can create expensive legal problems

I ran into a situation recently that I thought I’d share with my readers since it’s the type of thing that happens over and over again. The Elder person is living in New Jersey but owns real estate in another state that needs to be listed or sold because he is applying for Medicaid to pay for his nursing home. The person has Alzheimers Disease and no longer has capacity to sign legal documents. The person who takes care of everything for him up here in New Jersey holds a power of attorney that they made using an “internet form.” It is titled “General Durable Power of Attorney Effective Upon Execution,” and was signed by the elder a few years ago in front of witnesses and a notary.

It sounds like this document gave authority to the agent right away, right? The problem is that the very first paragraph then says ” I ____ designate ____ to act for me, if I should become disabled or legally incapacitated. This document shall become effective upon the date of my disability or legal incapacity and shall not otherwise be affected by my disability or incapacity.” The first sentence creates a Springing Power of Attorney. The second sentence is a mixture of language from Durable Power of Attorney and Springing Power of Attorney, an obvious conflict.

The named agent found that they had to produce current doctors’ opinion reports attesting to the elder’s incapacity. The agent has lost weeks and weeks of time gathering this evidence and submitting it to insurance companies, banks etc. for legal review.

And there is another problem: in the state where the property is located,  springing powers of attorney are not valid. The agent learned this when they hired the real estate attorney there. So in order to sell the property, it will probably be necessary to file a guardianship action. And generally speaking, you can’t initiate a guardianship action in one state if the individual is permanently residing in another state …. you initiate it where the individual resides and then have to go through a separate set of proceedings in the other state. Needless to say this has all created a complicated and potentially expensive legal tangle that involves two states and two lawyers and substantial delay.

As I like to say, careful planning [with legal advice] can prevent a crisis.

Call us for advice on estate planning and long-term care planning … 732-382-6070.