Hospital’s Failure to apply for charity care for psychiatric emergency patient leaves hospital holding the bag

DRAFT   MUST REWRITE    text from daily briefingHEALTH CARE LAW

New Jersey has a Charity Care program which pays for hospital care for uninsured individuals who meet the stringent income and asset requirements and also file an application. If an eligible individual enters the hospital as an emergency room admission, the hospital is required to prepare and submit the application and to take measures to obtain the necessary verifications. If an individual is admitted to the hospital without first going through the emergency room, on the other hand, the individual bears that responsibility. The application can be filed by the individual or a responsible party and the hospital, at its discretion, can accept the application up to two years after discharge, which is also the deadline for a hospital to submit the claim to the state program for processing. The regulations are found at N.J.A.C. 10:51-11. This issue was addressed in the recent Appellate Division decision of Newton Med. Ctr. v. D.B.

The patient had been  involuntarily committed to the hospital’s short-term care facility on an emergent basis when the county PESS determined that he was a danger to himself and others. He met the financial qualifications for charity care, and filled out an application. However, due to his condition, he did not submit all the needed documentation within the required time period, and evidently did not seek the help of another person to gather and submit the required verifications. The hospital eventually sued him for the substantial unpaid bill. He argued that the hospital had a duty to submit the application on his behalf because his emergency psychiatric hospitalization placed him in the same category as a medical patient coming in through the emergency room. Although the trial court ruled against him, the Appellate Division reversed.

In a decision which discusses in depth the history and purpose of the Charity Care Program, the court held that the statute did not explicitly limit the category of emergency room hospitalizations  to medical needs as opposed to  psychiatric need, and that the Legislature intended that all patients in such desperate straits who enter a hospital for emergency treatment be relieved of the responsibility to submit their own applications. The Court placed the responsibility upon the hospital staff to follow the procedures mandated in the regulations for all such patients, and dismissed the collections action.

Admission to any hospital  raises the need for a patient to have an advocate and assistant watching out for his or her interests. Careful planning with powers of attorney, records release authorizations, HIPPA authorizations and health care proxies, including psychiatric health care proxies, can add a layer of protection for an individual in the throes of severe illness.

Call us for advice on elder & disability issues … 732-382-6070

Section 8 housing rules for live-in caregivers

Did you know that if a person with physical or cognitive disabilities resides in section 8 funded HUD housing, the law requires the Public Housing Agency (PHA) to allow a necessary home health aide to reside with the tenant? The concept is that the PHA is required to make a reasonable accommodation for the tenant’s needs pursuant to the Americans with Disabilities Act, to enable the participating tenant to reap full benefit from this federal housing program to enable them to dwell in the community and avoid nursing home placement. The regulation is in surprisingly plain English:

             “24 USC § 982.316 Live-in aide. (a) A family that consists of one or more elderly, near-elderly or disabled persons may request that the PHA approve a live-in aide to reside in the unit and provide necessary supportive services for a family member who is a person with disabilities. The PHA must approve a live-in aide if needed as a reasonable accommodation in accordance with 24 CFR part 8 to make the program accessible to and usable by the family member with a disability. (See § 982.402(b)(6) concerning effect of live-in aide on family unit size.)”

Normally, the income of other occupants of the apartment will be counted in the household income calculation for Section 8. However, if the person resides there because s/he serves as the live-in aide, his/her income is not counted. The criteria for exclusion of that person’s income are in the federal regulations and are basically that (1) the aide’s services are essential to the care and well being of the person(s); (2) the aide is not under a legal obligation to support the person(s) with the disabilities, and (3) the aide would not be living in the unit except to provide the necessary supportive services. The tenant needs to formally request the accommodation by submitting an application to the PHA. The tenant who is applying for this special accommodation would need to provide relevant and necessary medical proofs as to the disability and need for a live-in aide, including physicians’; opinion reports, and evidence concerning the identity of the aide and services to be provided. A sample detailed explanation of the requirements for this application are here, from the Georgia Department of Community Affairs.

The person being proposed as the live-in aide must still be eligible to reside in HUD housing based on other federal criteria, but that is a different topic.

Senior care planning involves looking at the opportunities to enable a person to age in place in his or her preferred environment. There are a wide array of legal questions that are relevant to that planning, including the public benefits that might be available.

Call us for advice about planning for senior care …. 732-382-6070


NJ Medicaid announces its 2018 numbers for MLTSS eligibility

Eligibility for Medicaid to pay for nursing home care or community care is all about the numbers. Starting January 1, 2018, the Community Spouse Resource Allowance (CSRA) for the community spouse of a married Medicaid applicant is being raised to $123,600 (from $120,900 in 2017).  This is the amount of countable available resources that the community spouse can have as of the date they want eligibility for their applicant-spouse (the home and one car are still considered non-countable). Does that mean that every excess dollar has to be “spent down” on nursing home care? Hardly. If you have moved your loved one to a nursing home and are being steered to someone such as a Medicaid application preparer who tells you that this is what’s necessary before an application can be filed, you should seriously consider getting personalized legal advice about your options.

In 2018, the “floor” under the CSRA is $24,720, so if the assets are quite limited, the community spouse does not have to “spend down” below this amount. If your assets are low, be quick and careful so that you can apply for Medicaid without much further depletion of resources.

The Income Cap Limit which triggers the need to establish a Qualified Income trust (QIT) in New Jersey for the Medicaid applicant (see my prior posts) will be $2,250 gross monthly income. Be sure the Trust is set up in the month BEFORE you have to apply.

The community spouse is entitled to have a Minimum Monthly Maintenance Needs Allowance for income support. This amount was raised on 7-1-2017 and remains in effect. The minimum is $2,030.00  and the maximum is $3,090. Several variables play into this calculation. Then the community spouse’s available income is applied first, and if there is a shortfall, a deduction is made from the applicant-spouse’s income to allocate some income to the community spouse. There are important, special rules in cases where the combined incomes are below the MMMNA. You might become eligible without any spend-down in a case like that. Seek legal advice at the earliest possible date before the assets are spent down, to protect your interests

Call for an appointment about all the difficult details pertaining to Medicaid eligibility, and for help with an application … 732-382-6070

More formality may be better with intergenerational households

As elder law attorneys, our clients have presented us with many difficult situations involving adult children or grandchildren who live in their houses. Sometimes a child has run into some hard times and sees the parent’s home as an economical option; the child may move into his parent’s house along with his spouse and children. Sometimes the child just never became self-sufficient and never made any plan to move out. The adult child may or may not be disabled. Sometimes the expenses are being shared to a degree, but often the parent pays for most of the expenses. The parent may be wrestling with a feeling of obligation, and the child may have a feeling of entitlement. The child may feel that they are “taking care of the parent,” yet the actual need for care or the work being done may be imprecise and doubted by others in the family.

The longer the arrangement lasts, the more difficult it can be for the parent to move on. The dynamic can really change when there are other children who are upset at the arrangement. The parent’s financial security may get on edge. Things can particularly blow up when the parent has to hire a caregiver or wants to sell the house in order to downsize or move to assisted living or nursing home.  How can all of these competing interests be managed? How will the house be sold, and where will the child go?

Aging parents who are still supporting their adult children may want to do some careful planning. They need to consider what will happen to them if they need their funds for care but their child is counting on all of that ongoing financial support. There are many issues to consider. Should they charge actual rent? Should there be a written lease that specifies that occupancy only continues of the occupancy fees are paid? Should they put restrictions on the child’s behavior so that the parent’s peaceful residence isn’t disturbed? A parent may want to put a provision in his or her Will that allocates some extra amount for the dependent child so that at the parent’s death, there are extra funds for relocation. By putting protective provisions into the estate plan, the parent may be able to provide better protections than counting on other family members to honor the parent’s verbal “wishes.” It may not work well to just assume that the whole family will be able to work out an agreement to support the dependent one after mom or dad passes on.

At some point, should the parent insist that the child move out, but agree to pay for the alternate housing for some period of time? What if the house is going to be sold. Does the parent want to give the child written, enforceable rights to remain in the house for a certain amount of time under certain terms & conditions if the parent dies or moves out? How will that impact the parent’s well-being, or the ability of their Executor to wrap up the estate after death? Will the child need a new guardian or life care planner?

Call us for legal advice on developing a family well being plan … 732-382-6070

The Landscape has changed for Guardianship in New Jersey

Procedures for filing for Guardianship are changing in New Jersey as a result of amendments to the Court rules that were effective 9-1-2016. The Rules are at N.J.R. 4:86-1 to 4:86-10. Guardianship petitions now must be initiated using a specific set of forms that have been prepared by the Administrative Office of the Courts.  A Guardianship Monitoring Program is being established in each county. After the pleadings are filed, the petitioner must complete a mandatory guardianship training program before the court hearing date, which includes watching a certain video about the Guardian’s many duties and responsibilities.  The alleged incapacitated person must attend the hearing unless his/her court appointed attorney and the petitioner’s attorney both certify  that s/he would be unable to attend due to physical or mental incapacity. Once the Judgment is entered, the Guardian must qualify as Guardian within thirty days. The physicians’ reports must specifically delineate the areas of functional decision-making in which the individual retains capacity.

There continue to be thorny legal issues that will come up in these cases.  Whether planning the care for a senior or a young person with disabilities, The law is bending towards limited guardianship, and sometimes it isn’t patently obvious that the individual lacks capacity in all respects. If the person who seeks to become guardian cannot be bonded due to their own prior financial difficulties or lack of personal resources, there may be a need to find somebody else to serve as guardian. The petitioner may need to obtain court permission for sale of real estate, or for placement of a mortgage on the property to pay off debt or support the individual in his/her home. The petitioner may wish to get court authorization for Medicaid eligibility planning including transfer of assets to spouse or other family members. The Verified Complaint, Order for Hearing, Physicians’ Certifications and Judgment are in a format that requires careful reading and additional legal drafting, in order to be sure that everything the petitioner knows and everything the petitioner seeks can be reflected in the forms that are submitted to the County Surrogate.

Call us for advice and representation in guardianship matters …732-382-6070