The Governor has a Medicaid system improvement bill on his desk

If you or any of your colleagues, friends, or family members are in support of improving the system for Medicaid eligibility determinations, you should call the Governor’s Office  of new jersey’s Governor Murphy at 609.292.6000 and request that the Governor sign A4569/S499 into law. pass on this information to people you know who are interested in this issue.

According to BillTrack50, in its Bill Summary, This bill “requires the Commissioner of Human Services to develop an information technology platform for the intake, processing, and tracking of applications for benefits under the Medicaid and NJ FamilyCare programs.” Among other things, “The goals of the system will be: to simplify the applications and eligibility determination processes for both applicants and eligibility determination staff; to standardize application of eligibility policy across the various agencies responsible for eligibility determination; to allow for real-time tracking of the status of applications.”

At our Firm, we prepare and file Medicaid applications for the MLTSS long-term care Medicaid programs in nursing homes, assisted living and community care settings. It’s an incredibly complex process, since five years of transaction records are required, substantial evidence can be required for certain things, it can be challenging to explain transactions that occurred several years prior, and there seem to be many unwritten procedures and policies which vary a bit county by county. There are many legal pitfalls that can occur for an individual client that need particularized attention. Applications are regularly turned down due to insufficient evidence or failure to submit everything that is required. Applicants with alzheimers and other cognitive deterioration may not be able to recall or retrieve the necessary information.

Simplifying the application process would be great. This bill is a step ahead for monitoring and uniformity.

  • Implementation of the bill would bring accountability and uniformity to the Medicaid application system, in-line with the Governor’s goal to create a Fairer NJ. You can’t drive improvement to this process, if you can’t monitor.
  • Federal Government will pay 90% of IT development work and 75% for operations.
  • Bill has unanimous support in both houses
  • Bill is based on the report by the NJHCQI (Health Care Quality Institute), “Medicaid 2.0: Blueprint for the Future” with additional input/amendments/improvements by NJ NAELA (the New Jersey chapter of the National Academy of Elder Law Attorneys)
  • If you have personal or professional experience which reinforces the need for the implementation of this bill, you should feel free to share it with the Governor’s office.

Call us for legal advice on how to achieve Medicaid eligibility for someone who needs long-term care ……….. 732-382-6070

Medical Aid-in-Dying Act signed by Governor Murphy

On April 12th, New Jersey joined seven other States which have enacted laws authorizing a terminally patient to self-ingest a drug that would end their life. Oregon was the first State to allow this, in 1997. The New Jersey bill was A1504/S1072. It will go into effect on August 1, 2018. Over two dozen other States are actively considering such legislation.

The Act specifies criteria for who is eligible to take advantage of its protections: The individual must be an adult over 18 and able to self-ingest the medication. They must have a terminal diagnosis with a prognosis of six months of less, and they must be determined to have full mental capacity. The Act allows such an individual to make and carry out an “informed decision” to ingest a fatal drug. Informed decision is defined as:

   “a decision by a qualified terminally ill patient to request and obtain a prescription for medication that the patient may choose to self-administer to end the patient’s life in a humane and dignified manner, which is based on an appreciation of the relevant facts and after being fully informed by the attending physician of:

(1)   the patient’s medical diagnosis;

(2)   the patient’s prognosis;

(3)   the potential risks associated with taking the medication to be prescribed;

(4)   the probable result of taking the medication to be prescribed; and

(5)   the feasible alternatives to taking the medication, including, but not limited to, concurrent or additional treatment opportunities, palliative care, comfort care, hospice care, and pain control.

 

There are many steps in the procedure protocol. First, the individual must originate the request by making two spoken (oral) requests to the physician, with a 15 day waiting period in between; the doctor must bring in a consulting specialist to confirm capacity; the doctors may refer the individual for psychological or psychiatrist for further capacity evaluation if capacity is not clear; the doctor must offer the patient the option to rescind his or her request. The individual also must complete a specific form and submit it to their doctor; the form will be titled “REQUEST FOR MEDICATION TO END MY LIFE IN A HUMANE AND DIGNIFIED MANNER.”

The written request must be witnessed in a manner similar to other legal documents, in which two witnesses attest to the individual’s capacity (competence) and willful voluntary act. One of the witnesses must be “disinterested” — not standing to benefit in any way from this death. The physician must also refer the individual to an appropriate health care professional for a discussion about other treatments or palliative care at the end of life. Ultimately, the doctor can then prescribe the medication.

The law contains requirements related to patient record-keeping so that every step of the process is well documented. Persons who participate in good faith with the process, or to decline to participate, are given immunity against criminal and civil liability, and are protected against professional disciplinary action related to their licenses. There are also protections that prevent life insurance and other contracts from restricting an individual’s rights under the Act, and each step of the way must be carried out by the individual and not by a proxy.  For example, neither a legal guardian, agent under power of attorney, or health care representative could act in the place of the individual.

For individuals facing harrowing end of life decisions, the new Act will provide important and welcome relief from suffering. A plan can be put in place to assure that the transition for the individuals, and the safety and security of those left behind, can be as peaceful as possible.

Talk to us about life care planning and elder care planning… 732-382-6070

Hearing Monday in Trenton on Social Isolation and Age-Friendly communities

New Jersey is working on efforts to encourage municipalities to become “age-friendly communities.” Age Friendly is spreading across the country, with interesting initiatives in many places. Take a look at South Orange-Maplewood, Chatham, and Elizabeth for starters. Looking for volunteer opportunities? Contact your Mayor — you may be able to get involved with those initiatives or help to jump-start a new process. Age-friendly is an approach to community development that looks at the impact on seniors of a community’s physical space, transportation, recreation opportunities, public building access, access to municipal government and services, housing, etc. etc. and what might be done to improve those systems to make it more feasible for people to “age in place.”

Two new bills will be introduced to the NJ legislature which addressing key issues concerning older adults.  Click here to read the text

https://www.njleg.state.nj.us/2018/Bills/AR/246_I1.PDF

 https://www.njleg.state.nj.us/2018/Bills/A9999/5314_I1.PDF

 A-246 is a Resolution co-sponsored by Assemblyman Herb Conway and Assemblyman Wayne DeAngelo that urges New Jersey counties and municipalities to take the steps necessary to be accepted into the AARP network of age-friendly communities as defined by the World health organization.

A-5314 requires the Commissioner of the Human Senior Services “within 180 days and biennially thereafter” to assess and report to the Legislature on the state of social isolation in New Jersey as if affects individuals who are over 65, have disabilities, are suffering with mental illness, or are otherwise vulnerable. The bill marks a recognition that extreme social isolation is a problem in the State which adversely affects many citizens and might be alleviated if better understood and tackled. The report must also include recommendations for strategies to counter this problem. 

The Committee hearing will take place Monday morning May 19th at 10 am in the Committee Room 11, 4th Floor, State House Annex, Trenton.

If these issues are of interest to you, contact your Legislators, and read more here.

 

Planning for a good old age involves looking at a wide array of issues, and each person’s situation is unique. Call us for individualized elder care legal planning …. 732-382-6070

Notice of Medicaid Ineligibility violates Due Process if it doesn’t specify the Reason

The Superior Court of Massachusetts recently addressed the question of whether a state Medicaid agency had given adequate notice to the Medicaid applicant of the reason for denial of eligibility. What’s useful for New Jersey purposes is the exended discussion of the federal regulations pertaining to Notices of denial, and the explanation given by the Court as to why the Notices in question were deficient.

The case concerned assets that were held in a Trust. An applicant cannot be eligible for Medicaid if his or her non-excluded “countable” resources exceed a certain limit. In this case, each Notice merely stated  that the applicant was ineligible due to having excess resources, but gave no explanation as to why the assets of the Trust were being counted as the applicant’s resources. The Court held that the Notice was deficient; stayed (enjoined) the denial of benefits pending the outcome of the lawsuit, and certified the case to move forward as a class action because the practice had adversely affected all the individuals in the lawsuit class in a similar manner.

Maas vs Sudders et al and Hirvi vs Sudders et al. (Mass Superior Court, 2018)

Federal regulations require that a Medicaid agency give explicit written notice of reasons for an adverse action and of the opportunities for appeal. The notice must be served on the affected individual. The law provides as follows:

§ 431.210 Content of notice.

A notice required under § 431.206 (c)(2), (c)(3), or (c)(4) of this subpart must contain –

(a) A statement of what action the agency, skilled nursing facility, or nursing facility intends to take and the effective date of such action;

(b) A clear statement of the specific reasons supporting the intended action;

(c) The specific regulations that support, or the change in Federal or State law that requires, the action;

(d) An explanation of –

(1) The individual‘s right to request a local evidentiary hearing if one is available, or a State agency hearing; or

(2) In cases of an action based on a change in law, the circumstances under which a hearing will be granted; and

(e) An explanation of the circumstances under which Medicaid is continued if a hearing is requested.”

We have seen situations over the years in which no reason was given for an adverse conclusion by the county Medicaid Agency. For example, the denial of benefits notice might just say “applicant has excess resources” without specifying which resources are allegedly in excess of the limits. There are times that there can be a bona fide legal and factual dispute over whether certain resources are countable or excludable. Or the denial notice might say that “there were transfers of assets in violation of N.J.A.C. 10:71-4.10″ without specifying what is being treated as a “transfer.” In some circumstances, a check that was payable to cash is treated as a gift to a third party (transfer of assets) for no reason other than it was a check payable to “cash.” An applicant needs to know just what the issue is, so that s/he can prepare for an appeal. This is a matter of Due Process, a principal established by the US Supreme Court in 1970 in the landmark case of Goldberg vs. Kelly.

Medicaid applications are a landmine of potential legal problems. Applicants can benefit by legal advice which protects their rights in this process.

For individual senior care advice on protecting your rights, interests and resources, call us at …. 732-382-6070