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

True or False? try this New Jersey Medicaid Quiz

Test your knowledge about nursing homes and the Medicaid-MLTSS program that pays for nursing home care, assisted living and part-time home care.

  1. Does a person’s monthly income have to be less than $2,313 (2,349 in 2020) to apply for Medicaid-MLTSS?
  2. Will the State take one-half the house if a married person moves into a nursing home?
  3. Does a married person have to sign over or pay one-half  of the couple’s assets when the ill spouse moves into the nursing home, before applying for Medicaid-MLTSS?
  4. Does a nursing home resident have to allow a nursing home to auto-debit his bank account every month?
  5. Does a nursing home resident have to hire the Medicaid application compiler who is recommended by the nursing home business office?
  6. Is $15,000 per year an excluded gift under the Medicaid-MLTSS transfer penalty rules?
  7. Is it illegal for a nursing home resident to use his money to make gifts to family members or set up trusts for family members, if he is paying for his care?
  8. If a Medicaid-MLTSS applicant transfers his house to his disabled child, will he be denied Medicaid benefits?
  9. Does the State put a lien on the house while a NJ Medicaid-MLTSS recipient is alive if all benefits are properly received?
  10.  Is there an upper limit on the income that the community spouse of a NJ Medicaid -MLTSS recipient can have in New Jersey?

The answer to all these questions is No!  However, myths abound, and people may be surprised to learn how they can actually protect assets in these situations.

For more information about the requirements of the MLTSS program and how to work with them for your benefit, about how you or your loved one can become eligible for Medicaid or protect your assets if nursing home care is needed, call us at ……. 732-382-6070

New 2020 NJ Medicaid numbers just released

The NJ Division of Medical Assistance and Health Services (DMAHS) has just released Medicaid Communication #20-01 which provides the new numbers that are relevant to applications for Medicaid Long Term Services and Supports (MLTSS) benefits.   20-01_Medicaid_Only_Standards         MLTSS pays for nursing home care (skilled nursing facilities), Assisted Living Facilities and part-time home care for eligible individuals. Eligibility is based on income, resources, and clinical condition, and if eligibility is established, a determination is made about whether to delay the start of benefits due to transfers/gifts that were made during the 5-year look-back.

For a married couple, available non-excluded resources owned by the applicant cannot exceed $2,000. At the time of application, the available non-excluded resources owned by the community spouse cannot exceed $128,640 (the limit was $126,420 in 2019) or half the amount that the couple owned when the applicant became institutionalized, whichever is less. This is the CSRA or Community Spouse Resource Allowance. The CSRA need not be less than $25,728 ($25,284 in 2019).

After approval, the applicant can retain some of his/her monthly income as a Personal Needs Allowance (“PNA”). The new 2020 amounts for the PNA are as follows:  Skilled Nursing Facility – $50; Assisted Living – $116.35; Home Care $2,349.

Applicants whose income exceeds a certain limit (sometimes called the “income cap), are required to establish a Qualified Income Trust (QIT) for their excess income. There are no formal regulations and the program requirements are very tricky. The new income threshold that requires a QIT, ” in 2020 is $2,349.

In 2020, applicants in Assisted Living Facilities must have monthly income of at least $816.70, which is the room and board fee.

As readers of this blog are aware, the MLTSS program contains numerous legal traps for senior planning and and obtaining benefits for individuals with disabilities, but careful planning can preserve the assets and protect the applicant and their family while achieving eligibility and avoiding the tremendous risk of unpaid nursing home bills

Call for individualized legal advice and assistance with Medicaid applications and asset protection planning …………. 732-382-6070

Ways that the NJ Ombudsman can be helpful in nursing home problems

New Jersey has a state-level Long-Term Care Ombudsman (LTCO), previously known as the Ombudsman for the Institutionalized Elderly whose mission is to protect the rights of individuals who reside in facility settings which are nursing homes (skilled nursing facilities), assisted living facilities, group homes and continuing care retirement communities. Each of these facilities is highly regulated under state and federal statutes and regulations. Residents’ rights are established by law and readers of this blog are aware of many of these rights. When there is a dispute with the management of a facility which isn’t getting solved informally by the representative of the resident (whether that’s the resident’s spouse, adult child, guardian or lawyer, for example) and the internal lines of communication just don’t seem to be working, sometimes the answer is to contact the Ombudsman for intervention.

The process generally begins by making a phone call to the Ombudsman’s toll-free number which is 1-877-582-6995. Prepare a very concise version of the story so as to focus the Complaint. An example from a case I handled many years ago was this: “the resident lives in XYZ nursing home and wishes to move out to a different nursing home in another county, and she  has repeatedly requested that medical records and summary sheet be faxed to the potential new facility but the XYZ Director refuses to honor the resident’s request.” One call to the Ombudsman’s office got that problem solved in a flash.

There are many useful publications that they can provide to you. Click here.

Keep in mind that the role of the Ombudsman’s office is to solve disputes between residents and facility management or staff so as to safeguard the resident’s rights vis-à-vis the facility’s policies or conduct. Don’t expect the Ombudsman to be able to intervene in inter-family disputes, which sometimes do occur related to visitation, access and fiduciary responsibilities. For problems like that, a different strategy will be needed and mediators, family counselors, trusted advisors and attorneys may all play a role.

Call us for advice and assistance on elder care and long-term care planning and quality of life planning ………. 732-382-6070

Long Term Care Insurance — It’s All about the Contract

If you purchased a long-term care insurance policy, (LTCI) make sure you keep that contract and the annual update notices in a safe, accessible  place and that you let your important persons know where they can find these papers. When it comes time that hands-on care, supervision and cueing are required, it will be necessary to scrutinize the contract to see just what conditions must be met to trigger the policy benefits. A Claim will have to be submitted with copious written proofs. medical records and opinions. No one has a crystal ball, but the stronger the evidence at the time the claim is submitted, the greater the likelihood that the claim will be approved so that benefits can start to flow.

A policy may say that the contract holder must require “substantial assistance in three or more of the Activities of Daily Living,” or perhaps two, or even four. The ADL’s are dressing/grooming, feeding, toileting, transfers/ambulation [with or without assistive devices], bathing, and continence. The policy holder’s needs could be the result of physical disability, or could be the result of severe cognitive impairment due to Alzheimers disease, Parkinsons disease or other dementias. Some policies cover in-home care; others only cover care in a skilled nursing facility (nursing home). The daily benefit is usually different depending on the setting. Some contracts require that in-home caregivers be licensed; others do not have that requirement. The length of the policy benefit is spelled out in the contract — five years? Lifetime? Only until a certain pool of benefit dollars is used up?

After the claim is filed, you can expect the insurance company to send out someone who will perform a functional assessment to see whether the criteria are met. As we have discussed in this space on the subject of applying for Medicaid (the PAS clinical screening) or arranging for in-home care services after Medicaid eligibility has been approved (interaction with the Case Manager from the Medicaid Managed Care Organization), self-advocacy and knowledge of the applicable standards are vital.

There is typically an elimination period such as sixty or ninety days once the claim is approved. Some policies then pay the benefit to the individual as a reimbursement, only after receiving additional proof each month that care was paid for in the prior month. This may require cooperation from the care provider, such as the nursing home or the assisted living facility or home care agency. Sometimes benefits can be assigned — some companies will pay the benefit to the facility or agency after receipt of a properly signed Assignment of Benefits. Other policies may just start paying benefits monthly after the benefits begin.

It’s all about the contract. The contract itself and information about the policy should be kept with your other important financial documents such as your power of attorney and list of assets, so that if the need arises, and your trusted person knows how to start.

For advice on elder care planning involving long-term care insurance benefits, and advice on claims issues, call us at ………. 732-382-6070