As I have written previously, in speaking with families, overwhelmingly the desire is for elderly family members to remain in their own home as they age and face declining physical and mental health.   But, is that always the best thing?  For many people, the answer is yes.  But, perhaps not for everyone.

I was reading a recent post on the New York Times New Old Age blog (www.newoldage.blogs.nytimes.com) which highlighted two cases in which elderly parents were living at home in declining health.  One was a 95 year old woman living in her own home with a team of aides and other assistance, all coordinated by her overwhelmed daughter.  The other was an elderly man suffering from Alzheimer’s Disease, living in the basement of his son’s home.  The woman had visitors and activity in her home every day.  The man did not, spending most of the day alone watching television.

The two cases raise some interesting questions.  Would the elderly man be better served in an assisted living facility or at least, adult day care?  He is not getting any mental stimulation through most of the day, which, if received, could slow down the progression of his disease.  There is the safety issue as well.  He remains at home in the basement for long hours unsupervised.  What if there is an emergency?   Will help arrive in time?

The elderly woman would seem to be better cared for.  She has visitors in and out of her home throughout the day.  But, her daughter is coordinating all this care.  It sure sounds like a full time job.  And then we learn that the daughter, herself, is 74 years old.  How is this affecting her health and what happens if she needs care?  Finally, I wonder what Mom’s finances are?  All this assistance can approach and exceed the cost of care in a facility.  Will she run out of money and if so, what happens then?

As 77 million baby boomers begin turning 65 in 18 months, long term care will continue to be a major issue families will have to wrestle with.  And, I am not saying that remaining at home shouldn’t be the goal for many.  However, as with most complex problems a one size solution does not fit all.  Assisted living facilities and nursing homes will always have a place in the continuum of care and may just be the right fit for some.  Food for thought and a different perspective to consider.

For further information and advice in any estate matter, do not hesitate to contact me at 888-800-7442, or info@fnlawyerinnj.com.

Just about everyone who gets Social Security, Social Security Disability Insurance (SSDI), Supplemental Security Income (SSI), or a Railroad Retirement or Veterans Administration disability pension, will receive a one-time payment from the U.S. government of $250 as part of the American Recovery and Reinvestment Act of 2009 (a/k/a the stimulus bill). The extra payment is scheduled to arrive by the end of May the same way you receive your usual benefit.

Among those receiving the one-time stimulus payment will be long-term care facility residents on Medicaid who draw Social Security benefits. (But note that SSI beneficiaries who live in a nursing home and get a monthly SSI benefit of $30 are not eligible for the payment.)

Medicaid-eligible long-term care facility residents and their families should know that the stimulus payment is not considered income and will not be counted as a resource for 10 months (including the month of receipt) in calculating benefits under Medicaid (or any other federal program or state program with some federal financing). The $250 will also not count as gross income for tax purposes. Recipients can save the payment if they want to, but they should make sure that it will not put their savings over the asset limit for any program benefits they may receive as of February 2010.

Because the $250 payment will not be counted as income, it will not put a Medicaid-eligible resident over the state’s income limit. In addition, a Medicaid nursing facility resident should not see an increase in his or her patient pay for the month the payment is received.

“This money is yours. Your home or facility is not allowed to take it to pay your bill, even if you get help from your state paying for your care,” says the National Council on Aging (NCOA) in an informational handout directed at residents of nursing homes, assisted living facilities and board and care homes.

If you have any questions, contact Fredrick P. Niemann, Esq. at 888-800-7442, or info@fnlawyerinnj.com.  He is happy to answer your inquiries.

So often, when working with families who are struggling to care for a loved one with dementia, the most frustrating part is the uncertainty of the condition from day to day.  A recent case in another state highlights that very clearly.

Verne Gagne was a prominent professional wrestler in his day with the American Wrestling Association, in the 1960’s and 70’s.  He eventually lost his big stars, such as Hulk Hogan and Jesse Ventura, to the World Wrestling Federation. He is now 82, and suffers from Alzheimer’s disease, residing in a nursing home.  That is where he had an altercation with a 97 year old resident and put a wrestling move on the resident, slamming his body to the ground.  The other man broke his hip and died several weeks later.  The police are investigating the incident but there is a consensus of opinion that Mr. Gagne should not be charged with a crime because he didn’t know what he was doing.  A tragic story but with similarities that are all too familiar to families who have loved ones with Alzheimer’s.  It is the uncertain, sometimes violent and erratic, behavior that can be most frustrating and frightening. 

Although no one can be sure what caused Verne Gagne to act in the way he did, we know that Alzheimer’s patients very often lose their short term memory but are able to conjure memories of events and people 40 or 50 years ago or more.  Gagne’s skill as a wrestler made him more dangerous than the average resident.  Firstly, he was more physically fit than the average resident.  Secondly, while he was losing his short term memory, he was prone to recalling events from his past, such as his days wrestling.  Perhaps it is that memory, programmed into his brain, that caused him to perform a wrestling move on his co-resident.

It is the unpredictability that often turns a family’s world upside down,.  Dad can be living comfortably in a facility one day and the next he can become extremely agitated and aggressive, causing the facility to ask the family to move him because they can’t accommodate his needs, or because of concern for the safety of other residents.

It is just another reason why families cannot wait and react to a loved one’s long term care needs.  When possible, preventative measures need to be taken.  So often, we see families plan as if Mom or Dad’s current condition, while tragic and upsetting, will remain static, unchanging.   That is usually far from the case and misjudging the situation can be worse than anyone imagined.
 
Who knows what could have been done to prevent Verne Gagne from acting out, although, there was at least one previous altercation between the two residents.  The lesson to be learned on a broader level, however, is to recognize the unpredictability of Alzheimer’s, and dementia in general.  Take action before, not after, it becomes necessary.

For further information and advice in any elder law matter, do not hesitate to contact me at 732-863-9900 Ext. 101 or 105, or fniemann@hnlawfirm.com.

Most people want to avoid nursing home care.  Many people believe that assisted living provides them with something better: choice, control, independence, and safety in a “non-institutional, community-based setting.”  What is not widely known is that the protections for nursing home residents provided by the federal Nursing Home Reform Law do not apply to Assisted Living facility (ALF) residents, even those who are eligible for nursing home care and receive Medicaid for ALF services under a home and community-based waiver. Moreover, no separate federal legislation protects ALF residents.

Over the years, Medicaid spending for long-term care services has shifted significantly from nursing home care to home and community-based alternatives, including services in ALFs. Between 1995 and 2007, Medicaid spending on nursing home care declined from 61% to 47% of all Medicaid spending in long-term care, while Medicaid spending on home and community-based waiver programs, including ALF care, increased from 9% to 27% of Medicaid’s long-term care spending.[1] In 2002, 41 states used Medicaid to pay for assisted living services for more than 100,000 residents.[2]

Earlier this month, ALF residents in Washington State suffered a set-back in legal protection, highlighting the need for federal legislation.  In Washington State, a federal district court rejected limited state law protections for ALF residents whose facilities terminate their Medicaid participation. In contrast, residents of nursing facilities that participate in the Medicaid program have the benefit of a 1999 amendment to the federal Nursing Home Reform law, which offers broader protections to residents in identical circumstances.

Assisted Living Residents Lack Protection When their Facilities Terminate Participation in the Medicaid Program.

In 2007, ALFs in Washington State and elsewhere began voluntarily terminating their Medicaid provider agreements with the States and evicting their Medicaid residents.  Not atypical was the story of a 98-year old woman who had spent more than $300,000 of her life savings, paying privately for her stay at an ALF owned by Assisted Living Concepts. She was told that the facility would not accept Medicaid for her care and that she would have to leave, despite the fact that the facility had promised repeatedly over the nine years that she had paid privately that she could stay as a Medicaid beneficiary when her private funds ran out.[3]

Although Assisted Living Concepts, the chain that owns the woman’s ALF, evicted residents from its facilities across the country, only Washington State enacted protective legislation.  The protection for residents who were being displaced from their ALFs was limited. As enacted, the Washington legislation required ALFs to keep only residents who were receiving Medicaid at the time of their facility’s withdrawal and those who had paid privately for their stays for at least two years and who became eligible for Medicaid within 180 days of the facility’s withdrawal from the Medicaid program.[4]  The law was challenged by the Washington Health Care Association, a trade association of nursing homes and assisted living facilities. In a summary judgment decision issued this month, the federal district court in Washington State sustained the industry’s challenge and struck down the law on the grounds that it violates the Contract Clause of the United States Constitution[5]

The Court described the legal question as whether the state law was a substantial impairment to a contractual relationship and, if so, “whether the impairment is reasonable and necessary to serve an important public purpose.”[6] It found, first, that the 2008 legislation impaired facilities’ contractual relationship with the state by unilaterally invalidating the contract’s termination clause, which allowed ALFs to terminate a Medicaid contract on 30 days’ notice. Next, despite acknowledging that assisted living residents “are vulnerable elderly and/or disabled adults” for whom “forced and sudden discharge poses a significant threat to the residents’ emotional and physical well-being,” the Court held that “the drastic measure of requiring boarding homes to continue to provide services” to certain Medicaid residents “in exchange for the Medicaid rate [that the Department of Health and Social Services] DSHS decided to pay” was neither “reasonable” nor “necessary.”[7] The Court suggested that alternative legislative solutions could have served the state’s purpose “equally well without impairing the State’s own contracts.”[8]

The Washington federal court decision underscores the need for federal legislation to protect assisted living residents. Significantly, similar, but broader, federal law does protect nursing home residents in the identical situation.

Protection is Available for Nursing Home Residents when their Facilities Terminate their Medicaid Participation.

A 1999 amendment to the federal Nursing Home Reform Law – “Continuing Rights in Case of Voluntary Withdrawal from Participation”[9] – was Congress’ response to the decision of the Vencor Corporation (now known as Kindred) to terminate its nursing home Medicaid contracts and evict its Medicaid residents. The federal law allows nursing facilities to withdraw from the Medicaid program, but only prospectively.  All individuals living in a nursing facility at the time of a nursing facility’s withdrawal from the Medicaid program are protected, including those who become eligible for Medicaid at some undefined time in the future. The nursing home industry did not challenge the 1999 law. Notably, the Contract Clause, an important vehicle for challenging the Washington state law, does not apply to the federal government.

Conclusion
As assisted living becomes an increasingly prominent part of the country’s long-term care system, assisted living residents need to be adequately protected.  Congress should extend Medicaid nursing home protections to assisted living residents who use Medicaid and should consider whether additional, broader federal legislation is appropriate as well.

For further information and advice in any Medicaid matter, do not hesitate to contact me at 732-863-9900 Ext. 101 or 105, or fniemann@hnlawfirm.com.

If you are looking for a steady stream of income in retirement, an immediate fixed annuity may be the answer. An immediate fixed annuity isn’t flashy and doesn’t promise big gains, but with the stock market so uncertain, sometimes steady is better.

When you purchase an immediate fixed annuity you give a lump sum to an insurance company. The insurance company then pays you a set amount each month for the rest of your life. There are several different types of annuities, but the immediate fixed annuity has two key elements. The annuity is immediate — meaning the insurance company starts making payments right away. This is in contrast to a deferred annuity, which begins making payments at a later date. In addition, the annuity is fixed. Unlike a variable annuity, which can fluctuate with the stock market, the amount you get with a fixed annuity stays the same each month. It is sort of like having your own personal pension plan.

The benefit of an immediate fixed annuity is a steady stream of income for life. This can be helpful if payments from Social Security and your pension or 401(k) don’t cover your needs. Immediate annuities can also be used to make up missed income if you retire early.

Immediate annuities are also useful for Medicaid planning. Purchasing an immediate annuity is a way for people with assets in excess of Medicaid’s limits to turn the assets into an income stream while avoiding a penalty for transferring the assets.

Immediate fixed annuities do have some downsides and are not for everyone. First, you must have accumulated some savings to use for the annuity premium payment. Another issue is that payments are not adjusted for inflation, so over time the money you receive is not worth as much. In addition, the money in the annuity is not liquid, so if you need a large sum of money for a medical or other emergency, it will not be available. Because of the lack of liquidity, experts advise putting not more than 20 to 30 percent of your assets into a fixed annuity.

If you are planning on purchasing an immediate fixed annuity, be wary of sales agents who try to convince you to purchase a variable annuity. Many companies have come under scrutiny for unscrupulous sales tactics with regard to annuities. In addition, because the payments are meant to last a lifetime, you want to be sure the insurance company you pick will still be around. Make certain that the insurer is rated in the top two categories by one of the services that rates insurance companies, such as A.M. Best, Moodys, Standard & Poor’s, or Weiss.

For further information and advice, do not hesitate to contact me at 732-863-9900 Ext. 101 or 105, or fniemann@hnlawfirm.com.