Posts Tagged ‘NJ Medicaid’

Assisted Living Facility Residents Can Lose Their Homes if Their Facility Stops Participating in Medicaid

Friday, June 26th, 2009

Fredrick P. Niemann, Esq., NJ Medicaid Application Attorney

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.

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Son Responsible For Mom’s Nursing Home Bill

Friday, May 29th, 2009

Fredrick P. Niemann, Esq., NJ Asset Protection Attorney

Many times the children of elderly clients ask whether they can be held responsible for Mom or Dad’s long term care costs.  My answer always was that there wasn’t anything to worry about unless you take your parents money.  That no longer appears to be the case.

A recent case in Connecticut highlights how the new Medicaid laws passed as part of the Deficit Reduction Act of 2005 are really hurting residents and nursing homes alike and now potentially also affecting other family members.  In that court case, the nursing home resident’s son signed the admission agreement on behalf of his mother.  As in most nursing home agreements Son was asked to sign as responsible party, which he did not do.  Nevertheless, Nursing Home advised him verbally that he was the responsible party.

Son then applied for Medicaid benefits on behalf of Mom.  Son did not, however, follow through on the application process in a timely manner.  He failed to provide all the information and documentation that the State needed and he did not spend down Mom’s assets quickly enough, delaying the application’s approval.  As a result, months of benefits were lost, never to be regained, benefits that Nursing Home would have received.

Nursing Home sued Son on a breach of contract claim.  It claimed that Son undertook an obligation on Mom’s behalf, when he signed the admission agreement, to promptly pursue Medicaid benefits.  Son, in response, argued that he never signed the agreement so there was no contractual obligation on his part.  The court sided with Nursing Home, finding that an oral contract was created between the two parties and that Son violated it by not conscientiously following through.

A good result for the nursing home, right?  Well, not really, when you account for the time and money it took Nursing Home to get the judgment.  It then has to collect on that judgment, assuming Son doesn’t appeal the decision, which will cause the matter to drag on even further.  And it certainly wasn’t a good result for son, who lost and now is responsible for paying Mom’s bill.  

So how could this have turned out better? If Nursing Home had encouraged Son to retain an elder law attorney to represent Mom in the Medicaid application process, it would have received a regular income stream with a timely and correctly filed application.  Sure, there is an expense involved in hiring someone.  But in the end Nursing Home would have received Medicaid benefits when it should have and Son would not be responsible for paying nursing home.  A winning result for all.

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.

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The Frail Senior and Obama-Care

Friday, May 1st, 2009

Fredrick P. Niemann, Esq., an Elder Law Attorney

Have you been wondering if the proposed Obama-Biden “plan to lower healthcare costs and ensure affordable, accessible, health coverage for all” would provide long-term skilled nursing home care for frail seniors?  The short answer is…no!

The key features of the plan focus on providing access to healthcare to “over 45 million Americans—including over 8 million children” who lack health insurance.  The Obama-Biden Plan has five main strategies:

  1. Invest in electronic health information technology system
  2. Improve access to prevention and proven disease management programs
  3. Ensure that health providers deliver quality care
  4. Lower drug and insurance costs
  5. Reduce insurance costs for catastrophic illness coverage

Here is the principal goal as highlighted on the Obama website:  “Barack Obama and Joe Biden will guarantee affordable, accessible healthcare coverage for all Americans.”  Despite the presence of the seemingly straightforward words “healthcare coverage” and “all” in the sentence above, it’s critical to understand the definition of those words.  When it comes to healthcare and politics, even simple words may not have a common-sense meaning.  “Healthcare coverage” means “payment for acute healthcare costs.”  Acute care is the type of care given to recover from short-term diseases and accidents.

In the United States, public healthcare payers, such as Medicare and Tri-Care (for retired military) and the private healthcare insurers, reimburse healthcare providers only for acute care and acute illness rehabilitation.  These payers specifically exclude long-term care in a skilled care nursing home.  Care in a skilled care nursing home is defined as chronic care.  Neither Medicare nor private health insurance pay for chronic care in assisted living facilities or nursing homes.  Unfortunately, the bottom line for America’s frail seniors with a long-term illness is that the word “all” (as defined in the Obama-Biden Healthcare Plan) does not include them.

Sadly, this means that under our current healthcare program and the Obama proposals, the majority of America’s seniors have no alternative but to pay their own nursing home bills.  If you have Alzheimer’s, Parkinson’s, or another long-term illness—you are still on your own.  Even if Obama-care is enacted, you will be required to pay your own tab for long-term healthcare until you are impoverished enough to qualify for Medicaid.

But there are ways to prevent the impoverishment required to qualify for Medicaid, if you plan far enough ahead. 

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.

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The Law Has Changed: Read About This “Medicaid Near Miss”

Friday, April 17th, 2009

Fredrick P. Niemann, Esq., NJ Medicaid Attorney

Here’s a story I was told by a colleague.  Mary was 85 years old and had been cared for by her granddaughter, Jane for several years.  As Mary’s health deteriorated mentally and physically, Jane devoted more of her time to caring for Mary, putting her own life on hold in some respects.  Mary’s family agreed that Jane would look after Mary.  Eventually, however, Jane could no longer care for Mary.  Mary was admitted to a hospital and then a nursing facility.  Because she had no assets, Jane needed to make application for Medicaid benefits and that’s when the problems began.

When Jane met with a Medicaid caseworker, she was asked about Mary’s finances.  Jane explained that in 2004, Mary sold her house for $125,000.  Jane moved Mary to an over 55 community where Jane lived nearby.  Jane quit her job to look after Mary and had power of attorney for Mary.  Their finances were commingled, however, and Jane, not understanding the Medicaid rules, did not keep records of how money was spent.  Recognizing that caring for Mary was a full time job, Mary’s assets and income supported both Mary and Jane.  Mary also gave Jane gifts of several thousand dollars on a few different occasions as a symbol of her love and appreciation of Jane.

The Medicaid caseworker incorrectly told Jane that Mary was not eligible for Medicaid, that all the money from the sale of the house would be treated as a gift subject to a Medicaid penalty.  She also suggested that Jane might be held responsible for “taking” Mary’s money.  Jane was panic stricken.  She didn’t know enough to assert her rights and give Medicaid the proper information.  As bad as things were, Mary and Jane had one thing going for them, timing.  Because the home sale and spend down of the proceeds all occurred before February 8, 2006, the transfer of Mary’s assets were subject to penalties that began to run when the transfers were made.  In their case, those penalties had already expired by the time the client applied for Medicaid.  Had those transfers occurred under the new law, no Medicaid would have been available to Mary for 12 months or more, leaving Jane with no way to pay for her care and the nursing home with a resident unable to pay their bill.

The next case that comes to us with these set of facts will likely fall under the new rules and would not end as favorably.  So what can you do?  Consult with an elder law attorney and understand the rules well before Medicaid is even a possibility on the horizon.  Once properly educated, you can take the steps to avoid the mess Mary and Jane faced or fix the mistakes.  If you wait until it’s time to file for Medicaid, it could very well be too late.

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.

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The Risk of Going Through Medicaid Application Process Alone

Friday, March 13th, 2009

Fredrick P. Niemann, Esq., NJ Medicaid Application Attorney

When money is running out and the family is faced with the need to apply for Medicaid to pay for long term care the question becomes “should we do this ourselves or should we hire an elder law attorney to help?”  Sometimes the hospital or the nursing home tells the family they will qualify without too much difficulty.  Many places strongly encourage families to hire an experienced Medicaid attorney.  So they try to do it themselves.

The pitfalls of going it alone are many and varied, especially since the latest round of Medicaid changes effective February, 2006 made the laws and regulations in this area much more complicated.  Timing is critical.  By that, I mean to say, that when you spend down assets and what assets you have at a certain point in time will have an impact on qualifying for benefits.  Let me illustrate by way of example.

John and Mary were in their 80’s and living in their home, which they owned.  They had other countable assets of approximately $50,000.  John and Mary had done no planning for their long term care needs.  John became ill in October, was admitted to the hospital and then to a nursing home for rehabilitative services.  His condition was such, that he could not go home and needed to remain in the nursing home on a long term basis, at a private pay cost of $10,000 per month.

Mary was told by various personnel at the hospital and the nursing home that based on their level of assets “John would qualify for Medicaid” in January and they arranged for her to meet with a Medicaid caseworker to make an application for benefits.  Being stressed out by the reality that John would not go home and uncomfortable with the complicated process she did not understand that for John to qualify she would have to spend down a portion of their assets to get below a certain dollar amount.  In her case that number was $27,000.  The caseworker explained this to her at the interview but, quite frankly, she was receiving so much information that she really didn’t fully understand how important that was.

She waited for medical and nursing home bills to come in.  She figured she owed the money so it was as good as spent.  In other words, in her mind she didn’t have $50,000.  They owed $28,000 so she had $22,000 left.  Not true under Medicaid rules.  Until she wrote those checks, John and Mary were “over-resourced”, Medicaid’s term for having too much money to qualify for benefits.  If you are over-resourced by even $1.00 you won’t get Medicaid for that month.  You will never get Medicaid for that month.

Had she paid those bills right away John would have qualified for benefits in January.  Instead, she didn’t write those checks until June, meaning John didn’t qualify for Medicaid until July.  Great, so Medicaid picked up the nursing home bill in July.  There was one small problem.  Who was going to pay the nursing home bill for January through June?  The answer was John and Mary, and at the private pay rate of $10,000 per month that was $60,000.  The shame is that this didn’t need to happen.

This example illustrates the pitfalls of going it alone.  The rules are quite complicated and timing is critical.  You don’t want to be left with a huge nursing home bill which you can’t pay.  The nursing home doesn’t really want to be in the position of suing their residents.  Having a knowledgeable elder law attorney representing you can save huge dollars and huge amounts of stress.

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.

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Have children? Pay them for your care.

Friday, December 12th, 2008

How children can be paid for as a caregiver to their parent(s) – Part IV

This is Part IV of a IV part series of blogs on caregiving contracts to aging parents and children (including adult children) with disabilities.

Taking care of a parent can be a full-time job.  Children may have to give up paying jobs in order to provide care to aging parents.  Unfortunately, caregiving is usually unpaid work.  Parents who want to compensate a child who takes on the burden of caregiving may do so in one of several ways.

Life Insurance Policy.  Another option for compensating a caregiver is to take out a life insurance policy in the child’s name.  The benefit of this method is that the life insurance policy will go directly to the child, avoiding probate, but the problem is the life insurance policy could be very expensive.

Fredrick P. Niemann, Esq. is a qualified elder law attorney who can help determine the right method to compensate a caregiver family member.  You can contact Mr. Niemann by calling (732) 863-9900 or via e-mail at fniemann@hnlawfirm.com.

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Have children? Pay them for your care.

Friday, October 31st, 2008

How children can be paid for as a caregiver to their parent(s) – Part III

This is Part III of a IV part series of blogs on caregiving contracts to aging parents and children (including adult children) with disabilities.

Taking care of a parent can be a full-time job.  Children may have to give up paying jobs in order to provide care to aging parents.  Unfortunately, caregiving is usually unpaid work.  Parents who want to compensate a child who takes on the burden of caregiving may do so in one of several ways.

House.  If a parent doesn’t have cash to compensate a child, the parent may transfer the parent’s house to the caregiver child.  The parent can transfer the house outright and retain a life estate for him- or herself or the parent could make the child a co-owner of the house.  If the caregiver child has lived with the parent for at least two years, transferring a house can have Medicaid planning advantages as well.  However, transferring a house can have serious tax and other consequences, so before taking this step, it is important to consult with an elder law attorney.

Fredrick P. Niemann, Esq. is a qualified elder law attorney who can help determine the right method to compensate a caregiver family member.  You can contact Mr. Niemann by calling (732) 863-9900 or via e-mail at fniemann@hnlawfirm.com.

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Have children? Pay them for your care.

Friday, October 24th, 2008

How children can be paid for as a caregiver to their parent(s) – Part II

This is Part II of a IV part series of blogs on caregiving contracts to aging parents and children (including adult children) with disabilities.

Taking care of a parent can be a full-time job.  Children may have to give up paying jobs in order to provide care to aging parents.  Unfortunately, caregiving is usually unpaid work.  Parents who want to compensate a child who takes on the burden of caregiving may do so in one of several ways.

Estate Plan.  A parent can leave a caregiver child an additional amount in the parent’s will or trust.  The problem with this method of compensation is that it can lead to conflict between siblings or other family members.  If a parent chooses to go this route, it is important that the parent explain his or her reasoning to any other children or family members that might be upset.  Communication between the family members can prevent problems later.  In addition, to avoid any appearance of undue influence, the parent should not involve the child in drafting the estate plan.

Fredrick P. Niemann, Esq. is a qualified elder law attorney who can help determine the right method to compensate a caregiver family member.  You can contact Mr. Niemann by calling (732) 863-9900 or via e-mail at fniemann@hnlawfirm.com.

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Have children? Pay them for your care.

Friday, October 3rd, 2008

How children can be paid for as a caregiver to their parent(s) – Part 1

This is Part 1 of a 4 part series of blogs on caregiving contracts to aging parents and children (including adult children) with disabilities.

Taking care of a parent can be a full-time job.  Children may have to give up paying jobs in order to provide care to aging parents.  Unfortunately, caregiving is usually unpaid work.  Parents who want to compensate a child who takes on the burden of caregiving may do so in one of several ways.

Caregiver Agreements.  Caregiver agreements are an increasingly popular way to ensure a caregiver child is compensated for the child’s work.  A caregiver agreement (also called a personal care contract) is a contract between a parent and a child (or other family member) in which the parent agrees to reimburse the child for caring for the parent.  These agreements have many benefits.  They provide a way to reward the family member doing the work.  They can help alleviate tension between family members by making sure caregiving is fairly compensated.  In addition, they can be a key part of Medicaid planning, helping to spend down savings so that the parent might more easily be able to qualify for Medicaid long-term care coverage, if necessary.  The downside to caregiver agreements is that the income is taxable.  Note that such agreements require many details to be legall approved and should not be drawn up without the help of a qualified elder law attorney.

Fredrick P. Niemann, Esq. is a qualified elder law attorney who can help determine the right method to compensate a caregiver family member.  You can contact Mr. Niemann by calling (732) 863-9900 or via e-mail at fniemann@hnlawfirm.com.

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