Returning From a Nursing Home to the Home

Senior woman sitting on the wheelchair aloneWhat are the options available to a long-term care resident who wants to return home? Consider using the Home and Community Based Services (HCBS) centered planning rules to help the resident transition back into the community. The care plan can be written in a manner to facilitate the resident’s discharge to the community.  If the individual experiences delay on the part of the Managed Care Organization (MCO) in updating the planning, the individual has a right to a service plan at her request and then annually, or upon a change in condition. Should the individual encounter delays by the MCO’s or if the individuals requested by the resident fail or decline to attend important meetings, one solution may be to involve an Omsbudsman and/or the Managed Long Term Services and Supports (MLTSS) offices, which can enforce a service plan. Generally, the initial meeting should be used to generate a list of action items, including the identification of the Medicare cutoff date and the filing of a MLTSS Medicaid application, obtaining therapies to strengthen the individual for her return to the community. A second meeting may be necessary to draft the plan. Any plan adopted must differentiate between paid and unpaid services to the individual. For instance, if a grandchild is not willing to provide free care and services on a Saturday evening, this should be stated in the plan.

Under the HCBS person-centered planning rules, the MCO must hold a care conference at the time and place selected by the resident.  A care conference is a meeting held by social worker, nurse and other long term care professionals to discuss the best care plan for the resident. The care needs and preferences of the resident are discussed and a written plan of care is documented. The care plan must reflect the goals and objectives for care. For instance, if the resident who is unable to move without assistance, needs to be provided with an air mattress and needs to be turned every two hours to prevent bedsores, this should be stated in the care plan. The cultural affinities of the resident may also be stated in the care plan.

The resident is entitled to have a representative in the care planning process. This can, but does not need to be, his or her financial power of attorney. The resident should not wait for the providers to initiate the process. The MCO must provide the resident with enough information so that he or she can make an informed decision.  If the resident is being discharged back into the community, and will require care 24/7, the post-discharge plan of care must provide whether any unpaid services is going to be performed on a volunteer versus paid basis. The MCO cannot require family members or friends who are not willing to commit to providing free care on a continuing basis to provide the care without compensation.  If various therapies will be needed to strengthen the individual so that she may return to the community, a physician’s order for skilled therapy should be incorporated into the care plan.

The written service plan prepared and implemented through the MCO must spell out how the individual will transition from care in a facility to care in the community and should identify specific goals and services. What funding is available to facilitate an individual’s transition back to the community?  Under the post-eligibility treatment of income rules found at 42 C.F.R. § 435.72, the individual may keep all of her income up to a limit of $2,005.00 per month for up to six months, which can be used to pay rent for an apartment in the community.

The discharge service plan should be prepared taking into consideration the unique abilities and preferences of the disabled and whatever decision –making capacity the soon-to-be discharged resident has retained.  Where the resident is unable to make and implement care-related decisions independently, one possibility is to empower the resident by involving him or her in a collaborative, or supportive decision making (SDM), process.  In this model, the resident awaiting discharge helps define the post-charge plan of care through the assistance of “supporters,” who can help the resident plan the he or she will receive in the community. The SDM decision-making model works best when the “supporters” remain available and cooperative in assisting with the implementation of the decision selected by the disabled or incompetent individual. SDM can be incorporated into the in the discharge planning process for an individual with limited or diminishing capacity. If this is not feasible, where there is not already a power of attorney, alternatives may include obtaining a limited guardianship order (as opposed to a plenary guardianship order) and using the limited guardianship process to define and constrain the authority of the facility’s representative in the discharge process, so that the discharge plan optimally furthers the best interests of the resident returning to the community. Finally, the resident department from a nursing home has a right to seek a Fair Hearing upon transfer or discharge and the service plan itself should incorporate appeal/Fair Hearing rights incorporate within the plan.

Questions? Let Jane know.

Jane Fearn-Zimmer is a shareholder in the Elder and Disability LawTaxation, and Trusts and Estates Groups. She dedicates her practice to serving clients in the areas of elder and disability law, special needs planning, asset protection, tax and estate planning and estate administration. She also serves as Chair of the Elder & Disability Law section of the NJSBA.

 

 

What is a Medicaid Penalty Period?

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Medicaid is a joint federal and state program that provides funding for long-term care in a nursing home, an assisted living facility, an adult medical day care program or at home. As a means-tested public benefit program, there are strict asset and income requirements. A single individual who wishes to qualify for Medicaid can have no more than $2,000 in countable assets in his or her name and if both members of a married couple seek Medicaid, they can have no more than $3,000 in assets in either or both of their names. There are somewhat higher limits, where one member of a married or a civil union couple will remain in the community independently and the other member will apply for Medicaid.

Generally speaking, an individual cannot give away his or her money and immediately qualify for Medicaid without being subject to a Medicaid penalty period. What does that mean? A penalty period is a period of time during which Medicaid will not pay for the care of the applicant, as a consequence of gifting during the five years immediately prior to the date of filing of the Medicaid application.

“Gifting” for Medicaid may not always be obvious.  Unverified withdrawals from a joint bank account by a child for cash payments of the parent’s expenses may be penalized as gifts. This happened in E.S. v. D.M.A.H.S. and Bergen County Board of Social Services, (Final Agency Decision, N.J. OAL Docket No. HMA 9477-2014, December 11, 2014).

What can you do if you are preparing to file a Medicaid application and the applicant has already given away more than $1,000 during the past five years?  Having the right documentation in hand is very important. Collect and keep financial statements, receipts, notes in checkbook registers and calendars to substantiate cash transactions.  If cash was paid for utility bills, medications, or for groceries, do you have a receipt or a prescription log from a pharmacy? Was a store loyalty card used? If there was gambling, are there statements available from the casino, to substantiate the amounts and dates of the losses?

Documenting that the uncompensated transfers were made exclusively for a purpose other than expediting Medicaid eligibility can also be an option. This can work when the client was living actively in the community at the time of the transfer. See Estate of M.M. v. DMAHS and Union County Division of Social Services, (Final Agency Decision, NJ OAL Docket No. HMA 13911-08, May 27, 2009) (reversing the imposition of any Medicaid transfer penalty for the transfer of $25,000 to a daughter by the Medicaid applicant, when she was living independently at home prior to traumatic onset of disability).

Questions? Let Jane know.

Jane Fearn-Zimmer is a shareholder in the Elder and Disability LawTaxation, and Trusts and Estates Groups. She dedicates her practice to serving clients in the areas of elder and disability law, special needs planning, asset protection, tax and estate planning and estate administration. She also serves as Chair of the Elder & Disability Law section of the NJSBA.