New PACE Program Regulations: Six Important Changes You Need to Know

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On June 3rd, the Centers for Medicare and Medicaid Services released a final rule that updates the program requirements for the PACE program (Program for All-Inclusive Care for the Elderly), a cost-effective program that helps keep frail, elderly individuals over the age of 55 in the home using Medicare or Medicaid dollars.  PACE organizations, also referred to as Living Independence for the Elderly (LIFE) organizations, are government or nonprofit entities delivering comprehensive care and services via an interdisciplinary team (IDT) to elderly and frail individuals ages 55 and over who are clinically assessed as needing nursing home care.

The new rule reflects 21st century service-delivery practices, communications and technology.

Here are six of the most impactful changes:

  1. Thirty (30) day deadline to complete the interdisciplinary plan of care. In rare circumstances, it may not be possible to make a timely assessment and care plan. In such cases, the PACE organization must document the specific circumstances why the initial assessment cannot be completed within the thirty-day period, and must detail the steps taken to provide immediate care as needed and to complete the assessment process and the plan-of-care as soon as feasible.
  2. Care delivery by non-physician primary care providers. Primary care and care management may now be provided by a nurse practitioner, physician assistant or a community physician duly licensed in accordance with state law, without having to obtain a waiver.
  3. Interactive remote technologies may be used to perform unscheduled reassessments. Video conferencing, live instant messaging, chat software and other media may be used by IDT members to perform an unscheduled reassessment in response to a request for a change in PACE services, where clinically appropriate and necessary to improve or maintain the patient’s overall health status. In order for the remote technology to be used, the patient or her representative must consent to its use.  In-person follow up may be warranted. Using remote technologies to perform reassessments may not be appropriate for medically complex patients.
  4. Mandatory attendance of the semi-annual reassessment meeting by the primary care provider, a registered nurse, and a Master’s-level social worker, with team members from other disciplines participating as needed in the professional judgment of the primary care provider, the registered nurse, and the Master’s-level social worker.
  5. Disenrollment for “disruptive behavior” on the part of either the participant or caregiver. In order to justify involuntary disenrollment, the disruptive behavior must jeopardize the patient’s health or safety or the safety of others. For instance, if a PACE participant who is able to make her own medical decisions repeatedly refuses to follow her plan of care, or if her caregiver exhibits threatening behavior which jeopardizes the participant’s health or safety, or the safety of the caregiver or others, involuntary disenrollment may be an option, after the PACE organization has ruled out alternative arrangements.
  6. PACE organizations offering qualified prescription drug coverage must comply with Medicare Part D prescription drug program requirements.

There are other major changes to the PACE program rules that may not directly impact the elderly and disabled. For more information, contact Jane at 856.661.2283 or by emailing jane.zimmer@flastergreenberg.com.

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.

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.