Rhode Island Elder Care Lawyer Blog
Last Thursday, October 3rd, I participated in the Rhode Island Alzheimer’s Association’s Getting Started Education Series, presenting on the topic of legal and financial considerations of Alzheimer’s disease. As I promised during the presentation, I am now posting a copy of my presentation slides (below).
If you have more specific questions, or are in need of legal help, please don’t hesitate to contact our offices.
As promised, I am sharing the PowerPoint slides from my recent presentation to the NEGAS group on Medicaid & Medicaid Planning.
The typical scenario goes like this. Dad is living alone at home, suffering from Alzheimer’s or a related dementia. He falls and fractures a hip. With Daughter’s help, he is admitted to a hospital for three or more days. Dad is then discharged to a nursing home, specifically into its skilled “rehabilitation unit.”
No one at the nursing home says anything to Daughter about payment when Dad is admitted. A few weeks go by, and still no word about payment. Daughter assumes that Medicare will cover the costs, but she’s primarily concerned with Dad’s health and doesn’t give it much thought.
Unexpectedly, after several more days at the nursing home, the charge nurse tells Daughter that Dad has “plateaued” in his rehabilitation. Accordingly, he will be downgraded in a few days and will have to be discharged from the rehabilitation unit. The nursing home suggests Daughter visit other nursing homes in the area with “long-term beds” and select one, since Dad “will not be able to stay here.”
Daughter is confused and alarmed. “Why not?” she asks. The charge nurse patiently explains that because Dad has “plateaued” in his care and is “not improving,” he must be discharged from the skilled unit. She is sympathetic, but explains that those are “just the rules”
However, the charge nurse is wrong. For decades, it has been an article of faith in nursing homes that once a person “plateaus,” he or she can no longer receive benefits under Medicare. This is the basis for the nursing home’s decision to terminate Dad’s Medicare coverage. But in a federal court in January 2013, the government stated that this has, in fact, never been the rule.
The case Jimmo v. Sebelius is a class action suit in which Glenda Jimmo, 76, of Bristol, Vermont and several national groups, including the Alzheimer’s Association and the Parkinson’s Action Network, sued the government challenging the use of this so-called “improvement standard.” The government, rather than litigating the case, settled with Mrs. Jimmo and the other plaintiffs.
In this settlement, approved by the federal judge, the government denies that there ever was any “improvement standard” of the type which was the basis for the nursing home’s decision to terminate Dad’s Medicare coverage.
Moreover, the government agreed to “clarify” the manuals used by nursing homes to determine whether residents are entitled to Medicare benefits. Specifically, the manuals will make it clear that Medicare coverage does not depend on a patient’s potential for improvement from nursing care, but rather on his or her need for skilled care. This is a major change in the procedure around Medicare coverage in nursing homes.
Back to the story. Dad needs the services of a physical therapist and occupational therapist to deal with his hip fracture. So the Jimmo case means that Dad can continue to remain in the skilled rehabilitation unit of the nursing home, right?
Unfortunately, it’s not that simple. The nursing home charge nurse is not in the habit of following federal court decisions in Vermont. She only knows the way things have always been done, and continues to insist that Dad will downgraded in a few days, relying on the manual that the nursing home has used for decades — the same one that the government has agreed to “clarify”.
And since government moves very slowly, it will be many more months, perhaps years, before this “clarification” is finally implemented. So what can Dad do in the meantime to assert his rights to Medicare coverage?
The answer is: he must appeal the denial of Medicare coverage. The rules on how to appeal, and particularly the timing of the filing, are specific and strict. How Dad should proceed with his appeal will be the subject of the next post in this series.
In the meantime, if you find yourself or a loved one faced with this situation, go to www.medicareadvocacy.org, the website for the Center for Medicare Advocacy, which spearheaded the Jimmo case. Among the exceptionally useful aids on this website are self-help packets designed to guide someone faced with this immediate issue.
Last week I met with “Jennifer”, whose mother “Sally”, a long-time client of our office, had entered a nursing home several years ago. (Their names have been changed.) Two months ago, Sally died. Though always a sad occasion when a parent passes away, I told Jennifer that she should take comfort in knowing that she was there for her mother when she needed her most.
One of the ways that Jennifer had made Sally’s final years more comfortable was having urged her years ago to engage in estate planning, an important element of which involved taking actions to prevent all of Sally’s life savings from being spent on the nursing home. The technique that I had recommended to Sally, and which she implemented, was the transfer of a portion of her assets to an Irrevocable Trust.
When Sally eventually required nursing home care, the assets in the Irrevocable Trust did not need to be spent down in order for her to qualify for Rhode Island Medicaid benefits. Instead Jennifer was able to use the protected assets to pay to hold Sally’s bed in the nursing home during those times when Sally needed to go to the hospital for an extended period. And since Sally, like most Rhode Island Medicaid recipients in nursing homes was only allowed $50 per month for personal needs, Jennifer was able to pay for those extra things which Sally wanted but which she could not otherwise afford.
At our meeting, Jennifer reported that there was still some money—not a fortune, but some–remaining in the Irrevocable Trust. I advised Jennifer that, as Sally had specified in the Trust, that balance could be divided between herself and her sister. Jennifer was pleased with this, not so much for herself, but because she knew her sister could use some extra money with a child in college.
In the 25 years in which I have been privileged to represent clients like Sally and counsel their adult children like Jennifer, I have seen this result many times. It provides a significant measure of consolidation—and justified satisfaction– to sons and daughters like Jennifer to know that because they encouraged their parent to do planning, that not all of their father or mother’s life savings needed to consumed by nursing home costs.
And it is never too late to do this planning. At initial consultations, clients often lament that “we should have do this years ago”. I discourage this thinking, because I have seen many times positive outcomes like that of Sally’s which have occurred even when the planning has begun later in life.
A March 8, 2013 article about long term care insurance in the Wall Street Journal entitled “Can You Afford to Get Older?”, drew a useful distinction between good and bad long term care insurance policies.
While noting that “[a] good long-term care policy can cover a significant of [long term care] costs…[a] bad policy could cost you a small fortune in premiums for coverage so limited it is is essentially worthless”.
Suppose someone enters a nursing home who has long term care insurance. He or she is all set financially, right? Not necessarily. I have seen many instances in which someone has purchased a long term care policy, only to find that the policy’s coverage equals only a fraction of what the nursing home actually ends up costing.
Take the gentleman who ten years ago was farsighted enough to anticipate the potential of his requiring long term care in the future. However, he had limited means, so the policy he purchased paid at the maximum rate of $100 per day for three years.
Fast forward ten years later. The gentlemen enters a nursing home whose daily rate is $300 per day. This means that he has a shortfall of $200 per day, or $6,000 per month! He receives $1000 per month in Social Security, meaning that he has to use his savings at the rate of $5000 per month, or $60,000 per year. This will pretty much wipe him out in less than a year.
So he diligently paid premiums over ten years on a policy which failed to achieve his goal of protecting this assets from the costs of long term care. As the Wall Street Journal article pointed out, good policies–meaning those from solid companies, with realistic coverage including inflation riders, etc–can be excellent investments. However, policies which fall short of these and other essential features can be a waste of money and provide a false sense of security.
So if you already have a long term care insurance policy, a “reality check” is in order. A good place to start is at the Genworth 2012 Cost of Care Survey, which provides statistics on the average cost of home care, assisted living, and nursing home costs in each of the 50 States. Though as the expression goes “your mileage may vary”, the Survey at least puts you in the ballpark of current reality of the cost of long term care.
If you find that there is a significant gap between what your policy pays and the cost of care in your area, don’t panic. Rather, consult with a trusted and competent long term care insurance professional or with an elder law attorney regarding your options. For even a long term care insurance policy that falls short of the current cost of care generally has a place in a comprehensive asset protection plan.
The Johnston Senior Center recently teamed up with the Centers for Medicare & Medicare Services (CMS) to host an information session aimed at empowering seniors to take control of their health care, through information and tools to protect them against Medicare fraud.
According to the Johnston Sun Rise, the event “aimed to give Medicare recipients an opportunity to learn about the common scams criminals use to obtain personal information, which often leads to identify theft.”
Among the tips shared at the event:
- Medicare will never call you and ask for personal information over the phone, or send their officials to your door unannounced. Don’t ever disclose personal information over the phone – just hang up if someone tries to pressure you.
- Treat your Medicare and Social Security cards as you would your credit card – keep your numbers private, and carry them only when needed. Only show them to your healthcare providers.
- Always check your monthly Medicare statements for accuracy. Report any concerns immediately.
With almost 200,000 Medicare recipients in Rhode Island, these are messages that should be repeated widely and often.
New research shows that one in three elderly Americans on Medicare passes away at home. This is not encouraging news, given that most seniors would prefer to die at home or the home of a loved one. But there is a positive development: the number of Medicare patients who died in hospital decreased from 32.6 percent in 2000 to 24.5 percent in 2009.
The results of a study led by Brown University professor Dr. Joan Teno were recently published in the Journal of the American Medical Association, and are both encouraging and discouraging. For example, the report stated that hospice use increased greatly from 2000 to 2009. On the downside, though, “In 2000, a Medicare patient who died was moved an average of two times in the last 90 days of life; by 2009, that average increased to three times.”
Dr. Teno “has devoted her career to understanding how to measure and improve the quality of frail, older and dying persons. She has led a statewide effort to improve pain management in nursing homes, for which she has received an award from the American Cancer Society.”
Source: The Crescent-News. Research: Only a third of elderly Medicare patients die at home. February 10, 2013.
New regulations regarding the estates of deceased Medicaid recipients make it even more important that clients do advance planning in order to minimize the impact of such estate recovery on their estate plans.
In an effort to strengthen collection efforts in its “estate recovery” program, the Rhode Island Office of Health and Human Services (OHHS) has recently finalized regulations prompted by a mandate contained in the FY 2013 budget enacted by the Rhode Island General Assembly in its last session.
OHHS was commendably inclusive its rule making process, involving meetings with stakeholders over the spring and summer of 2013 in which I was an active participant. The General Assembly’s action, and OHHS’ finalization of regulations make it clear that the State of Rhode Island is serious about recovering from the assets of deceased Medicaid recipients. See this notice from OHHS for more details.
As a result of a proposed settlement agreement reached in litigation, there appears to be clarification of the “improvement standard” as a prerequisite to a nursing home resident continuing to receive Medicare skilled nursing home benefits.
Once implemented, this will enable nursing home residents who have been discharged from a hospital and told that they can no longer receive Medicare benefits to continue to do so provided that they need skilled services, even to maintain level of functioning. According to Marsha Greenfield of LeadingAge,
“The settlement is expected to be approved by the court within the next few months, after a hearing to ensure that the settlement is fair to the plaintiffs. The final settlement is expected to certify a nationwide class of beneficiaries, estimated at 10,000, whose skilled nursing or home health services claims were denied by Medicare prior to Jan. 18, 2011, the filing date for the lawsuit.”
For more information, see the alert, Settlement Reached to End Medicare’s “Improvement Standard”, from the Center for Medicare Advocacy, Inc.