The Legal Checkup Blog
Office of the Governor
I just received confirmation from a new client that the nursing home has rescinded its notice of Intent to Discharge her grandmother. While this is great news, and our advocacy has paid off, this case represents a disturbing trend.
This is the third case in the past six months in which I was hired to advocate against a wrongful notice of Intent to Discharge an elderly resident of a nursing home on the basis of non-payment. In all three cases, MassHealth coverage was in place, but there was an outstanding balance ranging from $6,500 - $13,000, for a period prior to the MassHealth approval. In all three cases, the amount owed represented the Patient Paid Amount (PPA) for a period prior to the time when the client received a notice from MassHealth informing them of their duty to pay a set amount each month.
Most people are aware that there is a duty to pay something each month under the Medicaid regulations based on their income less any allowed deductions (the PPA). Clients are certainly advised of this when working with an elder law attorney and most nursing homes will inform clients of this duty when they are assisting with the application. (As a side note, I advise against using the nursing home or a non-attorney service that they may refer you to, but that is a separate topic.) There are instances when the client is not informed in advance, however, through no fault of their own.
By the time the client receives a notice informing them that MassHealth benefits have been approved, and detailing the amount that must be paid each month RETROACTIVELY to the date of eligibility (which could be as much as four months prior to the date of application), the funds may not be there to pay the outstanding PPA. If a client is not informed that they must hold the funds or pay an estimated PPA each month while the application is pending, they may not have the funds available by the time they receive the notice from MassHealth.
In all three of these cases, the balance was owed not because funds were gifted and not due to misappropriation of funds. The clients were simply not informed that they would need to pay a PPA back to the date of requested eligibility. The nursing home assisted with the application in one case, and referred the clients to a Medicaid service in both other cases. Nobody told the client to pay an estimated PPA while the application was pending or to hold the monthly income pending the approval from MassHealth.
In the most recent case, when MassHealth ultimately issued an approval notice and indicated the resident's duty to pay a PPA each month going back a couple of months, the nursing home continued to bill for the outstanding balance. They sent a threatening letter to the resident's granddaughter, who managed the resident's checking account. She tried to explain the situation to the nursing home administrator, and showed the bank records documenting where the funds went - they were not gifted - they were used to purchase items her grandmother needed.
When the granddaughter explained that she had four children and worked full time and barely made ends meet, and simply did not have the funds to pay the nursing home the outstanding amount, the nursing home issued a Notice of Intent to Discharge the resident for non-payment. My client's grandmother is still mentally competent, so the law required that the nursing home staff serve the notice on her directly. Imagine the fright my client's 88 year old grandmother experienced when she was handed a notice informing her she was going to be discharged from the facility that had been her "home" for the past two years.
To make matters worse, the notice indicated that the facility planned to discharge the resident to her granddaughter's home 30 days later (the law requires 30 days notice). My client had informed the facility that she could not take care of her grandmother and, furthermore, that the setup and amount of stairs in her three-level condominium was an unsafe environment. Her grandmother would require two people to assist her with transfers in and out of bed or up and down the stairs to the bathroom. The facility knew that a discharge to my client's home would not be safe. They knew that my client worked two jobs to make ends meet. They knew that she did nothing wrong in this process, and that they had actually failed to inform my client that they were filing a conversion from community MassHealth to long-term care MassHealth on her grandmother's behalf, so she should either pay an estimated PPA from that point on or hold the funds pending the approval. While they are not solely to blame either, they are more responsible for the situation than my client, yet they issued this notice to try to bully my client to find a way to pay the outstanding balance. I find this tactic to be nothing short of elder abuse!
The time, energy, and expense the facility expended to pursue a wrongful discharge of this resident would have been better spent developing a better system to ensure that this problem does not happen again with another resident. I am not un-sympathetic to these facilities. I know that they suffer as a result of the delays and abuses in the MassHealth system. So do my clients. But, I suggest that we would all fare better if we communicated in a collaborative manner to address these recurring issues, rather than defensively on a case by case basis.
Each year, MassNAELA holds a "scattered site" breakfast that is open to non-attorneys and non-members. It is held on the same morning in four parts of the state, and provides a wonderful opportunity for MassNAELA attorneys and other professionals who work with seniors to network.
This year the breakfast program will be hosted at the following locations:
Armbrook Village in Westfield, The Village at Duxbury in Duxbury, Whitney Place in Natick, and Woodbridge Assisted Living Facility in Peabody. The substantive program will be "The Affordable Care Act, Medicare, and Medicaid - Everything You Need to Know," with a panel of experts at each location.
A special rate of $30 is available to guests of a MassNAELA member if paid by February 28th. If you would like to attend as my guest at the Duxbury location, please download the form below, complete it, and send it with your payment as indicated on the form before the deadline.
Please send me an email (to firstname.lastname@example.org) to let me know that you will be attending as my guest. I hope to see you there for this important topic and great networking!
-- Judy Flynn
Today I begin my term as President of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA). I look forward to a productive year of advocacy ahead and hope you will help with one of our current goals, which is to educate the public about unethical ads that prey on the vulnerabilities of seniors and people with special needs. You've heard the ads on the radio, seen the flyers or newspaper ads.
The attorneys/companies who place these ads make false promises, create false impressions, and use scare tactics to instill fear in their intended audience.
* These ads make the nursing homes sound like money-grubbing thieves -- when the reality is that the caring staff of nursing homes provide 24/7 care to people who are unable to remain safely in the community. Should the nursing homes provide this care for free? You can bet that the attorneys who place such ads do not provide their services for free. In fact, if you consider the cost of some of these ads (many thousands of dollars), it suggests that these scare tactics are having the desired effect.
* These ads give the false impression that seniors can remain in full control of their assets AND protect those same assets from the cost of long-term care (not true!).
* The ads of a few elder law attorneys place all elder law attorneys in a bad light by emphasizing "protecting assets" above all else, when the reality is that protection of the client is the paramount concern for most elder law attorneys.
MassNAELA works hard to advocate for seniors and people with special needs, but this task is made much more difficult by offensive ads that encourage people to do whatever is necessary to make sure they won't "lose their assets to the nursing home" - in other words, let the state pay it all.
This emphasis hurts everybody because care providers, judges, and legislators have begun to see elder law attorneys as the enemy -- doing nothing more than "hiding" assets from the nursing homes. This could NOT be further from the truth, however. Most elder law attorneys focus on protecting the client, not the assets. Most elder law attorneys provide comprehensive guidance and advocacy to clients, and if asset protection is part of a comprehensive plan, it is only done with full understanding that any assets that are "protected" from the cost of nursing home care are NOT fully available to the client for their future needs. Any ads that suggest one can protect assets and retain full control of the assets are misleading at best.
We need your help to spread the word regarding ads that use false claims and scare tactics. Share this message with your loved ones. If you work with seniors and their families, you have the opportunity to share MassNAELA's message with them.
If you or someone you know has a concern about a particular ad, feel free to send it to me at email@example.com.
Planning is important, whether it is advance planning or crisis planning, it is important to seek professional guidance. Just be aware that if something seems too good to be true, it probably is. If something makes you feel rushed, anxious, or bullied, you should walk away. Get a second opinion. Feel free to call my office for guidance, or you can find a MassNAELA member in your area at www.massnaela.org.
Happy New Year to you all! Make 2014 the year you get your affairs in order.
Sara and Ralph, a couple in their late 70’s, were perusing the newspaper one Sunday when they saw an advertisement about nursing homes and long-term care costs that grabbed their attention. The ad, which was placed by a lawyer, claimed that their home could be sold at auction and that they could be left homeless and penniless if they did not take action. The ad caused Sara and Ralph to fear losing their home and savings. It used scare tactics and preyed on their emotions and potential vulnerabilities.
While it is true that good estate planning techniques can protect assets, including the home, from the cost of long-term care, ads like the one that frightened Sara and Ralph violate the Aspirational Standards of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA).
MassNAELA is an organization of Massachusetts elder law attorneys working to assist elders, as well as elder law attorneys, as they navigate the maze of long-term care options. We encourage seniors and their family members to be leery of such ads using worst-case scenarios and scare tactics regarding the costs of long-term care. MassNAELA’s Aspirational Standards regarding marketing and advertising urge all elder law attorneys to do the following in advertising and marketing:
• Consider the potential for marketing to educate the public and to promote the profession of elder law;
• Prepare or disseminate only marketing communications that are truthful and do not include statements that are false or misleading in any material respect;
• Take into consideration the intended audience for any marketing communication and, in particular, the potential vulnerability of that audience to undue influence;
• Ensure that no materially false or misleading information is communicated in connection with a seminar, presentation, or similar activity; and
• Accurately describe legal concepts, procedures, programs or techniques in all marketing communications.
MassNAELA encourages high standards of technical expertise and ethical awareness among its members and all attorneys who practice elder law in Massachusetts, but we cannot “police” long-term care advertising. We can only inform and educate. The consumer has the power to choose whether to respond to such advertising.
Choices involving long-term care and planning are difficult and there are no “one size fits all” answers. It is important for seniors to consult with a reputable elder law attorney who can provide honest and complete advice on nursing home costs and planning options available in a particular situation, and to realize that if an ad uses scare tactics that cause anxiety, they should not take the bait. Responsible attorneys will not make you feel rushed, bullied, or unnecessarily fearful.
PLEASE help us to educate the public about unethical advertising. Share this message with everyone you know – especially those who are the intended target of such advertising.
The cost of nursing home care, which is approximately $10,000 - $12,000 per month in this area, can quickly wipe out one's life savings. In 1988, Congress enacted provisions to prevent what is known as "spousal impoverishment," or leaving the spouse who remains in the community with little or no income or resources. The provisions helped to prevent spousal impoverishment and provided some level of security for community spouses.
Under the MassHealth regulations incorporating the spousal impoverishment provisions, a range of assets is allowed to be retained by the community spouse, and depending on factors such as income and living expenses of the community spouse. There are additional provisions which provide for some of the institutional spouse's monthly income to be paid to the community spouse each month, or for excess assets beyond the maximum allowed to be retained to generate the needed income, in certain circumstances.
The Centers for Medicare and Medicaid Services (CMS) have announced these and other spousal impoverishment standards for 2014, which you can see here:
SEMINARS AND WORKSHOPS
Next LEGAL CHECK UP Boot Camp to be held
Wednesday, November 6, 2013
10 am - 12 pm
SPACE IS LIMITED - PRE-REGISTRATION IS REQUIRED
Attendees of this free comprehensive workshop will learn the important considerations for a successful Estate and Long-Term Care Plan. Part of the workshop will be interactive to allow attendees to discuss general problems, concerns and situations.
This workshop will cover:
*what estate planning documents you need in order to achieve your goals and objectives;
* how to properly select Agents, Personal Representatives, and Trustees;
* whether you need a Will, a Trust, or both;
* long-term care costs and payment options (Medicare, VA benefits, Long-Term Care Insurance, Private Pay and Medicaid)
* how to protect your home and other assets;
Each attendee will receive a workbook and will "graduate" from the Boot Camp with a detailed, comprehensive plan of action.
For more details and to sign up go to:
Tags: PACE, home care, long-term care, asset protection, elder law, Legal Check Up, Legal Documents, Durable Power of Attorney, Estate Planning, Health Care Proxy, Last Will & Testament, disability planning, Medicare, Community Care, nursing home, Program of All-Inclusive Care for the Elderly (PAC, Medicaid, Veterans Benefits, Medicaid Home Care, long-term care planning
Many of you are aware that I am very involved with the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA), and I am currently serving as the Chapter's President-Elect. MassNAELA has approximately 500 members in the Commonwealth - attorneys who practice in the areas of Elder Law and/or Special Needs Planning. In addition to the dedicated members of the Board of Directors, MassNAELA has several Committees comprised of member volunteers who focus on various areas of advocacy and education to protect the rights of seniors and people with special needs in the Commonwealth.
One of our most important efforts relates to litigation of wrongful denials of MassHealth and Medicare coverage, and several years ago we developed a Litigation Initiative to develop a cohesive approach to defend against the systemic abuses in the application process for public benefits. One of our leaders and mentors in this effort has been Attorney John Ford and his colleagues at Neighborhood Legal Services. John was one of the original members of MassNAELA and is a former President of the Chapter, and he has devoted his entire career to legal aid services - over 45 years! John has brought his decades of experience in litigating issues affecting elders to provide guidance and mentorship to other MassNAELA members whose clients have been faced with wrongful Denials and a lack of Due Process.
However, John and his colleagues at Neighborhood Legal Services, like all Legal Services agencies, have been hit by hard times. Budgets have been slashed, staff cut, and remaining staff forced to take time off without pay at times to save other positions.
Whether you realize it or not, you or your loved ones in Massachusetts have likely benefitted from the commitment and dedication of John Ford and all of the other attorneys and staff at Neighborhood Legal Services. And, their advocacy and guidance has been invaluable to MassNAELA's public policy and litigation efforts, helping us to ensure that the rights of seniors and people with special needs are upheld. Neighborhood Legal Services has been there for people in need, and now they need us to be there for them.
PLEASE join me in making a donation - any amount you can afford - to Neighborhood Legal Services. They recently moved to a new location in order to cut their rent expense in half, but they had to take out a loan to pay for the up-front costs. They need our help to pay back the loan so they can focus on what they do best - providing legal services to the poor and advocating for seniors through their Elder Law Project.
Check out their website at www.neighborhoodlaw.org, and please visit their fundraising campaign website at http://igg.me/at/Help-NLS-Move-Office/x/4646373 to make a donation. Every little bit will help. Thank you!
Once again I have encountered the infuriating problem of "Observation Status." A client's loved one was admitted to a Boston hospital as a result of a crisis. I instructed my client to confirm that his father had been formally "admitted" to the hospital, and his response was a bit incredulous. "Of course he was admitted -- he has been in the hospital for four nights!" His response was completely logical, of course, but my concern was realized when my client confirmed that the hospital still had his father listed on "Observation Status."
In general, Medicare will only provide coverage for skilled rehabilitation services at a nursing home if the patient had a minimum of a three-night stay and is transferred directly from the hospital to the nursing home. My client's father could not safely return home, and would need to be placed in a skilled nursing facility, so we advocated for his status to be changed (for him to be "admitted") and ensured that he had the required three-night stay before being transferred to the nursing home. (Just to be clear - staying at the hospital on "Observation Status" for three nights does NOT qualify as a three-night stay. One must be "admitted" before midnight for that night to qualify.)
Unfortunately, most people are not working with an attorney and do not find out about this problem until much later when they are charged for various prescriptions and services they received in the hospital or, worse, when they receive a huge bill from the nursing home. It is far more difficult to successfully appeal the "Observation Status" at that point, but an appeal should be pursued.
On November 3, 2011, the Center for Medicare Advocacy and the National Senior Citizens Law Center, filed a nationwide class action lawsuit to challenge this illegal practice on the basis that it violates the Medicare Act, the Freedom of Information Act, the Administrative Procedure Act, and the Due Process Clause of the Fifth Amendment to the United States Constitution. (Bagnall v. Sebelius, No. 3:11-cv-1703, D. Conn)
In the meantime, you need to know your rights and advocate for yourself. There are a number of self-help packets (and a wealth of information on this and other topics) on the Medicare Advocacy website at http://www.medicareadvocacy.org. Call me at 781-681-6638 if you need advocacy to protect your rights on this or a related issue, or you can find an elder law attorney in your area through the website of the Massachusetts Chapter of the National Academy of Elder Law Attorneys at www.massnaela.org.
Education is the best defense! Please share this information with your friends and family to prevent them from being the next unsuspecting victim of this illegal practice.
MASSACHUSETTS CHAPTER OF THE NATIONAL ACADEMY OF ELDER LAW ATTORNEYS (MassNAELA)
CONTACT: Beth Bryant, 508.786.3013
October 31, 2012
MASSACHUSETTS ELDER LAW GROUP’S SEVEN-YEAR DRIVE FOR LONG TERM CARE INSURANCE BILL FINALLY LEADS TO PASSAGE
Governor Deval Patrick Signs Bill Protecting Seniors From Losing Their Homes, Originally Filed by the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA)
BOSTON – October 31, 2012 – The Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA) today announces a legislative victory for seniors, as Governor Deval Patrick has signed into law a bill protecting individuals from losing their homes if they choose to use long-term care insurance for community-based care before entering a nursing home. Bill S.2359 grants an exemption from MassHealth estate recovery claims whether an individual uses their long-term care insurance for at-home or nursing home care. Prior to this bill, the MassHealth estate recovery exemption only applied when long-term care insurance policies were used for nursing home care.
Working with Senator Harriette L. Chandler, MassNAELA advocated for the passage of this bill, part of which was originally filed in 2005. The bill, signed into law by Governor Patrick as “An Act Establishing Standards For Long-Term Care Insurance,” also includes important consumer protection for purchasers of long-term care insurance. The Act enables MassHealth Medicaid recipients who have purchased long-term care insurance policies to use their policies for home care coverage without forfeiting estate recovery protection. This legislation allows seniors and disabled persons to seek care in their home instead of nursing home care and reinforces the incentive to purchase long-term care insurance.
“Before this new law, those who chose to use their long-term care insurance to pay for care in their home rather than a nursing home could lose their estate recovery exemption if their insurance benefits fell below qualifying levels before they entered a nursing home,” states Philip D. Murphy, Esq. President of MassNAELA. “Now, when a person buys a qualifying long-term care insurance policy, his or her home is protected from estate recovery whether the insurance is used to pay for care at home or in a nursing home. The exemption of a person’s home from estate recovery after he or she dies is a strong incentive for a person to buy qualifying long-term care insurance. More people should buy long-term care insurance under the new law, thereby saving MassHealth some long-term care costs. This is a win-win for elders and MassHealth.”
An advocate for quality of life for seniors, MassNAELA has filed several bills and been a significant force behind legislation focused on improving the ability of elders to remain financially independent and in their home while dealing with the cost of long-term care. In 2008, the organization won passage of H.975, a bill exempting MassHealth applicants from paying fees for retroactive bank records, which was signed into law by Governor Patrick as Chapter 125 of the Acts of 2008.
The National Academy of Elder Law Attorneys, the premier organization of elder and special needs law attorneys in the country, is dedicated to developing awareness of issues concerning the elderly and those with special needs. Over 500 attorneys are members of the Massachusetts Chapter, which comprises 12% of all NAELA members nationwide. They work directly with the elderly and those with special needs in areas as diverse as planning for catastrophic care costs, disability planning, age discrimination in employment and housing, benefits planning, estate planning, veterans’ benefits and more. For more information about MassNAELA, visit www.massnaela.com.
Tags: PACE, home care, long-term care, asset protection, elder law, Legal Check Up, disability planning, Medicare, skilled services, nursing home, Program of All-Inclusive Care for the Elderly (PAC, Medicaid, Medicaid Home Care, Estate Planning, long-term care planning