Schedule a Family Meeting before Leaving Rehab

If you have assisted a family member through a course of subacute rehabilitation (up to 100 days under Medicare Part A following a hospitalization), you are no doubt familiar with the process of the “family meeting.” This is a meeting at the facility attended by the members of the patient’s treatment team — the head of nursing, dietary, recreation, physical therapy, occupational therapy, speech therapy, and even the physician — where the patient and their family advocate discuss the goals that are in place for the patient, the progress being made, and the patient’s ongoing “skilled needs.” These meetings take place every few weeks during the skilled care/rehabilitation process.

Then there comes the day that the patient is advised that s/he will be discharged. Decisions have to be made quickly — is the patient staying in the facility for long term care? Is the patient going back to the community? If the patient is returning to the community, there may be a myriad of issues to address. Sometimes patients have multiple needs — the house may be inaccessible; they may need a companion in the home; they may be unable to prepare their own meals; they may have ongoing clinical problems that need specialized nursing attention; they may have behavioral disorders related to dementia which require special handling. Each patient has unique needs, and they may not be as capable as they were before this latest medical crisis.

When you are coordinating the discharge, the facility’s treatment team can be an invaluable source of information and suggestions.   Since home health aides for the basic activities of daily living (ADL’s) often must be hired privately — as generally the cost cannot be billed to Medicare –  family caregivers may be inclined to set up an informal casual volunteer arrangement rather than bring in many hours of professional hired help. However, the team at the facility may have an objective viewpoint on what is actually needed for a safe and successful return home, and this can be very useful to the family.

What are the questions to ask? Not just “can he come home?” Patients can usually go home if the proper supports are in place. You need to go well beyond the equipment that may be needed. Instead, try these concrete questions: 1.What do your aides have to do for him every day, starting when he wakes up? 2. Does he need physical assistance with showering, or just a shower stool to sit on and someone standing by? 3. Do you recommend that he have someone next to him while he is walking around? 4. Can he move his wheelchair around by himself? 5. Are there any special dietary issues we need to know about? 6. Does he get out of bed at night and try to walk around, or does he sleep through the night? 7. Do you think he needs to have an aide in the house throughout the night? 8. Does he ask for assistance, or just wait until someone comes in and asks him a question? 9. Does he eat his meal without someone assisting or prompting?  10. Do you have any thoughts on whether he can safely be left alone in the house?

Careful planning can prevent a crisis. Take advantage of the skills and knowledge of the rehab team to help you prepare for a good transition home.

 Contact us for legal advice and advocacy on a wide array of elder care issues, including participation in family meetings … (732) 382-6070

NJ proposes to eliminate its Medically Needy Medicaid Program

Friday’s post talked about the new state program being developed for delivery of home and community-based Medicaid services (MLTSS), which will require individuals whose income exceeds the income cap to set up a Miller Trust to receive and handle the excess income. The State has actually published a Notice of Proposal, announcing its intent to ask the federal government to allow it to do away with the Medically Needy Medicaid Program for residents in nursing homes whose income exceeds the “income cap” ($2,163/month in 2014), and replace it with the MLTSS which will require the use of a Miller Trust.

The Miller Trust is also called a Qualified Income Trust. Friday’s post discussed the need for new applicants for home-based or assisted living Medicaid services to first establish their Miller Trust before filing the application. The State is now forewarning that people who reside in nursing homes may need to engage counsel to prepare a Miller trust for them in order for their benefits to continue.

The exact implementation date for the proposal is not known at this time. Further, it is possible that existing Medically Needy Medicaid recipients will be “grandfathered” so that new trusts are not necessary. As of now, there are many questions left to be answered.  However, you should begin thinking about who you’ll want as trustees to handle the responsibilities of managing the income, the trust and the benefits once the program is implemented if you have income in excess of the cap.  The trustee may be your Power of Attorney or if necessary, your Guardian, or any other sensible, reliable, trustworthy individual who helps you out.

Our firm prepares specialized trusts for clients with disabilities and on Medicaid, and we are ready to prepare Miller Trusts that are appropriate for your situation.

Contact us regarding Medicaid eligibility, applications, appeals and trusts … 732- 382-6070


Miller Trusts May Soon be Needed for Certain Medicaid Recipients

The State of New Jersey provides part time home health care services to eligible individuals through the Medicaid Managed Long-Term Services and Supports (MLTSS) home and community  program (formerly called Global Options). Applicants are individuals who require an institutional level of care because they require assistance in three or more of their Activities of Daily Living (ADL’s), but they are living or could live in a safe community-based environment where they have other people available such as a spouse or family members who can provide the additional support that they need.  The home care program is part of a Comprehensive Medicaid Waiver that moves the management of Medicaid long-term care services to Managed Care Organizations (MCOs).

There has always been an “income cap” that prevented people from receiving these services in their homes (or in assisted living) if their income was “over the cap.” The “cap” is 3 times the federal poverty rate. In 2014, the “cap” is $2,163 in gross monthly income from all sources — pension, social security etc. If you were in a nursing home, on the other hand, you could receive Medicaid benefits under the Medically Needy Medicaid program.

Within the next few months it is expected that the State will finally roll out its MLTSS program for people whose incomes exceed the $2,163 income cap (the cap goes up a bit every year). To participate there will be a need for the individual to establish a “Miller trust” and set up a legal structure that assigns the excess income to the trust. As elder law attorneys, we write specialized trusts and prepare Medicaid applications on a regular basis, and we are prepared to assist clients who need to establish and administer these Trusts and assemble & file a Medicaid application in a timely way.

Call us for representation on Medicaid eligibility and preparation of Miller trusts for home & assisted living Medicaid applications … 732-382-6070

Medicare Rehab: What does the Jimmo Settlement Mean for You?

On January 24, 2013, a settlement was reached in a class-action suit called Jimmo v. Sebelius, which was pending in the U.S. District Court for the District of Vermont. As noted in yesterday’s blog, Medicare Part A will pay for up to 100 days of skilled care services in a skilled nursing facility (SNF) following a hospitalization of three days or more, if medically necessary and all criteria are met. Over the last 18 years, I frequently heard from clients — or heard from the SNF’s case manager — that skilled therapy services would be discontinued in less than 100 days because the patient had “plateaued” or “wasn’t making any more progress” or “wasn’t improving any further.” The concept was that even though the patient’s condition required skilled care, it would no longer be provided. The Jimmo plaintiffs alleged that the law was being violated.

The official fact sheet published by the Centers for Medicare Services (CMS) is here:  As described there, “While an expectation of improvement would be a reasonable criterion to consider when evaluating for example, a claim in which the goal of treatment is restoring a prior capability, Medicare policy has long recognized that there may also be specific instances where no improvement is expected but skilled care is, nevertheless, required in order to prevent or slow deterioration and maintain a beneficiary at the  maximum practicable level of function.” See 42 CFR 409.32(c).

What’s the bottom line? If you or your loved one are receiving skilled nursing and rehab services post-hospitalization, you need to be talking with the team about both the “rehabilitation standard” and the “skilled nursing standard,” to maximize the benefits that can be received within the SNF setting.

For legal advice and advocacy on a wide range of elder law and elder care law matters, call 732-382-6070



Subacute Rehabilitation Care – You Can Change Facilities

I have frequently encountered the question, “can I switch to a different facility to continue my rehab?” I don’t know where the notion came from, but it appears that people believe that once they begin their post-hospitalization rehab under Medicare Part A, they have to stay there for the duration of therapy.

Medicare Part A pays for services rendered in a skilled nursing facility (SNF) for patients who (a) were admitted to a hospital for three or more consecutive days, (b) were admitted to the SNF within a short time (less than a month is the general rule), (c) requires daily skilled rehabilitation or skilled nursing services for a condition that was treated in the hospital (or arose while in the SNF) and (d) whose physician has certified to the above needs. For up to 20 days, Medicare part A will pay 100% of the costs including room and board charges, and starting on day 21 for up to 100 days, Medicare will pay 80% of the cost. The 2014 daily co-pay is $152 per day, and often is covered by suitable “gap” insurance.

Circumstances arise where the patient starts rehab in one place (such as Florida, or near where they live) and for practical reasons needs to relocate (such as up to NJ to be closer to where their child/ren live who are helping coordinate the treatment). Other times, it becomes apparent that the patient will need to remain in a long-term care facility after the skilled care comes to an end, and the initial facility feels unsuitable for the long term. Whatever the reason, it is certainly possible to change facilities mid-stream.

The process requires you to speak with the receiving facility about the nature of the treatment plan and your interest in transferring there, and you must arrange with your current facility to send your medical records over. Sending facilities utilize certain summary forms that capture the essence of your health information for conditions/diagnoses, prescriptions, and daily treatment in process. Once the “receiving facility” informs you that they can accommodate your needs, the rest is just a question of working about the transportation, and the receiving facility will then perform its own assessment and devise its ongoing rehab or skilled nursing plan.

Understandably, the earlier you arrange for a transfer, the more likely you will find a cooperative receiving facility. Since skilled care and skilled rehabilitation involve a complex program of services, the receiving facility will want to be able to manage the services for as long as possible.

Call us for advice and advocacy on a wide range of elder law and elder care matters  …. 732-382-6070