New federal rating system for nursing homes could show drop in scores

On February 20th, the federal Centers for Medicare & Medicaid Services (CMS) launched a new rating system for nursing homes which is based on factors that go beyond self-reported data, and will reflect auditing of self reports. Staffing levels must be reported quartely, and will be cross-matched against payroll records to verify accuracy. The use of antipsychotic medications will now be a factor in the evaluation, and the standards to be met to achieve the top 5-star rating have been improved.  The consumer website is NursingHomeCompare. Since the methodology has changed, you may not be able to accurately compare 2014 with 2015 when it comes to the issues that have changed. Scores may drop because of the new requirements. In NJ, roughly 25% of the nursing homes have achieved a 5 star rating in recent years.

There are 373 nursing homes in New Jersey.  They are inspected by both the NJ Department of Health and the federal government through CMS. New Jersey inspects most of them every year. Explanations about the state’s inspection program can be found at  the Department of Health Facilities Licensing and Evaluation website.

Complaints concerning nursing homes may be filed with the Department of Health particularly on level of service, violations of specific regulations,  or structural issues. Complaints concerning alleged infringement of residents’ rights can be filed with the NJ Ombudsman for the Institutionalized Elderly.

In selecting a nursing home, you will always want to visit the premises on several occasions (different days of the week including weekends, and days as well as evening), along with looking at data available through governmental websites. After all you’d be selecting a new home for yourself or your loved one.

HOPE for Alzheimer’s bill is pending in Congress

Some members of Congress are taking an interest in the need to provide care planning services for patients who have Alzheimers’ dementia. This proposal could be of tremendous benefit to patients and their family caregiversS. 857 was introduced March 25, 2015 and referred to the Senate Finance Committee because it deals with a Medicare benefit. The title is “A bill to amend title XVIII of the Social Security Act to provide for coverage under the  Medicare program of an initial comprehensive care plan for Medicare beneficiaries newly diagnosed with Alzheimer’s disease and related dementias, and for other purposes.”

The bill is considered a high priority of the Alzheimers’ Assocation and may be of interest to you if you are newly diagnosed with this disease or if you are a family caregiver.

The Alzheimers Reading Room — which I find to be quite an interesting website – describes the bill as follows:

  1. “The HOPE for Alzheimer’s Act will ensure newly diagnosed Medicare beneficiaries and their caregivers receive comprehensive care planning services and will require their diagnosis to be documented in their medical record.
  2. “Although Medicare already provides coverage of Alzheimer’s disease diagnostic services, it currently does not provide coverage for comprehensive care planning following a diagnosis.
  3. “The Act, if passed, will also help inform health care providers about what steps should be taken following a diagnosis, which will enhance assistance for people with Alzheimer’s and their caregivers.”

If you are a family caregiver and this bill  is of interest to you, you may want to contact your Congressional and Senate Representatives.


We represent Alzheimers patients and their caregivers in a wide array of legal matters concerning disability, capacity, Medicaid, trusts and long term care … call for appointment 732-382-6070

“Still Alice” — a compassionate film about Alzheimer’s Disease

On a very long flight back from Vietnam last week, I had a chance to see the film “Still Alice” starring Kate Bosworth. What a sympathetic and genuine depiction of the distress experienced by Alice, an accomplished university professor, wife and mother, when she learns that she has developed Alzheimer’s Disease at age 50. The rapid progression of the genetically-based early Alzheimers is very well shown and her acting is marvelous. The array of reactions among the family members is also typical since each family member is experiencing the loss of “their Alice” in their own way. If you have a family member who is newly diagnosed or you are involved in caregiving for them, the film is well worth seeing. Other helpful resources that I have found include How to Care for Aging Parents, an excellent guidebook, and the website Alzheimers Reading Room.

During my trip to Vietnam, I learned that there are limited numbers of nursing home type facilities. Instead, the social model is that the oldest son — and his wife if any — has always had the filial responsibility to take care of his aged parents. Sometimes he will leave his occupation and move back to their home or farm, and sometimes the parents will leave their home and move in with him. I talked to a variety of people who said that although they are not sure how they will manage the care of their parents and the care of their own families, this is something that they have always just expected to do. It is certainly true that even in the United States, many adult children caregivers have adopted this model as well. There are a wide range of arrangements one can make. It’s always interesting to see how things are done in different countries — that’s a benefit of travel.


For legal advice on structuring arrangements for elder care, call 732-382-6070

Petition for Class Action/Aggregate Relief Denied in Monk v. McDonald by CAVC

In previous blogs, I had commented on Yale Veterans Clinic’s Petition for Mandamus and Request for Aggregate Relief/Class Action Status in Monk v. McDonald.  Our prior blog can be accessed at Monk v. McDonald.  The petition had picked up significant media coverage because it concerned the excessive delay in adjudicating claims subject to appeal before the Department of Veterans Affairs (VA).  I was skeptical about the CAVC’s jurisdiction (and from a functional standpoint the CAVC’s administrative ability) to review issues pertaining to delay as an aggregate under the All Writs Act, 28 U.S.C. § 1651.

On May 8, 2015, the CAVC issued an Order mandating a response from the VA in relation to Mr. Monk’s specific claim, however, denying Mr. Monk’s request for recertification as a class action/review in the aggregate.  A copy of the CAVC’s order can be found at Monk v. McDonald (Order, May 8, 2015).

On May 19, 2015, the Yale Veterans Clinic filed a notice of appeal to the U.S. Court of Appeals for the Federal Circuit (Fed. Cir.) based upon the CAVC’s denial of certification in the aggregate/class action.  This appeal in its own right presents a interesting jurisdiction/standing question because the individual claimant’s Petition was not denied by the CAVC and the Federal Rules for Civil Procedure (specifically Rule 23 involving certification as class action) have never been applied in the context of Title 38.

Unfortunately, and my humble perspective, only legislative or executive action can remedy the issue of systemic excessive delay under Title 38 (veterans benefits).  The issue is likely beyond the scope of the jurisdiction of the judicial bodies authorized to review claims pertaining to veterans benefits under the current statutory scheme. Although not directly applicable because it dealt with a criminal proceeding under the UCMJ, the situation in Monk v. McDonald reminded me of Judge Robert Wiss’s quote in United States v. Joseph, 37 M.J. 392 (C.M.A. 1993):  “. . . it is not the proper function of the court to reshape the hole so that it will accept the peg and, in the process, distort the hole’s character. Rather, it is the proper limit of the court’s function to consider whether the hole — politically determined — already is large enough so that the peg fits within it.”


Pooled Special Needs Trusts can work well for small trusts

There are times that an individual with disabilities who is under 65 receives a lump sum of money at a time when s/he is receiving benefits through Supplemental Security Income (SSI), Medicaid or the Division of Developmental Disabilities (DDD). The problem of course is that those are all means-tested benefits and the participant is at risk of losing eligibility if they retain the assets. Suppose there is no trustworthy or reliable family member who has the capability to handle all the record-keeping and reporting needed to properly manage a first-party “d(4)(A)” Special Needs Trust. And suppose that along with that problem, the amount received through an inheritance or a lawsuit settlement just isn’t enough to place it under the control of a corporate trustee such as a bank or trust company. They typically require at least $250,000 in trust assets.

A nice solution for this person would be the pooled trust, also called a “d(4)(C) trust.” The transfer to the Trust is exempt. The organization has a large trust account but maintains a designated subaccount for each beneficiary’s funds. As with (d)(4)(A)’s, they must be established by a parent, grandparent, guardian or court. The pooled trust is managed by a local nonprofit agency such as PLAN-NJ. They serve as trustees and can provide other benefits such as care planning and case management. While the State of New Jersey is the first remainder beneficiary of any funds left over in a d(4)(A) trust (to the extent of benefits actually provided) (this is called the “Medicaid lien” or “special needs trust payback requirement”), the funds left over in the pooled trust go to the charitable organization and can be used to take care of other people with disabilities. The federal statute that allows pooled trusts is at 42 U.S.C. 1396p(d)(4)(A) and the rules for them are in the Social Security POMS at 01120.203

The SSI POMS say that these are the requirements:

  • The pooled trust is established and maintained by a nonprofit association;
  • Separate accounts are maintained for each beneficiary, but assets are pooled for investing and management purposes;
  • Accounts are established solely for the benefit of the disabled individuals;
  • The account in the trust is established through the actions of the individual, a parent, grandparent, legal guardian, or a court; and
  • The trust provides that to the extent any amounts remaining in the beneficiary’s account upon the death of the beneficiary are not retained by the trust, the trust will pay to the State(s) the amount remaining up to an amount equal to the total amount of medical assistance paid on behalf of the beneficiary under State Medicaid plan(s).


As with a (d)(4)(A) trust, it must be funded before age 65. Although the federal statute doesn’t explicitly provide such a restriction, the POMS says there “may be” a penalty for deposits made after 65, and NJ has chosen to penalize such transfers.

Procedure is also critical. Ideally, the funds should be transferred into the Pooled Trust from the payor (estate, insurance co., etc) so that the individual doesn’t lose benefits by receiving the asset.

For legal advice  on pooled trusts and special needs trusts, call us at 732-382-6070.