What’s in the Nursing Home Residents’ Bill of Rights?

Federal law requires that nursing home patients be given the same services and same level of care regardless of whether who is paying for it — Medicaid or otherwise. The federal “bill of rights” for nursing home residents is at 42 U.S.C. 1396r(c)(4)(A): “(4) Equal access to quality care.(A)  A nursing facility must establish and maintain identical policies and practices regarding transfer, discharge, and the provision of services required under the State plan for all individuals regardless of source of payment.”

When your loved one moves into a nursing home, they are not just moving into a health care facility. They are moving to a new home – perhaps their final home — and they become residents. They do not leave their civil liberties at the nursing home door. In the federal nursing home resident’s right statute, you’ll find the following provisions.  New Jersey’s counterpart to the federal law is N.J.S.A. 30:15 (statute) and N.J.A.C. 8:39-4.1 (Department of Health regulation):

(c) Requirements relating to residents’ rights

(1) General rights

(A) Specified rights

A nursing facility must protect and promote the rights of each resident, including each of the following rights:
(i) Free choice The right to choose a personal attending physician, to be fully informed in advance about care and treatment, to be fully informed in advance of any changes in care or treatment that may affect the resident’s well-being, and (except with respect to a resident adjudged incompetent) to participate in planning care and treatment or changes in care and treatment.
(ii) Free from restraints The right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for purposes of discipline or convenience and not required to treat the resident’s medical symptoms. Restraints may only be imposed—

(I) to ensure the physical safety of the resident or other residents, and
(II) only upon the written order of a physician that specifies the duration and circumstances under which the restraints are to be used (except in emergency circumstances specified by the Secretary until such an order could reasonably be obtained).
(iii) Privacy The right to privacy with regard to accommodations, medical treatment, written and telephonic communications, visits, and meetings of family and of resident groups.
(iv) Confidentiality The right to confidentiality of personal and clinical records and to access to current clinical records of the resident upon request by the resident or the resident’s legal representative, within 24 hours (excluding hours occurring during a weekend or holiday) after making such a request.
(v) Accommodation of needs The right—

(I) to reside and receive services with reasonable accommodation of individual needs and preferences, except where the health or safety of the individual or other residents would be endangered, and
(II) to receive notice before the room or roommate of the resident in the facility is changed.
(vi) Grievances The right to voice grievances with respect to treatment or care that is (or fails to be) furnished, without discrimination or reprisal for voicing the grievances and the right to prompt efforts by the facility to resolve grievances the resident may have, including those with respect to the behavior of other residents.
(vii) Participation in resident and family groups The right of the resident to organize and participate in resident groups in the facility and the right of the resident’s family to meet in the facility with the families of other residents in the facility.
(viii) Participation in other activities The right of the resident to participate in social, religious, and community activities that do not interfere with the rights of other residents in the facility.
(ix) Examination of survey results The right to examine, upon reasonable request, the results of the most recent survey of the facility conducted by the Secretary or a State with respect to the facility and any plan of correction in effect with respect to the facility.
(x) Refusal of certain transfers The right to refuse a transfer to another room within the facility, if a purpose of the transfer is to relocate the resident from a portion of the facility that is not a skilled nursing facility…. to a portion of the facility that is such a skilled nursing facility.
(xi) Other rights Any other right established by the Secretary.

There are specific rights concerning access to the resident by outside people such as family or doctors:

42 USC 1396r (c) (3) Access and visitation rights

A nursing facility must—
(A) permit immediate access to any resident by any representative of the Secretary, by any representative of the State, by an ombudsman or agency… or by the resident’s individual physician;
(B) permit immediate access to a resident, subject to the resident’s right to deny or withdraw consent at any time, by immediate family or other relatives of the resident;
(C) permit immediate access to a resident, subject to reasonable restrictions and the resident’s right to deny or withdraw consent at any time, by others who are visiting with the consent of the resident;
(D) permit reasonable access to a resident by any entity or individual that provides health, social, legal, or other services to the resident, subject to the resident’s right to deny or withdraw consent at any time; and
(E) permit representatives of the State ombudsman … with the permission of the resident (or the resident’s legal representative) and consistent with State law, to examine a resident’s clinical records.
Your family member can sign HIPAA releases so that loved ones can have access to their medical or nursing information.  Residents have the right to allow and disallow visitors, to read their chart and to direct that their records be shared with certain other people The have the right to participate in care planning meetings. I had a case once where a competent nursing home resident wanted to move out of the nursing home she was in, to another facility where she had previously volunteered over the years. To do so, she needed her records sent to the new facility so they could confirm what her medical/nursing needs were.  This resident had a family member who had muscled in and had persuaded the facility administrator that the resident wasn’t of sound mind and shouldn’t be listened to. The facility refused to complete any paperwork to facilitate my client’s application for admission to the other place, despite calls from me and from my client’s outside social worker. It was clear that they were violating the law. We actually had to get the State Ombudsman involved. The matter was finally concluded with my client happily relocating to the place where she knew everybody and really felt “at home.”
These rights are chiseled in stone. They are not merely suggestions. Strong advocacy is sometimes needed when a resident encounters resistance to their requests.
Contact us for representation and advice on problems with nursing home admission, care and discharge issues … 732-382-6070

Baby Boomers looking ahead: long term care insurance or Medicaid?

There’s no doubt about it, long-term care insurance is expensive, and the premiums can be steep if you wait until after age 70 to first buy a policy. Some companies have gotten approvals for big premium increases on old policies. The marketplace has shrunk as companies have left the business, and some companies create bureaucratic barriers to paying claims. However, there’s also no doubt that nursing home care is expensive — in New Jersey it is not uncommon for the monthly costs to hit $12,000 to $14,000 a month. Hiring a live-in to help you at your home can cost $6,000 a month.  If there’s no money and no insurance, then Medicaid is the only source of payment.

The Baby Boomers and those starting to plan their retirement years have to think way ahead, as life expectancy is lengthening and therefore the statistical risk of needing long-term care in one’s 80’s is real. The Boston College Center for Retirement Research has interesting articles and useful statustics on this subject.   http://crr.bc.edu/briefs/long-term-care-how-big-a-risk/ Their recent research shows that more people are trending towards waiting to see what happens, and then embarking on a Medicaid spend-down plan, rather than purchasing long-term care insurance. The benefit is the savings in premium dollars, of course. The downside is that the state Medicaid program may only provide a complicated or inadequate home health aide program for people residing outside of nursing homes.

As I see it, the main benefit of long-term care insurance is the way it helps people age in place at home. To remain in the home in a “naturally occurring retirement community (NORC)”, a person needs to plan out their need for hands-on assistance, transportation, medical services, grocery shopping & food preparation, and attending social & cultural events,  If you have the means, insuring for long term care costs can make a big difference in how quickly you can get your home care started and in the administrative process that’s involved after that. Policies frequently  have a 90-day waiting period. This means that once you require hands-on home health care because you’ve become dependent in two or more of the Activities of Daily Living (ADL’s), you need to cover the cost of that care during the waiting period. Depending on the circumstances, this may not be a big financial burden, because many patients are tending to their own needs at home and it isn’t until they are hospitalized due to illness or injury that they begin to have care in the home. For those patients, they may receive skilled care or “rehab” during this initial waiting period, paid for by Medicare part A or their Medicare Choice plan.

For those without such insurance, the only way to obtain in-home care is to pay for it privately or apply for Medicaid when the assets are below the required level ($2,000 in available assets; the home is not counted; there can also be a share of assets reserved for the spouse). The application is filed after the applicant’s assets reach this level, and then the long wait begins , as the application is being processed.  However, New Jersey’s MLTSS Home and Community Based Services programs  have been undergoing a massive reorganization since 2013 with an apparent shortage of staff to fully and swiftly implement the program. Everyone hopes that the snags will be worked out soon. The law requires that the county welfare agency notify the applicant within 90 days if there is a reason the application can’t be approved. This is often the opening volley in a protracted experience. So based on past experience, I think that it is still likely to take a very long time for  the county welfare agencies to process and approve the many home care applications they receive under MLTSS.

Careful planning can prevent a crisis and improve your ability to direct the course of your care plan.

Call us about planning for a good old age… 732-382-6070


CAVC – Blue vs. Brown Water Veterans and Inland Waterways . . . To Be Continued

On April 23, 2015, the Court of Appeals for Veterans Claim (CAVC) remanded, in pertinent part, the Board of Veterans’ Appeals decision denying service connection for conditions related to TCDD (Agent Orange) exposure for Mr. Gray a Vietnam-era veteran.  I don’t want to give away the end of the movie, but the question of whether Mr. Gray is a veteran with service in Vietnam under Title 38 is still in dispute.

The operative issue was whether the DVA Secretary’s interpretation of “inland waters of Vietnam” under 38 C.F.R. § 3.307(a)(6)(iii), which excludes harbors such as Na Dang Harbor, was arbitrary and capricious.  The CAVC held the VA’s definition of the scope of “inland waterways” was not entitled to deference and remanded as identified below. The decision can be read at Gray v. McDonald (No. 13-3339).

Foremost, the CAVC distinguished the facts of a prior decision, Hass v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 102 (Jan. 21, 2009) (where Mr. Haas’ service was offshore), from Mr. Gray’s service, which included service aboard the U.S.S. Roark in Da Nang Harbor and in the vicinity of the “Cua Viet River mouth.”  Frankly, the factual distinction between Haas and Gray was something I did not consider.

Second, the CAVC provided no deference to the DVA’s characterization of “inland waterways” to excluded certain bodies of water (to include Da Nang Harbor).  The DVA had previously defined the scope of inland waterways in inter alia VA TL 10-06.  The CAVC recognized the difficulties faced by the DVA in assessing likelihood of exposure in particular bodies of water; “however, [the] VA is not free to label bodies of water by flipping a coin, yet the outcomes here appear just as arbitrary.”

Finally, the CAVC did not adopt the appellant’s definition of inland waterways. The CAVC held “[the] VA retains its discretionary authority to define the scope of the [Agent Orange] presumption”; however “remand[ed] the matter for VA to reevaluate its definition of inland waterways — particularly as it applies to Da Nang Harbor — and exercise its fair and considered judgement to define inland waterways in a manner consistent with the regulation’s emphasis on the probability of exposure.”

As an aside, the Federal District Court of Columbia (D.D.C.) recently dismissed the Blue Water Association’s facial challenge under the APA to the VA’s policies regarding “blue water” veterans on jurisdictional grounds. The memorandum opinion provides a good concise history of issue as further identified by the CAVC in Gray v. McDonald.  This separate decision can be accessed at http://dockets.justia.com/docket/district-of-columbia/dcdce/1:2013cv01187/161343.

If you have questions regarding “Blue” versus “Brown” water status, please do not hesitate to contact Fink Rosner Ershow-Levenberg at (732) 382-6070.


Yeah But Can We Preserve the Millennium Falcon for Chewbacca’s Benefit?

Elder Law has really broken out into mainstream popular culture this year!  There was the first season of Better Call Saul, where the attorney who would be Saul Goodman on Breaking Bad gets into elder law and sues an assisted living facility in New Mexico.  And now, on the heels of the new Star Wars Trilogy coming out, we have a galactic elder law fact pattern with a script spec called Old Solo.  Apparently, Han’s golden years are not so golden, and he needs long-term care and has fallen out with his long-time caregiver, Chewbacca.  Old Solo has issues of caregiver burnout, health care decision-making, ex-spouses, and what setting is the least restrictive (being at home in Corellia with Leia and her new husband Wedge or in a Cloud City assisted living facility–tough call!).  And most importantly, will Han have to sell the Millennium Falcon to pay for his long-term care– and what does the Republic think is fair market value for it?

It may be funny to consider what old age is like in a galaxy far, far, away, but if you are having your own real life elder law issues, contact us!


DIC Claim Appeal and Administrative Efficiency – St. Paul Pension Management Center

Last week, the St. Paul Pension Management Center granted on appeal the surviving spouse of a veteran Dependency and Indemnity Compensation (DIC).  The issue on appeal involved a dependency status question when the marriage lasted less than one year.  While marriage for one year is the normal predicate question for spousal status, in this case “status” was satisfied under 38 C.F.R. § 3.54 (c) (1) (death within 15 years of termination of service).  I was not surprised by the grant of DIC once a few issues were resolved through a Certification Under Penalty of Perjury by the surviving spouse.  I was, however, pleasantly surprised by the efficiency and timeliness of the decision subject to appeal.  Indeed, the timeliness between filing of Notice of Disagreement and decision subject to appeal was less than four months.

St. Paul Pension Management Center has not been alone if their responsiveness to certain claims on appeal.  In the last few months, the Philadelphia Pension Management Center timely granted DIC benefits after submission of VA Form 9 (Substantive Appeal to the Board of Veterans’ Appeals (BVA)) on a somewhat unique issue regarding spousal status that I assumed would takes years to resolve.  While the issue could have been certified to the BVA with a hearing at an unknown future date, the AOJ’s actions quickly resolved an otherwise complex issue.

Finally, the Newark Regional Office recently granted DIC benefits on appeal for the surviving spouse of a Vietnam veteran.  While the appeal took some time to process, the Regional Office was extremely responsive when an issue arose regarding the surviving spouse’s health.  The timely grant of benefits provided not only monetary compensation, but also permitted the surviving spouse to coordinate health care coverage due to her now-availability to CHAMPVA.