Program of All-inclusive Care for the Elderly (PACE)

By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold, NJ Elder Care Attorney

What is PACE?

PACE stands for Program of All-inclusive Care for the Elderly. It is an innovative Medicare program that provides individuals age 55 and older comprehensive medical and social services provided by a team of professionals in a community-based center and in their homes, helping program participants delay or avoid long-term nursing home care. The PACE center serves as the hub for medical care, rehabilitation, social activities and dining.

Eligibility to participate in PACE

To participate, an individual must be 55 years of age or older, require nursing home level of care but be able to live safely in the community at time of enrollment with the services of PACE.

What services are provided through PACE?

PACE provides all the services covered by Medicare and Medicaid, without the limitations normally imposed by these programs. It also provides any other services deemed necessary by the team that allows participants to remain in the community. Services provided by PACE include, but are not limited to, primary care (including doctor, dental and nursing services), prescription drugs, adult day health care, home and personal care services, nutrition services, and hospital and nursing home care if and when needed. Transportation to and from the center and all off-site medical appointments is also provided.

Who pays for PACE?

PACE agencies receive Medicare and Medicaid funds each month to ensure participant care, whether services are provided in the home, community or in a nursing home setting.

To discuss your NJ elder care matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing consultations if you are unable to come to our office.

CMS Confirms That Spousal Impoverishment Figures Will Remain the Same for 2016

By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold, NJ Medicaid Attorney

The Centers for Medicare and Medicaid Services (CMS) has announced that the spousal impoverishment and home equity limit figures will not change from 2015 levels next year.  This is because there was no increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W).

This means that the 2016 community spouse resource allowance (CSRA) will continue to be a maximum of $119,220 and a minimum of $23,844.  The maximum monthly maintenance needs allowance will remain $2,980.50 a month and the income cap stays at $2,199.  Medicaid’s home equity limits also remain unchanged at a minimum of $552,000 and a maximum of $828,000.

For CMS’s page on all the SSI and spousal impoverishment standards for 2016, click here.  For an informational bulletin that was attached to the figures, click here.

To discuss your NJ Medicaid matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing consultations if you are unable to come to our office.

Published by Elder Law Answers for Attorneys

Medicaid Eligibility for Medicaid and the Importance of ADL’s – Activities of Daily Living

By Fredrick P. Niemann, Esq. of Hanlon Niemann Wright, a Freehold, NJ Medicaid Attorney

Medicaid eligibility for Medicaid often centers on the existence of ADL’s.  ADL’s are known as “the Activities of Daily Living”.  They are the most crucial link between the individual and Medicaid evaluation of that individual for eligibility.  Regardless of the medical diagnosis of any condition (Alzheimer’s, Dementia, Parkinson’s, ALS, etc.), the effect of that condition requires that the individual either (1) need assistance with at least three (3) ADL’s every day of the calendar week and/or (2) be a safety risk to himself or herself because of the impact of the condition on his/her ability to perform their Activities of Daily Living independently and without constant cueing by another person present.

The word “assistance” seems straightforward but in actuality it is not because New Jersey Medicaid requires an applicant for institutional and home based caregiver to “need hands-on assistance” with such things as clothing, bathing, toileting, ambulatory, transferring, eating.  Hands on assistance means that another individual must be present to physically put his or her hands on the individual in order to accomplish those tasks.

The process Medicaid has selected to validate the need with assistance of daily needs is a pre-admission screening (commonly known as a PAS).  The state will send out a nurse or other medical professional to perform this assessment usually at the place of the residence or current facility placement of the applicant.  Often your physician completes a PA-4 form which is essentially a preliminary screening tool signed attesting to the fact that the applicant requires a nursing facility or assisted living residence within the immediate future.  If the PAS is denied, then notwithstanding financial eligibility, the application will be denied.  Note, a denial triggers an immediate right to a Fair Hearing Appeal, as discussed elsewhere on this site.

The take away from this discussion is to alert you to make an objective assessment of your loved one’s ability to independently perform his or her ADL’s.  It’s the first test in a series of tests to qualify for Medicaid.

To discuss your NJ Medicaid, Medicare and Elder Care matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

 

Beware of Pennsylvania’s Parental Responsibility Law

By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold, NJ Elder Care Attorney

Several times I am questioned whether a child has a legal obligation to support their parents particularly if the parents require long term care. I have routinely answered the question in the negative because New Jersey does not have any existing policies or procedures that compel an adult emancipated child to pay the nursing home/assisted living or other long term care expenses of their parent. While there are laws on the books which seemingly impose such an obligation, in fact, they have never been enforced and are not a real concern.

However, in the last several years, I have become aware of several cases decided in Pennsylvania which have imposed financial responsibility upon the adult children of an aging parent for the costs of long term care. One recent decision Eori vs. Eori is particularly disturbing in light of the fact that long term care costs cannot only bankrupt an aging individual but also their adult children particularly who have their own expenses as well as retirement and other recurring needs.

The purpose of this blog is to alert anyone and everyone who either has a parent residing in Pennsylvania or contemplates moving to Pennsylvania that such a move can result in an unforeseen and significant financial liability.

Filial responsibility law (translated means children responsible for the expenses of their indigent parents) is a troubling and profound issue.   I will continue to monitor other cases similar to this in the event that the scope of these decisions seems to be increasing.

To discuss your elder care matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing consultations if you are unable to come to our office.

“Just Say No” – Can a Spouse Refuse to Support Their Spouse to Avoid Paying Long Term Care Costs?

By Fredrick P. Niemann, Esq. of Hanlon Niemann Wright, a NJ Medicaid Attorney and Law Firm

New Jersey Medicaid laws are tough, especially as relates to the financial responsibility of spouses to financially support each other should one spouse get sick.  There are published cases and a statute commonly cited that mandates that a spouse must pay for the necessities of the other (doctrine of necessities).  So does that mean a spouse has to pay the $12,000 a month nursing home bill of their failing spouse?  Generally speaking, the answer is yes but if you read my website on Medicaid strategies for long term care, you’ll see that there are many available strategies to minimize the devastating outcome.  Another strategy that is seldom used (I’ve used it successfully several times) is called “Just Say No”, or “Spousal Refusal to Support”.  Under federal law 42 USC §1996R-5(3)3 if the community spouse simply refuses to pay for the nursing home care of the ill spouse, New Jersey cannot consider the assets of the community spouse in determining the Medicaid eligibility of the nursing home spouse.  While, what I just told seems fairly straightforward and simple, it’s not.  There are a number of additional conditions and substantive/procedural legal requirements that must be followed but the bottom line is the strategy is legal and effective.  New Jersey and other states hate it but when challenged (and I’ve done it) by way of threatened appeal and sanctions under federal law (specifically a 1983 Civil Rights lawsuit), New Jersey and other states will often consider the law and grant approval.  New Jersey will then have to pursue a civil collection action against the community spouse for the support of the nursing home spouse but the nursing home spouse is immediately eligible for Medicaid and will be subject to the Medicaid reimbursement rate rather than the private pay rate.  So even if the state pursues collection (often doubtful, especially for out of state spouses) and is successful (which is no certainty) the amount due the state will still be lower had the family not gone through the process.

 

Contact Fredrick P. Niemann, Esq. today with any questions you may have concerning NJ Medicaid. He can be reached toll-free at (855) 376-5291 or by email at fniemann@hnlawfirm.com. We look forward to hearing from you.

Can a Spouse Refuse the Support of His or Her Spouse to Qualify for Medicaid

Can a Spouse Refuse the Support of His or Her Spouse to Qualify for Medicaid

By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold, NJ Medicaid Attorney

 

Federal Law (42 U.S.C.A. § 1396r-5 (c) (3)) allows a community spouse to refuse to pay for the institutionalized spouse, applying for Medicaid which if properly authorized, stops the State from considering his or her funds in the calculation of eligibility by the institutionalized spouse to qualify for Medicaid, live in a nursing home, assisted living residence or home based program.  The practical effect of this statute means New Jersey must then pursue collection action against the other spouse for support in order to be compensated for the case being provided.

 

There are 3 ways to declare spousal refusal.  The first is the infirmed spouse must assign “to the State any rights to support from the community spouse.”  42 U.S.C.A. § 1396r-5 (c) (3) (A).  If no express assignment is possible due to the physical or mental disability of the spouse, the State can still pursue a “support proceeding against a community spouse without such assignment.”  Id. at (B).  Finally, refusal can be granted if denial would cause an “undue hardship.”  Id. at (C).

 

Despite the federal existence of this procedure, many states’, including New Jersey, have on the books Medicaid regulations that have not enacted nor allow a procedure like this to be used by the community spouse.  See N.J.A.C. § 10:71–4.8.  However, the 2nd Circuit Court of Appeals ordered a neighboring state’s Department of Social Services to grant a couple’s request for the community spouse to refuse to help the institutionalized spouse under this procedure, assigning the infirmed spouse’s rights to the State of Connecticut and allowing that person to qualify for Medicaid.  Even though the state (Connecticut) does not have this assignability procedure available, the court held that the federal statute was unambiguous in allowing such a refusal to be performed for purposes of determining eligibility.  Id. at 234.  As long as there is adequate standing (denial of Medicaid by New Jersey) that would have been granted if this “spousal refusal option” were in place and used by the couple, there is a strong legal case to go to the federal courts and argue that it must be implemented and recognized in NJ.

 

To discuss your NJ Medicaid matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

Nursing Home and Assisted Living Admission Agreements – Are They Legal, and If So, to What Extent?

Nursing Home and Assisted Living Admission Agreements – Are They Legal, and If So, to What Extent?

By Fredrick P. Niemann, Esq. of Hanlon Niemann Wright, a Freehold, NJ Medicaid Attorney

Before a person enters a long term care facility they will be asked to sign an admissions agreement.  Sometimes a facility forgets to have one signed (but seldom does this happen).  Even if initially forgotten, the family will generally be asked to sign one by the admissions or business office. When asked to sign, what should you do?  Can you refuse to sign it? If you refuse, what happens next?  These are fair questions and the answers are fairly straightforward.

 

First off, if asked to sign before admission and you refuse, a facility can deny admission.  There is no legal remedy to force admission.  Facilities have the right to establish admission standards both medical and financial.  But if for some reason an individual is admitted without first having signed the admission agreement, then the answer changes. The nursing home is not permitted to discharge a resident for failing to sign the agreement.  That’s because both federal and state law have enumerated permissible grounds for discharge.  While there is no case law on point, I believe the same holds true for an assisted living residence.

 

The more complicated question and the one I am asked most frequently about is the legal and financial liability of the “responsible party” clause found in most admission agreements.

 

Like most agreements, an admission agreement is a contract and therefore is subject to contract law. To learn more about the law of contracts visit my website www.njcontractattorney.com (CLICK HERE).  As a contract the admissions agreement is binding as on the aging resident as well it should be in most material ways (payment, services, etc.), but it is not binding upon the agent/power of attorney/guardian, unless there is a breach of their fiduciary duty to the resident and/or the facility.  Most third parties sign the admissions agreement because mom or dad can’t sign it for some reason. If mom or dad were to run out of money some facilities will look to the “responsible party” to pay.  That’s nonsense. Federal and state law make such a payment clause unenforceable, in my opinion.  Children and others are not legally obligated to care or support a parent or family member in New Jersey. But watch out for Pennsylvania. They have a different law.

 

There are many laws and regulations in place in New Jersey that regulate long term care facilities.  These laws and regulations also apply to admission agreements.  Know your rights!

 

If you’re unsure what to do or if you should sign, call and meet with me.  Together we’ll come to the right decision.  Please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

Premarital Agreements and Medical Eligibility in New Jersey

Premarital Agreements and Medical Eligibility in New Jersey

By Fredrick P. Niemann, Esq. of Hanlon Niemann Wright, a NJ Medicaid Attorney and Law Firm

 

Medicaid says it does not recognize premarital agreements signed by spouses prior to entering into a first, second or subsequent marriage.  A premarital agreement is a signed contract between two competent adults prior to marriage which addresses each other’s economic, and financial support obligations and responsibilities during the marriage and/or in the event of divorce or the death of one spouse.  These agreements are legally binding upon each signatory provided certain formalities and disclosures are made (these formalities and disclosures are outside the scope of this page).  But there are strategies which I believe preclude Medicaid from refusing to acknowledge and enforce these agreements. In my opinion, Medicaid is powerless to deny an otherwise lawful premarital (a/k/a prenuptial agreement) legality.  To be successful however requires a deliberate strategy and precise timing.

My strategy requires an immediate application to the Superior Court to obtain a judgment that declares the prenuptial agreement enforceable and enters a divorce from the prospective (or actual) institutional spouse.

There is an interesting dynamic and running conflict within New Jersey laws when this strategy is contemplated.  First there are published cases that hold each spouse to be legally responsible to the other spouse for life’s “essential necessities,” but this case law does not address the enforceability of those obligations when a premarital agreement has been legally signed by the spouse prior to marriage.  Therefore, filing for divorce and enforcing the terms of the premarital agreement is your only option to escape Medicaid’s non-negotiable position on marriage, which is if you’re married when you file for Medicaid you’re bound by the Medicaid laws.

Please read my extensive blog on this subject found under the Recent Posts/Blogs section of this page. http://bit.ly/1o6vWmd Click here

 

To discuss your NJ Medicaid matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.