Archive for the ‘Nursing Homes’ Category

I could retire if I had a dollar (better make it five dollars) for every client who had been told she would not qualify for further Medicare nursing home coverage because she was no longer improving or had “plateaued”.

Nonsense. Time to bust a myth!

Medicare Nursing Home Basics

Medicare pays a limited amount of nursing home care, but the care that is paid can be critical to the patient. In order to qualify, however, the patient must meet specific requirements.

First, the patient must have been hospitalized for at least three days. Second, the patient must be admitted to the nursing home for at least one of the underlying conditions treated in the hospital.

Third, the nursing home resident must receive skilled level of care on a daily basis. “Skilled services” actually cover a broad array of services. A common reason given for cutting off Medicare coverage is that “skilled services” are longer needed when, in fact, the patient indeed requires skilled services as broadly defined under the Medicare regulations.

What is “Skilled”?

Skilled services require technical or professional personnel such as registered nurses, licensed practical nurses, physical, occupational or speech therapists. In order for a service to qualify as “skilled”, it must be so inherently complex that it can only be safely and effectively performed by, or under the supervision of, professional or technical personnel.

Importantly, skilled services can include “observation and assessment of a changing condition” as well as “overall management and evaluation of a care plan”. So, for example, monitoring of fluid and nutrient intake might be necessary to prevent dehydration.

The Level Truth About Plateaus

Often nursing homes may mistakenly require a resident to be improving or showing progress in order to continue skilled services and maintain her Medicare coverage. If a resident “plateaus”, or the nursing facility says the resident no longer has rehabilitation potential, the facility may deny her further coverage. Denying Medicare coverage for this reason is improper.

The Medicare regulations are clear that “restoration potential” is not a valid reason for Medicare coverage denial. Other regulations provide coverage for “maintenance programs based on initial evaluations and periodic assessments”. A number of court cases prohibit the use of “rules of thumb” and require individual assessment of an individual’s needs.

Unfortunately, the “improvement standard” has wriggled its way into the system and is improperly applied at all levels, from nursing homes to the appeals level. One reason may be that there are so few advocates who are aware of the rules and who have the skills to appeal a coverage denial.

Improper denials often harm those most in need of help. These include not only older patients, but also those with disabilities such as Multiple Sclerosis, Alzheimer’s, Lou Gehrig’s, spinal cord injuries, diabetes, and others.

Fortunately, the Center for Medicare Advocacy recently announced an effort to combat this myth. The first approach is to prod the federal regulators to issue clear guidance. If that does not work, litigation will follow.

Wish them luck!

Coastal Senior is a monthly periodical covering the South Carolina and Georgia low country.  Bob Mason is its legal columnist.

For many people, Medicaid may be the only financing option for nursing home level of care. Medicare has limited benefits. Most people do not own long term care insurance. And for most, private paying $6,000 a month is not an option.

Qualifying for Medicaid is another matter. It can be difficult . . . or it can be easy. Here is the easy answer along with some free legal advice. Fix up the house, buy a new car and simply spend the rest down on the spouse’s nursing home care. When everything has been spent down, go apply for Medicaid.

Is that the smartest approach? No. But the advice was “free”! Also, the nursing home and the Medicaid people in Atlanta will love you.

The better way just may be a bit more difficult. While every case is different, many strategies can save a tremendous amount of money, not to mention aggravation and worry.

The answers do not come easily. As the United States Supreme Court observed in the Schweiker v. Gray Panthers case, the “Byzantine construction” of the Social Security Act (of which Medicaid is a part) makes the rules and regulations “almost unintelligible to the uninitiated”.

You’ll need a guide with the knowledge and experienced to shepherd you through the process.

In addition to a thorough understanding of the nuances of the Medicaid rules, many of the successful strategies require an advanced understanding of trust law, taxation, real property law and the interconnections among Medicaid and other programs (VA benefits, for example).

Is it necessary to hire an attorney to complete a Medicaid application? No, not if the “easy” answer mentioned above will suffice.

Will people advise that it is not necessary to hire an attorney? You bet! Occasionally it is someone with a local Department of Family and Children’s Service office. More often it is a nursing home.

The problem with that sort of advice is both parties have a vested interest in keeping someone on “private pay” as long as possible. It is not in their interest to move someone to Medicaid.

Further, many, if not most, nursing home business office staff who offer to complete (sometimes they’ll insist on completing) a Medicaid application do not have more than a basic understanding of the complex rules and advantageous strategies available.

Also, neither has the knowledge, skills and ability, much less a law license, required to draft trusts, devise appropriate estate plans and stand by to advocate for you (in court if necessary) should the need arise.

Finally, if a lawyer is “the way to go” keep in mind that lawyers, like doctors, are not all the same. A great attorney in one area of the law may not have any idea of what to do with Medicaid rules that are “unintelligible to the uninitiated”. Ask for references, ask how many similar cases have been handled, ask for credentials and certifications and satisfy yourself they know what they’re talking about and are ready to get on your side.

Medicare will only pay for up to 100 days of nursing care following a hospital stay, and there are serious limitations on those benefits. Further, Medicare will not pay for long-term care that involves non-medical help with daily tasks, e.g., bathing, dressing. Also, Medigap policies and regular health insurance do not pay for long-term care that involves non-medical help.

Medicaid, the federal-state public assistance program for the poor, does pay for nursing home costs but only after a person essentially gives up many of his or her assets and qualifies for aid. See NC Medicaid Rules Explained on this website.  Although we can assist you with Medicaid Planning, for many individuals and couples the process is either impractical or emotionally trying. The rules are constantly tightening.

According to an article in Kiplinger’s Retirement Guide, nursing home care costs an average of $72,000 per year. In North Carolina the costs can easily climb to $75,000 to $80,000 per year. The American Council of Life Insurance projects that by 2030, nursing home care will average about $190,000 per year.

Most people prefer to receive care in their homes. According to an article in Kiplinger’s Retirement Guide, nation-wide, daily home-care costs average $45,000 per year. If you purchase long-term-care insurance and select the right benefits then you can decide where and what care you will receive. If you purchase long-term-care insurance, you will receive care and at the same time protect your life savings.

As a law firm, we do not sell any insurance; our job is to counsel and advise you. However, we can assist you with the evaluation and selection of an appropriate long-term care insurance policy suitable for your needs.