Sorry about the yellow journalism headline, but that’s the way it’s going these days. Driven by that lovable low-tax fever, Michigan is aggressively pursuing homes of deceased nursing home Medicaid recipients. Actually they want you to sell it and give them the cash. Yes, it is true even though you paid your taxes and committed no crime you can lose your home to the Government if you suffer long term care paid for by Medicaid.
(Stepping off soap box)
The legal news is that the in January the Michigan Supreme Court is hearing a case on the subject of Medicaid estate recovery. It is Department of Health and Human Services v. Rasmer, et al. The state is pursuing an aggressive, expansive agenda claiming that it has the unreviewable power to collect against a recipient’s estate even when it never told the recipients it would go after their homes. The court should rule later this year on whether the Republican Government’s power is reviewable by a court. It should also rule on what kind of notice it must give to potential Medicaid recipients.
This case is a continuation of the government’s aggressive push to get money from seniors. For example, the estate recovery statute is supposed to exempt as a hardship a home of modest value. Last year a case called Ketchum was decided in the Court of Appeals. In Ketchum the state went after a home that sold for $30,000! That is a modest home by any standard, but not according to our government. Lansing wanted the money and got it.
Moral: When it comes to nursing home Medicaid remember there are two critical components to get legal advice on: 1 spend down for initial eligibility; 2. after death “estate recovery.” With good advice you can avoid the horror stories of Medicaid.
GOOD NEWS!
The New York Times reports that the federal Health and Human Services Department has issued a rule that appllies to facilities that participate and Medicare and Medicaid. It bars compulsory arbitration in nursing homes and other such facilities. Read the article here http://www.nytimes.com/2016/09/29/business/dealbook/arbitration-nursing-homes-elder-abuse-harassment-claims.html?ribbon-ad-idx=5&rref=business/dealbook&module=Ribbon&version=context®ion=Header&action=click&contentCollection=DealBook&pgtype=article
Good news, but . . . Is this really news? Nursing homes have found a better way to reduce falls.
An AP article reports that nursing homes are moving away from physical items such as alarms, rails and mats to reduce falls and instead focusing on personal assistance. “What we really need to do is understand why that individual is wanting to get up in the first place,” said Joan Devine, director of education at the Pioneer Network, which is pushing for national changes.
This trend is good news, but I’m sorry everybody knows that when a sick elders gets out of bed they need to do something. Many of my clients in nursing homes have falls in the middle of the night. They are often trying to go to the bathroom rather than wait hours before an aide is scheduled to take the resident to the bathroom.
Knowing what the resident wants or needs is an oft repeated guide to good care for any condition. For example many difficult behaviors of advanced Alzheimer’s patients are attempts at communicating or doing some familiar activity. E.g. pacing is looking for something, acting out is a reaction to pain or a negative stimulus, and so on.
The immediate moral is for the patient advocate to be sure that the staff learns what a resident needs or is communicating and educate staff about those items, then be sure to monitor that care.
A broader lesson may be extended to home care. Falls happen for a reason. What is the person trying to do and how can we make that safer? Falls at night? Maybe wall rails in the bedroom and a clear path to the bathroom would make a big difference. Maybe having an aide in the evening adjust fluids, e.g. avoiding caffeine, or diet will make a big difference. Some elders drink juice late at night because they are hungry and that gives them temporary relief from hunger but will create the need to toilet later.
Learning a person’s needs and giving needed personal attention makes for a healthier elder. “Who’da thunk it?”
Read the article here: http://bigstory.ap.org/article/1b34373c50f74a2dba29ac17d5533c11/nursing-homes-phasing-out-alarms-reduce-falls
I would like to share a simply EXCELLENT guide for good care in a nursing home. It is “20 Common Nursing Home Problems – and How To Resolve Them” by one of the nations’s premiere legal advocates for nursing home residents, Eric Carlson. It is free and available through http://www.justiceinaging.org/.
Being a lawyer I cannot give a blanket recommendation but must, as does the 20 Common Guide, advise you to use your judgment and seek professional counsel if the Guide seems to steer you on a dangerous or futile path. The Guide is only a guide. You must use your judgment.
Here are my comment on some on some of the points.
Number 3 says the nursing home must accommodate a resident’s preferences and gives an example of everybody being awakened at 6 a.m. The explanation offered is inadequate staffing. So, If the resident does not want to be gotten out of bed at 6 a.m. the patient advocate may find the resident still in bed hours later because the aides are now taking care of other patients. The Guide suggests the patient advocate come up with an alternate plan for “sleeping in” and getting dressed and breakfast after other residents.
Number 4 points out that the law says each nursing home must provide care to enable the resident to reach “the highest practicable level of functioning.” Most patient advocates would find these words are other worldly goals that may not be met on this earth. Under-staffing is a chronic problem in nursing homes.
Number 5 deals with improper use of physical restraints and notes their use has decreased dramatically in the past decades. Everybody agrees that is good. And I have observed that it seems like all nursing home residents are put in wheel chairs. Could some walk with walkers? Are they in wheelchairs because they are easier to manage and there is less fall risk? The answers depend on the particular case. However, I must add falls are extremely dangerous for the sick elderly. They can lead to death through complications from surgery or hospital stays.
Number 5 gives bed rails as an example of a physical restraint. These rails prevent residents from falling out of bed. The Guide suggest that a bed can be lowered to the floor and a pad on the floor. This will take care of falls out of the bed. But they do not address the problem of the resident who gets out of bed and then falls when trying to walk.
Number 11 cites refusal to bill Medicare. Medicare has changed. Gone are the days when the patient’s doctor wrote a prescription and it was followed. Now Medicare controls the provider. The doctor does not. The provider must be able to put every service into a proper billing code while fearing charges of Medicare fraud if the billing is denied. Patients are offered a “rubber stamp” appeal system where KPRO, the Medicare “QIO,” denies almost all appeals. Billing Medicare does not produce the results it used to just 10 years ago.
Number 8 says a nursing home may not impose visiting hours. I have not heard from clients that nursing homes had visiting hours.
Number 17 says the nursing home may not charge residents extra for medical care. In today’s medical environment the issue of co-pays and deductibles, prescription formularies and limitations on coverage is well known. If an item is not paid it is usually a matter of insurance.
Number 18 says the nursing home must support resident and family councils. This may have been a big issue when nursing homes were homes for the frail elderly. Now these residents are in assisted lving apartments, not nursing homes. The nursing homes are taking care of a much sicker population now.
Number 14 offers very useful advice about dealing with the problem of the alleged “short term stay” facility explanation. That is, after post-hospital skilled care ends, e.g. rehab, the nursing home tells the resident they have to move because they are now “long term care.” That is untrue because all “nursing homes” are long term care facilities by virtue of their licensing.
However, the Guide sends a patient advocate into futile court battles when it advises that a nursing home can get a bed certified by Medicaid for the resident. Michigan restricts the number of Medicaid beds it approves. One local attorney took a well financed nursing home to court on the issue and lost.
Number 20 advises that a resident may refuse medical treatment. It is all to often true that the guide for medication in a nursing home is administrative convenience. However, the patient advocate may find it impossible to be consulted on each medication change before it happens. Some have waited all day to see a doctor to explain a change, only to have the nursing home doctor never show up.
Nevertheless, a patient advocate must advocate for good care and sometimes that means moving the resident out of a sub-standard nursing home.
Believe me, the above comments do not take away the immense value the Guide offers to Patient Advocates. If you have somebody in a nursing home, get it now. You will not regret it and you will find you will be sharing it as am I.
Before I get into my opinion let’s first establish an understanding. When I refer to Veterans benefits, I am referring to the special improved pension that most folks know by “VA Aid and Attendance.”
Let’s also understand that annuities are investments and as such have a place in one’s investment strategy. Even without consideration of veterans benefits, the annuity may simply not be a good idea as a matter of financial planning. Let’s say for example we have a gentleman 80 years old. He is not a veteran. He purchases an annuity because the interest rate is better than he is getting for his bank CDs. A year later he has a stroke and now must spend money to make his home wheelchair accessible. When he cashes out the annuity he may lose 10% or more in “surrender charges.” A simple explanation is that annuities are sold on commission and the surrender charge covers that cost. The moral: don’t put money into an annuity if you may need it within the next few years, and that includes the nursing home.
As a rule I don’t like them because there are better options. And of course, every rule has exceptions. First the rule: There are a number of reasons why I don’t like them. Here are a few.
1. They are not necessary. One common strategy is for the veteran to transfer money to a child who then purchases the annuity. The annuity is superfluous because the veteran was eligible as soon as he made the gift.
2. Transferring to another person might not be too smart, though. What if s/he has a financial emergency, divorces, gets sued, goes bankrupt? The money is lost.
3. What if the Vet goes to a nursing home within five years and needs Medicaid? The transfer is caught in the five year look back. Unless every dollar is returned Medicaid will impose a “penalty period” which means they will not pay the nursing home.
For example, the transfer and purchase of a $50,000 annuity will result in a half year penalty period of Medicaid not paying. The nursing home may sue to get paid. How can you avoid this result? By putting $50,000, and not a penny less, back in the Vet’s bank account. Too bad about that annuity surrender charge. Too bad if some of the annuity was used by the child to pay some of the Vet’s bills. The penalty period stands.
4. “Immediate annuities” have problems too. An immediate annuity pays a monthly income to the Vet or spouse. It has no surrender charge since it is irrevocable. So, if the Vet is the payee, Medicaid requires the payments go to the nursing home since it is his income. If there is no spouse when he dies the state will take the payments in “Medicaid estate recovery” to pay itself back for the Medicaid benefits.
If the annuity pays to the spouse, then more of the Vet’s income will go to the nursing home as part of his Patient Pay Amount (co-pay). Less will go to his spouse since she will be receiving the income from the annuity. This is money needlessly lost.
Exceptions to the rule:
1. Transfers/gifts to children are highly risky if we cannot trust the child to return the funds for the veterans benefit.
2. Sometimes the family plan is to avoid the nursing home at all costs. And, some conditions do not typically require a nursing home, consider some dementia patients only need a safe environment with very little medical support. In those cases an immediate annuity can supplement the Vet’s income plus VA benefit to meet the monthly cost of an assisted living facility.
An annuity is an investment vehicle that is part of an investment strategy. They may be used to apply for Veterans benefits and there are other strategies that work as well. It is up to the adviser to recommend the best strategy given the client’s particular circumstances.