How Your Stimulus Check Affects Medi-Cal Eligibility

The coronavirus relief bill includes a direct payment to most Americans, but this has Medi-Cal recipients wondering how the payment will affect them. Because the payment is not income, it should not count against a Medi-Cal recipient’s eligibility. 

The Coronavirus Aid, Relief, and Economic Security (CARES) Act provides a one-time direct payment of $1,200 to individuals earning less than $75,000 per year ($150,000 for couples who file jointly), including Social Security beneficiaries. Individuals earning up to $99,000 ($198,000 for joint filers) will receive smaller stimulus checks. Payments are based on either 2018 or 2019 tax returns.  

The basic Medi-Cal rule for nursing home residents is that they must pay all of their income, minus certain deductions, to the nursing home. If the stimulus payment were considered income, it would likely have to go straight to the nursing home. Since in most states Medi-Cal recipients cannot have more than $2,000 in assets, there was also concern that the stimulus payments could put many recipients over the asset limit. 

In a blog post, the commissioner of the Social Security Administration (SSA) has clarified that the SSA will not consider stimulus payments as income for Supplemental Security Insurance (SSI) recipients, and the payments will be excluded from resources for 12 months. Because state Medi-Cal programs cannot impose eligibility requirements that are stricter than SSI requirements, the payments should not affect Medi-Cal eligibility. 

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How Low Nursing Home Wages Are Contributing to COVID-19's Spread

In mid-February, a cluster of residents at the Seattle-area nursing home, Life Care Center of Kirkland, came down with a respiratory illness and fever.  On February 28, a 73-year-old female resident tested positive for coronavirus disease (COVID-19).  Over the next month, the coronavirus swept through the 130-resident facility, killing 37 people connected with it.

A subsequent Centers for Disease Control and Prevention (CDC) investigation identified two main contributors to the virus’s rapid spread through the Kirkland nursing home.  One of them was “limitations in effective infection control and prevention” and the other was “staff members working in multiple facilities.”  CDC's survey of some 100 nearby long-term care facilities found that staff members who worked in more than one facility and/or who worked while sick were among the leading contributors to the facilities' vulnerability to infection. 

Working at more than one facility is a common practice among nursing home workers throughout the country.  “Staff members work in multiple facilities because they do not earn enough money at one facility to support themselves and their families,” says the Center for Medicare Advocacy (CMA).  

The Paraprofessional Healthcare Institute reported in 2016 that nurse aides, who provide most of the direct care in nursing facilities, earn “near-poverty wages.”  The median salary at that time was $19,000 a year, with half of workers earning less.  More than a third of them (38 percent) relied on various public benefits, including Medicaid, food stamps, housing subsidies and cash assistance.

When it comes to the spread of infections, low wages are especially dangerous because many of these workers lack paid sick leave.  CMA notes that given their low incomes, many employees work sick.  “If they do not work,” CMA says, “they do not get paid. With low wages, most lack enough savings to fall back on if they are sick and not paid.”

At this point, more than 400 of the nation’s 15,000 nursing facilities have had an outbreak of coronavirus among residents, staff or both, and “[t]here are indications . . . that those reports dramatically understate the situation,” long-term care expert Howard Gleckman writes in Forbes. As of April 2, the Associated Press estimated that “at least 450 deaths and nearly 2,300 infections have been linked to coronavirus outbreaks in nursing homes and long-term care facilities nationwide.”

“The coronavirus pandemic,” the CMA said in a recent article on its site, “brings dramatically into view the problem of allowing facilities to pay workers inadequate wages and to give them inadequate benefits.”

Terming the issue “a national scandal, calling for a national solution,” CMA makes a number of recommendations for raising the wages of nursing home workers and ending what it calls “hidden public subsidies to the nursing home industry” through public assistance paid to its low-wage workers.

CMA suggests that reforms be modeled on legislation introduced but not yet passed in Pennsylvania, the Nursing Home Accountability Act.  Among other things, the Act would guarantee nursing home workers a base hourly wage of $15 an hour, require nursing facilities to provide information to the public on the wages paid to its employees, and have facilities pay an “employer responsibility penalty” for employees who receive public assistance.

CMA is also calling for mandatory paid sick leave policies enacted in the wake of the coronavirus pandemic to be made universal and permanent.

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Elise Lampert, Attorney at Law

9595 Wilshire Blvd. | Suite 900 | Beverly Hills , CA 90212

Phone: (818) 905-0601 / Email: elise@elampertlaw.com

https://www.eliselampert.com

Is It a Good Idea to Bring Your Parent Home from the Nursing Home During the Coronavirus Pandemic?

With the coronavirus pandemic hitting nursing homes and assisted living facilities especially hard, families are wondering whether they should bring their parents or other loved ones home. It is a tough decision with no easy answers.

The number of coronavirus cases in nursing homes and assisted living facilities across the country continues to grow. A Washington state nursing home was one of the first clusters of coronavirus reported in the United States, with at least 37 deaths associated with the facility. NBC news reported on April 16 that coronavirus deaths in long-term care facilities across 29 states had soared to 5,670. "In New Jersey," NBC added, "the virus has spread to more than 95 percent of the state’s 375 long-term care facilities, according to state health officials."

In an effort to contain the virus’s spread, most long-term care facilities are limiting or excluding outside visitors, making it hard to check on loved ones. Social activities within the facility may also be cancelled, leading to social isolation for residents. In addition, long-term care facilities face staffing shortages even in the best of times. With the virus affecting staff as well as residents, facilities are having trouble providing needed care. Assisted living facilities, which are not heavily regulated, may have greater trouble containing the virus than nursing homes because their staff is not necessarily medically trained.

With this in mind, many families are considering bringing their loved ones home. A Harvard epidemiologist is warning that nursing homes are not the best place to house the vulnerable elderly at this time. And a local judge in Dallas has recommended that families remove their loved ones from infected facilities. Before taking this extreme step, however, you need to consider the following questions:

Is your family able to provide the care that your loved one needs? Some patients require help with eating, dressing, medication, and going to the bathroom. You need to consider whether you can adequately provide that care at home. In addition to your loved one’s practical needs, you need to think about your physical and emotional stamina. Also, is your house set up to safely accommodate your family member? Are there a lot of stairs? Does the bathroom have rails? If your loved one has dementia, there may be other considerations to take into account.
How well can you prevent infection? Will you be better able to prevent infection than a nursing home? If your entire household is homebound, you may be in a good position to prevent bringing home the virus. However, if one or more members of your household is working outside of the home, you will have to take extra precautions to make sure you don’t bring the virus to your loved one. Are you taking the necessary precautions to keep your house and yourself disinfected?
Will the resident be allowed to return to the facility when the threat of the virus has abated? If you take your family member out of the nursing home or assisted living facility, the facility may not let your family member back in right away. You should check with the facility to determine if your loved one will be able to return.
Bringing a family member home is a hard decision and it depends on the individual circumstances of each family. For more on the considerations involved, click here and here.

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Elise Lampert, Esq.
Law Office of Elise Lampert
9595 Wilshire Blvd. | Suite 900 | Beverly Hills , CA 90212
Phone: (818) 905-0601 / Email: elise@elampertlaw.com
http://www.eliselampert.com

Medicare and Medi-Cal Will Cover Coronavirus Testing

With coronavirus dominating news coverage and creating alarm, it is important to know that Medicare and Medi-Cal will cover tests for the virus. 

The department of Health and Human Services has designated the test for the new strain of coronavirus (officially called COVID-19) an essential health benefit. This designation means that Medicare and Medi-Cal will cover testing of beneficiaries who are suspected of having the virus. In order to be covered, a doctor or other health care provider must order the test. All tests on or after February 4, 2020 are covered, although your provider will need to wait until after April 1, 2020, to be able to submit a claim to Medicare for the test.

Congress has also passed an $8.3 billion emergency funding bill to help federal agencies respond to the outbreak. The funding will provide federal agencies with money to develop tests and treatment options as well as help local governments deal with outbreaks. 

As always, to prevent the spread of this illness or other illnesses, including the flu, take the following precautions:

•    Wash your hands often with soap and water

•    Cover your mouth and nose when you cough or sneeze

•    Stay home when you're sick

•    See your doctor if you think you're ill

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Elise Lampert, Esq.

Law Office of Elise Lampert

9595 Wilshire Blvd. | Suite 900 | Beverly Hills , CA 90212

Phone: (818) 905-0601 / Email: elise@elampertlaw.com

http://www.eliselampert.com

***Member of the National Academy of Elder Law Attorneys

Do Beneficiaries of Special Needs Trusts Have R

ights?

A special needs trust is set up to provide money for the care and support of the beneficiary with special needs. A trustee is then named or appointed to manage the trust’s assets and act in the best interests of the beneficiary. The duty a trustee owes to a beneficiary is a fiduciary duty which is the highest duty the law creates for one person to another. It is much like the duty a parent owes to a minor child.

What happens, though, if disputes arise? Perhaps the beneficiary wants money for a particular purpose, for example to pay for an alternative form of treatment or therapy, and the trustee refuses to comply, believing such an expense is not within the terms of the trust or would breach the trustee’s fiduciary duty towards the beneficiary.

Even though the terms of the trust have been long established, does the beneficiary have any rights to challenge the trustee or dispute the terms of the trust itself? Special needs trusts are typically irrevocable, which means that the trust’s terms and its assigned beneficiaries cannot be changed without a court’s intervention. Does the named beneficiary of a special needs trust have any rights beyond that? In general terms, yes, thanks to something called the Uniform Trust Code, or UTC. Drawn up in 2000 by the Uniform Law Commission, the UTC is a nonbinding set of guidelines relating to trusts. State legislatures can vote to adopt the UTC into state law, with their own modifications if they so choose, and as of January 2020, 34 states had done so.

Here are five common rights of beneficiaries recommended by the UTC, any of which might come into play in a dispute between the special needs beneficiary and the trustee. These would be brought forward in a court and decided according to state law.

Payment: The special needs beneficiary has the right to distributions from the trust, to pay for her care and support as detailed in the trust’s terms and conditions.

The right to be informed: Beneficiaries are entitled to the trust’s financial information, such as tax returns, annual reports, quarterly earnings statements, and so on. These can be provided on a regular basis or on the beneficiary’s request.

The right to an accounting: If a beneficiary has questions about the trust’s performance or assets, he can request a thorough accounting from the trustee.

Removal and replacement of trustees: If a trustee has demonstrated behavior that violates the purpose of the trust or does not adequately protect the beneficiary’s interests, that trustee can be removed and replaced with someone else.

Termination: If the trust has failed to fulfill its purpose, or is no longer valid, the beneficiary may petition to terminate the trust altogether.

It’s important to keep in mind that these rights are codes, drawn up by the Uniform Law Commission to guide state legislatures. They are only binding if state law puts them into effect. States have made their own modifications to the UTC guidelines or enacted them only selectively. Some, such as California, haven’t adopted them at all, although these states’ laws governing trusts also likely include protections for beneficiaries.

If you are a special needs beneficiary and have questions about your rights, you will first need to find out if your state has adopted the UTC, and to what extent, and if not, what beneficiary rights and protections your state’s law provides. Consult with your special needs planner to get a complete picture of beneficiary rights where you live.

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Elise Lampert, Esq.

Law Office of Elise Lampert

9595 Wilshire Blvd., Suite 900

Beverly Hills, CA 90212

Tel. 818-905-0601

Email:elise@elampertlaw.com

****Member of the National Academy of Elder Law Attorneys

Medicare is Expanding Telehealth Services During Coronavirus Pandemic

As part of its response to the coronavirus pandemic, the federal government is broadly expanding coverage of Medicare telehealth services to beneficiaries and relaxing HIPAA enforcement. This will give doctors the ability to provide more services to patients remotely.

Medicare covers telehealth services that include office visits, psychotherapy, and consultations provided by an eligible provider who isn't at your location using an interactive two-way telecommunications system (like real-time audio and video). Normally, these services are available only in rural areas, under certain conditions, and only if you’re located at one of these places:

A doctor’s office

A hospital

A critical access hospital (CAH)

A rural health clinic

A federally qualified health center

A hospital-based dialysis facility

A skilled nursing facility

A community mental health center

Under the new expansion, Medicare will now pay for office, hospital, and other visits provided via telehealth in the patient’s home. Doctors, nurse practitioners, clinical psychologists, and licensed clinical social workers will all be able to offer a variety of telehealth services to their patients, including evaluation and management visits, mental health counseling, and preventive health screenings. In addition, relaxed HIPAA enforcement (the law governing patient privacy) means doctors may use technologies like Skype and Facetime to talk to patients as well as using the phone.

In addition to Medicare’s expansion, states are also allowing doctors to provide telehealth services to Medicaid beneficiaries. For example, New York will now cover telephone-based evaluations when an in-person visit is not medically recommended. Many other states are following suit.

This expansion of telehealth services will allow older adults who are particularly vulnerable to COVID-19 to stay home and still get medical advice. If you need to see a medical provider during this health emergency, check to see whether they are employing telehealth services. To use telehealth services, you need to verbally consent and your doctor must document that consent in your medical record.

Questions? Contact us at Elise Lampert, Attorney at Law

Elise Lampert, Esq.

Law Office of Elise Lampert

9595 Wilshire Blvd. | Suite 900 | Beverly Hills , CA 90212

Phone: (818) 905-0601 / Email: elise@elampertlaw.com

http://www.eliselampert.com

****Member of the National Academy of Elder Law Attorneys

Staying Connected to Family Members in a Nursing Home When Visits are Banned

The spread of the coronavirus to nursing home residents has caused the federal government to direct nursing homes to restrict visitor access, and many assisted living facilities have done the same. While the move helps the residents stay healthy, it can also lead to social isolation and depression. Families are having to find new ways to stay in touch.

Nursing homes have been hit hard by the coronavirus. The Life Care Center of Kirkland, Washington near Seattle was one of the first clusters of coronavirus in the United States and is one of the deadliest, with at least 35 deaths associated with the facility. In response, the Centers for Medicare and Medicaid Services (CMS) issued guidance to all nursing homes, restricting all visitors, except for compassionate care in end-of-life situations; restricting all volunteers and nonessential personnel; and cancelling all group activities and communal dining. While these actions are necessary to prevent the spread of the virus, they can leave families worried and upset and residents feeling isolated and confused.

Families are taking varying tacks to keep in contact with their loved ones, many of whom don’t fully understand why their family is no longer visiting. Nursing homes are also helping to facilitate contact. Some options for keeping in touch, include the following:

Phone calls. Phone calls are still an option to be able to talk to your loved one.
Window visits. Families who are able to visit their loved one’s window can use that to have in-person visits. You can hold up signs and blow kisses. Talking on a cell phone or typing messages on it and holding them up to the window may be a way to have a conversation.
Facetime and Skype. Many nursing homes are facilitating video calls with families using platforms like Facetime or Skype. Some nursing homes have purchased additional iPads, while others have staff members going between rooms with a dedicated iPad to help residents make calls.
Cards and letters. Sending cards and letters to your loved ones is another way to show them that you are thinking of them. Some nursing homes have also set up Facebook pages, where people can send messages to residents.
In this unprecedented time, families will need to get creative to stay in touch with their loved ones. For more articles about how families and nursing homes around the country are coping with the new restrictions, click here, here, and here.

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Elise Lampert, Esq.
Law Office of Elise Lampert
9595 Wilshire Blvd. | Suite 900 | Beverly Hills , CA 90212
Phone: (818) 905-0601 / Email: elise@elampertlaw.com
http://www.eliselampert.com
*****Member of the National Academy of Elder Law Attorneys

The Trump Administration Allows States to Choose Medi-Cal Block Grants

The Trump administration has unveiled a plan to allow states the option to cap Medi-Cal spending using block grants. While this change does not directly affect nursing home residents on Medi-Cal and is billed as a way to improve state flexibility in running Medi-Cal programs, it could result in significant service cuts. 

Medi-Cal is a joint federal-state program that functions as an open-ended entitlement program, meaning it does not include any pre-set funding limits. Each state operates its own Medi-Cal system, but this system must conform to federal guidelines in order for the state to receive federal money, which pays for about half the state's Medi-Cal costs. The state picks up the rest of the tab.

Announced on January 30, 2020, the Centers for Medicare and Medi-Cal Services (CMS) plan, dubbed "Healthy Adult Opportunity," would allow states to apply for block grant funding instead of receiving unlimited matching funds. States that choose to enter such an arrangement would receive a pre-set amount of money in exchange for increased flexibility in how they administer their programs. 

The new funding option applies mainly to healthy adults under 65 who are covered under Medi-Cal expansion. People needing long-term care and individuals who are 65 and over would not be included in a potential state block-grant project along with children and individuals with disabilities. States also cannot block grant services that are required under the Medi-Cal statute, such as emergency and hospital services. 

While long-term care beneficiaries may not be directly affected by this new funding structure, there could be an increase in costs to other Medi-Cal beneficiaries. States that choose block grant funding can increase prescription drug costs or change which prescription drugs are covered. Medi-Cal traditionally covers all federal-approved drugs, but the new plan allows states to cover just one drug per class. States can also increase co-pays or cut non-emergency services. If enrollment in Medi-Cal dramatically increases due to a health crisis or a recession, states that received a pre-set amount of funding may not have enough money to cover everyone, resulting in additional cuts to services. 

Opponents of the block grant concept contend it is illegal because only Congress can make such program changes, and litigation against the proposal is almost certain. In addition, it is unlikely that a state could get a waiver before 2021, when there may be a new federal administration.

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Elise Lampert, Attorney at Law

9595 Wilshire Blvd. | Suite 900 | Beverly Hills , CA 90212

Phone: (818) 905-0601 / Email: elise@elampertlaw.com

http://www.eliselampert.com

****Member of the National Academy of Elder Law Attorneys

Program That Helps People with Disabilities Move Out of Institutions Temporarily Re-Authorized

Congress has temporarily extended the federal government’s largest grant program that helps states transfer people with disabilities from institutions into independent living arrangements.

Tucked into a larger federal appropriations package and signed into law by President Trump on December 20, 2019, the extension keeps the Money Follows the Person (MFP) program afloat for an additional five months, through May 22, 2020. However, this extension is the fourth such temporary extension in the past year, and a permanent funding stream remains elusive.

“While this is a disappointing turn of events, we have our marching orders for 2020 — advocate, advocate, advocate for a permanent commitment to Money Follows the Person,” Peter Berns, CEO of The Arc, told Disability Scoop.

Created in 2005, the MFP program is designed to help end Medicaid’s traditional “institutional bias,” referring to the historical tendency of the federal government to direct Medicaid funding for people with disabilities toward services in institutional settings, such as psychiatric facilities and nursing homes, as opposed to home and community based settings, such as individual homes or group homes with four or fewer unrelated residents.

Through the MFP program, the Department of Health and Human Services (HHS) awards grants to states for demonstration projects to experiment with ways to transition people from institutional to community settings. In addition, the MFP program also permits states to use grant funding for employment supports and other long-term services to ensure successful transitions.

Overall, 47 states have received funding through the program, which is credited with de-institutionalizing more than 91,000 people.

The program’s funding, however, has always been in limbo. Five years into its existence, the Affordable Care Act authorized six years of funding for the program, until it abruptly expired in 2016. After being dormant for two years, the program was reauthorized in early 2019 and has since remained on life support.

“While we have appreciated the short-term extensions passed this Congress . . . permanent reauthorization is necessary to ensure that states continue to participate in the MFP program,” the Consortium for Citizens with Disabilities wrote in a letter to Congress in December. “Several states have already stopped transitions under MFP or even dropped out of the program entirely while awaiting the assurance of long-term funding . . . MFP has consistently led to positive outcomes for people with disabilities and older adults and shown cost-savings to states since it began in 2005.”

Elise Lampert, Esq.
Law Office of Elise Lampert
9595 Wilshire Blvd., Suite 900
Beverly Hills, CA 90212
Tel. 818-905-0601
Email:elise@elampertlaw.com
***Member of the National Academy of Elder Law Attorneys

How Does Medi-Cal Treat Income?

The basic Medi-Cal rule for nursing home residents is that they must pay all of their income, minus certain deductions, to the nursing home. The deductions include a $60-a-month personal needs allowance (this amount may be somewhat higher or lower in your state), a deduction for any uncovered medical costs (including medical insurance premiums), and, in the case of a married applicant, an allowance for the spouse who continues to live at home if he or she needs income support. A deduction may also be allowed for a dependent child living at home.

In determining how a Medi-Cal applicant's income affects his or her eligibility for nursing home coverage, most states use what is known as the "medically needy" or "spend-down" approach.  These states allow the applicant to spend down their income on their care until they reach the state's income standard for eligibility, at which point Medi-Cal/Medicaid will begin covering their care.  In this way, those with incomes that exceed Medi-Cal's/Medicaid’s thresholds can still qualify if they have high medical expenses, assuming they meet Medi-Cal's/Medicaid’s other requirements.

But some states set a hard limit on the income permissible to qualify for Medi-Cal/Medicaid -- no spend-down is allowed.  In these states, known as "income cap" states, eligibility for Medi-Cal/Medicaid benefits is barred if the nursing home resident's income exceeds $2,349 a month (for 2020), unless the excess income above this amount is paid into a "(d)(4)(B)" or "Miller" trust. If you live in an income cap state, contact your attorney to set up a trust. The income cap states as of this writing are: Alabama, Alaska, Arizona, Arkansas, Colorado, Delaware, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Nevada, New Mexico, New Jersey, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, and Wyoming.

For Medi-Cal applicants who are married, the income of the healthy spouse living in the community (the “community spouse”) is not counted in determining the Medi-Cal applicant's eligibility. Only income in the applicant's name is counted in determining his or her eligibility. Thus, even if the community spouse is still working and earning, say, $5,000 a month, he or she will not have to contribute to the cost of caring for his or her spouse in a nursing home if the spouse is covered by Medi-Cal.

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Questions? Contact us at Elise Lampert, Attorney at Law

Elise Lampert, Esq,

Law Office of Elise Lampert

9595 Wilshire Blvd. | Suite 900 | Beverly Hills , CA 90212

Phone: (818) 905-0601 / Email: elise@elampertlaw.com

http://www.eliselampert.com

****Member of the National Academy of Elderlaw Lawyers