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Last week we were discussing Judy’s problem with Medicaid.  Her dad, Joe, was about to lose his Medicaid status unless he complied with New Jersey’s elective share law, something Judy had never heard of. I explained to Judy that many states have such a law.  It is designed to protect an unsuspecting surviving spouse who finds out after the death of a spouse that he/she has been cut out of the will.  Unless the surviving spouse waives his/her right to the elective share, that spouse is entitled, by law, to a certain portion of the deceased spouse’s estate. In New Jersey, the surviving spouse is entitled to one-third of the deceased spouse’s “augmented estate” – the gross estate minus certain administrative expenses and debts and minus what the surviving spouse already has. The elective share is a legal right that the surviving spouse can assert, regardless of what the will says, unless that spouse has waived the right by written agreement.  I told Judy that Medicaid regulations state that if the spouse does not exercise this right, then it is the same as if the spouse gave that money away, and of course, that transfer is subject to a Medicaid penalty.  In Joe’s case,

Joe and Mary had been married for 20 years, a second marriage for both.  They each had children from a previous marriage.  As they both aged and needed more care their respective children stepped in.  When Joe eventually needed nursing home care his daughter, Judy, handled his finances while Mary’s daughter, Melissa, took over management of her finances. Judy and Melissa coordinated their efforts to spend down the couple’s assets and qualify Joe for Medicaid.  It all worked out fine, with Mary keeping the house and some liquid assets and Joe’s care in the nursing home being covered under New Jersey’s institutional Medicaid program.  As Mary’s long term care needs increased, she eventually sold the home and spent some of her savings.  Then Mary died and Melissa received a letter from the New Jersey Medicaid caseworker telling her that Joe could lose his Medicaid. How could that be?  Judy had distributed her dad’s income to the nursing home and to Mary, as she had been required to do.  She was careful to keep his assets below $2000.  However, when Mary died Joe’s situation changed.  The first question was whether Mary’s will left any inheritance to Joe.  If so, then he would most

Last week I was discussing the recent settlement in the case of Jimmo v. Sebelius that will have a huge impact on Medicare recipients who need rehabilitative services at home or in a skilled nursing facility.  We’ll have to wait and see how this affects care in the long term but what immediate changes will result? There is a re-review process for certain Medicare beneficiaries who were denied benefits for these services.  The denial must have become final and appealable after January 18, 2011.  A further appeal need not have been filed.  The re-review process only applies to services that were actually received by the Medicare beneficiary.  In other words, if Medicare denied benefits and no further rehabilitative services were received the Jimmo settlement will not help you.  Medicare can only pay for services received. If skilled care was stopped because Medicare wouldn’t cover, you may be able to get it restarted under this new standard.  First, you’ll need your doctor to explain in writing why skilled care or therapy is necessary.  And keep in mind that all the normal Medicare requirements still apply.  For example, skilled nursing care requires the 3 day hospital stay first. Going forward, what if you are denied

Mom has dementia, Alzheimer’s, Parkinson’s, Multiple Sclerosis or is in a general declining state of health due to advanced age.  She has an acute condition or injury that requires her entry to the hospital and then to a sub acute facility for rehabilitation.  Up to 100 days of rehabilitative services are covered by Medicare, but well short of that time frame Medicare stops coverage because Mom has plateaued.   Sound familiar? The decision to stop Medicare coverage is usually based on a determination that Mom’s condition is not improving as a result of the treatment she is receiving.  This is very common with the elderly, whose recuperative abilities are not what they were at a younger age.  They are frail and weak.  The problem, however, is that this standard, applied for many years, is actually not written in the Medicare regulations. A settlement reached with Medicare in federal court in Vermont in the case of Jimmo v. Sebelius, is intended to correct that standard to what was originally intended.  Medicare will pay for skilled nursing home stays, home health care, and outpatient services under Medicare Part B if those services are needed to maintain the patient’s current condition or prevent or slow further deterioration. 

The New Jersey Department of Health and Senior Services recently released a new option for patients to communicate their goals and wishes for treatment in end of life situations.  POLST stands for Practitioner Orders for Life-Sustaining Treatment.  New Jersey is one of many states that has put POLST in place. The New Jersey POLST form, a one page document, is designed to be completed by the physician or advanced practice nurse in consult with the patient.  There is a section in which the goals of care for the patient are to be completed.  A second section titled, “Medical Intervention”, lists 3 choices of treatment from which the patient must choose, full treatment, limited treatment or symptom treatment only.  There are also sections covering artificially administered nutrition, cardiopulmonary resuscitation and airway management. The POLST form is intended for use by patients who are seriously ill, frail and weak, afraid of losing mental capacity to make decisions in the near future, or living in a nursing home or on hospice.  In other words, POLST is designed to be completed when end of life is near. Does the POLST form replace an advance directive?  No, it doesn’t but rather it complements an advance directive.  You’ll need

Last week we were discussing the VA Aid and Attendance benefit and how it could “knock you off” some of New Jersey’s Medicaid programs - specifically the assisted living and home based programs – because some of the VA pension will be considered income for Medicaid purposes.  That could cause total income to exceed the strict New Jersey Medicaid income cap of $2130 per month of gross income.  This realization would lead some to conclude that they shouldn’t apply for the VA benefit.   But, as I said last week, in most cases that is ill advised and now I’ll tell you why. If you scroll down to my posts on this blog for February 18 and February 25, you’ll find my discussion about the conversation about Medicaid that typically occurs between a prospective resident’s family and the assisted living facility director of admissions or marketing.  There is a lack of understanding about how different New Jersey’s assisted living and home based Medicaid programs are when compared to New Jersey’s nursing home Medicaid programs. In order to qualify for any of these programs, the applicant must meet the medical test of needing nursing home care.  This is the case even if he/she is