Category: Medicaid

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Fighting Nursing Home Discrimination Against Medicaid Recipients

Nursing home discrimination against Medicaid residents is illegal.

nursing home discrimination against Medicaid recipients is illegalWhile it is illegal for a nursing home to discriminate against a Medicaid recipient, it still happens. To prevent such discrimination, nursing home residents and their families need to know their rights and how to fight nursing home discrimination against Medicaid beneficiaries.

The potential for discrimination arises because Medicaid pays nursing homes less than the facilities receive from residents who pay privately with their own funds and less than Medicare pays. Nursing homes are not required to accept any Medicaid patients, but Medicaid payments are a steady guaranteed payment, so many nursing homes agree to accept Medicaid recipients.

When a nursing home agrees to take Medicaid payments, it also agrees not to discriminate against Medicaid residents based on how they are paying. Nursing home discrimination against Medicaid recipients is illegal. Medicaid residents are entitled to the same quality of care as other residents. A nursing home cannot evict residents solely because they qualified for Medicaid.

Unfortunately, nursing home discrimination against Medicaid patients does occur, and the discrimination can take different forms. The nursing home may refuse to accept a Medicaid recipient or may require that a resident pay privately for a certain period of time before applying for Medicaid. When a resident switches from Medicare or private-pay to Medicaid payments, the nursing home may transfer the resident to a less desirable room or claim that it doesn’t have any Medicaid beds, which is illegal.

There is at least one way that nursing homes can treat Medicaid recipients differently, however. Nursing homes are allowed to switch residents who were privately paying for a single room to a shared room once they qualify for Medicaid. In addition, the nursing home is not required to cover personal and comfort care items, such as a telephone or television. In some states families are allowed to pay the difference to get a private room or the care item. Other states do not allow any supplementation.

If you feel you have been discriminated against by a nursing home, contact Florida’s long-term care ombudsman or your attorney.

For a guide to the 20 common nursing home problems, including discrimination against Medicaid recipients, click here.

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NJ Supreme Court Rules Medicaid Planning Attorneys Do Planning-Non-Lawyers Engaged In Unauthorized Practice of Law

Medicaid planning with Jacksonville Medicaid planning attorneys in FloridaJoining the states of Florida, Ohio, and Tennessee, the Supreme Court of New Jersey has found that Medicaid planning attorneys should handle Medicaid planning. Non-lawyers who apply the law to a Medicaid applicant’s specific circumstances are engaging in the unauthorized practice of law.  Florida’s Supreme Court decision last year, to the same effect, provides that a non-lawyer who engages in Medicaid planning is guilty of the unauthorized practice of law and is committing a criminal felony.

The NJ state Supreme Court received complaints that non-lawyers retained by families or nursing homes to assist with the Medicaid application process were providing erroneous or incomplete law-related advice. A state attorney ethics hotline received reports that non-lawyers charged “clients” large sums of money for what turned out to be faulty Medicaid-planning legal assistance. These actions caused the elderly victims to suffer significant financial losses.

The NJ state Supreme Court was asked for an opinion specifying what activities non-lawyers may engage in and what activities are the unauthorized practice of law. The Committee on the Unauthorized Practice of Law concluded that while non-lawyer Medicaid advisors may provide limited services, “[a]pplying the law to an individual’s specific circumstances generally is the ‘practice of law,’ and should be accomplished through Medicaid planning attorneys.  A Medicaid advisor or Application Assistor may provide information on insurance programs and coverage options; help individuals complete the application or renewal; help them with gathering and providing required documentation; assist in counting income and assets; submit the application to the agency; and assist with communication between the agency and the individual. But the advisor may not provide legal advice on strategies to become eligible for Medicaid benefits, including advice on spending down resources, tax implications, guardianships, sale or transfer of assets, creation of trusts or service contracts, and the like,” as those items constitute the practice of law and should be done by Medicaid planning attorneys.

For the Committee on the Unauthorized Practice of Law’s Opinion 53, “Non-Lawyer Medicaid Advisors (Including ‘Application Assistors’) and the Unauthorized Practice of Law,” , click here.

The Medicaid laws are very complex, and deal with a number of overlapping legal doctrines.  When you need assistance with Medicaid planning, including the preparation of spend down plans, trusts, personal care contracts, Medicaid asset protection trusts, or other options that comply with the Medicaid laws, you should seek out experienced elder law or Medicaid planning attorneys for that assistance.  Otherwise, you and your family may also experience “significant financial losses.”

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The Elder Law Attorney’s Role in Medicaid Planning

Do you need an elder law attorney for even “simple” Medicaid planning?

The answer, as so often is the case in legal matters, is that it depends on your particular situation and circumstances, but in most cases, the prudent answer would be “yes” you do need an elder law attorney to help you accomplish Medicaid planning to preserve your family’s assets and qualify your loved one for Medicaid benefits to pay for nursing home care.

The social worker atelder law attorney explains medicaid rules your parent’s nursing home assigned to assist you with the preparation of a Medicaid application for your mother knows a lot about the program, but maybe not that one particular rule that applies in your case or the newest changes in the law, which can make all the difference in whether your mother’s application will be approved. In addition, by the time you’re applying for Medicaid, you may have missed out on significant planning opportunities, that could have helped your family preserve valuable assets.

The best option is to immediately consult with a qualified and experienced elder law attorney who can advise you on your family’s entire situation, at the first thought that a nursing home might be necessary. At the very least, the price of the consultation should purchase some peace of mind that things are being accomplished appropriately and in your family’s best interest. What you learn from such a consultation with an experienced elder law attorney can mean significant financial savings or better care for you or your loved one. Proper Medicaid planning may involve the use of trusts, transfers of assets, purchase of annuities or increased income and resource allowances for the healthy parent who is living at home.

The Medicaid laws and regulations collectively create a maze in which the non-lawyer can easily run into dead ends. The experienced elder law attorney is aware of recent changes in the law, the results of the latest “fair hearings” (which are written decisions by administrative judges ruling on appeals of Medicaid denials of benefits made by the Department of Children and Families), and information gathered from other elder law attorneys who involved in dealing with Medicaid matters on a daily basis.

Medicaid Planning Constitutes the Practice of Law and Should Be Undertaken by Elder Law Attorneys

Furthermore, the Florida Supreme Court has ruled in The Florida Bar Re: Advisory Opinion — Medicaid Planning Activities by Nonlawyers, SC14-211, January 15, 2015, that Medicaid planning, because of the requirement to understand and implement the statutes and regulations, constitutes the practice of law.  In that opinion, the Florida Supreme Court said:

 

“. . . the testimony revealed that non-lawyer Medicaid planners are essentially unregulated, as there are no licensing, education, or advertising requirements. . . .

elder law attorney provides medicaid planningTestimony described the type of harm caused by nonlawyer Medicaid planners which includes denial of Medicaid eligibility, exploitation, catastrophic or severe tax liability, and the purchase of inappropriate financial products threatening or destroying clients’ life savings. The potential for public harm is even greater when the nonlawyers put themselves in a position of reliance and advising the customer as to the proper course of action to take. In order to protect the public from harm, it is the opinion of the Standing Committee that the activities described herein constitute the unlicensed practice of law and should not be authorized.”

Consequently, non-lawyers who engage in Medicaid planning are involved in the unlicensed practice of law, which in Florida is a felony.

If you are going to consult with an experienced elder law attorney, the sooner the better. If you wait, it may be too late to take some steps available to preserve substantial assets for the family.  Whether your initial consultation is in advance of the actual need for Medicaid benefits to pay for nursing home care, or on a crisis basis because your spouse or elderly parent has just been determined to need Medicaid, we can help. To schedule a consultation, just call us at (904) 448-1969.

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Cost of Long Term Care Increases in 2016

cost of long term care from elder law attorney medicaid lawyer in jacksonville, floridaThe cost of long term care continues to rise, even if slightly for 2016 compared to 2015. The median cost of a private nursing home room in the United States has increased slightly to $92,378 a year, up 1.24 percent from 2015, according to Genworth’s 2016 Cost of Care survey, which the insurer conducts annually. Genworth reports that the median cost of a semi-private room in a nursing home is $82,125, up 2.27 percent from 2015. The rise in prices is modest compared to the 4.2 percent and 3.8 percent gains, respectively, in 2015.

Florida experienced increases in the cost of long term care similar to the national averages:

The price rise was even lower for assisted living facilities, where the median rate ticked up only .78 percent, to $3,628 a month. The national median rate for the services of a home health aide was $20 an hour, the same rate as 2015, and the cost of adult day care, which provides support services in a protective setting during part of the day, actually fell from $69 to $68 a day.

Alaska continues to be the costliest state for nursing home care, with the median annual cost of long term care in a private nursing home room totaling $297,840. Oklahoma again was found to be the most affordable state, with a median annual cost of long term care in a private room of $60,225, which did not increase in 2016.

The rates reported for the Jacksonville, Florida area include the following according to the Genworth study:

Home Health Care         Adult Cay Health Care     Assisted Living Facility     Nursing Home Care

Homemaker Services                                                                                                     Semi-Private Rooms

Annual Costs                      Annual Costs                              Annual Costs                     Annual Costs

$47,362                                 $20,930                                         $36,300                                 $85,045

While prices may not have increased drastically from last year, the survey found that Americans underestimate the cost of in-home long-term care by almost 50 percent. Thirty percent believe it will be less than $417 a month. In fact, an in-home aide working 44 hours a month would cost $3,861, according to Genworth. Proper spend down planning can allow you to qualify for Medicaid benefits to pay the cost of long term care in assisted living facilities and skilled nursing homes.

The 2016 survey was based on responses from more than 15,000 nursing homes, assisted living facilities, adult day health facilities and home care providers. The survey was conducted by phone during January and February of 2016.medicaid planning lawyer elder law attorney to pay for cost of long term care

If your personal assets are not sufficient to cover the costs of long term care, and you do not have long term care insurance, then your only real option to pay for long term care, especially in a skilled nursing home, is to qualify for Medicaid benefits under the Florida Institution Care Program (ICP). We can help you preserve your remaining assets and qualify for Medicaid to pay for your long term care costs. If you, or a loved one, need skilled nursing home care, schedule an appointment with us to determine how we can help you qualify for Medicaid benefits to pay for nursing home care and other cost of long term care, and legally preserve your assets for yourself, your spouse and your family.