Elder Law Attorney Provides Update on Class Action Suit Against Medicare’s 100 Day Rule

Question:  In yesterday’s Q&A, which dealt with Medicare’s 100 day limit for reimbursement of nursing home rehabilitation, Attorney Siebert said that there was a class action suit just settled for the 100 day rule which if a person was not making progress under skilled care that Medicare would cease to cover that cost and the patient would be moved to non-skilled care. As of what date did this go into effect since my mom had this issue and was moved to non-skilled November 29 or 30, 2012 and I paid the balance of November and all of December in advance.

Answer:  The effective date for the rule will actually be retroactive. The initial proposed settlement was filed in federal District Court on October 16, 2012. On November 20, Chief Judge Christina Reiss of the District of Vermont signed an order preliminarily approving the settlement agreement. By December 10, 2012, notice of settlement was posted on the websites of numerous organizations, including the seven national organizations that served as plaintiffs in the case, which will alert advocates and beneficiaries to the terms of the settlement. Class members will be able to file written objections to the settlement. The court will hold a Fairness Hearing on January 24, 2013 “to determine whether the settlement agreement is fair, reasonable and adequate,” after which it is hoped that the judge will issue an order permanently approving the settlement agreement.

When the judge approves the proposed agreement, CMS will revise the Medicare Benefit Policy Manual and other Medicare Manuals to correct suggestions that Medicare coverage is dependent on a beneficiary “improving.” New policy provisions will state that skilled nursing and therapy services necessary to maintain a person’s condition can be covered by Medicare. The settlement clarifies that Medicare will cover nursing or therapy services that require the skills of a qualified professional in the skilled nursing facility, home health, or outpatient setting. Examples of such skilled services include: physical therapy to maintain the patient’s condition or to slow deterioration, and nursing services for wounds that are not healing.

Once finalized, the Settlement Agreement will provide a review under the proper standard for all claims that are denied on the basis of the Improvement Standard after January 18, 2011 (the date the Jimmo case was filed).  The determination of whether you have a legitimate basis for appeal and the procedures for appealing your denial go well beyond the limited scope of this answer.   A good resource for learning more about appeals of Medicare denials can be found on the website of the Center for Medicare Advocacy which has published several self-help packets for Medicare appeals.  http://www.medicareadvocacy.org/take-action/self-help-packets-for-medicare-appeals/

James C. Siebert, Attorney at Law
The Law Office of James C. Siebert & Associates
Arlington Heights, Illinois
Premium Member of the national ElderCare Matters Alliance, Illinois chapter


Elder Law Attorney Answers Question about Nursing Home Rehabilitative Care

Question:  “My father-in-law is currently in a nursing home. He’s been in and out of various facilities resulting from two failed back surgeries, followed by several years of over-prescribed pain medicines. In the last 12 months he’s been in a rapid decline of health; that’s why we put him into care facilities. The current facility is moving him out this week because he isn’t making any improvements and his medical insurance will be cut off. As we try to find him new care, we’re discovering that his current medicinal intake is too complicated for other facilities. Can you recommend a course of action for us? His wife comes to visit him every day. We’d like to keep him nearby if possible. Many thanks in advance for your help on this.”

Answer:  Most nursing homes participate in either or both the Medicare and Medicaid programs, and from your description it sounds as if your father-in-law was in the Nursing Home under Medicare or a Medicare replacement coverage.  First, if that is the case you must understand that Medicare will not pay indefinitely for long term care. Generally, Medicare will only pay for up to a maximum of 100 days of rehabilitative services in a nursing facility after the patient has spent 3 midnights in a hospital.  Once the 100 days are up, or previously when it was determined that the patient was making no improvement, then the care is no longer consider rehabilitative but is then considered long term care and Medicare stopped paying even if the time was well short of the 100 days.  Medicare does not pay for long term care.  Unless your father-in-law has long term care insurance, it is unlikely that any private insurance would pay for long term care.  That means no matter what you do in the short run, you must plan for your father-in-laws long term care and how you are going to pay for it.

In the short term, if Medicare was paying for your father-in-law’s rehabilitation in the nursing home, you might be able to get additional time in the facility based upon a recent change in Medicare policy agreed to by the Federal Government as part of a settlement of a class action lawsuit.  The prior standard allowed Medicare to stop paying once the patient had ceased to make any improvement.  The change provides that if the patient, your father-in-law, stops making improvement however is still in need of a skilled level of care, Medicare will continue to pay up to the maximum of 100 days.

After the 100 days or whenever your father-in-law is discharged, a facility will have to be found that can accommodate him.  Fortunately for you, you can generally make the current nursing facility find and arrange for your father-in-laws admission to an appropriate facility.  In response to reports of widespread neglect and abuse in nursing homes, Congress enacted legislation in 1987 requiring nursing homes participating in Medicare and Medicaid to comply with certain quality of care rules. This law, known as the Nursing Home Reform Act, says that nursing homes “must provide services and activities to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident in accordance with a written plan of care.

You may only be transferred or discharged to a safe and secure place that can meet your needs. It doesn’t matter what the reason is for the transfer or discharge. It doesn’t matter how long you were in the nursing home. It doesn’t matter if it is an emergency. Your transfer or discharge must be safe and secure.

Pursuant to federal law, prior to involuntarily discharging a resident, a facility is required to have a “post-discharge plan of care that is developed with the participation of the resident and his or her family, which will assist the resident to adjust to his or her new living environment.”  Generally, a transfer of a resident is permitted only “when adequate alternative placement is available. In order to determine whether “adequate alternative placement” is available, a facility must prepare a discharge plan before involuntarily discharging a resident. The discharge plan must take the resident’s medical needs into account. Further, any discharge plan must include involvement of the recipient, family or authorized representative in the placement process with recognition of their choices. In addition, the Nursing Home Reform Act requires that a nursing facility “must provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility.

Once an appropriate facility is found, a determination has to be made as how your father-in-law will pay for his care. If he does not have long term care insurance, and otherwise has insufficient assets, he can apply for Medicaid, which is a joint federal and state program which pays for long term care for people who cannot afford it themselves. I would strongly recommend that you get assistance in determining if your father-in-law qualifies for Medicaid as well as assistance in the actual application process. I would recommend you locate an Elder Law Attorney in your area, and then arrange a consultation with the Elder Law Attorney.

One excellent source to find Elder Law Attorneys near YOU is ElderCareMatters.com –  America’s Directory of Elder Care / Senior Care Resources for Baby Boomers and their Aging Parents.

Hope this helps.

James C. Siebert, Esq.
The Law Office of James C. Siebert & Associates
Arlington Heights, Illinois
Member of the national ElderCare Matters Alliance, Illinois chapter

Today’s Q&A on ElderCareMatters.com is about locating Medicaid-Approved Facilities

Question:  “How do you find out which elder care facilities are Medicaid approved? Is there a list? Are assisted living facilities Medicaid approved or just nursing homes?”

Answer:  There are several ways to find a Medicaid approved facility in your area.  I will have to be general rather than specific because this answer should apply to every state rather than to just one state.

First option:  Call a local nursing home and ask if their facility is Medicaid approved.  If not, ask them for the names of any that are Medicaid approved facilities.

Second option:  Check with any of your local social service agencies.

Third option:  Check with your local hospitals as they refer people to Medicaid facilities each and every day.

Fourth option:  Check with the local office of Family Services, the Department of Children and Families or the Welfare agency in your state.

Fifth option:  Check with your clergy as they visit their parishioners usually on a weekly or bi-weekly schedule.

Sixth option:  Check with your friends that may be going through the same search as you are or they have already made their search.

Seventh option:  Check with your family physician or the local medical society.

Eighth option:  Check with your local assisted living facilities.  Many assisted living facilities are connected to Medicaid approved facilities.

Ninth option:  Check with your local health department.

Tenth option:  Check your local yellow page directory under assisted living facilities, Medicaid Nursing Homes, Nursing Homes, etc.

Eleventh option:  Check on the internet for assisted living facilities, Medicaid Nursing Homes, Nursing Homes, etc. 

The above list is probably not exhaustive, but it should give you enough information that should allow you to find what you are looking for with only one or two phone calls.

Hope this helps.

Michael Tucker, Attorney at Law
Altamonte Springs, Florida
Member of the national ElderCare Matters Alliance, Florida chapter

Today’s Q&A on ElderCareMatters.com is about a Medicare issue

Question:  Which is best and why: to purchase a Medicare supplement or to enroll in a Medicare advantage plan?

Answer:  From a financial perspective, there are some very good reasons to consider a Medicare Advantage plan (also called Medicare Part C).  It is important to understand that, when you choose to be insured under a Medicare Advantage plan, you are effectively choosing a private insurance plan and “opting out” of Original Medicare while you are under that plan.  A Medicare Advantage plan is a “blanket plan” that covers many of the benefits that would otherwise require you to purchase multiple components under Original Medicare, including Medicare Part A (Hospital Insurance), Medicare Part B (Medical Insurance), a separate Medicare Supplement plan (Medigap), and a separate Medicare Part D (Prescription Drug) Plan.  There are both pros and cons when deciding to choose a Medicare Advantage plan versus keeping Original Medicare along with a Medicare Supplement. 

On the “pro” side, perhaps the biggest reason that most seniors choose a Medicare Advantage is that they offer a savings in out of pocket costs for both medical care and prescription drugs, in exchange for your agreement to use their specific list of in-network providers.  Some also provide additional benefits such as covering the monthly fee for health club membership.  Medicare Advantage plans may charge an additional premium, typically in the range of $20 to $60 per month.  Each plan also has unique co-pays for medical office visits and prescription drugs.  Co-pays can vary significantly with each plan, so shop carefully, keeping in mind the types of physicians you normally see and the specific drugs you normally take.

On the “con” side, most Medicare Advantage plans are HMO type plans, where you do not have the choice to see any doctor that you wish.   You must  go to the doctors, hospitals, and other medical providers on the plan’s list.    If you need to see a specialist, many require a referral from your Primary Care Physician in order to be seen by a specialist.  This means that you must choose a Primary Care Physician that will be the Medicare Advantage plan’s “gatekeeper” to decide when your care merits a referral to a specialist.  Some Medicare Advantage plans are PPO type plans, offering a wider selection of providers and greater ease when seeking a specialist.

Keep in mind that, when switching from one option to the other, there are specific windows that you must keep in mind.  If you wish to change from Original Medicare to a Medicare Advantage plan, you must do so within the open enrollment period from October 15 through December 7, with changes taking effect the following January 1.  If you wish to change from Medicare Advantage back to Original Medicare with a Supplement, you must do so within the period from January 1 through February 14.

When making a decision, the most important issue to consider is the type of medical care that you anticipate that you will need.  If you have few medical issues, then a Medicare Advantage plan may serve you well and save you money.  However, many Geriatric Care Managers suggest that, as seniors age and their medical needs become more complex, that they consider the greater flexibility offered by Original Medicare to choose the medical providers that will best meet their specific needs.


Marty Seigel, CSA
Advocare Elder Care Management
Delray Beach, Florida
Member of the national ElderCare Matters Alliance, Florida chapter

Today’s Q&A on ElderCareMatters.com is about Medicaid Exempt Transfers

Question:  My mom is 85. I am 62 and blind. Is it true that elderly parents can transfer all assets to blind children, of any age, and immediately qualify for Medicaid? My mom does not need Medicaid now. I am just thinking ahead. There might be a time when she needs to enter a nursing home or needs nursing assistance. I want her to be able to protect her assets. She lives in a co-op type apartment now. Is there a way to set up something legally so that her apartment and meager savings are protected?

Answer:  The rules for Medicaid qualification vary from State to State, so you will need to consult an elder law attorney in your jurisdiction for a definitive answer on how assets may be transferred by a parent to a child without affecting eligibility.  However, as a general proposition, the answer to your question is that there are certain “exempt transfers” allowed by law whereby a parent can transfer a residence to a “caretaker child” (one who has resided in the home with the parent for at least two years and has provided actual assistance to the parent with such things as meal preparation and taking the parent to doctor’s appointments), and the law also allows special transfers using trusts for the benefit of blind, disabled, or minor children.  If done correctly, these kinds of transfers do not impact the parent’s Medicaid eligibility.  If a transfer does not satisfy all of the applicable rules, however, the transferor may be ineligible for Medicaid benefits for roughly the amount of time that the value of the transferred assets could have paid for nursing home care.  In any event, a transfer made more than five years before a Medicaid application is filed by or on behalf of the transferor will not impact the transferor’s Medicaid eligibility.  An additional complicating factor that your question raises is how assets may be transferred for your benefit without affecting your current or future eligibility for means-based programs.  That is where “special needs” or “supplemental needs” trusts may come into play.  The best time to begin planning for Medicaid qualification is well before there is a need for nursing home services, so your question is timely.  Your best move right now would be to consult an elder law attorney in your State for help in navigating the complex rules of Medicaid qualification as well as the rules pertaining to special needs trusts.

ElderCareMatters.com can help you find an Elder Law Attorney near you who can help you plan for and/or deal with your family’s elder care matters.

Scott A. Makuakane, Esq., CFP
Est8Planning Counsel LLLC
Honolulu, Hawaii  96813
Member of the national ElderCare Matters Alliance, Hawaii chapter

Today’s Q&A on ElderCareMatters.com deals with compensation for family caregivers

Question:  I have been taking care of my Mother since 2004. She has Alzheimer’s Disease. I do not currently have a job because I am with her 24 hours a day. Is there any compensation that I could receive for all my time and effort?

Answer:  We certainly recognize the value of the time you have put in to taking care of your mother in the years since 2004.   While your devotion to your mother is admirable, there unfortunately is no way for you to receive compensation for the time and effort you put in the past.  In the elder care context, there are two (2) scenarios that come to mind where is it wise for the senior to make ongoing payments to the caregiving family member and for those payments to be thoroughly documented. 

One situation is in the context of an application for Medicaid benefits under Title IX.   Under current Medicaid law, when an application is made to the state benefit that agency is obligated to scrutinize the applicant’s financial history over the previous five (5) years.  When money has been transferred from the senior to a family member, the benefit agencies will have a default assumption that the transfers were uncompensated, meaning the senior did not receive fair market value in return.  If that was the case, there may be a Medicaid denial or a burdensome “penalty period” during which the agency will not pay for the urgently needed benefits.  In contrast, if it can be demonstrated the senior was in fact paying the family member for providing urgently needed care, then the payments were not gifts and there is no problem with Medicaid eligibility.  That can be a way for the caregiver to be paid for their time and efforts in providing for their senior loved one.  In this context, payments to the family member can partially be thought of as a “defensive” tactic, to ensure that payments to the family member do not create Medicaid eligibility problems down the road. 

When the senior is to make payments to the family member caregiver for care to be provided, it is crucial that the arrangement be formally documented.  A document commonly referred to as a “Care Contract” should be prepared and it should spell out all the duties and responsibilities of the caregiver and the amount and terms of the compensation by the senior.  While the senior and family members quite understandably are used to dealing with each other in a thoroughly informal manner, it is crucial for them to keep in mind a central goal to document the caregiver / care recipient relationship in a manner that will withstand third party scrutiny by the state’s Medicaid agency or other similar third parties.  Thus, it is well worth the investment for the family to consult a competent elder law attorney to work with the family to draft the document. 

The other situation is when the senior is eligible and applies for benefits through the United States Department of Veterans Affairs (VA).  When the VA pays non-service connected benefits to a living veteran or to the living widow or widower of a deceased veteran, that benefit is structured as a reimbursement for recurring medical expenses.  When properly documented, payments to a family caregiver will be accepted as recurring medical expense for which a reimbursement may be paid, just like reimbursement for health insurance premiums or similar.  So, in that situation the benefit recipient can receive a greater benefit amount and effectively the caregiver is compensated for his or her time.

Henry C. Weatherby, Esq., CLU, ChFC, CEBS
Weatherby & Associates, PC
Bloomfield, Connecticut
Member of the ElderCare Matters Panel of Experts

Today’s Q&A on ElderCareMatters.com is about Care Management vs Case Management

Question:  My family is considering hiring someone to help us monitor the care provided to our elderly parents.  Should we be looking for a Care Manager or a Case Manager?  We are a little confused as to the difference between these 2 types of professionals…or are they the same?

Answer:  Whether or not you want a Case Manager or a Care Manager depends on the situation of your parents.  If they are living in their own home and not an assisted living facility, you would hire a Care Manager.  Assisted Living Facilities will have a Case Manager available for you to hire; however, you still would want to hire an independent Geriatric Care Manager.  The Care Manager will be more considerate to what is best for you rather than what is best for the facility.

Before making the effort, step back a moment and try to determine whether your parents actually have a problem that a professional geriatric care manager needs to be involved.  Do you or your parents have time, inclination, and skills to manage the problems themselves? If you are not sure, ask your clergy, your parent’s doctor, a social worker, your parents financial advisor, or a trusted friend of your parents to help you decided if an elder care expert may be helpful in this situation.  Enlisting the support of other family members to consult a professional is a good way to build a consensus on the solutions.

There are many places to find a care manager in your parent’s city or state. In addition, our website www.ElderCareMatters.com includes a host of professional geriatric care managers. You may also want to check with local agencies or hospitals to obtain a list of local referrals.  Health professionals and elder law attorneys are other excellent referral sources.

Hope this helps your family.

Henry C. Weatherby, Esq., CLU, ChFC, CEBS
Weatherby & Associates, PC
Bloomfield, CT  06002
Member of the national ElderCare Matters Alliance, Connecticut chapter


Today’s Q&A on ElderCareMatters.com is about countable income for VA Aid & Attendance Benefits

Question:  My step-Dad, who is in a convalescent home, is having to pay off some medical bills.  He has a long-term care (LTC) policy that we’re hoping will pay; it is currently in claims review.  If he receives the LTC benefit from the policy, will that benefit he receives from the policy be included in the VA’s calculation as income?

Answer:  I presume that when you refer to VA benefits you are referring to the Aid & Attendance benefit.  In that case, the VA does not consider the Long-Tern Care insurance payments as income. 

However, the payments will reduce the reimbursed medical expenses and depending on your father’s income, may impact his eligibility for VA benefits.

For example, if dad’s income is $2,000 /month and his care costs (unreimbursed medical expenses) are $4,000, then he will be entitled to the full A&A benefit (presuming he is single) of $1,703 /month because his income for VA purposes will be negative $2,000/month.

If the Long-term care insurance pays $2,000/month, then his care costs (unreimbursed medical expenses) will be reduced to $2,000/month.  In this case dad will still receive the full benefit, because his income for VA purposes is now zero.  BUT if his care costs total $3,000 and the insurance pays $2,000 his income for VA purposes will be $1,000 and his benefit will drop to $703.

As you can see this can be a complicated issue.   The VA will want to know about any changes to dad’s income or medical expenses.  A consultation with an elder law attorney who is well versed in VA benefits would be useful in this situation.

Heather R. Chubb, Esq.
Life Transitions Lawyer
The Chubb Law Firm
Fair Oaks, California
Member of the national ElderCare Matters Alliance, California chapter


Today’s Q&A on ElderCareMatters.com is about getting custody over an elderly loved one

Question:  How would we go about getting custody over our elderly aunt, who is physically disabled but mentally competent and has no one else to look after her and her resources?

Answer:  If your elderly Aunt is mentally competent and is willing to have you look after her, she can execute a General Durable Power of Attorney which names you as her agent. She can also execute an advance directive for her health care. Her physical incapacity does not equate to a mental incapacity. The power of attorney would help you assist with her finances and to look after her and her resources. The key here is that she must be willing to let you assist her with her needs. If she is not willing and is physically unable to take care of herself you may petition the court to become guardian of the person if she is unable to physically take care of herself. Someone who has capacity is presumed to have the ability to take care of their own finances.

James J. Ruggiero, Jr., Esq., AEP
Ruggiero Law Offices, LLC
Paoli, Pennsylvania
Member of the national Panel of Elder Care Experts on ElderCareMatters.com


All Elder Care professionals should be listed on ElderCareMatters.com

Question:  My family and friends in Dallas, Texas love the ElderCareMatters.com website, and we are looking forward to the day (hopefully soon) when we will be able to find on this wonderful site a comprehensive list of ALL professionals across America who help families plan for and/or deal with their elder care matters.  Thank you very much for making it easy for families across America such as ours to find the help we need for our elder care matters.

Answer:  It is our pleasure to be able to compile this national online Elder Care Resource Directory, and we will continue to encourage ALL competent professionals across America who help families plan for and/or deal with elder care matters to be listed on ElderCareMatters.com.  Our goal is to make it easy for ALL families across America to find the help they need to plan for and/or deal with their elder care matters.

Thank you for your support of ElderCareMatters.com.

With my best regards,

Phillip G. Sanders, MBA, MSHA, CPA
Founder & CEO
ElderCare Matters, LLC






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