A New Jersey trial court grants summary judgment to a nursing home resident’s agent under a power of attorney in a lawsuit by the nursing home for payment of the resident’s unpaid bill and orders that the nursing home pay attorney’s fees and costs. Hampton Ridge Healthcare & Rehabilitation Center v. Wright (N.J. Super. Ct., No. L-2335-16, Nov. 1, 2017).

Charles Douglas was an agent under a power of attorney for his aunt, Idella Wright. Ms. Wright entered a nursing home, and Mr. Douglas signed the admission agreement as the responsible party. Mr. Douglas assigned Ms. Wright’s Social Security payments to the nursing home, but Ms. Wright died owing $18,322 to the nursing home.

The nursing home sued Mr. Douglas for failing to timely apply for Medicaid benefits and to pay the final bill. Mr. Douglas filed a motion for summary judgment, arguing that he was not personally liable because New Jersey law prohibits a nursing home from requiring a third-party guarantee as a condition of admission. The trial court granted Mr. Douglas summary judgment and he filed a motion for attorney’s fees.

The New Jersey Superior court orders that the nursing home pay attorney’s fees and costs. The court holds that the claim Mr. Douglas was forced to defend against was brought “in contravention” of the “clear and unambiguous statutory language” insulating third parties from personal financial liability.

For the full text of this decision, go to: https://vanarellilaw.com/wp-content/uploads/2017/11/Hampton-Ridge-Healthcare-Rehabilitation-Center-v.-Douglas.pdf

An Ohio appeals court rules that a nursing home that is suing a resident’s agent for breach of contract is entitled to damages if the agent had control of liquid assets at the time the nursing home invoice came due even though the assets were paid to maintain the resident’s home. Classic Healthcare Systems, LLC v. Miracle (Ohio Ct. App., 12th Dist., No. CA2017-03-029, Nov. 13, 2017).

David Miracle was his mother’s agent under a power of attorney. When his mother entered a nursing home, he signed the admission agreement on her behalf and agreed to use his mother’s finances to pay the facility. Mr. Miracle paid the nursing home infrequently, and his mother owed more than $100,000 by the time she was discharged.

The nursing home sued Mr. Miracle for breach of contract. Evidence showed that Mr. Miracle used $56,486.63 of his mother’s resources to maintain her real estate and spent an additional $12,971.54 on payments not related to his mother. The trial court found that the additional payments were unauthorized and awarded the nursing home damages in that amount. The nursing home appealed, arguing that it was entitled to the money that was used to maintain Mr. Miracle’s mother’s home.

The Ohio Court of Appeals, 12th District, reverses and remands, holding that the nursing home is entitled to damages for breach of contract if Mr. Miracle “had control over liquid assets at the time an invoice came due.” The court rules that the trial court improperly looked at the entire nursing home stay as one transaction. According to the court, if Mr. Miracle “had control of [his mother’s] liquid assets on the due date that were not paid to [the nursing home] then that amount is damages properly payable to [the nursing home].”

For the full text of this decision, go to: http://www.supremecourt.ohio.gov/rod/docs/pdf/12/2017/2017-Ohio-8540.pdf

By Michelle Andrews via National Public Radio

If you’re poor, uninsured and have a bad car wreck or fall seriously ill, there’s a chance in most states to enroll for Medicaid after the fact. If you qualify for Medicaid, the program will pay your medical bills going back three months.

This “retroactive eligibility” provides financial protection as patients await approval of their Medicaid applications. It protects hospitals, too, from having to absorb the costs of caring for these patients.

But a growing number of states are rescinding this benefit. On Nov. 1, Iowa joined three states that have eliminated retroactive coverage for some groups of Medicaid patients since the Affordable Care Act passed.

Each state had to secure approval by the federal government to make the change.

Retroactive eligibility has been a feature of Medicaid for decades, reflecting the program’s emphasis on providing a safety net for poor, disabled and other vulnerable people. In contrast to private insurance, determining Medicaid eligibility can be complex and the application process daunting, advocates say. A patient’s medical condition also may keep families from applying promptly for coverage.

All four states — New Hampshire, Indiana and Arkansas, in addition to Iowa — have expanded Medicaid under the federal health law, which allowed states to include in their Medicaid program adults with incomes up to 138 percent of the federal poverty level, or about $16,000 for one person.

In theory, most adults are required to have insurance under the ACA. In practice, each state still has a significant number of uninsured, ranging from 5 to 8 percent of the population.

The retroactive coverage “can compensate for the sorts of errors and lapses that can so easily occur on the part of both the applicant and the government bureaucracy” that delay applications, said Gordon Bonnyman, staff attorney at the Tennessee Justice Center, a public interest law firm that represents low-income and uninsured residents.

State and federal officials say eliminating the retroactive coverage helps encourage people to sign up for and maintain coverage when they’re healthy rather than waiting until they’re sick to enroll.

It also fits into federal officials’ efforts to make Medicaid, the federal-state program that provides health care for low-income adults and children, more like private insurance.

But consumer advocates and health care providers say the shift will saddle patients with hefty medical bills and mean hospitals will be picking up the cost of more uncompensated care when patients can’t pay.

Some worry this could be the start of a trend.

In Iowa, the change applies to just about anyone coming into Medicaid — except for pregnant women and children who are younger than a year old. The change will affect up to 40,000 residents annually and save the program more than $36 million a year.

“We’re making it a lot more likely that Medicaid-eligible members are going to incur significant medical debt,” said Mary Nelle Trefz, health policy associate at the Child & Family Policy Center in Des Moines, whose organization opposed the change.

Patients who are undergoing treatment for severe health conditions may neglect to apply immediately for Medicaid; that could leave them financially responsible for days or months of care they received before they submitted their application, even though they may have been eligible for Medicaid all along.

That’s not the only issue, advocates say. Unlike the commercial insurance market where re-enrollment through someone’s employer is routine, Medicaid requires that beneficiaries’ eligibility be reassessed every year.

“People fall through the cracks,” said Andrea Callow, associate director of Medicaid initiatives at Families USA, a consumer advocacy group.

In addition, complications can arise for people who might need Medicaid coverage for long-term care services.

Others argue that a 90-day retroactive eligibility guarantee is counterproductive. “We’re trying to get people to behave more responsibly, not less responsibly,” says Gail Wilensky, an economist who oversaw the Medicaid and Medicare programs in the early 1990s under President George H.W. Bush. “That is not the signal you’re sending” with three months of retroactive eligibility. A 30-day time frame is more reasonable, Wilensky says.

In contrast to the Iowa waiver, the ones in Arkansas, Indiana and New Hamsphire generally apply only to adults who gained coverage under the law’s Medicaid expansion. (Indiana’s waiver also applies to other groups.)

Kentucky has a request pending that, like Iowa’s, would eliminate retroactive Medicaid eligibility except for pregnant women and infants younger than age 1.

Under federal law, officials are permitted to waive some Medicaid coverage rules to give states flexibility to experiment with different approaches to providing services. And retroactive eligibility waivers in Medicaid are hardly new. A few states like Tennessee have had them in place for years.

Tennessee officials eliminated retroactive eligibility for all Medicaid beneficiaries in 1994 when the state significantly expanded coverage under TennCare, as Medicaid is known there. At the time, the state even allowed uninsured people to buy into the program who wouldn’t otherwise qualify based on income, says Bonnyman.

“There was no reason for anybody to be uninsured except undocumented immigrants,” says Bonnyman. “It didn’t seem to have the potential for harm.”

But state officials revamped that program after serious financial problems. Eligibility for TennCare has become more restrictive again.

Other states that waived retroactive coverage for at least some Medicaid groups include Delaware, Maryland, Massachusetts and Utah.

Bonnyman says his group frequently works with Medicaid beneficiaries who have medical bills they can’t afford that accumulated during the months before they applied for Medicaid.

“If you’re a moderate- to low-income working family,” he says, “one or two days in the hospital is enough to ruin you financially.”

By Paige Winfield Cunningham in The Washington Post

The government will give states broader leeway in running their Medicaid programs and allow them to impose work requirements on enrollees, a top federal health official said Tuesday in outlining how the Trump administration plans to put its mark on the insurance program for low-income Americans.

Seema Verma, who heads the Health and Human Services Department’s Centers for Medicare and Medicaid Services, did not spare criticisms of the Obama administration and called its opposition to work requirements “soft bigotry.”

“Believing that community engagement requirements do not support the objectives of Medicaid is a tragic example of the soft bigotry of low expectations consistently espoused by the prior administration,” Verma said in a sweeping address to the National Association of Medicaid Directors. “Those days are over.”

The speech was Verma’s most detailed public explanation of how she plans to approach Medicaid in a highly politicized era in which Republicans still hope to roll back its expansion under the Affordable Care Act as well as enact future spending cuts through their various health-care bills.

The program’s chief problems, according to Verma, include the expansion to add able-bodied adults and overall costs, which now comprise 29 percent of total state spending. She also faulted the federal government for requiring too much reporting from states and for delaying approval of states’ waiver requests to run their programs in alternative ways.

Multiple times throughout her half-hour speech, she used the phrase “card without care” to make her point that simply enrolling people in Medicaid isn’t effective if they can’t find a doctor who will accept them — an ongoing problem with the program because its reimbursements are lower than for Medicare or private coverage.

“We fail to live up to that promise when Medicaid merely provides a card without care,” she said. “And that’s why we’re ushering in a new era for Medicaid at CMS.”

Verma stressed that she and President Trump are “deeply committed” to the program, while accusing the prior administration of quashing state innovation and undermining Medicaid’s traditional partnership between the federal and state governments.

She listed a number of ways that CMS will change its approach, by expediting state waiver requests that mirror past approvals, allowing some waivers for up to a decade and starting a “report card” that grades state programs.

Waivers are a major way the Trump administration can reshape Medicaid. A half-dozen states have applied or soon will apply to require program enrollees to get a job or do some kind of community volunteering as a condition of their coverage.

Verma has long supported such requirements, which the Obama administration uniformly rejected, but Tuesday was the first time she explicitly promised that her agency would approve this type of waiver request.

“The thought that a program designed for our most vulnerable citizens should be used as a vehicle to serve working-age, able-bodied adults does not make sense,” she said.

Some officials from states currently asking to implement work or community engagement requirements were pleased at Verma’s declaration of support, including Kentucky Medicaid commissioner Stephen Miller.

“You heard what was said today, and we’re right in sync with that,” Miller said. He said he’s expecting notification “soon” from CMS that Kentucky’s waiver request has been approved. The state is hoping to set its new requirements in motion starting the middle of 2018.

But New York Medicaid director Jason Helgerson said it was “completely reprehensible” for Verma to use the phrase “soft bigotry” to describe Medicaid programs that don’t impose extra requirements on low-income people seeking coverage.

“Where should I start? Helgerson said, when asked to respond to Verma’s address. “Shocked, appalled would be the two primary reactions I have.”

By Carolyn Rosenblatt courtesy of Forbes.com

Every year since 2004, private long term care insurer, Genworth has conducted a national survey to determine the average costs of care at home, and in facilities. The data is broken down by states and one can find the 2017 results here. The bottom line: the cost of care is rising significantly in all the four general areas studied. They include home care, adult day health, assisted living and nursing homes. There is a lot more to consider than what the Genworth study shows. Long term care is not limited to the things this insurer pays for when you buy a product from them.

What does it mean for you or your aging loved ones? It’s expensive no matter how you look at it. Your odds of escaping the cost of long term care are not good.

In a book we wrote for financial planners, Hidden Truths About Retirement & Long Term Care (AgingInvestor.com, 2017), we detail how about 70% of us are going to need some kind of long term care in our lives. And we discuss how most of us live in The Great American Fantasy that it won’t happen to us, that we will be fine and die quietly in our sleep at age 100 in full control of our faculties. In the book, we urge financial advisors to help clients get out of fantasy and into the reality that dollars need to be set aside to pay for what Medicare does not cover; so called “custodial care” that is not medical in nature. That includes things like home care workers, home modification to accommodate disabilities, assisted living and other things many people eventually need. We discuss the advantages and disadvantages of all the choices.

We examine some real cases in our book. One of them looks at a man who lived to be 95 and never wanted to be in a facility. His wife hired caregivers. Long term care insurance defrayed some of the cost but most came out of pocket. The bill for the 24/7 care he received over four years of increasing dependency: $2M. There was nothing unusual about his needs. He just got more frail and had more care issues over time. That’s typical of how some of us are going to age. At the end, he had four caregivers in shifts, a specially fitted van with special wheelchair, a home stair chair, a lift to get him into the bath, numerous other kinds of devices to help and huge increases in the cost of maintaining the home.

The Genworth study is a wake-up call that many people ignore, based on the difficulty of facing what no one likes to face: a lot of our body parts wear out over time and dementia can creep up and destroy our ability to manage our lives for good. This is not to suggest that everyone has to buy long term care insurance. That is a complex decision best made with competent professional advice (not from a sales person) and comparison of the numerous products available. But we need to set assets aside and ensure that they are accessible when needed to pay for the high cost of long term care whether we self insure or buy a product. No long term care insurance pays for everything Medicare doesn’t cover.

Here are the figures from the newest Genworth study for 2017, showing the monthly national median costs:

Homemaker services (help with cooking, cleaning, transportation, shopping, etc.) $3,994

Home Health Aide (personal care: eating, bathing, dressing, walking, bathroom, etc.)$4099

Adult Day Health Care (socialization and some nursing supervision)$1,517

Assisted Living (nursing care from licensed professionals not available)$3,750

Nursing Home Private Room (licensed nursing care available 24/7)$8,121

Because the Genworth study only addresses things its insurance products cover, it does not look at Continuing Care Retirement Communities, board and care homes, durable medical equipment Medicare may not cover, home modification, and other things people may need as they age. It never discusses what happens when one runs out of the insurance benefits, which have limits. However, it is a starting point for you to plan for your own future or for your aging loved ones’ futures. The prospect of needing to pay out of pocket for any of these things must be looked at if you don’t want to burden the people you love. Any Baby Boomer may be thinking about this only as it applies to any aging parent still with us, but we all should consider that they are ourselves a few years down the road.Home Health Aide (personal care: eating, bathing, dressing, walking, bathroom, etc.)$4099

Adult Day Health Care (socialization and some nursing supervision)$1,517

Assisted Living (nursing care from licensed professionals not available)$3,750

Nursing Home Private Room (licensed nursing care available 24/7)$8,121

Because the Genworth study only addresses things its insurance products cover, it does not look at Continuing Care Retirement Communities, board and care homes, durable medical equipment Medicare may not cover, home modification, and other things people may need as they age. It never discusses what happens when one runs out of the insurance benefits, which have limits. However, it is a starting point for you to plan for your own future or for your aging loved ones’ futures. The prospect of needing to pay out of pocket for any of these things must be looked at if you don’t want to burden the people you love. Any Baby Boomer may be thinking about this only as it applies to any aging parent still with us, but we all should consider that they are ourselves a few years down the road.