Don’t Bother Asking for Help

A recent decision of the New Jersey Superior Court, Appellate Division, highlights the difficulty of dealing with the Medicaid program from a practical standpoint.  Medicaid is a health insurance program for needy individuals.  In order to qualify for Medicaid, an individual must have very limited assets and income that is insufficient to pay for his care.

Unlike private health insurance plans, the Medicaid program will pay for long-term care, such as care in a nursing home or assisted living residence.  For this reason, many individuals who need long-term care and who never thought they would need Medicaid find themselves looking to qualify for the Medicaid program.

Because Medicaid is only available to needy individuals, the Medicaid program punishes individuals who dispose of their assets for less than fair market value.  In other words, if an applicant has gifted his assets away, perhaps to friends or family, Medicaid will make the applicant ineligible for Medicaid benefits for a period of time.  The more money that an individual gives away, the longer the period of time during which he will be ineligible for Medicaid.

Only gifts made within a certain period of time prior to applying for Medicaid benefits are punished.  Currently, that time period is five years.  This period of time is commonly known as the “lookback period.”

In New Jersey, the Division of Medical Assistance and Health Services or DMAHS administers the Medicaid program.  DMAHS contracts out the work of processing Medicaid applications to the local county boards of social services located in each county.  So, each county’s board of social services processes applications for that county.

DMAHS and the county boards have a significant amount of leeway in the way they administer the Medicaid program.  Moreover, from a practical standpoint, it is difficult to quantify if these entities are fairly administering the program on a systemic basis.

In my practice, I have helped clients with hundreds, if not thousands, of Medicaid applications.  Yet, when a client asks me what is going to happen with their application before we have even applied for the client, I tell them that I treat every application as a first-time experience.  I simply have no idea how their application will be handled, for instance, will it be processed quickly, what questions will the caseworker in charge of that client’s application ask or not ask, etc.

In the recent appellate divisions case of In the Matter of A.N., a minor, the trustee of a special needs trust asked a court’s guidance on certain expenditures that the trustee had made and would continue to make from a special needs trust for the benefit of a disabled child who was receiving Medicaid benefits.  A trustee asking a court if certain expenditures are proper is a fairly common event.  There is a court rule that permits a trustee to ask for the court’s guidance when a trustee is concerned about the propriety of distributions he is making.  By asking the court’s guidance on an issue, the trustee can feel safe that what he is doing is correct.

In the A.N. case, the court gave the trustee guidance, and DMAHS appealed the decision of the trial court, contending that a court’s decision on issues of Medicaid eligibility is not binding.  In other words, DMAHS argued that a court cannot tell it what to do as far as A.N.’s eligibility for Medicaid benefits is concerned.

Well, the appellate division agreed with DMAHS and reversed the decision of the trial court.  According to the appellate division, DMAHS is the only entity with authority to make eligibility determinations in the first instance, not a court.

The problem with this rationale, from a practical standpoint, is, any trustee of a special needs trust must make all distributions without any guidance, even if the trustee is seeking guidance.  So, if the trustee makes an incorrect decision, some disabled trust beneficiary is going to pay the price by losing his Medicaid benefits and his healthcare.  Situations such as this make it scary when you are dealing with the Medicaid program.

Running Away with Mom

Most of us probably don’t like to admit it, but we aren’t as unique as we think.  If we thought of something, chances are, someone else thought of the same thing before us.  And so it is with legal issues.

A significant number of elderly individuals require the assistance of a legal guardian.  A guardian is a person who the court appoints to manage the financial, healthcare, and residential affairs of an incapacitated person, called a ward.

A person is incapacitated and requires the assistance of a guardian if she is unable to handle her affairs as the result of physical or mental infirmity.  So, a person could be completely mentally capable yet physically incapable and require the assistance of a guardian.  Or, she could be physically capable yet mentally incapable and require the assistance of a guardian.  Or, as in most cases, the ward could be both physically and mentally incapable of handling her affairs and require the assistance of a guardian.

An older person may, for instance, be suffering from some level of dementia and other physical ailments to the extent that the cumulative effect of all her disabilities make her incapable of handling her affairs without the assistance of another person.  Many people think of a person who needs a guardian as being mentally incompetent, but that is not necessarily the case.

When a person needs a guardian, a person, typically a family member, retains the services of an attorney to file a guardianship action on his behalf in superior court.  The prospective guardian’s attorney will prepare a complaint to be filed with the court.

A complaint must identify the prospective guardian, the prospective ward, and the ward’s family members.  The complaint should give a brief explanation of why the ward needs a guardian and of the ward’s known assets and income.

In some cases, a family member removes a ward from the state of New Jersey in order to stave off a guardianship action.  For instance, a son might believe that her mother requires the assistance of a guardian and might wish to serve as her guardian.  Meanwhile, a daughter who lives in another state might not want a guardian appointed for her mother.  Perhaps the daughter wants the mother to draft a last will and testament through which the mother leaves the entirety of her estate to her daughter to the exclusion of the son.

The daughter, essentially, absconds with the mother, who is suffering from dementia, to another state.  In the other state, the daughter cares for the mother, and the mother comes to depend upon the daughter for her everyday needs.  Removed from her home, the mother believes she cannot survive without the assistance of the daughter.

After awhile, the daughter takes the mother to a lawyer in the foreign state and has a Will drafted for the mother through which the mother disinherits the son.

If you think this doesn’t happen, you’d be wrong.  Things like this happen more frequently than you would imagine.  Furthermore, by removing the mother from the state of New Jersey, the daughter, in my hypothetical, places the son in a difficult situation.

This country is called the United States of America because we are fifty states united as one country, but each state is its own sovereign governmental entity with, to a large degree, its own laws.  If mom is living in the other state of her own accord, then the first state doesn’t have jurisdiction over the mother; however, if the mother were removed from her home state and is being held in the other state effectively against her will, then the first state should retain jurisdiction over the mother because the mother is not living in the second state of her own free will.

It’s impossible to wholly eliminate this type of problem.  Families with this level of discord, and there are many, are going to cause problems for one another no matter what, but having a well-drafted estate plan could help stave off problems such as these.

Can the Nursing Home Restrain Dad?

When can a nursing facility restrain a resident?  Typically, when we think of restraining a person we think of the negative implications.  You are taking away a person’s freedom by restraining them.  Prisoners, for instance, are restrained.  My father, someone might think, should never be restrained, particularly when he is paying the nursing home in which he resides $10,000 a month.

There are federal and state laws prohibiting a nursing facility from restraining residents, except in certain circumstances.  The federal law states the following:

(ii)Free from restraints.  The right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for purposes of discipline or convenience and not required to treat the resident’s medical symptoms. Restraints may only be imposed—

(I) to ensure the physical safety of the resident or other residents, and

(II)only upon the written order of a physician that specifies the duration and circumstances under which the restraints are to be used

In the past, nursing facilities would restrain residents simply as a matter of convenience.  The facility would tie the patient down just so the staff didn’t have to be bothered with his ranting and raving.

In some circumstances, nursing facilities continue to over-medicate residents in order to keep them sedate.  This type of practice violates the federal law’s prohibition against chemical restraints, but a few nursing facilities are alleged to engage in this practice even today.

In recent months, the health of my parents has not been good.  My mom had to enter a nursing facility as a long-term resident, and my dad recently fell and bumped his head.  As a result of his head trauma, fluid began to build up in his head, which is called a subdural hematoma.

As a result of his injury, small homes were drilled into his head to permit the fluid to drain off his brain.  Since the surgery, which took place about three weeks ago, he has been in a semi-conscious state.  He required the insertion of a PEG tube, which is a feeding tube.

My dad was admitted to a nursing facility in the rehabilitation section.  Like many residents in his mental state with PEG tubes, my father pulled his feeding tube out, twice.  Each time he pulled the tube out, he had to be taken back to the hospital to have the tube reinserted.  Each time this occurred, he suffered additional trauma and further setbacks in his care.

My sister asked his nurse why his hands aren’t restrained.  In the hospital, the staff places restraints on his hands and arms that prevented my father from tearing the various tubes from his body.  While it didn’t look nice, the family understood that the restraints had to be put in place.

Many people who are recovering from injuries require these type of restraints.  When you are in a semi-conscious state, you don’t understand that the tubes in your body are there to help you.  All you understand is that the tubes are uncomfortable and foreign, so you try and pull the tubes out.

The nurse whom my sister asked about the restraints said the nursing facility in which my father was receiving rehabilitation was a “restraint-free facility.”  Personally, I don’t know what that is.  I understand where the concept comes from, from the law quoted above.  But I don’t understand why a medical facility would say they are a restraint-free facility.

It’s something that sounds nice, that sounds very politically-correct, but healthcare, like much of life, shouldn’t be governed by political correctness.  It’s a very good thing, for instance, that nursing facilities are prohibited by law from restraining their residents simply as a matter of convenience, but sometimes patients need to be restrained, for their own good.

As you can see, the law clearly recognizes this distinction, permitting facilities to restrain residents if the restraint is for the resident’s own good.  I think some facilities may be so concerned about appearing to care for residents that they are forgetting how to actually care for residents.