By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold, NJ Medicaid Attorney
Moving from one’s own home into a nursing home for long-term care is different for the resident and family members. In most cases, a person would rather not go to a nursing home at all. Think about it; who chooses to go to a nursing home? But sometimes people have little or no choice if they have suffered a medical setback, such as a stroke, kidney failure, heart attack, or have some other limitation, such as dementia, Alzheimer’s or Parkinson’s disease.
Whatever the reason, choosing a nursing home is unsettling, especially if you need to rely on Medicaid to cover the cost of nursing home care. The goal of this article will be to explain the most important things you and your family should focus on as you make this important choice. Please also consult my highly popular edition of Nursing Home, Assisted Living & Hospice Guide. My county specific guide for Monmouth, Ocean and Middlesex counties can be downloaded here. https://www.hnwlaw.com//free-stuff/
Entering a Nursing Home with Medicare Coverage
Generally, when a patient is about to be discharged from a hospital, a social worker will come to the patient or their family with a list of several nursing homes willing to accept the patient for rehabilitation. If the person is over age 65 and has Medicare coverage, the social worker or doctor will explain what type of care the person needs (for example, short-term skilled nursing care or rehabilitation), and that Medicare will cover these expenses for a certain period of time. (Medicare pays for the first 20 days in full. From the 21st day, going forward, the resident will have to pay a co-pay of $146.90/day up to a maximum of 100 days. Medicare will not cover more than 100 days), unless you use your lifetime maximum benefit of fifty (50) additional dollars.
What happens after 100 days in the hospital?
As I previously stated, Medicare will cover up to 100 days of nursing home care. After 100 days, Medicare will no longer cover nursing home care. Since the average nursing home costs more than $10,000 per month, it doesn’t take long to run out of money and need to apply for Medicaid to cover the cost of nursing home care going forward.
Choose a facility that accepts Medicaid
Even if you are not receiving Medicaid when you go into the nursing home, it is important that you make sure it is Medicaid-certified and find out whether or not all of its “licensed beds” are also Medicaid-certified before you go in. There are reasons for asking this question which I will cover with you later in this article.
What Are the Questions to Ask the Nursing Home About Medicaid?
Here are some questions to ask the facility before you decide to move in to make sure that you can remain there once you are eligible for Medicaid:
- How many licensed beds are in the nursing home? Nursing homes are licensed by the New Jersey Department of Health and Senior Services (DHSS) for a specific number of beds. However, there is no requirement that the nursing home admit you just because they accept Medicare or Medicaid for those beds. Many facilities require a financial disclosure.
- Does the nursing home accept Medicaid? If the nursing home does not accept Medicaid, this may not be a good choice because you will need to transfer to another facility after Medicare or private pay funds are used up. This rule also applies to assisted living residences.
- If the nursing home does accept Medicaid, are all of its beds certified for Medicaid-eligible residents, or is it “partially certified?” If the nursing home has 100 licensed beds and all 100 are Medicaid-certified, the facility must keep you if you are Medicaid-eligible once you’ve exhausted your Medicare days or spent down your private pay resources. If the nursing home is only partially certified (only certain beds are reserved for Medicaid patients), you should try to get a commitment from them that they will let you stay when you become eligible for Medicaid. The truth is the law requires that they allow you to remain in your bed though this opinion is not shared by all attorneys.
- If the nursing home accepts Medicaid, but is only partially certified, can the nursing home assure you that you will be able to remain in the facility when you become Medicaid-eligible? While most New Jersey nursing homes that take Medicaid are 100% certified, there are a handful that are only partially certified. If you choose a facility that is partially certified and you become Medicaid-eligible after admission, you could be involuntarily discharged or transferred from the facility if there are no beds available in the Medicaid-certified section of the facility. If the nursing home assures you that you can stay even if there isn’t a Medicaid-certified bed available, make sure these promises are in writing. Again, in my opinion, the law requires that they allow you to remain in your bed though this opinion is not shared by all attorneys.
Your Rights When Applying to a Long-Term Care Facility
Federal and state laws provide some protections. The federal law is called the Nursing Home Reform Act (NHRA). The state law is called the Nursing Home Responsibilities and Rights of Residents Act (or the Nursing Home Resident’s Bill of Rights). These rights are fairly extensive and offer many protections.
What if the nursing home says they do not have a “Medicaid bed” available?
Nursing homes sometimes tell people that a “Medicaid bed” is not available and that you either have to pay privately for a period of time or go onto a waiting list. Because New Jersey law allows for partial certification of facilities, it is not always clear if this is legal or not. I believe that it is not. If a facility is 100% Medicaid-certified, they must admit the next person on the waiting list if any of its licensed beds are available. If it is only partially certified, they may not have to admit you if there are no Medicaid-certified beds available. Since this issue is “open” be prepared for some push back by partially certified facilities when the Medicare ends and it’s time to pay up privately.
What if the nursing home tries to convince me not to apply for Medicaid?
The federal Nursing Home Reform Act (NHRA) strictly prohibits a nursing home from asking a prospective resident to promise not to apply for Medicaid or Medicare benefits. In fact, they are required to provide written information about how to apply for benefits. The state Nursing Home Resident’s Bill of Rights prohibits a nursing home from requiring that an applicant or resident waive any rights to benefits to which he or she may be entitled under Medicaid or Medicare. The Nursing Home Resident’s Bill of Rights also provides that a resident can sue the nursing home if it breaks this law.
A nursing home should not try to force you to pay privately before applying for Medicaid. And they should not ask you to sign an agreement that you will use those assets to pay for your care. All of these practices violate the law that says they cannot ask you to waive your right to Medicaid. Caution: Most transfers of assets for less than fair market value are no longer allowed by Medicaid. A house can be transferred in limited situations (for example, to a spouse or disabled child), but you should always consult with an attorney before you transfer or gift any assets and apply for Medicaid, because the transfer may make you ineligible for Medicaid.)
In addition to the laws that say that a nursing home can’t ask you to waive your right to Medicaid and Medicare, New Jersey law requires that all facilities that participate in Medicaid must also admit prospective residents on a first-come, first-served basis, in the order in which they applied, until the number of Medicaid residents in the nursing home is at least 45% of the licensed beds or the Medicaid occupancy level promised by the facility to the state when it was licensed.
What if the nursing home tries to make my family or friends pay the bill?
Refuse? It’s illegal. A nursing home will want you or someone legal to sign an admission agreement. This is reasonable and appropriate. The admission agreement is a legal contract that spells out the responsibility of the nursing home to provide care, and your responsibility to them—namely to pay the bill. Sometimes a person is unable to sign the admissions contract because of capacity, so the nursing home will want someone else to sign it on your behalf. This is called a responsible party or a resident’s representative. A son or daughter, or other close relative or friend, may sign this agreement or express concerns about signing the agreement because of the way it is written.
In some admission agreements, the language is clear that the person who signs as responsible party takes on personal responsibility for the bill. This is called a third-party guarantor agreement. What this means in plain language is that if for some reason you can’t pay or Medicaid doesn’t pay, you promise to pay for care out of your own pocket. Many admission agreements are not clear and may require the responsible party to apply for Medicaid. If they fail in getting Medicaid, they will be held responsible for the bill.
These kinds of contracts are illegal. Both the Nursing Home Reform Act and the New Jersey Nursing Home Resident’s Bill of Rights prohibit third-party guarantor agreements as a condition of admission or continued stay in the facility. The NHRA states that the nursing home can’t ask your child or other person to sign a contract that makes them a third-party guarantor of your bill. It can, however, require someone who has legal access to your income and resources to pay for your care in the nursing home from that money—provided that the person does not incur personal financial liability. The New Jersey Nursing Home Resident’s Bill of Rights clarifies the federal law, and states that if someone is your legal representative under a written document (such as a Power of Attorney or Guardianship Order), that person may be required to sign the admission agreement on your behalf and pay the facility from your money. You, or the person who signed the contract, can sue the nursing home if it violates this law.
Get Legal Help Here at Hanlon Niemann
It is always a good idea to have a contract like a nursing home admission agreement reviewed by an attorney before you or someone on your behalf signs it. If you have an attorney-in-fact or agent under a Power of Attorney agreement, that person can sign the admission agreement, but he or she should write “Attorney-in-Fact” or “Agent under POA” under his or her name. If you are already in a nursing home, and the person who signed your admission agreement is sued because the bill is unpaid, that person should speak to an attorney. If the lawsuit is trying to enforce a third-party guarantor agreement, that agreement may be illegal and voidable under federal and state law.
Be sure to download our free Nursing Home, Assisted Living and Hospice Guide which can be downloaded here: https://www.hnwlaw.com//free-stuff/
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If you have questions regarding Medicaid and long term care in a nursing home, please contact Fredrick P. Niemann, Esq. toll-free at 855-376-5291 or email him at fniemann@hnlawfirm.com/.