 Elder Law Update
(Boo!)
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Vol 3 Issue Three
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October 2009
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Ahh, the Good Old Days . . .
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Were They Happier Back Then?
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PLEASE VISIT MASON LAW
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I WANT TO KNOW
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Greetings!
Bustin' myths! This is one of my favorite issues of Elder Law Update because I believe you will get the most out of it.
 First, I continue to field questions on estate recovery and "nursing home liens" from clients. Read my column below on what I believe can and cannot be done by the state in an estate recovery claim. And then be on guard.
Second, Kristin and I constantly hear about people in nursing homes who are being told "your mother is not progressing and Medicare will be denied". This just may not be so. After yet another case, Kristin has decided to clarify folks on this issue. Read on below.
Finally, Dr. Shevlin has some really (really!) practical strategies on scheduling your Medicare physicals. You have got to read her column because you'll get some valuable ideas.
Scroll down and start reading. And if you have any requests or questions that might lead to a future column, let me know.
Email me if you have any questions.
Bob Mason
Certified Elder Law Attorney
Certified by the
National Elder Law Foundation, recognized by the American Bar Association as
the certifying entity for specialization in Elder Law.
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The Truth About Estate Recovery
Bob Mason
"Can the state put a lien
on my home?"
"Will the nursing home
take my house?"
I am beginning to see more
activity in the area of estate recovery. I also hear much confusion over what
it is and what the state may or may not do.
The Basics
 The state has the right to recover whatever
benefits it paid for the care of the Medicaid recipient from his or her probate estate. Probate assets are those
assets that pass through a decedent's estate and under the terms of a will (if
there is one). Nonprobate assets are assets that pass pursuant to terms
independent of an estate (for example, life insurance policies that name
beneficiaries other than estate, joint tenancy with rights of survivorship bank
accounts, or life estates in real property).
Given the rules for Medicaid eligibility, the
only property of substantial value that a Medicaid recipient is likely to own
at death is his or her home. Under current law, the state may make a claim
against the decedent's home only if it is in his or her probate estate. Property
that is jointly owned with rights of survivorship, in a life estate, or in a
trust, is not included in the probate estate and thus escapes estate recovery.
General Assembly Not Enthused
Congress has given the states the right to seek
estate recovery against such nonprobate property; so far, the North Carolina General
Assembly has shown no interest in acting on this provision.
For example, the 2005 Budget Bill authorized
liens on certain nonprobate real property interests beginning July 1, 2006. The
provision was so poorly written, and it generated so much controversy, that the
2006 Budget Bill postponed the effective date until July 1, 2007, to enable
interested parties to revisit the issue. Finally, the General Assembly repealed
the provision late in the 2007 session. Nobody seems to want this provision at
the present time (it may eventually resurface at some future time).
Contrary To Popular Belief
Accordingly, contrary
to popular belief, there is no such a thing as a Medicaid or "nursing home" lien
in North Carolina.
Upon the death of a Medicaid recipient, and providing no exception to estate
recovery applies, DMA is a fifth class creditor against the probate estate of
the deceased recipient - DMA "gets in line" with other creditors of equal rank.
The law also provides exceptions to estate recovery
when hardship can be proven. In other cases DMA will completely forego estate
recovery if the deceased is survived by a spouse or a minor or disabled child.
You should always seek assistance from qualified counsel if facing estate
recovery.
You may email comments to Bob by clicking HERE.
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Do You Have To Be "Improving" For Medicare Nursing Home Coverage?
Kristin Cerbone
 As many
readers probably already know, Medicare only pays for a limited amount of
nursing home care, and one must meet specific requirements in order to qualify.
One of those requirements is that a nursing home resident must receive skilled level of care. These skilled
services must be received daily (5 days a week) and must treat a condition for
which the person was hospitalized.
What is
"Skilled"?
Skilled
services require technical or professional personnel such as registered nurses,
licensed practical nurses, physical, occupational or speech therapists. In
order for a service to qualify as "skilled", it must be so inherently complex
that it can only be safely and effectively performed by, or under the
supervision of, professional or technical personnel.
If a
resident of a nursing home no longer requires skilled level of care and only
needs intermediate or custodial level of care, he or she will lose Medicare
coverage. Given these requirements, the questions of what is "skilled" care and
when does it end is critical in determining the duration of Medicare coverage.
The Level
Truth About Plateaus!
Often nursing
homes mistakenly require residents to be improving or showing progress in order
to continue skilled services and maintain their Medicare coverage. If a
resident "plateaus", or the nursing facility states the resident no longer has
rehabilitation potential, the facility may deny them further coverage. Denying
Medicare coverage for this reason is improper.
The
Medicare regulations recognize rehabilitation services include "maintenance"
services that are provided by skilled personnel. The regulations state
explicitly, "[t]he restoration potential of a patient is not the deciding
factor in determining if skilled services are needed. Even if full recovery or
medical improvement is not possible, a patient may need skilled services to
prevent further deterioration or preserve current capabilities." (42 CFR § 409.32(c))
For example, if a patient has been receiving
physical therapy for two weeks without a significant change in mobility, he
should not automatically be denied further Medicare coverage because his full
rehabilitation is questionable. The key issue is whether the services of
skilled personnel are needed, not the
patient's potential for recovery.
Kristin Ruzicka Cerbone is a principal in MasonCerbone, Savannah. You may comments to Kristin by clicking HERE.
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Medicare, Physicals, and You
Patricia A. Shevlin, MD
Medicare does not cover complete physical exams. (The
"Welcome to Medicare Physical"  doesn't count but I'll explain that later). That
doesn't mean that you can't get the wellness exams that you want. You just need to think like a bureaucrat.
Breaking Up Appointments
If you are female, Medicare will pay for a pelvic and breast
exam yearly. If you are male, you are allowed a prostate exam and PSA yearly.
The problem is that when you have the exams, they cannot be combined with an
evaluation for anything else. You must get fasting lab work done separately. If
you developed back pain before your exam, you are supposed to decide if your
visit will be for wellness or a problem-oriented visit for the back pain.
Medicare will not pay for both to be done in the same day. It seems rather
artificial but that's how the system works.
The way to approach this as a patient is to make one
appointment for the male/female exam, another appointment for blood pressure,
diabetes, cholesterol (at which time we can do an exam for heart, lung, and circulation)
and other appointments during the year for individual problems.
Likely The Same With Other Insurers
If you have commercial insurance or a Medicare Advantage
plan, the situation isn't much different. You can have a more comprehensive
exam but new problems are not going to be addressed at that visit. You can
mention your concerns, but a thorough evaluation will need to occur at another
visit. Some plans will pay for fasting labs the same day and some won't. Some
plans pay for labs run in your doctor's office and some want an outside lab to
do the testing.
The point is that a "complete physical" to evaluate all of a
patient's problems has not existed for some time. "Wellness exam" is a better description of
the exam because the exam is supposed to focus on screening, not on established
or new problems.
The responsibility for knowing what a specific plan covers
is the patient's because the patient is purchasing the insurance coverage. An
average primary care physician's office contracts with fifteen or twenty health
plans, so keeping up with all of the coverage rules is not always possible. If
you are not sure, check with your insurance carrier before your exam. If you
are still employed, the Human resources office can generally help. Please do not
assume that because a service was paid for last year it will be covered again.
Health insurance plans can change every year.
Welcome To Medicare!
Confused yet? There's more. The Welcome to Medicare Physical
was not named by anyone who practices medicine. A physical exam in the
traditional sense is not performed that day. Some exams are included in this
visit, such as a blood pressure check, EKG, vision and hearing. These tests are
done by the nursing staff and evaluated by the physician. A brief balance check
and a screening question for depression are included. The patient's history is
reviewed and a list of services that Medicare covers can be generated. The
patient then can make appointments for the desired services. That's all that is
done.
For patients who are new to Medicare but are staying with
the same primary care doctor, there may not be much value to this visit. I
cannot tell you the number of patients that are disappointed when they discover
they are not getting an exam that day. If you have not been getting health care
routinely prior to becoming Medicare eligible or if you need to establish with
a new physician now that you are on Medicare, it can be useful. If you are
staying with the same physician, I would check with that physician prior to scheduling
a Welcome to Medicare Physical.
This might be a good time
to remind the readers of this newsletter that these rules are in place now and
have been for some time. Any health reform changes will come later. I
sympathize with my patients who have transportation issues and want to make the
fewest number of trips to the doctor's office. As the saying goes, "It is what
it is" and physicians and patients have to find a way to make it work.
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What Can Mason Law Do For You?
You've
worked hard all your life for what you have.
You're concerned about being left destitute by long term care
costs. You'd like to leave something of
your hard work to your children. You're
tired of worrying about it all.
Maybe
we've just described a parent. If so, you're concerned about your mother's or
father's health care needs, you are busy and don't know where to start, your
prime concern is making sure your parent's assets are used in the best way
possible for their care.
We can
help you. Using state of the art mastery
of complex trust, tax, testamentary, Medicaid, and VA law we can save you
thousands, give you a sense of security and ease your troubled mind. |
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The Usual Disclaimer: This newsletter is for general information only. Please do not rely on anything you read in this email as definitive legal advice applicable to you. All situations are different, including yours. Nothing you read in this newsletter is a suitable substitute for professional advice you may receive from your attorney, your accountant, or your tax advisor.
All contents copyrighted 2009 by Mason Law. Contents may be republished with written permission of Mason Law (which permission will usually be given!). |
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