MANAELA LEGISLATIVE UPDATE 2013
As many of you know, each of the attorneys at Oalican Law Group is an avid member of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MANAELA). MANAELA is an exclusive group of elder care attorneys who are committed to providing their clients with the highest level of professionalism and knowledge regarding the ever-changing world of MassHealth eligibility and many other legal issues affecting the senior community.
Once a year, MANAELA hosts a legislative breakfast where the most current changes in the law are discussed. In an effort to keep our clients and professional contacts up to date with the most cutting-edge changes in elder law, the following is a summary of significant case law and recent impactful legislative accomplishments.
Jimmo v. Sebelius—The End of the Medicare Improvement Standard
Perhaps one the biggest legislative changes for 2013 comes from a settlement in a federal class-action lawsuit, Jimmo v. Sebelius, where Plaintiffs challenged the long-standing practice of nursing homes and medical home care providers to discontinue Medicare benefits based on a patient’s failure to improve. Under the pre-Jimmo practice, a patient admitted to a skilled nursing facility from a hospital stay exceeding three nights would receive Medicare benefits to cover the cost of their care for a maximum period of 100 days as long as the patient had a skilled need and the services provided were allowing the patient to improve. Individuals who either had no ability to improve because of a degenerating condition or who had “plateaued” with care were discontinued Medicare coverage regardless of whether they continued to require skilled medical services such as occupational therapy, physical therapy or other medical services.
The Jimmo settlement confirmed that coverage “does not turn on the presence or absence of a beneficiary’s potential for improvement from the [therapy or nursing care], but rather on the beneficiary’s need for skilled care.” (Settlement Agreement pp. 10-12 and Settlement in Jimmo v. Sebelius Eliminating the Improvement Standard, Center for Medicare Advocacy, p. 2). For our purposes, the Jimmo case should provide Medicare recipients with greater access to their 100 days of coverage in a skilled nursing facility. In other words, Medicare beneficiaries should not receive a notice terminating benefits within the 100 allotted days for failure to make progress. During this time, as long as the skilled need continues, so should Medicare coverage.
In light of Jimmo, we hope to see seniors able to stay longer in rehab facilities and remain on Medicare for more time before transitioning to MassHealth.
The Effect of a Health Care Proxy’s Signature on Arbitration Clauses in Nursing Home or Assisted Living Facility Admissions Contracts
Seniors and their families are often presented with lengthy contracts upon admission to a skilled nursing or assisted living facility. Most of the contract terms are extremely standard and innocuous—they specify house rules, schedule of fees and services provided and discuss insurance coverage. However, many contracts contain a provision requiring the resident to submit all claims against the facility to binding, alternative dispute resolution, often called “arbitration.” While arbitration is often a very useful and judicially economic method to resolve legal issues between parties, residents and agents who sign these clauses often don’t realize that should they or their families wish to bring a malpractice, wrongful death, or other suit against the facility, they are waiving their right to a trial by jury.
The Supreme Judicial Court of Massachusetts has held that where such agreements are signed by the competent resident or durable power of attorney, the contract is enforceable. (See Miller v. Cotter, 448 Mass. 671 (2007). However, the courts are split where the contract has been signed by a health care proxy. The question turns on whether the health care proxy gives the agent the authority to enter into such an agreement as a medical decision of the principal. This issue is currently on appeal at the SJC and we should hear a final decision in the coming months.
Intra-Facility Transfers
A new law, Section 87 of Chapter 224 of the Acts of 2012 states that “…a facility or institution licensed by the department of public health …may move a resident to different living quarters or to a different room within the facility or institution if, as documented in the resident’s clinical record and as certified by a physician, the resident’s clinical needs have changed.” While no regulations regarding the new law have been promulgated by the Department of Public Health to date, the law appears to contradict existing federal and state law that governs intra-facility transfers. Please stay tuned for more information on this topic.
Long Term Care Insurance
Newly-created M.G.L. c 176U reforms certain standards relating to long-term care insurance as of January 1, 2013. The law clarifies certain aspects of long-term care coverage and provides added consumer protection for policyholders. The new law codifies the treatment of long-term care insurance policies with respect to the placement of a lien on the primary residence for MassHealth applicants. Under M.G.L. c 176U, MassHealth will not place a lien on an applicant’s primary residence in Massachusetts as long as the policy met the minimum coverage requirements of $125/ day for a period of two-years in a skilled nursing facility when the policy was purchased. Accordingly, the applicant need not have the minimum coverage remaining on the day of admission to the facility, but rather when the policy was instituted. This new law should allow seniors to age in place with home care until their policy runs out and still avoid the placement of a MassHealth lien should they later apply for benefits.
We hope that you will find these updates helpful. As always, please feel free to contact the attorneys of Oalican Law Group should you have any questions.