Our elder law team very much enjoys working with our senior and disabled clients and their families, helping them navigate their long-term care issues and reach workable solutions. However, in many cases, we are attempting to navigate within a long- term care system in which the deck is already stacked against our clients.
For example, most of our clients, if possible, want to remain in their own homes for as long as they are able to. However, in order to be eligible for Medicaid benefits in your home, an individual under federal law must be deemed to need a “nursing home level of care” regardless of whether you have care at home or in a nursing home setting. This standard sometimes makes it difficult for individuals to become clinically eligible for Medicaid to receive coverage for home care or to attend adult medical day care.
Therefore, I have realized over the years that assisting our clients to work within the existing long-term care system is not enough if our elder law office strived to be a true elder care advocate. We also must advocate for change to improve the existing system.
I am currently involved in the following:
1) Jimmo Implementation Council
I was recently appointed as a member of the Jimmo Implementation Council. The Council is composed of beneficiary advo- cates, providers, policy-makers and other partners to discuss, analyze and advance the implementation of the Jimmo v. Sebelius “Improvement Standard” settlement. On June 23, 2015, the Council had its first meeting in Washington, DC. The Council’s goal is to allow Medicare beneficiaries to receive the maximum coverage for skilled nursing care. (Please refer to page 3 of the Rothkoff Quarterly for more information on the Council).
2) New Jersey Medicaid De Minimis Transfer Bill
A bill has been introduced in the New Jersey State Senate and Assembly to exempt up to $500 per month from being considered as part of the Medicaid five-year look back. I was involved with writing the original draft of the bill along with having the recent honor of testifying before the NJ State Assembly in favor of the bill. (Please refer to article above for more information on the bill).
3) Medicaid Advisors
There has been an increasing preva- lence of nonlawyers who participate in Medicaid planning. While there is nothing improper with having a third party assist in the preparation of only a Medicaid application for long-term care, the concern is whether these
Medicaid assistance companies are engaging in the unauthorized practice of law. Increasingly, health care providers are referring residents and their families to these nonlawyer service providers which may create an inherent conflict of interest.
The time has come for the Elder Law bar to take a closer look at individuals and companies that claim to be able to assist with the Medicaid application process. Printing an application or assisting an applicant with filling out the application is not the practice of law. However, working with an applicant to determine his or her Medicaid eligibility and/or giving advice as to Medicaid spend down rules potentially crosses the line to the practice of law.
The goal is to protect the public from harm since these individuals or companies are unlicensed, unregulated, and potentially uninsured. Therefore, the consumer potentially has no recourse if things do not turn out as planned. I have been working with the Elder Law bar and the New Jersey State Bar Association in order to protect the public from harm and determine the scope of services the Medicaid advisors can provide.
The advocacy efforts not only make me a better lawyer, but more importantly, help us meet our goal of truly being an elder care advocate.