Category: Current Events

IRS alert: Economic Impact Payments belong to recipient, not nursing homes or care facilities

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By , June 17, 2020

In a press release this week, the IRS confirmed that the $1,200 pandemic stimulus payments (officially called “Economic Impact Payments” under the CARES Act) received by nursing home residents remain their property. Under long-standing Medicaid law, income tax refunds follow special rules that treat these as an asset that can be spent over the following YEAR by Medicaid recipients without any penalty to their Medicaid benefits. It is not considered income paid as “applied income” to a nursing home and it does not count against the $1,600 resource limit so long as it was spent – but not given away, normally – over the year following receipt.

Since the CARES act was passed, and technically issued these payments as income tax refunds, practictioners like myself have argued that they were retained by nursing home residents, even where they were on Medicaid and the facility was managing their Social Security money as “Representative Payee.” However, certain facilities disputed this and were applying these payments – received only because the government relied on direct deposit information for Social Security for non-tax-filers – to outstanding or current nursing home bills.

If social security or other funds are being managed for your loved one by a nursing home, you may wish to request a copy of their resident trust account statement to confirm that the funds have been retained there, or to demand a refund if not. If you have any problems with this, or other care/visitation compliance in these changing times, please call our office at 203-871-3830 for a free consultation.

TEXT OF PRESS RELEASE:

WASHINGTON – The Internal Revenue Service today alerted nursing home and other care facilities that Economic Impact Payments (EIPs) generally belong to the recipients, not the organizations providing the care.
 
The IRS issued this reminder following concerns that people and businesses may be taking advantage of vulnerable populations who received the Economic Impact Payments. The payments are intended for the recipients, even if a nursing home or other facility or provider receives the person’s payment, either directly or indirectly by direct deposit or check. These payments do not count as a resource for purposes of determining eligibility for Medicaid and other federal programs for a period of 12 months from receipt. They also do not count as income in determining eligibility for these programs.
 
The Social Security Administration (SSA) has issued FAQs on this issue, including how representative payees should handle administering the payments for the recipient. SSA has noted that under the Social Security Act, a representative payee is only responsible for managing Social Security or Supplemental Security Income (SSI) benefits. An EIP is not such a benefit; the EIP belongs to the Social Security or SSI beneficiary. A representative payee should discuss the EIP with the beneficiary. If the beneficiary wants to use the EIP independently, the representative payee should provide the EIP to the beneficiary.

The IRS also noted the Economic Impact Payments do not count as resources that have to be turned over by benefit recipients, such as residents of nursing homes whose care is provided for by Medicaid. The Economic Impact Payment is considered an advance refund for 2020 taxes, so it is considered a tax refund for benefits purposes. . . .

https://www.irs.gov/newsroom/irs-alert-economic-impact-payments-belong-to-recipient-not-nursing-homes-or-care-facilities

BREAKING: Connecticut to Begin Transferring Skilled Nursing Residents for COVID-19 Protection

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By , March 30, 2020

March 30, 2020: This Afternoon, the CT Department of Public Health (DPH), in conjunction with the Long-Term Care Ombudsman, announced plans to temporarily designate select nursing homes within the state as COVID-positive and COVID-negative skilled nursing facilities.

This plan will allow facility residents who have tested positive to receive more concentrated skilled care, to have access to more skilled health professionals and equipment at their facility, while maximizing the change that those who have tested negative are at minimal risk of contracting COVID-19 during this wave of infection. However, accomplishing this plan means that many nursing home residents, including those who have not been tested for COVID-19, will be temporarily relocated to other facilities.

This will be deeply troubling to some families concerned about quality and continuity of care for a parent or other senior in a nursing home. In this article, I provide some educated guesses about what this will mean, and also what proactive measures you should be taking in the event that your loved one is selected for relocation.

First, My Assumptions

  • You should not be expecting calls about this tomorrow; it is a plan that will unfold during the next several weeks, throughout April and possibly into May.
  • This move is likely to have a proactive and reactive phase. In a proactive phase, the state will start relocating resident’s soon to establish dedicated facilities. Then, if individual facilities develop a cluster of infection, moves will be made to confirm and isolate uninfected residents, moving one group or the other.
  • In the immediate future, for practical reasons, I would expect the state to focus on low-census facilities for proactive transfers, except of course for facilities that already have outbreak clusters. By low-census facility, I mean nursing homes with a high number of empty beds relative to their size. This is simply the most practical way to do it. Most larger facilities (175+ beds) and those rated poorly by Medicare tend to be low-census facilities.
  • In larger facilities that have multiple wings, I would expect attempts to be made to isolate residents in different wings before transfers between facilities is considered. Whether or not that is feasible is based on a number of factors (ability to isolate staff/airflow to separate units; whether units are separated by distance or merely floor; elevator access to different units, etc.). While DPH will move with some quickness, reactive facility changes should and likely will be a last resort.
  • If your loved one tests positive for COVID-19 and is moved to a designated facility, I would expect that facilities will have increased respiratory therapy and equipment on site, and residents will only be hospitalized as a last resort. Additionally, toward the height of “the curve,” healthcare workers who have tested positive but are only mildly symptomatic or post-symptomatic could be allowed or assigned to work in the COVID-positive facilities. This can be scary, but in the context of a state-wide response, is a low-risk, and an important one relative to the larger needs of the community.

Some Tips For Relocation

Normally, a nursing home resident can’t even be required to change their room without their permission. In light of the national and state health care emergency declarations, these moves are considered essential, they are not the facility’s decision, and there is not likely to be a significant method of objection or appeal. There are a few things that you can do, however, to make a potential relocation as easy as possible:

1. Ask for psychiatric consult. If your resident is on any significant psychiatric medication, it is likely being prescribed by a visiting Psychiatric APRN from an outside service. If you have any question about whether your loved one is receiving appropriate medication right now, you should ask for them to be seen on the provider’s next visit in, and request a copy of the visit summary.

Unlike other visiting services at nursing homes (podiatry, dental, optical), which can swap providers with little need for continuity, your psych prescriber has relied on a history with your resident and the knowledge of staff familiar with him or her. Additionally, our state has a history of overusing antipsychotic medication in nursing homes to address behavioral issues, which is something that should be monitored. For nursing home residents with severe Alzheimer’s Disease or other forms of dementia, the act of relocating can be very unnerving and cause a need for adjustments in psych meds, but as part of a larger behavioral plan. With a recent assessment from a familiar provider in hand, you will be empowered to have a new, temporary provider justify any changes being made in their drug regimen.

2. Get the transfer orders. If you are notified that your loved one is being transferred, you should ask for a copy of their current physician’s orders, and also ask for a copy of their transfer orders, commonly called a “W-10” when it is ready. You should review the physician’s orders first, and if they seem correct, make sure the diagnoses, medications, and service orders being sent to the new facility match what is currently being recieved. Pay particular attention to the following:

  • Prescription Medication Daily meds are normally listed first, followed by “as needed” medication and then over-the-counter medication.
  • Major Diagnoses Any chronic or current condition, particularly if it is the basis for medication, should be prominently listed.
  • Frequency of Blood Sugar Checks for Type 1 Diabetes
  • Frequency of Weigh-ins for Congestive Heart Failure or edema
  • Physical Therapy and Occupational Therapy if any is currently received.
  • Dietary Plans (low salt, carb-controlled or no sugar for diabetics, chopped or pureed foods for swallowing difficulty, calorie supplement (Boost, Ensure, Hi-Cal) for poor eaters losing weight.

3. Alternate Clothes and Toiletries. While some effort will certainly be made to transfer a loved one with the personal property they will need, oversights are made even on the best of days, and a mass-departure of residents is not nearly that. Under current guidelines, you are not able to visit nursing home residents, and this includes in a new facility after transfer. However, if you have spare clothing or quality toiletries for them, you should still be able to leave these at the new facility to be brought to your relation, ideally after they have physically arrived. For best results,

  • Make sure each article of clothing is labelled with the resident’s name on or near the tag. Permanent marker is best.
  • Clothing should be clean, in good repair, and neatly folded.
  • Goods should ideally be placed in a plastic bag, ideally a clear garbage bag, and contain a note that prominently indicates the name of the resident, and that the clothing has been labelled and freshly washed.
  • DO NOT INCLUDE ANY FOOD. Facilities may allow prepackaged, shelf stable snacks such as cookie or cracker snack packs, but even for these get explicit permission first and bring them separately bagged in the original outer packaging from the store.

These steps maximize the chance that your provisions will be promptly delivered to your loved one in their temporary new home.

If you have any questions about a loved one in transition to or from a skilled nursing facility during the outbreak, feel free to call us at (203) 871-3830 or email scott@CTElder.com for a free case assessment.

Read the Full Letter Here:

Dear Resident, Family Member or Responsible Party,

There have now been positive tests for the coronavirus (COVID-19) in many nursing homes across our state. It is normal to have questions, feel uneasy or even scared. This is unprecedented in our lifetimes. The Office of the Long-Term Care Ombudsman and the Department of Public Health have received many calls from residents and family members as they look for Information about how to protect themselves.

We understand that this period of uncertainty and extra safety measures is incredibly challenging. The Governor, In consultation with the State Department of Public Health, has had to make extremely difficult decisions that impact all of you. It has not been easy to know what will come next, but I am thankful that at every step State Officials have kept the rights of residents at the forefront of their decision making and want to keep all parties informed.

Unfortunately, we are at a point in this pandemic that more extreme precautions need to be taken. This is not something any of us ever thought would happen in our long-term care community, but these are unprecedented times. We must take immediate action to prevent and delay further spread of COVID-19 to keep all residents and staff safe. These measures, outlined below, will impact residents throughout Connecticut.

In order to protect residents, the state will designate specific nursing homes for residents who have tested positive for COVID-19 and those who have not. Providing this physical distance is an attempt to concentrate the care and service needed to provide the highest level of care for each group of residents.

This means that some nursing homes will have to move residents to another nursing home. Residents who have tested COVID-19 positive will be transferred to a nursing home that has been designated as a COVID-19 positive home.  If a nursing home has been designated as a COVID-19 positive home, residents who are negative or without symptoms will need to be transferred to a home that has been designated as a COVID-19 negative nursing home.

This measured decision is the only option available at this time. This will be in effect for an unknown period of time, perhaps months, but will allow you to transfer back to your home when it has been determined that this separating of residents is no longer necessary. We know this is going to be overwhelming for both residents and families. As we have learned from other areas of the country, to address the pandemic and meet the health, safety and well-being of all residents, these necessary measures must be taken and begin as soon as possible.

If you or your loved one need to move to another room or nursing home, a team member from your nursing home will contact you directly. The rights, safety and well-being of the residents are always at the forefront of the State Official’s decision making. This is an incredibly trying time and we are asking for your assistance keeping residents’ well-being as the priority.

We will be setting up Zoom meetings for residents and families to have an opportunity to ask questions to representatives of the Department of Public Health and the Long-Term Care Ombudsman Program. We will be providing the dates and times for these meetings through your nursing home as well as on the Long-Term Care Ombudsman website (https://portal.ct.gov/LTCOP), Facebook page (https://www.facebook.com/CTLTCOP) and the Department of Public Health website (https://portal.ct.gov/DPH).

If you have specific questions or concerns related to your nursing home, you can contact the Long-Term Care Ombudsman’s office at: 860-424-5200, or toll-free 1-866-388-1888.

The Long-Term Care Ombudsman Program and the Department of Public Health are here to support you through this very challenging time. Please remember it is normal to have questions, feel uneasy or even scared due to this unprecedented situation. Our offices as well as the care team members at your nursing home are here for you. Reach out, tallk about how you are feeling and what you think might help you cope with all of this. We need to do things differently right now and will continue to offer support so that we can get through this together.

Sincerely,

Mairead Painter, State Long-Term Care Ombudsman

And

Donna Ortelle, R.N., M.S.N., Section Chief, Facility Licensing & Investigations Section

Letter to Families LTCOP/DPH, March 30, 2020

MEDICARE ALERT: Nursing Home Rehabilitation Benefits Expanded for Medicare Recipients in Response to COVID-19

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By , March 16, 2020
Medicare Card & Nursing Home

A new cog in the federal response to the Coronavirus outbreak are some changes in how individuals on traditional “straight” Medicare can qualify for nursing home rehabilitation.

Medicare rehab coverage is provided under Part A hospital insurance, with two key provisions being that (1) seniors are only eligible for rehabilitation after a 3-night stay in a hospital as an inpatient, and (2) nursing home rehab is limited to 100 days per hospitalization period.

Federal Medicare administrators recognize that hospital and nursing home beds will likely become limited commodities in the coming weeks. That means some who should have hospital care will be denied in favor of needier patients, and some who would benefit from facility-based rehab will not be able to access it, possibly becoming more infirm due to the lack of intervention. In light of this, the Medicare Administrator issued a “special finding” that waives both of these limitations, in most cases.

SNF [skilled nursing facility] care without a 3-day inpatient hospital stay will be covered for beneficiaries who experience dislocations or are otherwise affected by the emergency, such as those who are (1) evacuated from a nursing home in the emergency area, (2) discharged from a hospital (in the emergency or receiving locations) in order to provide care to more seriously ill patients, or (3) need SNF care as a result of the emergency, regardless of whether that individual was in a hospital or nursing home prior to the emergency.

In addition, we will . . . provide renewed coverage for extended care services which will not first require starting a new spell of illness for such beneficiaries, who can then receive up to an additional 100 days of SNF Part A coverage for care needed as a result of the [COVID-19] emergency.

Seema Varma, Administrator, Centers for Medicare and Medicaid Services

If you are worried about yourself or a loved one having access to services, the situation is highly in flux at the moment, but we stand ready to answer your calls and questions with the latest information at (203) 871-3830 and are available for videoconferencing and teleconferencing on several common platforms.

Nursing Home Visitation Heavily Restricted for COVID-19.

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By , March 16, 2020
Novel Coronavirus
Simulation of coronavirus particles.

Over the past week, there have been conflicting reports and governmental orders regarding visitation of residents in nursing homes. This was clarified March 13, when CMS (the federal medicare/medicaid regulator) issued new guidance to nursing homes nationwide. Namely, they have ordered that all visitation of nursing home residents is prohibited, with two exceptions: outside health care professionals, and limited visitation for resident’s who are actively dying or receiving hospice/palliative care. Additionally, group activities such as recreation and communal dining have been suspended.

In furtherance of this, the Probate court has suspended all proceedings that require hand-delivered notices or hearings conducted at facilities. Mostly this means new applications for conservatorship for people presently located in nursing homes, and applications to make nursing home care permanent (change of residence). It is still unclear how these will work with respect to deadlines imposed by law.

One important thing to know, however, is that just because you cannot see your loved one does not mean that you are unable to participate in their care. These rules do not change the requirement that facilities provide quality care, or develop a plan of care on a quarterly basis, with your input. It only means that conferences and reviews need to be conducted through telephone and records exchanges, rather than talking and looking in person.

We understand this change is particularly concerning for loved ones of seniors who have recently moved to a facility for rehab purposes. It is tough not being able to see their progress in person, or to know if or how quickly they will return home. You should also expect that, because facilities will have to exclude both personal care and licensed staff as an abundance of caution, and at a minimum it will be even harder than it normally is to get the responsiveness and communication by phone you may desire. But there are certain levers you can pull to get what you need, and my office is ready and able – by phone, paper, and video conference – to answer questions and help those who feel they need an advocate on their side.

AARP’s TaxAide – A Great Cause and a Great Help

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By , January 13, 2012

AARP TaxAide Volunteer

AARP volunteers help millions across the U.S. file their taxes each year.

Tax season is coming into full swing shortly, and this will be my third tax season volunteering with AARP’s TaxAide program.  For me, it’s an opportunity to do some good and keep abreast of how all the different tax tweaks congress makes each year find their way into the IRS forms and filing requirements we actually deal with back here on Earth.  For you – or for an elderly friend or loved one – it’s can be an opportunity to get your taxes done for free with friendly, convenient service.  For the benefit of those who might be interested, I’ve reposted this FAQ article with a summary of the services we provide.
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A Few Words on Disinheritance

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By , August 22, 2010

Fight Over MoneyAn article last week in the local lawyer’s trade paper, The Connnecticut Law Tribune, discussed the increasing prevalence of wills being delayed in the probate process through complaints, objections, and full-out challenging of wills admitted to probate.

It’s not surprising, given that the economy is at the lowest point most of us have ever and will ever see.  There will always be maligned siblings looking for their fair share and suspicious later-in-life will changes, but in these tight times staying silent to keep the peace may not be the option it normally would be for some left-out relatives.  At the same time, there’s likely a surge in opportunists who suspect (accurately, as it happens) that most legit beneficiaries would rather pay a small, quick settlement than see their own inheritances delayed and diminished by a protracted lawsuit.

It’s an unfortunate situation for those looking to plan for when they are no longer around.  It’s also a good example of why it’s so important to have your will done by an attorney, in particular one who handles a great deal of wills and probate work.

If you’re looking to cut someone off because you question their responsibility or they have significant debts, several different types of trusts can be employed to address those concerns without completely disinheriting the person.  If you just want someone out, the wording must be carefully chosen to meet legal standards.  Depending on the situation, it may be better to employ a “carrot and stick” tactic, where the ousted person is actually given a small legacy under the will, but which is forfeited if he or she challenges the will in court.

Later-in-life will changes are particularly susceptible to challenge in court, as relatives may claim the author was not competent to make the will, or had been subjected to the manipulation and pressure of an overbearing child or confidante.  An experienced estate planning or elder law attorney can take steps to help ensure the will will be upheld in court, such as careful selection of the location and people present at the execution ceremony (will signing), choice of witnesses, and videotaping the ceremony as future evidence.

For more information, feel free to call me at (203) 871-3830 or email scott@scottrosenberglaw.com for a free consultation.

The Mess on Wall Street (or, Five Simple Rules for Finding a Fair Broker)

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By , June 4, 2010

When it's time for a new broker...

With the House and Senate banging out the final version of the financial reform bill, it seems a fair guess that many people are wondering how the new law will affect their own investments, and that trustees are likewise concerned about what major consequences such sweeping legislation might have on the assets they are obligated to carefully manage. While a significant part of the bill is still up in the air, all possibilities seems to point to one answer:

None. Nada. Zilch.
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Debunking Wolf Blitzer: The Reality of 2010-2011 Estate Tax Changes

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By , December 19, 2009

Wolf and Allan Chernoff discuss the changing estate tax landscape.

Wolf and Allan discuss the changing federal estate tax landscape.

In a December 17th segment on CNN’s The Situation Room, Wolf Blitzer and colleague Allan Chernoff began discussing the upcoming changes changes in the federal estate tax landscape.  They point out that in just a few short days the calendar will turn and the reign of EGTRRA (the Bush tax cuts) over the estate tax comes to a close.  No estate taxes will be owed on deaths occurring in the year 2010, but in 2011 the tax comes back at an even lower threshold, resetting to it’s pre-Bush rate of 41%-50% on assets over $1 Million.  While all of this is perfectly accurate and well worth knowing, much of the commentary surrounding it was murky at best, if not just plain wrong.  After the jump, some of the points that could use some tweaking:

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New Research on Comas, and What It Means for Living Trusts

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By , November 28, 2009

An article in Time Magazine this week tells the story of a man who was presumed brain-dead for nearly a quarter century, but as it turned out, had been alert and listening the whole time.

Rom Houben, a Belgian engineering student before his accident, was suffering from total locked-in syndrome, a condition which paralyzes all intentional body movement. His body could breathe, pump blood, and digest; he could watch, listen, and think just fine, but he did not have the ability to respond. It wasn’t until a neurologist on a quest to find misdiagnoses with an experimental new type of brain scan saw Rom that they discovered his mind was intact.

This might seem like a far-fetched aberration, but recent studies in the British Journal of Medicine and elsewhere show that incorrect diagnoses of a persistent vegetative state (or PVS) occur at an alarming rate – about 40-45 percent of the time. The reasons are several. Brain-scanning technology has not reached a level where it can clearly diagnose conscious from unconscious; the methods for diagnosis by observation all have serious flaws, and doctors can’t agree on which is best or how to make a better one; and reviews after an initial diagnoses are often too cursory to notice signs of improvement after the brain has had time to heal.

This reality creates a serious problem for the typical living will. The lion’s share of clients have them drafted to ensure they have a quick and peaceful passing instead of getting “Terry Schiavo’d,” and living wills often mention a PVS diagnosis by name as one of the triggers for the removal of life support. The result is that a person who could live a fulfilling life with quadriplegia (body paralysis) as so many others do may inadvertently be euthanized. Almost all misdiagnosed patients are completely paralyzed, and many suffer some loss of cognitive ability, so it is understandable that these new revelations may not prompt older clients to change their plans. For everyone else, though, it should be an important consideration in laying out your advanced healthcare directives.

Going forward, estate planning attorneys should keeping abreast of new developments in PVS diagnostics, to know the what/how often/for how long combination that best ensures a PVS diagnosis is accurate, and clients should strongly consider having those standards incorporated into the document itself.

CT Revamps Estate Tax Model; Saves Headaches

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By , October 23, 2009

Since 2005, one of the more annoying idiosyncracies of CT estate planning law has been the 2 million dollar cliff threshold for CT estate taxes. At the time it matched the federal estate tax exclusion, but that rate was set to rise to $3.5 million at the start of 2009, and was widely expected to stay in that vicinity.*  The end result was that individuals could easily get wallopped over manners of poor planning** (as a “cliff tax”, you’re assessed on the full first $2MM if you’re over by even a dollar), and couples with a net worth over $4 million required multiple, layered trusts to maximize the tax credits offered, such as they were.

However, last month Gov. Rell announced she would allow the proposed 2010-2011 budget to pass into law, which modifies the estate tax to a flat tax of 25% on the value of estates over $3.5MM, similar to the federal taxes. Under this new system, modest individuals estates may no longer be blindsided, and couples with a net worth underneath $7 million can avoid estate taxes altogether with a common arrangement often referred to as an “AB Trust.”  An AB trust simply takes the property from the decedent spouse(let’s say husband’s) estate and splits it into two piles: a “bypass pile” which could be taxed, but is valued to max-out his $3.5 million credit, and a “marital deduction pile,” which gives the property to his widow tax-free, and will fall within her $3.5 million credit when she passes.  The trust allows the piles to be split up in whatever way will save the most taxes, and is now a very effective tool in CT.

*This is still in a state of legislative flux, however. Presently there is no estate tax at all for 2010 and a low $1MM exemption starting in 2011, but these are likely to change and should not be planned around.
**Because of the low threshold, holding a large life insurance policy on yourself, vacation properties, or even part of a small business could make an estate subject to tax. The change in the estate tax does not affect the assessment of probate fees on these assets, so it remains prudent to place substantial investments in trust, outside of your estate.

© 2009-2011 Scott Rosenberg. All Rights Reserved