Category Archives: Nursing homes & long term care

Home Care: My Mother’s Story

By Sally M. Wagley, Maine elder law attorney

My mother, pictured here as a young woman, was healthy and active for a long time. But in her mid 80’s, she developed peripheral artery disease, resulting in the amputation of her leg. grandma victory bonds 2

The silver lining in this story is that my mother continued to live independently until her death, just short of her 91st birthday. This, in spite of the dire predictions of her rehabilitation team, who insisted that Mom have 24-hour care, preferably in a facility. Mom wanted to go home and we hired 24- hour care from a local agency. But after three days the workers had little to do. Mom, thanks to years of exercise and a strong will, was able to transfer from her bed to her wheelchair without help and to fix herself simple meals.

We replaced the workers with non-medical help from another agency, Neighbors, based in Brunswick. These workers, who became like family, came in three days a week, two hours a day, to do light housekeeping and laundry and prepare lunch. In addition, an RN from another agency, CHANS, came in once or twice a week to change bandages, take vital signs and check Coumadin levels. It was also helpful that Mom lived in an apartment in senior housing, where the evening meal was served and emergency response was available. Thus, the six to ten hours a week of in-home services (at a far lower cost than institutional care) enabled my mother to remain at home.

This happy ending is not possible for many Maine seniors, who cannot pay privately for services. A recent Portland Press Herald article reported on serious underfunding of home care and long waiting lists. Government reimbursement rates have not increased since 2005. Workers receive low wages, leading to labor shortages in. This short-sighted policy is inhumane and costs the taxpayer more: an average of $558 per person per month, versus an average of $4150 for a nursing home resident.

The information provided on this website is for informational and educational purposes only. This information should not be construed as rendering legal advice or offering an answer to a specific legal problem.

Bringing suit against a Maine nursing home for negligence, abuse or neglect

By Sally M. Wagley, Maine elder law attorney

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Elders who reside in nursing homes are very vulnerable. Most are heavily dependent on others for help with their daily activities. Many are cognitively impaired and unable to speak for themselves. Nursing homes in Maine and elsewhere are often understaffed and struggle to meet the needs of their residents. As a result, residents may experience problems such as pressure ulcers (bed sores), malnourishment, dehydration, falls and elopement. This can lead to a needless suffering and even death.

The first step, when encountering abuse, neglect or negligence, is to report it to the Maine Department of Health and Human Services’ licensing division, who will promptly investigate. Another resource is Maine’s Long Term Care Ombudsman, which will advocate for you or your family member and work with the facility to correct the problems.

Increasingly, however, residents and their families are going further: seeking the assistance of Maine elder law attorneys and personal injury attorneys in bringing suit against Maine nursing homes to get money damages for the elder. These attorneys use, as a basis for the law suit, the federal and Maine nursing home laws which set standards for nursing homes.

Unlike the medical malpractice case, which usually concerns a discrete act by a health care provider, the nursing home case typically involves a pattern of inadequate care over a period of time. An attorney who is skilled in Maine nursing home cases will gather evidence by interviewing the resident (if the resident is competent), the family and the staff, and will also review the patient’s chart.

If you or a family member have been harmed as a result of inadequate care in a Maine nursing home, we will be glad to evaluate the case and partner with skilled counsel to bring a suit for damages.

The information provided on this website is for informational and educational purposes only. This information should not be construed as rendering legal advice or offering an answer to a specific legal problem.

Understanding Long Term Care Insurance

By Sally M. Wagley, Maine elder law attorney

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Have you been advised to purchase long term care (LTC) insurance? Before making such a purchase it is important to understand what such insurance will and will not cover. These are some of the things you need to know:

Nursing home-only coverage vs. coverage of assisted living and home care: Ideally, the policy should cover these different types of care. Most people prefer to be cared for someplace other than a nursing home.

Benefit “triggers”: Most policies will not start to pay out until you are very disabled, mentally or physically, and your care needs are high. These policies require that you be at the point that you need as substantial amount of help with at least three activities of daily living or be so mentally impaired that you are a danger to yourself or others.

Daily benefit rate: The policy will cover up to a certain amount per day: for example, $150, $200 or $300 per day. The higher the daily benefit rate, the more the policy will cost. Currently, nursing home care in Maine costs an average of $8000 a month, and some facilities charge as much as $10,000. Thus, your LTC insurance will likely not cover the full cost and you will need to use some of your income or savings.

Elimination period: Most policies will not start covering the cost on day one. The policy will require that you receive care for a certain number of days before it will start to pay: for example 30 to 90 days. This means that you will need to draw on your savings until the elimination period is over.

Length of benefit period: There are few if any policies these days that will cover you for your lifetime. Policies will generally cover your care for two to five years. This means that if you need care for longer than this, you will need to start paying from your savings.

Inflation protection: Long term care costs increase every year. If you decide to buy LTC insurance, you should consider opting for inflation protection so that years from now if you need care, the benefit amount will more closely match the cost.

The information provided on this website is for informational and educational purposes only. This information should not be construed as rendering legal advice or offering an answer to a specific legal problem.

Medicare patients in nursing homes CAN leave for a special event

By Sally M. Wagley, Maine elder law attorney

Are you or a family member a Medicare resident of a skilled nursing facility, perhaps rehabilitating after a hospital stay? Have you or your relative asked to leave the facility for a few hours or a day for a special event or purpose such as Christmas dinner or a short visit home? Frequently, to the great disappointment of the resident, the facility may tell the resident that if he or she leaves, even for a few hours, he or she will lose Medicare coverage.

This is not accurate. Medicare rules state: “An outside pass or short leave of absence for the purpose of attending a special religious service, holiday meal, family occasion, going on a car ride, or a trial visit home, is not, by itself evidence that the individual no longer needs to be in a skilled nursing facility for the receipt of required skilled care.” As long as the resident returns to the facility by midnight, the facility can bill Medicare for the day’s stay. Medicare rules state that it is “not appropriate” for a nursing home to tell a resident otherwise.

In short, you should feel free to talk to nursing home staff about a short visit out of the facility. The nursing home staff may have legitimate concerns about how such a trip may affect your health and safety; but should not refuse your request based on misinformation about Medicare coverage.

The information provided on this website is for informational and educational purposes only. This information should not be construed as rendering legal advice or offering an answer to a specific legal problem.

Beware This Very Expensive Medicare Detail

By Patrice A. Putman, Maine elder law attorney

Medicare rules and policies are always confusing but there are some rules that, over time, people tend to hear about. One of the Medicare policies that people tend to be familiar with is the one that basically says, if you have been an inpatient in the hospital for three or more days, Medicare will pay for Skilled Nursing Care for up to 100 days. This rule has recently been at the forefront of much news because of a settlement in the Jimmo v. Sebelius case. Prior to this settlement, Medicare would often deny payment for Skilled Nursing Care if the patient was not making “substantial improvement”. Now, since the Jimmo settlement, Medicare must pay for care during those 100 days if the care is needed to maintain or simply prevent deterioration in the patient’s clinical condition. Continued improvement is no longer necessary.

The Jimmo settlement is great for patient care, but there is another detail in the Medicare law that people should be keenly aware of. This has to do with those three days of “inpatient” hospital care. The unknown detail has to do with what is considered “inpatient” hospital care. For Medicare purposes, in determining what is considered an “inpatient” hospital stay, emergency room care and being in an “observation” status do not count as inpatient care. A patient can be held in “observation” status for multiple days, on a regular hospital unit, in a regular hospital bed without any clues that, for Medicare purposes, they are not considered an inpatient. Then, when that patient is later transferred to a Skilled Nursing Unit, Medicare will not cover their care. The Center for Medicare Advocacy states in its Summer 2013 Center News: “Hospitals stays that are classified as observation, no matter what types of services are provided and no matter how many days the patient remains hospitalized in a bed, are considered outpatient.”

Congress has put forward legislation that would require time spent in observation to be counted toward meeting Medicare’s three day requirement but its passage appears doubtful despite large bipartisan support and 90 co-signers, so this problem is not going away quickly.

What can you do? ASK!!! If you or a loved one has been admitted into a hospital and are likely to move to a Skilled Nursing Unit, speak to your doctor or the Nurse Manager of your hospital unit about whether you are classified as an “inpatient” or an “observation” patient. If you are told that you are an observation patient, ask your physician to review this status and explain to your doctor why it matters; they may not know. Once you know that you are considered an “inpatient”, ask that this be confirmed in your medical record. Not knowing or not speaking up can lead to a financial disaster when you assume your care at a Skilled Nursing Unit is covered (because you have been in the hospital for 3 or more days) and later find out that Medicare will not pay for that care.

The information provided here is for educational purposes only. It should not be construed as rendering legal advice or offering an answer to a specific legal problem.

Long-term health care planning for same sex couples

By Patrice A. Putman, Maine elder law attorney

On June 26, 2013, the US Supreme Court overturned essential parts of the Defense of Marriage Act, a decision that has a major impact on many of my friends and clients. Until then, the federal Defense of Marriage Act “DOMA” did not allow the recognition of same sex marriage. This meant that a married same sex couple who had lived together for 20 or even 60 years was not able to take advantage of the hundreds of federal benefits that the government gives to married heterosexual couples. Many people realize that same sex couples have not been able to take advantage of the tax benefits associated with filing joint federal income tax returns or Social Security benefits. Something that people are less aware of is the inequity in how long-term care rules have applied to these couples. Now, in Maine, a state where same sex marriage is recognized, these inequities can begin to be addressed.

When a family receives a diagnosis of dementia, they not only need to live with frightening health consequences, they also need to deal with a myriad of financial consequences. Where health insurance and Medicare pay for the diagnosis and treatment of most illnesses, they do not pay for long-term care costs when a person needs to move into an assisted living or nursing home. Only long-term care insurance and Medicaid (called MaineCare in Maine) pay for long-term care. Long-term care generally costs $70,000 a year or more. MaineCare will begin contributing to long-term care costs when a person has less than $10,000 in assets.

When a married person moves into an assisted living facility, MaineCare allows the couple to transfer their assets to the spouse who still lives at home. This means that while the spouse who moves into the assisted living facility can only have $10,000, the rest of the couple’s assets can be kept and used by the spouse at home. When a married person moves into a nursing home, MaineCare allows the spouse living at home to own a home, a car, personal property, and have other assets totaling $115,920. Unmarried couples do not have these options. Only the $10,000 rule applies to the unmarried person.

Now that the Supreme Court has declared significant parts of DOMA to be unconstitutional, the federal government must begin providing same sex spouses the same ability to transfer and protect their hard-earned assets that other married couples have always had. Now, when dementia hits a married gay or lesbian couple, they will have the same heartbreak and the same financial concerns that other married couples have, not 100 times more – at least if they are lucky enough to live in a state like Maine where same sex marriages are allowed and recognized.

The information provided here is for educational purposes only. It should not be construed as rendering legal advice or offering an answer to a specific legal problem.

Second marriages: what if your spouse requires expensive long term care?

By Sally Wagley, Maine elder law and estate attorney

We have had a number of clients, either divorced or widowed, become happily married later in life. Sadly, after a number of years of love and companionship, one of them may start to decline and need expensive care in a nursing home or assisted living facility. For purposes of discussion, we’ll assume that the husband is the one who needs institutional care, with the wife remaining at home. The wife may find out to her chagrine that she is expected to use her own assets — accumulated by her before the marriage from a lifetime of work –on her husband’s nursing home costs. She may find out that after he has depleted his own funds, he will not qualify for state assistance through Maine’s Medicaid program (called MaineCare) until she has spent down her own funds to a certain point. This causes her great anxiety, for two reasons: most important, she wants to make sure that she has enough to live comfortably for the rest of her life; in addition, she may want to be able to pass on assets to her own children.

What can a couple do in this situation? Advance planning, while both are still healthy, is the best option. If they qualify for and can afford long term care insurance, that will make it less likely that the wife will have to spend down her own savings. Another option is an irrevocable trust, whereby the wife places some of her own assets into an irrevocable trust, naming one or more of her children as trustees. She gives up control of the principal in the trust but will receive income from it. In this way, she can put some of her assets off limits for purposes of her husband’s possible future long term care expenses. In order for her to safely do this, however, she must feel reasonably confident that neither she nor her husband will need long term care in the next five years, as MaineCare has a “five-year look-back” rule which penalizes people who transfer assets in order to qualify for MaineCare.

For a couple who is already in crisis, there are still options. The spouse may purchase a certain type of annuity which meets the requirements of the law. This annuity will protect her assets while providing a stream of income. She can invest her countable assets into exempt assets, such as repairs or improvements to her home, or the purchase of a newer car.

As a last resort, some spouses choose to divorce for the purpose of preserving assets. This is a wrenching decision for most clients, but may be the only option for ensuring that the spouse at home to preserve what she has worked so hard for over the years. This divorce, however, will not prevent the wife from continuing to provide love, companionship and care to her husband, just as if they continued to be married.

Change in Medicare’s “substantial improvement” standard

By Patrice A. Putman, Maine estate and elder law attorney

Aging is never easy and many people experience a short hospitalization followed by a longer stay in a skilled nursing facility. Eldery people in Maine and elsewhere have generally understood that their hospitalization will be covered by Medicare and that Medicare can cover skilled nursing care for up to 100 days. After 100 days, continued care is considered “long-term” or “custodial” care which Medicare does not pay for.

Up until the fall of 2012, Medicare had a practice of only paying for a skilled nursing facility so long as the patient continued to make “significant improvement”. If the patient was no longer making significant improvement, Medicare’s practice was to stop paying, even if this was well before the 100 day allowance. Last fall, this practice of terminating coverage based on the “substantial improvement” standard ended. Now, the new standard for continued Medicare coverage is a whether the patient needs skilled care — even if it would simply maintain the patient’s current condition or slow further deterioration. The stated standard is “The skilled services must be reasonable and necessary for the diagnosis or treatment of your condition.” The care must also be ordered by a physician. This is a big and positive change to a long-standing practice. Medicare is now covering some patients that it was not covering just six months ago.

If you or a loved one is denied Medicare coverage for skilled nursing care in Maine, it may be helpful to meet with us. We are Maine elder law attorneys (referred to sometimes as “elder lawyers” or “elder care attorneys”). We would review the situation to determine whether you are entitled to continue coverage and then help you resolve this with Medicare.

The information provided in this post is for educational purposes only. It describes the law in effect at the time the materials were written. This information should not be construed as rendering legal advice or offering an answer to a specific legal problem.

Average annual nursing home cost now $87,000 per year

By Sally M. Wagley, Maine elder law attorney

 The cost of paying privately for care in a nursing home rose 4.4% in 2011, nationwide, according to a survey done by MetLife.  The current cost of one year in a nursing home is, on average, $87,000.

The cost of care in a Maine nursing home is at least this much, if not more:  generally in the range of $7000 to $8000 per month.

 What might this mean for you and members of your family?  Consider the following:  

  • Do you have adequate income and savings to cover years in a nursing home? 
  • If you were in a nursing home and your spouse were at home, how much would your spouse need in order to remain comfortable?
  • Is it important to you to pass on something to the next generation?   How would you feel if your savings were completely used up on the cost of your care, before you die?
  • What if you had to sell your home or other property in order to pay for your nursing home care?
  • Are you aware that Medicare covers only short stays in a nursing home –only for skilled care and rehabilitation? 
  • Do you know what the Medicaid program (called “MaineCare” in Maine) covers in your state?
  • What is the quality of care at nursing home and assisted living facilities in your area?
  • Have you checked out long term care insurance, to see what it covers and what it would cost?
  • Have you met with a elder law attorney (also referred to as an “elder lawyer” or “elder care attorney”) to find out what coverage might be available to cover some of the cost of your care, and what you can do to get that coverage?  

Be aware that each state is different with respect to nursing homes, Medicaid and other programs. While there may be books on this subject at your local book store, those books won’t tell you the specific things you should know about Maine nursing homes and Maine elder care.  Also, beware of advice given by neighbors and friends.  Each person’s situation is different, and what may have helped someone else won’t necessarily help you.   

In my blogs, I will be addressing some of these issues in the coming weeks.

Governor proposes: no more MaineCare for assisted living and residential care

by Sally M. Wagley

This week Maine’s governor released his proposal for cuts to the MaineCare (Medicaid) program.   A number of the proposed cuts will affect Maine’s elderly. 

An area of particular concern is the elimination of MaineCare coverage of expenses faced by elderly and disabled people who live in residential care and assisted living facilities.   As an elder law attorney, I have many clients in these facilities who cannot afford to pay the monthly cost of $4000 to $7000, who are on MaineCare or will need to apply for it soon.  I also have many clients who are stressed out caregivers who cared for an elderly relative for as long as possible, before reaching the point of exhaustion.  

Assisted living and residential care facilities are for elderly people, many of them with Alzheimer’s and other forms of dementia, who need supervision around the clock. In these settings, they are provided with security, reminded when to eat, dress and bathe, are helped with medication, and provided assistance with some activities of daily living.

 Where will these people go if they can’t get MaineCare and can’t afford to pay privately?  Most will not meet the criteria for nursing home level of care.  So they will have to return to live with exhausted spouses and other relatives, many of them also elderly and with health problems).   For those without families or homes to go to, or whose families simply cannot take them back, the outcome is not clear. 

 The governor’s proposal is at this point just that — a proposal, which will need legislative approval before it becomes a reality.  Regardless of whether you agree with the governor, it is important to be aware that this change may be coming.