Medi-Cal and Elder Law in California: Long Term Care Issues

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August 29, 2018
Author: Carol A. Peters
Organization: Law Office of Carol A. Peters

Once upon a true time, in the days of the Black Plague, no one was ill; we died instead. Then we became ill, and were served by pasteurization and antibiotics and Medicare and Medi?Cal (Medicaid). Then, Congress feared people would give away assets in order to qualify for medical care in a Skilled Nursing Facility, paid for by the government. Politically, Congress enacted the ‘look?back’ rules to discourage gifting of assets for the purpose of becoming a public charge, to create Eligibility for medical welfare. Congress created the “60?month” lookback period for a gift by a Trustee, and the 36 months “look back” period for an individual (not from a Trust). If there were consequences, then human behavior could be modified accordingly.

But in reality, someone might very well plan ahead for other reasons, and with no knowledge of ‘medical welfare’, such as for the primary purpose of exercising one’s donative intent (ex: to fund a charitable trust for a college or charity) and then coincidentally ~ yet nonetheless ~ later become ill.

Insurance companies saw the 60/36 months look?back periods as a business opportunity: by addressing the potential ~ yet possible ~ Medicaid Ineligibility of a person who had gifted nonexempt excess assets but later became ill before the 60/36 months had passed since the date of the gift, the premium could be paid now. For policy coverages later.

Long?Term Care Insurance (LTCI) policies were created for a term of 5 years (60 months) and 3 years (35 months). And were often used by members of the National Academy of Elder Law Attorneys (NAELA) for what is known as the ‘half?a?loaf approach’ of gifting half of an estate and keeping the rest, to use for living expenses while the LTCI policy, or the penalty period of the gifting, paid for the care. Originally, Long Term Care Insurance policies offered three levels of payments, to cover three different levels of care:

Independent Living Arrangement: much like disability insurance coverage
Assisted Living: pay for ADL’s and IADL’s
Skilled Nursing Facility: pay for 24/7 Nursing Care

The amount of premium depending on the term and the level of coverage. Many of the old policies are no longer being written, and some carriers have completely left California.

Depending on the reason(s) for denial of benefits, on occasion getting payments from a policy can require an Attorney knowledgeable about ‘bad faith’ insurance issues and its litigation. When you encounter that issue, you might want to contact CANHR (California Advocacy for Nursing Home Reform) for referral to an Attorney who can mentor you or for referral of your Client to one of CANHR’s Attorneys.

The LifeCare Cycle: See the attachment at the end of this document for a chart on the basic progression of care needs, and the options for payment for the Care.

2.1. ADL’s/Activities of Daily Living The five (5) Basic Activities of Daily Living are:
• Dress
• Eat
• Ambulate/Walking
• Transfer (from bed to chair, from chair to car)
• Toiletting and Incontinent care
• Hygiene/Bathing/Grooming

Each of these activities are personal, and generally speaking, we each do our own, but when we need assistance, the Chore Provider (trained to assist) can help.

To qualify for IHSS/In Home Supportive Services, one must need assistance with two or more of these personal ADL’s every day, and also be financially eligible.

2.2. IADL’s/Instrumental Activities of Daily Living: These additional activities are in the nature of household activities. In some Counties, IHSS will not pay a Family Member to perform these IADL functions because the task is in the nature of being a member of a family: cleaning should be done for all, meals should be prepared for all. However, IHSS may pay a Chore Provider to provide these support functions to a single person living alone, except for the last one, which could open the door to Elder Abuse:
• Meal preparation and clean?up
• Cleaning and housekeeping
• Laundry
• Preparing medication(s)
• Taking medication(s)
• Using telephone
• Shopping
• Bill paying

3. CARE OPTIONS: A Care Plan is essential: without a Care Plan, it is NOT possible to plan the funds appropriately. Should the Care Plan be front?loaded? Or should the money be evenly spaced/annuitized/spent on monthly essentials?

Whose money is it? And who should have a say? Any say? The final say? Family Members? Who should be in charge? Family Members often mean well but may be uninformed, either about the elder’s personal preferences or needs or both.

A Gerontologist or Geriatric Care Manager is helpful in designing a Care Plan to meet the needs of the elder. They have studied the aging process and have an increased understanding of what is going away and what supports may need to come in. The National Geriatric Care Manager Assn has a website with members all over the United States: for information about regional chapters, see .

Having a conversation with a Geriatric Care Manager as a neutral professional (not a Family Member, not an Attorney, not a Money Manager) can be helpful in identifying what if any assistance is needed. In the process of assessing what care is needed, there may be 3 answers:
• “None at all, thank you very much”
• “Some, if you don’t mind” and “how will I pay for it?”
• “More, but I don’t want to be a burden”.
A Certified Senior Advisor should be consulted to review assets and financial resources need to provide the level of need care.

Societally, we Americans prize independence and autonomy. So culturally our Involuntary changes may be more easily accepted than being prodded to make voluntary changes. Also change itself can be anxiety?producing, in addition to whatever the problem is.

So the information at the website may be helpful to Family Members about how to have the conversation about where to live and EOL/End Of Life care needs, what elements to consider, how to provide helpful care support without becoming over?bearing.

4. PLACEMENT OPTIONS: Generally speaking, there are four (4) different levels of care:
• Independent Living Arrangement is either at a home, with or without licensed support; or at a facility in an apartment or hotel?like atmosphere, without nursing care or monitoring;
• Board and Care is typically a residential home converted to be licensed as a Residential Care Facility (RCFE) for the Elderly. Most people have their own rooms, but have the ability to share with a spouse or others. Most RCFEs have up to 6 people living at the facility, with staff that can provide planned meals, laundry and cleaning services; licensing for Board and Care facilities is overseen by the Community Care Licensing section of the State of California, and can be verified at:
• Assisted Living Facility are typically larger facilities that offer the same opportunities to be more independent, with the kind of services that the above RCFE provides, but can offer more assistance with ADLs & IADLs than typically provided at a RCFE. Most ALFs have nursing staff available.
• Skilled Nursing Care is at a facility licensed by the Dept. of Health Services which provides 24/7 medical care in a more clinical or hospital environment; patients wear bedclothes.

5.1. Determining the LEVEL OF CARE is necessary before one can determine what facility offers appropriate support. “Knowing the Care Plan is essential to figuring out how to manage the money”. See page ___ for a useful chart titled “CHARACTERISTICS WHICH DIFFERENTIATE CARE PROVIDED IN FACILITIES” identifying seven (7) comparisons of facilities with descriptions of differentiating characteristics.
Adult Residential Facilities (ARF) are facilities of any capacity that provide 24? hour non?medical care for adults ages 18 through 59, who are unable to provide for their own daily needs. Adults may be physically handicapped, developmentally disabled, and/or mentally disabled.
• Adult Residential Facilities for Persons with Special Health Care Needs provide 24?hour services in a homelike setting, for up to five adults with developmental disabilities, who are being transitioned from a developmental center, and who have special health care and intensive support needs.
Residential Care Facilities for the Chronically Ill (RCFCI) are facilities with a maximum licensed capacity of 25. Care and supervision is provided to adults who have Acquired Immune Deficiency Syndrome (AIDS) or the Human Immunodeficiency Virus (HIV).
Residential Care Facilities for the Elderly (RCFE) provide care, supervision and assistance with activities of daily living, such as bathing and grooming. They may also provide incidental medical services under special care plans. The facilities provide services to persons 60 years of age and over and persons under 60 with compatible needs. RCFEs may also be known as assisted living facilities, retirement homes and board and care homes. The facilities can range in size from six beds or less to over 100 beds. The residents in these facilities require varying levels of personal care and protective supervision. Because of the wide range of services offered by RCFEs, consumers should look closely at the programs of each facility to see if the services will meet their needs.
Continuing Care Retirement Community (CCRC) offers a long?term continuing care contract that provides for housing, residential services, and nursing care, usually in one location, and usually for a resident's lifetime. All providers offering continuing care contracts must first obtain a certificate of authority and a residential care facility for the elderly (RCFE) license. In addition, CCRCs that offer skilled nursing services must hold a Skilled Nursing Facility License issued by the Department of Health Services. The California Department of Social Services (Department), is responsible for the oversight of continuing care providers. The Department's Community Care Licensing Division has two branches that participate in the regulation.
- The Senior Care Program monitors continuing care providers for compliance with the Community Care licensing laws and regulations regarding buildings and grounds, accommodations, care and supervision of residents, and quality of service.
- The Continuing Care Contracts Branch is responsible for reviewing and approving applications to operate a CCRC and monitors the ongoing financial condition of all CCRC providers and their ability to fulfill the long?term contractual obligations to residents.
Skilled Nursing Facilities are licensed by the Department of Health Services and
provide 24/7 medical care and oversight.

5.2. What is the difference between ‘disabled’ and ‘abled’? Consider the five steps of the Social Security Administration’s process for determining if one is disabled or able to engage in Substantial Gainful Activity. Consider the span of activities between able to assist others (despite wearing glasses, still able to read a map and give driving directions) and being in need of assistance one’s Self (in need of medical transportation?)

5.3. And whose opinion should serve as the critical decision?maker? We encounter these issues all the time, in our personal lives, our culture and even in our entertainment:

Suggested Movies include:
• (1970) Where’s Poppa? (Caregiving, placement)
• (1970) The Inheritance (Family dynamics, values, Swedish family)
• (1975) One Flew Over the Cuckoo’s Nest (L.P.S., mental health administration)
• (1987) The Glass Menagerie (Family dynamics & expectations, values; women)
• (1988) Rainman (Autism, DD accomplishments, Limited Cons)
• (1989) My Left Foot (DD accomplishments)
• (1997) Amadeus (DD accomplishments, Enfant terrible)
• (1999) Girl, Interrupted (L.P.S., mental health administration)
• (2003) The Barbarian Invasions, Les Invasions Barbariens (E.O.L. care, P.A.S.)
• (2005) King Lear (advancement of inheritance? (Unforgiving vengeance, obsession)

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