Wife finds loophole to visit husband in nursing home

It has been very difficult for families with a loved one in a nursing home not being able to visit them. One women figured out a creative way to see her husband on a regular basis. She got a job at the nursing home washing dishes.


The CDC and Ohio Dept. of Health are continually revising their guidelines and orders concerning nursing home visitation. I will try to post any new developments in this area on this blog.

Ohio Nursing home visitation amended COVID orders

The Ohio Dept. of Health has issued its fourth amended order concerning Ohio nursing homes. The biggest change is that it now allows residents to have their family and friends visit. However, the visit must be outdoors. Some of the requirements for this visit are:

1. Visitors are screened before admittance with a list of health questions and temperature check.
2. Visitors must wear a mask.
3. No visitors under age 2.
4. No more than 3 visitors per visit.
5. Limit of one hour.

The new rule now allows communal activities, including dining, for residents but with use of safety protocols and social distancing.

This order is effective as of July 20, 2020.

For more information, you can read the order here https://coronavirus.ohio.gov/wps/portal/gov/covid-19/resources/public-health-orders/public-health-orders

Is It a Good Idea to Bring Your Parent Home from the Nursing Home During the Coronavirus Pandemic?

With the coronavirus pandemic hitting nursing homes and assisted living facilities especially hard, families are wondering whether they should bring their parents or other loved ones home. It is a tough decision with no easy answers.

The number of coronavirus cases in nursing homes and assisted living facilities across the country continues to grow. A Washington state nursing home was one of the first clusters of coronavirus reported in the United States, with at least 37 deaths associated with the facility.  NBC news reported on April 16 that coronavirus deaths in long-term care facilities across 29 states had soared to 5,670.  “In New Jersey,” NBC added, “the virus has spread to more than 95 percent of the state’s 375 long-term care facilities, according to state health officials.”

In an effort to contain the virus’s spread, most long-term care facilities are limiting or excluding outside visitors, making it hard to check on loved ones. Social activities within the facility may also be cancelled, leading to social isolation for residents. In addition, long-term care facilities face staffing shortages even in the best of times. With the virus affecting staff as well as residents, facilities are having trouble providing needed care. Assisted living facilities, which are not heavily regulated, may have greater trouble containing the virus than nursing homes because their staff is not necessarily medically trained.

With this in mind, many families are considering bringing their loved ones home. A Harvard epidemiologist is warning that nursing homes are not the best place to house the vulnerable elderly at this time. And a local judge in Dallas has recommended that families remove their loved ones from infected facilities. Before taking this extreme step, however, you need to consider the following questions:

  • Is your family able to provide the care that your loved one needs? Some patients require help with eating, dressing, medication, and going to the bathroom. You need to consider whether you can adequately provide that care at home. In addition to your loved one’s practical needs, you need to think about your physical and emotional stamina. Also, is your house set up to safely accommodate your family member? Are there a lot of stairs? Does the bathroom have rails? If your loved one has dementia, there may be other considerations to take into account.
  • How well can you prevent infection? Will you be better able to prevent infection than a nursing home? If your entire household is homebound, you may be in a good position to prevent bringing home the virus. However, if one or more members of your household is working outside of the home, you will have to take extra precautions to make sure you don’t bring the virus to your loved one. Are you taking the necessary precautions to keep your house and yourself disinfected?
  • Will the resident be allowed to return to the facility when the threat of the virus has abated? If you take your family member out of the nursing home or assisted living facility, the facility may not let your family member back in right away. You should check with the facility to determine if your loved one will be able to return.

Bringing a family member home is a hard decision and it depends on the individual circumstances of each family. For more on the considerations involved, click here and here.


How Your Stimulus Check Affects Medicaid Eligibility

The coronavirus relief bill includes a direct payment to most Americans, but this has Medicaid recipients wondering how the payment will affect them. Because the payment is not income, it should not count against a Medicaid recipient’s eligibility.

The Coronavirus Aid, Relief, and Economic Security (CARES) Act provides a one-time direct payment of $1,200 to individuals earning less than $75,000 per year ($150,000 for couples who file jointly), including Social Security beneficiaries. Individuals earning up to $99,000 ($198,000 for joint filers) will receive smaller stimulus checks. Payments are based on either 2018 or 2019 tax returns.

The basic Medicaid rule for nursing home residents is that they must pay all of their income, minus certain deductions, to the nursing home. If the stimulus payment were considered income, it would likely have to go straight to the nursing home. Since in most states Medicaid recipients cannot have more than $2,000 in assets, there was also concern that the stimulus payments could put many recipients over the asset limit.

In a blog post, the commissioner of the Social Security Administration (SSA) has clarified that the SSA will not consider stimulus payments as income for Supplemental Security Insurance (SSI) recipients, and the payments will be excluded from resources for 12 months. Because state Medicaid programs cannot impose eligibility requirements that are stricter than SSI requirements, the payments should not affect Medicaid eligibility.


Coronavirus Relief Funds Paid to Deceased Americans Must Be Returned

The federal coronavirus relief bill has sent direct emergency payments to some 150 million Americans in the wake of the pandemic. Among the recipients are possibly millions of deceased individuals, raising questions about what their survivors should do with the money. After weeks of silence, the IRS has finally confirmed that the money should be returned and explained how to do it.

The Coronavirus Aid, Relief, and Economic Security (CARES) Act, signed into law March 27, 2020, included one-time payments of up to $1,200 to millions of eligible individuals, based on their income. To determine who was eligible, the IRS looked at 2018 and 2019 tax returns, without first cross-checking with the Social Security Administration’s master file of U.S. deaths, which apparently would have taken weeks.

As a result, some individuals who passed away after filing 2018 or 2019 taxes have been receiving relief payments, causing confusion for their families. According to the Centers for Disease Control and Prevention, 2.8 million people died in 2018, which means the IRS potentially could have sent out millions of checks to deceased individuals. Although Treasury Secretary Steven Mnuchin said in an interview that the money had to be returned, the IRS was slow to explain how exactly to go about doing that. 

The IRS has now issued guidance, clarifying that the money must be returned. According to the agency, the full amount of the payment sent to a deceased individual should be returned unless there is a surviving spouse. In that case, only the deceased spouse’s portion should be returned. Checks should be voided and returned by mail to the IRS. If a family member cashed a check or the money was received via direct deposit, the recipient of the funds should send the funds back via a personal check or money order. 

Whether you have to return the money is another question. “There’s no legal interpretation,” Nina Olson, a former IRS official and current executive director of the Center for Taxpayer Rights, told The Wealth Advisor.  “I don’t know how they’re basing their decision” to request the money be returned.  Olson said it is “unlikely” the IRS would sue taxpayers for the erroneously awarded stimulus money.

For further instructions on how to return the payment, click here.  

Caring for Nursing Home Residents during Coronavirus

I have discussed before the problem of the isolation of nursing home residents in this time of coronavirus crisis. At this time, it looks like the visitation prohibition will last quite a while longer. The link below is a very nice article about caring for our elderly family and friends in nursing homes at this time.


Ohio Medicaid & CARES Act

The CARES Act enacted in response to the coronavirus crisis has a broad range of benefits and special provisions. I will only cover here the effect on Medicaid recipients continuing eligibility for Medicaid. The general rule in Ohio is that a Medicaid recipient cannot have any more than $2000 of resources. Thus, an unexpected receipt of money that puts you over that limit could potentially result in termination of Medicaid. The CARES Act provides for a one time economic impact payment of $1200 for most individuals. For more detailed information see https://www.irs.gov/coronavirus-tax-relief-and-economic-impact-payments

Fortunately, this will not cause termination of Medicaid. The $1200 payment is excluded as a countable resource for the 12 month period beginning with the month following receipt. You should keep this deposit in a separate account so that it is not commingled with other funds and continuing expenses paid out of the account. It is best to open a separate savings account for this deposit.

Coronavirus & Ohio nursing homes- part II

I have been very encouraged by all the stories I have heard about nursing home staff making extra efforts to keep their residents in touch with their family. From simple visits outside the window to Zoom and Facetime arrangements being made by staff, they are all doing an extraordinary job of taking care of their residents. I am sure they are acutely aware of the possibility of a coronavirus outbreak at their facility like the one in the Kirkland, Washington nursing home. I especially want to thank St. Leonard’s  for their efforts arranging communication for my mother-in-law with her family and Bethany Lutheran Village https://bethanylutheranvillage.org/ for their extraordinary efforts to arrange for the signing of important estate planning documents for one of my clients. It is a difficult balance to protect the elderly from infection and trying to get medical, nursing, legal and other important work done that cannot be delayed. We will all get through this if we can work together.

St. Leonard’s https://www.homeishere.org/st.-leonard/senior-living-at-its-finest/

Coronavirus and Nursing Home Residents in Ohio

On March 11, 2020, the President addressed the nation and declared a national emergency due to the threat of the coronavirus. He stated various precautionary measures that were to be taken concerning closing of facilities and other restrictions. I will not discuss all of those but rather focus on restrictions related to nursing homes. All of these restrictions being announced at the federal level are permitted under the National Emergencies Act and implemented through the authority of the federal agency, the Department of Health and Human Services- Center for Medicare & Medicaid Services (CMS).

All the information herein is based upon available government pronouncements as of March 18, 2020. This situation changes every day so please check the websites referenced herein for current information.

The first very relevant event is the coronavirus outbreak in January in a nursing home (Life Care Center) in Kirkland, Washington. The virus spread rapidly with at least 27 deaths of residents being linked to the coronavirus. See https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e1.htm?s_cid=mm6912e1_w This event will be foremost in the minds of all nursing home administrators and staff. It is certainly known by the CDC and CMS and strongly influenced their guidelines.

Center for Disease Control

The Center for Disease Control has specific recommendations for nursing homes. Their recommendations concerning nursing homes and other long-term care facilities state that they are not mandatory requirements or standards. Their recommendations are as follows:
▸ restrict all visitation except for certain compassionate care situations, such as end-of-life situations.
▸ Restrict all volunteers and non-essential health care personnel (e.g. barbers).
▸ Cancel all group activities and communal dining.
▸ Implement active screening of residents and health care personnel for fever and respiratory symptoms.
▸ They state that ill visitors and health care personnel are the most likely sources of introduction of the coronavirus into the facility. They recommend aggressive visitor restrictions and enforcing sick leave policies for ill health care personnel even before the virus is identified in the community or facility.
▸ They also state that these recommendations could be applied in assisted living facilities.

They state that decisions about visitation during an end-of-life situation should be made on a case-by-case basis which should include careful screening of the visitor for fever or respiratory symptoms. Those with symptoms should not be permitted to enter the facility. Those visitors that are permitted must wear a face mask while in the building and restrict their visit to the resident’s room or other location designated by the facility.

Center for Medicare & Medicaid Services (CMS)

The CMS guidance states in part as follows:

▸ the nursing home should restrict visitation of all visitors and non-essential health care personnel except for certain compassionate care situations, such as end-of-life situations.
▸ They appear to allow each state to enact more restrictive provisions by stating: “If a state implements actions that exceed CMS requirements, such as a ban on all visitations through a governor’s executive order, a facility would not be out of compliance with CMS requirements.”
▸ It is further stated that residents still have a right to access the ombudsman’s program. This program provides for advocacy for a nursing home resident with any type of complaint or problem.

Prior to the issuance of this guidance, administrator, Seema Verma stated: “I’d like to pause to say a word about nursing homes, which have been top of mind for the task force from the beginning. ….. We fully appreciate that this measure represents a severe trial for residents of nursing homes and those who love them but we are doing what we must to protect our vulnerable elderly. Needless to say, the moment we believe these restrictions can be relaxed, we will do so.”

State of Ohio

The governor of Ohio has issued his own pronouncements concerning nursing homes. This is done through the Ohio Department of Health. The first order provided for restrictions similar to those stated by CMS above. However, the second order provided for a total ban on visitation to nursing home residents. This order filed on March 13 states in part:

▸ “No visitors of residents shall be admitted to any home, except for end-of-life situations.”
▸ The order also provides that a nursing home must allow residents to discharge from the nursing home at any time and, in accordance with applicable state and federal law, understanding that residents that then return to the nursing home while this order is in effect are subject to the directives concerning medical screening. In other words, nursing home residents are allowed to leave and return. However, they will be subject to healthcare screening upon return.

Nursing Home Reform Act (resident’s rights)

Nursing home residents are provided with a legal right to have visitors under the federal Nursing Home Reform Act. Ohio law also provides for a Bill of Rights for nursing home residents to receive visitors. The federal statute states that a nursing facility must permit immediate access to a resident, subject to the resident’s right to deny or withdraw consent at any time, by immediate family or other relatives of the resident. The statute does not state any exception for reasons of health or safety. However, the declaration of a national emergency invoking the National Emergencies Act, permits these rights to be restricted or waived during this emergency. Nursing facilities of course still have all their workers coming and going every day to the facility. Their support services are necessary for the residents. However, visitations by family and other loved ones are just as necessary for the emotional support of the resident.

There are very good reasons for trying to protect nursing home residents who are more vulnerable to this virus than are healthier persons. There have already been at least 27 deaths in a nursing home in Kirkland, Washington as a result of the coronavirus. Although family and friends want to visit their loved one, they certainly don’t want to be responsible for introducing the coronavirus that might start an outbreak in the nursing home. This will be difficult for many residents to be cutoff from their loved ones. Some with dementia may not understand what is happening. Hopefully, nursing homes will be flexible and creative and assist with alternative methods of contact such as phone calls, Skype or other type of face time technology or just a visit to the window. Most aged nursing home residents are not very competent with technology and will need to have the devices supplied to them with assistance. Nursing homes will have to have sufficient supplies of needed technology for Skype or face time. The window visit will not be possible for residents in upper level floors or an interior window with no outside access.

How long will this go on? How long will families patiently wait while they can’t visit their loved one? I suspect that nursing homes may make some exceptions beyond simply the end-of-life situations. The CDC and CMS recognize a broader “compassionate care” exception than the Ohio Governor who has enacted a total ban on visits except if the resident is dying. As this situation continues, I hope our Governor will realize that it is compassionate to allow limited visitation with medical screening so our loved ones are not deprived of the needed love and attention from their family and loved ones. We need to balance these reasonable restrictions to protect the residents with their need for contact with their family and loved ones. This balance will change on a day to day basis as the state of the coronavirus changes in the United States. I hope that the current national and Ohio ban will at an appropriate time be changed as circumstances become more favorable.

Protecting Your Estate from Nursing Home Costs:

Medicaid eligibility for nursing home costs, Trusts, risks of gifting to children and understanding Medicaid’s gift transfer rule. Presentation by Michael J. Millonig, Attorney At Law, Certified as an Elder Law Attorney by the National Elder Law Foundation, Ohio State Bar Association Board Certified Estate Planning, Trust and Probate Specialist. Time & Place: Miamisburg Community Center, 305 East Central Avenue, Miamisburg, OH on Wednesday, March 25, 2020 @ 10:00 AM to 11:30 PM. Please call for reservations 866-8999