How a Medicaid Planning Attorney Can Protect Assisted Living Residents

Medicaid beneficiary protections
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Assisted living providers might be breaking state and federal laws in refusing to accept Medicaid or in attempting to evict residents without giving them an opportunity to appeal, according to two elder advocacy organizations.

As the landscape of long-term care evolves, the intricacies of Medicaid and its relationship with assisted living facilities have come into sharper focus. With implementing the federal Home and Community-Based Services (HCBS) final rule in March 2023, designed to protect the autonomy of Medicaid beneficiaries, new challenges have emerged for Medicaid applicants who have become newly eligible for benefits. A new fact sheet released by Justice in Aging and the National Academy of Elder Law Attorneys illuminates some pressing issues for assisted living residents highlighted in McKnight’s Senior Living’s article.

What are Home and Community-Based Services (HCBS)?

In 2014, the federal Centers for Medicare and Medicaid changed their Home and Community-Based Services (HCBS) regulations to ensure that Medicaid beneficiaries can receive services and support for daily activities in their home or community rather than in institutions or other isolated settings. These programs serve a variety of targeted population groups, such as seniors and people with intellectual or developmental disabilities, physical disabilities, and mental illnesses.

How Do Assisted Living Facilities Provide HCBS?

To receive Medicaid reimbursement from the federal government for providing home health care and community-based services, states must ensure that the services and support are delivered in settings that meet the new regulations. Medicaid considers the new definition of HCBS as services and support provided in residential settings that ensure a resident’s personal autonomy, community integration, and choice of services received. For instance, an HCBS setting must give the residents privacy in their living or sleeping units that ensure entrance doors are lockable by the individual, with only appropriate staff having keys to doors as needed and a choice of roommate in that setting. In contrast, institutional settings like nursing homes or hospitals providing long-term care services are not HCBS settings.

Individuals receiving care in an assisted living facility can receive support for daily activities, such as dressing, bathing, meal preparation, taking medication, and mobility assistance while maintaining autonomy.

What Types of Issues Exist for Medicaid Beneficiaries in Assisted Living Facilities?

One of the most contentious issues is the refusal by assisted living facilities to accept a change in payment terms from long-standing residents who become eligible for Medicaid benefits and transition from private pay. As the new resource explains, this stance is not only ethically questionable but also on unstable legal grounds. Federal law stipulates that Medicaid-approved residents should not be charged privately once they qualify for Medicaid. Yet, complications arise due to varying state laws and policies.

Certain states permit “duration of stay” provisions, meaning residents might be obligated to pay out-of-pocket for a set period before Medicaid kicks in.

Why Would a Resident Face Eviction Based on Medicaid Status?

Another alarming trend is eviction based on a resident’s Medicaid status. Protections against such actions are woefully inadequate in many states despite federal regulations mandating minimum eviction protections for Medicaid recipients in assisted living facilities. Residents should have comparable protections to those found in landlord-tenant laws, either directly or through equivalent agreements.

But the reality is that states have varied in implementing these rules, leading to significant discrepancies in resident rights across the country.

Planning Ahead with an Elder Law Attorney

Preparing for long-term care is not a mere suggestion but necessary, especially with Medicaid’s complexities. Consulting with an elder law attorney like Michele Ungvarsky before seeking assisted living options is critical. Medicaid planning can feel like navigating a labyrinth for those with substantial assets. Yet, with the right legal specialist, you can protect your financial legacy and ensure access to the necessary healthcare services.

What Is Medicaid Planning and Why Is an Elder Law Attorney Crucial?

Medicaid planning is the legal and strategic process of preparing one’s finances to qualify for Medicaid, a crucial program for many seniors facing the high costs of care in nursing homes or other long-term care facilities.

A Medicaid planning lawyer doesn’t just help with asset protection—they are vital in crafting a strategy that balances financial security with access to necessary long-term care services. They stay abreast of the changing federal and New Mexico state regulations, guiding the elder and their family through any shifts that might impact a Medicaid applicant’s eligibility.

The E-Law Advantage

At E-Law, the commitment is to provide clients with up-to-date and comprehensive support to protect their assets from the cost of nursing home care and ensure independence and freedom as they age. Long-term care costs can be financially burdensome. Yet eligibility for Medicaid is complex, involving income and asset limits, among other factors. Las Cruces Medicaid Planning Lawyer Michele Ungvarsky can assess your situation and determine your eligibility, ensuring you access the benefits you need for nursing home care or in-home support while protecting your nest egg for your loved ones.

Don’t navigate the complexities of Medicaid and assisted living alone—let E-Law in Las Cruces be your trusted partner in securing your rights and future. Request a consultation with our office today.