Tag Archives: Nursing home

Should an Appeal Be Filed If a Denial for MassHealth Long Term Care Is Received?

by: Brian E. Barreira, Esq.

Usually when a MassHealth denial is received, it makes sense to file an appeal within 30 days of the denial date.  To have proof that you appealed timely, it is advisable that the appeal be sent via fax to the Board of Hearings.

In many cases, receiving a MassHealth denial means that the MassHealth eligibility worker requested something (known in MassHealth lingo as a “verification”) and did not receive it on a timely basis.  In those situations, submitting a missing verification during the following 30 days is treated as a new application for MassHealth.  Since a MassHealth application is retroactive for no more than 3-4 months, it is important to determine whether the new application will go back far enough.  If not, an appeal should be filed, and if all of the missing verifications are submitted at an appeal, the original application date will be preserved.

If a denial is received for any reason other than missing verifications, filing an appeal may or may not help the situation.  If there were disqualifying transfers, sometimes an appeal would be futile and a return of the assets to the MassHealth applicant makes more sense.  Sometimes, the denial refers to excess assets and there are financial steps that can be taken to “spend down” the excess assets.

What I have been seeing a lot of lately is a denial that is the result of an overworked MassHealth eligibility worker’s mistake.   This is also a just plain ridiculously stupid MassHealth process now in place, where you send your documents to MassHealth on a timely basis, then MassHealth sends the documents out to be scanned for electronic storage and doesn’t let the eligibility worker know when the documents were received, so the worker issues a denial because the worker doesn’t receive the scanned documents back on time.

When a denial is received and you file an appeal, MassHealth’s own regulations require that most appeals be heard and decided within 45 days.  Unfortunately, at present, it now takes the Board of Hearings 4-5 months just to schedule an appeal.  Nursing homes, which are not being paid during that time, are sometimes filing lawsuits against MassHealth applicants and their families before they even get a chance to have their appeal heard.  Thus, when you receive a MassHealth denial for any reason whatsoever, attaining the services of an elder law attorney within the following 2-3 weeks is now extremely important.  It shouldn’t be that way, but the MassHealth system seems to be out of control at this point.

When Are a MassHealth Applicant’s Intentions Considered in Determining Whether a Disqualifying Transfer Occurred?

by: Brian E. Barreira, Esq.

There are many exceptions to disqualifying transfers in federal Medicaid law that the MassHealth program has been required to implement.   If a potential disqualifying does not fit into the categories of permissible transfers, then MassHealth is required to determine what the MassHealth applicant’s intentions were when the transfer occurred.

One exception to a disqualifying transfer occurs when the MassHealth applicant had made the transfer exclusively for a purpose other than obtaining MassHealth eligibility.  This one situation where ignorance of the law can be an excuse for what was done.  Unfortunately, anybody can claim that he/she didn’t know about the law, so hearing officers expect a compelling case to be made, and if there is even a hint of MassHealth planning or knowledge, they can easily rule against the MassHealth applicant.

Another expectation to a disqualifying transfer involves an attempt to receive fair market value or other valuable consideration.

A Primer on Nursing Home Residents Rights under Medicaid Law

by: Brian E. Barreira, Esq.

Approximately 20% of all persons who die every year are residents of nursing homes.  Since a nursing home is the last place of residence for such a large percentage of our population, it is very important that all of the rights of nursing home residents be upheld.

A person who lives is a nursing home is known as a “resident,” not a patient, and it is important to note that the resident is in a nursing “home,” not a nursing “institution.”  Federal law requires that a nursing facility provide “services and activities to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.”  Federal law also requires that a facility must ensure that a resident’s “abilities in activities of daily living do not diminish unless circumstances of the individual’s clinical condition demonstrate that diminution was unavoidable.”  Thus, maintaining a condition, or moderating the rate of decline, should always be a goal of therapy services, even if the resident is not making progress.

Federal Medicaid law requires that a nursing facility “must establish and maintain identical policies and practices regarding transfer, discharge, and the provision of services required under the state plan for all individuals regardless of source of payment.”  Thus, a resident should never be denied the continuation of physical therapy based on the excuse that Medicare will no longer cover it.

Nursing facility residents often are susceptible to transfer trauma in being moved from place to place.  Federal law gives every resident the right to veto any intra-facility transfer.  Medicare certification of a room does not prevent that room from being used for the care of a resident who pays privately or has payment through the MassHealth (i.e., Medicaid) program.

Immediate family or other relatives are not subject to visiting hour limitations or other restrictions unless imposed by the resident.  Federal law requires that a resident’s “immediate family or other relatives” have the right to visit at any time if the resident consents to the visit.  Under federal law, non-family visitors must also be granted “immediate access” to the resident.

Federal law requires that a nursing facility must care for its residents in such a manner and in such an environment as will promote maintenance or enhancement of the quality of life of each resident.”  Federal law also requires that a resident has the right “to reside and receive services with reasonable accommodation of individual needs and preferences, except where the health or safety of the individual or other residents would be endangered.”  A resident has the right to choose activities, schedules, and health care consistent with his or her interests, assessments, and plans of care.