Rules Related to Nursing Home Discharges and Transfers

Add comment March 23rd, 2015 02:10pm Traci D. Blake

Under New York law, there are just (6) ways in which a nursing home may discharge a patient from their facility.

  1. The patient’s health improved and care at the facility is no longer essential.
  2. The discharge is necessary for the resident’s well-being as the facility is unable to adequately address his or her needs.
  3. The patient needs to be discharged for the safety of individuals in the facility.
  4. The patient must be discharged because the health of others in the facility could be endangered.
  5. Non-payment after adequate and appropriate notice to the responsible parties.
  6. The facility is closing and has received approval of its plan of closure from the New York State Department of Health.

Before a discharge can occur, the nursing home must provide adequate verbal and written notice to the patient’s legal representative or immediate family within 30 days of the transfer/discharge. If the discharge or transfer is due to health and/or safety reasons, then the verbal and written notice must be provided as soon as practically possible. Federal law requires the discharge notice to provide the specific regulation that supports the action taken by the facility along with the reason for the discharge/transfer, the effective date, the location of the discharge, information regarding the right to appeal the decision, and the contact information for the State Long Term Care Ombudsman program.


If you file a timely appeal, you have the right to remain in the facility until a final decision is made.


Elderly Parents Who Reside with Their Children

Add comment February 10th, 2015 02:37pm Tracy Connors

If your parent is living with you, can he or she still qualify for Medicaid?  The answer is – absolutely.  Often an ill parent, or one that requires some care, moves in with an adult child.  The child ends up paying many of the parent’s expenses, and it can be a drain on the child’s time, energy, and financial resources.  Also, often one child pays all the expenses and the siblings pay little or nothing.  Asking for money for groceries, gas money for doctors’ visits, and medical co-pays, can feel petty or embarrassing, but those bits and pieces add up.

In New York and some other states, children do not have a legal obligation to pay for a parent’s care.  If your parent lives with you and needs care, there is a high likelihood that your parent could qualify for Medicaid, and have some of the services paid for.  This would reduce the drain on your resources and alleviate some of the resentment that can occur when one sibling ends up doing most or all of the “heavy lifting.”  If your parent is in your home, he or she would qualify for Community Medicaid or Medicaid Home Care, with no “look-back” period.

An Elder Law attorney can advise you on how you could get your parent to qualify for Medicaid, and what the benefits would be.  Often it is compelling, not only because you can save your parent’s money for their future needs and their heirs and beneficiaries, but also because it can help protect your relationships with your siblings.

When and Why to Engage an Attorney for your Estate

Add comment February 4th, 2015 04:26pm Cynthia P. Kuster

eCareDiary, an online web site for caregivers and people needing long term care, recently published a response by Lamson & Cutner partner David Cutner to the question — “Is an Estate Attorney mandatory in setting up an Estate Plan?”  In his response, David discusses how financial assets can be transferred upon the death of the owner without needing to go through probate or administration in court.  An account owner can designate a beneficiary or beneficiaries who will receive the assets directly upon the death of the owner.  Also, he states, “Real estate that is titled as ‘joint tenants with right of survivorship (JTROS),’ or as ‘tenancy by the entirety’ for married couples, will pass to the survivor directly.”

David says that some families may be able to do effective estate planning without the need for an estate planning attorney.  However, there are numerous situations in which an Elder Law attorney would be useful or even essential.  Foremost among them is that simple strategies for distributing assets and avoiding probate upon death do not take into account the likely scenario in which a person needs expensive long term care well before he or she passes away.  In addition, other types of assets may require going through probate, if not anticipated and prepared for in advance.  Complicating factors such as beneficiaries who are minors or disabled, designating how to treat children from a prior marriage, or contentious family situations, would also make it advisable to engage an attorney.

Formulating and executing a plan for (a) how you will pay for long term care, in the likely situation that you need it, and for (b) the eventual disposition of your assets, is a very beneficial achievement.  It can be the key to ensuring that you will receive the best care you can get while you are alive, and that you will have something to leave to your family or others upon your passing.

Here is a link to the full article.

A Cautionary Nursing Home Tale

Add comment January 26th, 2015 03:07pm Cynthia P. Kuster

An article on the front page of the New York Times today entitled “To Collect Debts, Seizing Control Over Patients” discussed a case where a nursing home applied for guardianship over one of its patients.  The patient had previously granted her husband a Power of Attorney, and he claimed that the nursing home was bringing the action as a strong-arm tactic to get paid.  His wife’s copayments had risen dramatically and he was disputing the calculation.  This is not the only case of this type; nursing homes do occasionally apply for guardianships for incapacitated patients.

The case was messy, and highlights two important points.  First, it is crucial for you to have a Power of Attorney in place.  Then if you become incapacitated, you have a trusted agent in place who will look after your interests.

But second, it also highlights the fact that nursing homes want and need to be paid in order to stay in business.  Nursing home care is expensive for the nursing home as well as for the patient.  If a patient stops paying the nursing home, the nursing home cannot kick the patient out, and they are in a real bind.  Applying for guardianship is time-consuming and expensive; no nursing home undertakes such an action lightly.

The guardianship application of the nursing home may or may not have been in the best interest of the patient, and appeared to be undertaken in large part so the nursing home could get paid.  The patient was protected, however, by the Power of Attorney she had in place.  Both points are important: first, you need to protect yourself with a Power of Attorney; and second, if you need nursing home care, be aware that the nursing home needs to be paid and understandably, will take action to make sure they are.

Elder Law strategies are designed to protect your assets, while enabling you to receive long-term care and also – through private funds or Medicaid –to make the required payments to a nursing home.  These are key aspects of the Elder Law practice of Lamson & Cutner.

Medicaid Recertification and Pooled Income Trusts

Add comment January 21st, 2015 12:55pm Tracy Connors

Generally, once a year every Medicaid Home Care or Community Medicaid recipient must recertify for their Medicaid services.  The purpose of recertification is to allow the Medicaid system to verify that the recipient is alive, and to determine that the recipient remains eligible for benefits.  This is why Medicaid requires proof of the recipient’s current resources, income, and payment of health insurance premiums.

When a Medicaid recipient is using a Pooled Income Trust to protect surplus income, proper documentation regarding the trust will be required in connection with recertification. Documentation should include copies of the Master Trust, the original Joinder Letter, the Approval Letter, and a Verification of Deposits from the Pooled income Trust entity showing that the Medicaid recipient has been depositing their surplus monthly income into the trust account.

Some Medicaid recipients or their family members are able to handle the recertification process on their own.  However, many find that they need professional assistance.  An Elder Law firm can prepare and file the recertification and relieve the stress on the Medicaid recipient and their family.

Don’t be “blindsided”

Add comment January 14th, 2015 09:56am Cynthia P. Kuster

The Wall Street Journal’s MarketWatch section recently ran an article about actor Rob Lowe being “blindsided” when his parents needed long-term care. Like most people, he did not realize how much time, effort, and money it takes to care for someone with chronic needs, until it happened to him. He stated in the article that having “the talk” with your parents is extremely important, even if you or your parents are initially reluctant.

One important way you can begin the process is to have your parents execute a Power of Attorney. You can explain to them that, should something happen, this document will enable you to take care of their financial obligations, and – most importantly – assist them with long-term care planning. They can sign the document and put it in a safe place until needed. Then, in case of an emergency, they and you are prepared. If, for example, your father does not have a Power of Attorney and he has a debilitating stroke, you would not be authorized to manage his financial affairs. You would need to go through an expensive and frustrating guardianship proceeding at the very time you need most to be focusing on his care.

Foreseeing the issues that are most likely to affect seniors and the disabled, and preparing their clients to be able to handle them, is the work of Elder Law attorneys every day. Lamson & Cutner has deep experience in this field, and our clients tell us often how valuable it is to them. posts article authored by David Cutner

Add comment January 6th, 2015 05:06pm Cynthia P. Kuster

L&C partner David Cutner recently wrote an article, “Top 5 Strategies to Protect Your Money from Medicaid,” that was published on . The article is an excellent introduction to some of the ways that seniors can obtain costly long-term care and other health care services without first being required to “spend down” their resources and face financial ruin and an uncertain future. is “a community of caregivers facing the challenge of caring for an elderly loved one. Their goal is to provide a comfortable meeting place for the free exchange of ideas with knowledgeable professionals, responsive experts, and people just like you.” This excellent website provides information on a wide variety of topics related to caring for the elderly.

There are numerous proven, legal, and cost-effective strategies to help seniors avoid financial ruin and still get the home care and/or nursing home care that they need. These strategies can be complex, however, so using the services of a high quality, service-oriented Elder Law firm gives you the best opportunity to obtain a good outcome for yourself and your family. The article can be viewed here:

New Year, New Numbers

Add comment December 30th, 2014 12:24pm Julia M. Greenberg

January 1st is right around the corner, and with the new year comes updated Medicaid Income and Resource standards and eligibility limits for 2015.

GIS 14 MA/029: 2015 Medicaid Only Income and Resource Levels and Spousal Impoverishment Standards was recently published. It advises us of the income and resource levels used in determining Medicaid eligibility starting January 1, 2015.

The GIS can be found here:

The following figures are some of the most relevant updates for those applying for Medicaid benefits and their spouses.


  • For a single person: $14,850
  • For a household of two: $21,750

Monthly Income for those residing in the community:

  • For a single person: $825 plus the $20 disregard = $845 per month
  • For a household of two: $1,209 plus the $20 disregard = $1,249 per month

Community Spouse Resource Allowance Maximum (CSRA): $119,220
The CSRA Minimum remains at $74,820

Minimum Monthly Maintenance Needs Allowance (MMMNA): $2,980.50

Personal Needs Allowance for certain waiver participants subject to spousal impoverishment budgeting: $384 per month

Home Equity Limit: $828,000

The full GIS can be found here:

We will keep you posted as additional figures are published.

We wish all of our readers a Happy and Healthy New Year!

David Cutner appears as guest on eCareDiary Radio Show

Add comment December 22nd, 2014 10:23am Cynthia P. Kuster

Founding Partner David Cutner was interviewed on December 16, 2014, on eCareDiary’s Radio Show. The “Q&A” focused on issues relating to planning and paying for long-term care. It was quite a lively discussion. If you missed the radio show when it was on the air, you can still listen to it by going to

At Lamson & Cutner, we believe that seniors should be aware of their rights and options regarding long-term care, which is so expensive. Families and caregivers need to be in the know as well. Listening to the radio show might be an easy way to get started.

David Cutner named as eCareDiary Expert

Add comment December 17th, 2014 10:55am Cynthia P. Kuster

We are pleased to announce that founding Partner David Cutner has been invited to serve as an expert for the “Expert Q&A” section of the eCareDiary website. eCareDiary describes itself as
“a web community created based on the founders’ experiences as caregivers for their parents … [it is] a centralized place to help families with care coordination, offering comprehensive online tools, expert content and resources.” Here is a link to the eCareDiary website:

“Expert Q&A” is an interactive online community within It is intended to engage family caregivers to ask questions about any aspect of caregiving and eldercare, and to create a collaborative site for weighing options. The caregivers can respond to the experts’ answers with their own thoughts and insights. Numerous areas of expertise are included, such as Dementia, Care Providers, Cancer, Depression, Finances, Fall Prevention, Legal, Long Term Care, Successful Aging and End-of-Life issues.

Aging is a natural part of life, but it comes with complications. Having experts available to answer questions in a variety of fields can be extremely useful. Lamson & Cutner can answer your Elder Law questions on the eCareDiary web site, or by contacting us directly.


Add comment December 8th, 2014 12:29pm Kristina A. Slifkin

CaringBridge is an invaluable resource for families experiencing a major health challenge with a loved one (i.e. hospitalization, home with an illness). CaringBridge allows you to create a website (at no charge) to keep everyone in the loop with updates on health status, test results, visiting hours and other related news. You can gain access to relevant information regarding the loved one, share updates and offer words of encouragement. You can also use it as a vehicle to coordinate and schedule tasks such as meal delivery and arrangement of transportation. It’s a non-profit organization that serves more than 500,000 people each day. The organization is committed to using technology to amplify love, hope and compassion.

Please visit for more information.

Recalculating Your 2015 Pooled Income Trust Monthly Deposits

Add comment December 1st, 2014 11:10am Tracy Connors

Good news for approximately 64 million Americans who receive monthly Social Security and Supplemental Security Income (SSI) benefits: there will be an increase of 1.7% for 2015. For New York State Community Medicaid recipients, this also means they need to recalculate the monthly deposit to their pooled income trusts.

When New York State Community Medicaid recipients receive a Social Security Award letter, pension letter, or any other official information which indicates there has been an increase in their monthly benefits, they need to recalculate the monthly deposit to their pooled income trusts. The Medicaid system receives notification of the increases to Social Security benefits and applies them to each recipient’s budget.

To calculate the additional surplus that needs to be deposited to the pooled income trust, the Medicaid recipient should add the gross amounts of their monthly income such as Social Security, pensions and other forms of income, then deduct their monthly supplemental health insurance premium and Medicare Part B premium, and also subtract the 2015 Medicaid allowance. We suggest cushioning the net result with additional money in case there are any unexpected increases in income. The end result of these calculations will be the amount the recipient should deposit every month into the pooled income trust.

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