By JUDD MATSUNAGA, Esq.
It’s that time of year again — Nisei Week! For 20 plus years, Nisei Week has always meant hosting Elder Law Seminars. My primary goal was and still is to help keep Japanese American families out of probate court with living trusts. My secondary goal was and still is to educate seniors of their legal right to protect their home and savings and qualify for Medi-Cal to pay for long-term care.
However, because of the pandemic, this is the second Nisei Week where I am unable to host my seminars. So instead, I am writing two **Rafu Shimpo** articles to briefly cover what you may have heard at one of my seminars. This first article will cover: (1) How to survive a hospital stay; (2) How to pay for long-term care; and (3) In-Home-Supportive-Services (IHSS). The second article will cover wills, trusts and power-of-attorneys.
If Dad’s in the hospital, here’s what you need to know to help him survive the hospital stay. Did you know that “medical errors” are the third-leading cause of death in the U.S.? (Source: **U.S. News,** May 3, 2016) According to a Johns Hopkins study, the top three causes of death in the U.S. are (1) heart disease; (2) cancer; and (3) “medical errors,” just above “chronic respiratory disease.”
Dr. Martin Makary, head professor of surgery at Johns Hopkins University School of Medicine, defines medical errors as those that harm patients such as lapses in judgment, skill or coordination of care; mistaken diagnoses; system failures that lead to patient deaths; and preventable complications of care.
Furthermore, Dr. Makary suggests the estimates are low because physicians often don’t report mistakes. The Office of Inspector General (U.S. Department of Health & Human Services) reported that 86% of patient harm was not reported by hospital staff as they did not perceive the event as reportable. Today, with COVID-19 deaths so acceptable, it’s easy to blame the pandemic.
Now, if your son or daughter is a doctor, please don’t write or call me (I’m just the messenger). In an article found in www.workingnurse.com, “How Nurses Can Avoid the Medical Error Nightmare,” registered nurse Sue Montgomery wrote:
Medical errors are a nurse’s worst nightmare. Most of us are familiar with the knee-buckling, blood-draining panic that sweeps through you when you realize you’ve made a mistake, whether it’s the wrong med, the wrong patient or the wrong dose. The possibilities for error are endless … We’re the shortstops of healthcare: We see the most action and we drop the most balls.
Dr. Makary wrote while “human error is inevitable,” there are strategies that should be deployed to reduce the numbers of deaths from medical error. One such strategy is for the patient’s advocate, e.g., spouse, child, friend, to keep a logbook. If you want to make sure the nurse (or nurse’s aide) stays “on top of his/her game,” write down every intervention that they are doing.
If a nurse sees that you are writing down their name in your logbook, guess what? You’re going to get better care. They must think “I better do my job the way I’m supposed to or there could be a lawsuit.” And then they will start administering medications at the right time in the right dose.
The whole hospital staff will notice that you are keeping a logbook. All of a sudden, you’re going to get better and more accurate attention. Doctors and nurses will be sure to wash their hands, keeping their patient free of infectious diseases because they don’t want to get sued and have your logbook entered as evidence of their total incompetence.
Eventually, if Dad survives the hospital stay, the hospital will want to discharge him. If you are not able to care for Dad at home, they may send him to a nursing home or rehab facility.
Did you know that Medicare will not pay for long-term care past the first 100 days? After that, it’s private pay, about $10,000-20,000 per month, until Dad runs out of money.
That’s why you need to look into qualifying for Medi-Cal. But, if you are looking to place Dad into a nursing home and want Medi–Cal to help pay for it, you must select a facility that is licensed by Medi-Cal. Medi-Cal will not pay for board and care. Medi-Cal will not pay for assisted living (some exceptions). Fortunately, most California nursing homes participate in both Medicare and Medi–Cal.
Sure, you want Dad placed in the top-rated facility. You can find the “top-rated” nursing homes in town online. The most popular rating site is Care Compare, which is operated by the federal Centers for Medicare and Medicaid Services (CMS). However, it is important to select a nursing home that is close and convenient to the person(s) who will be visiting Dad most often.
Residents who have frequent visitors often recover faster, are happier and healthier from the love and attention received and tend to receive a higher quality of care. When family members and friends are close enough to visit frequently, they can monitor the resident’s condition, participate in care planning and respond quickly to emergencies.
Therefore, the “best” nursing home is the home where family can visit the most often. You, the family member(s), are the best advocate to ensure your loved one gets proper care. The nursing home is getting paid good money to take care of your loved one, but you need to be a good advocate to ensure they get the proper care they need and deserve.
Even if the nursing home told you that Dad doesn’t qualify for Medi-Cal because they have too much money (or property), you are legally allowed to convert non-exempt assets into exempt assets, “spend-down” excess cash and savings, or transfer them to a trusted adult child(ren) before they become penniless. It’s legal!!! Just don’t expect Medi-Cal to advertise it.
“But Judd, won’t that trigger a three-year waiting period?” No, not if you seek competent legal advice from an elder law attorney with experience with the Medi-Cal rules and regulations.
The “three-year waiting periods” are penalty periods of ineligibility triggered by families who transfer assets out of Dad’s name without seeking Medi-Cal advice from an attorney.
Finally, if Dad is able to come home but needs assistance from a caregiver, there is a little-known public program called In-Home Supportive Services (IHSS). The goal of the IHSS program is to allow you to live safely in your own home. IHSS will allow you to pay your adult child or you can hire a caregiver from a home-care agency. Since IHSS is run by the Department of Social Services, all you have to do is first qualify for Medi-Cal.
Services almost always need to be provided in your own home, or the home of a relative such as a son or daughter. Most IHSS recipients can hire, fire, and supervise their own caregivers under the Independent Provider (IP) mode of service. So, IHSS will pay adult children, friends, family members and in some instances, spouses, for help with housework, meal preparation, and personal care.
“But Judd, if we qualify for Medi-Cal, won’t the state take Dad’s home after he passes?”
Possibly! The good news is there are legal ways to protect your home from a future Medi-Cal recovery claim. The law clearly states that if the property is not subject to probate in California, the state cannot recover it. So the solution is simple – if properly structured, living trusts avoid probate, thus avoid Medi-Cal recovery.
To be continued . . .
Judd Matsunaga, Esq., is the founding partner of the Law Offices of Matsunaga & Associates, specializing in estate/Medi-Cal planning, probate, personal injury and real estate law. With offices in Torrance, Hollywood, Sherman Oaks, Pasadena and Fountain Valley, he can be reached at (800) 411-0546. Opinions expressed in this column are not necessarily those of The Rafu Shimpo.