Nursing homes are entrusted with ensuring that residents’ end-of-life health care decisions for their residents are carried out in accordance with the wishes of the residents, and in full compliance with all applicable laws. This becomes an even more delicate balance when a resident is incapacitated and cannot express what those issues are.
New Yorkers are abuzz with the news that the state has legalized recreational adult use of marijuana effective September 2022. Under the Compassionate Care Act, skilled nursing facilities (SNFs) and assisted living facilities (ALFs) have supported the use of medical marijuana for residents with qualifying conditions since the Act was passed in 2014. With legalized adult use of marijuana, how will health care facilities and their residents be impacted?
Healthcare facilities are often unaware until a resident enters its doors that the individual may have a problematic immigration status that can affect their institutional Medicaid eligibility. Luckily, by filing an application to resolve a resident’s immigration status and/or establishing “PRUCOL” status (i.e. “Permanently Residing in the U.S. Under the Color of Law”), a resident can quickly become Medicaid-eligible, as long as he or she is otherwise eligible for benefits.
While facilities strive to support residents in leading full and enjoyable lives, the issue of sexual enjoyment is often ignored. Research shows that recognizing the importance of sex in residents’ lives and supporting the ability to engage in safe consensual sex, allows facilities to more meaningfully address the needs of their residents and provide the privacy and physical connection that can enhance overall quality of life. At the same time, facilities must ensure the safety of their residents, requiring a delicate approach which both respects the physical autonomy and privacy of residents and mitigates the risks for those particularly vulnerable to harm, such as those who are incapacitated and legally unable to consent to sex. Facilities must also take special care to protect residents from harm from other residents, especially from those with a history of sexual offenses (such as registered sex offenders), and should adopt uniform admission procedures concerning individuals registered with the New York Sex Offender Registry who seek admission to the facility.
WHY SKILLED NURSING FACILITIES
PROCEEDINGS TO PRESERVE THEIR BOTTOM LINE
USING THE SUPREMACY CLAUSE TO OVERTURN MEDICAID DENIALS - A NOVEL AND SUCCESSFUL APPROACH
Your Bottom Line is Our Business
As the end of the pandemic nears, so does the expiration of the Medicaid GIS that provides for “COVID approvals.” With this in mind, it’s important that skilled nursing facilities put systems, policies and procedures in place now that adequately address the likely deluge of both new institutional Medicaid applications and those applications previously approved under the current COVID regulations that at recertification, must be completed vis a vis the production of the 5 year look back. One such procedure that must be implemented is the meticulous calendaring of all Medicaid deadlines. With such stringent deadlines, a successful Medicaid Coordinator must keep a detailed calendar that closely monitors the issuing date and due date of all “pend or deferral letters” as well as when the facility’s correspondence to financial institutions must be sent in order prevail at a Fair Hearing, should the financial institution fail to produce the requested documentation within the Medicaid Program’s prescribed time frame. Additionally, the issuing date and deadline to request a Fair Hearing on all adverse notices from the Medicaid Program must also be fastidiously chronicled so as to preserve the facility’s right to appeal an erroneous denial.
When appealing an adverse Medicaid determination, attorneys will often cite the due process rights enshrined in our Constitution in arguing that appellants’ rights were violated during the Medicaid application process. A less commonly utilized argument, however, and one that has resulted in a number of recent successful Fair Hearing decisions in cases argued by Cona Elder Law, lies in invoking the Supremacy Clause of the United States Constitution based on the supremacy of federal law over conflicting state laws and regulations.
Effectuating the discharge of a nursing home resident can be a complicated and difficult process and it is important to maintain compliance with all newly enacted and existing regulations to preserve residents’ rights and insulate the facility from liability.
We offer creative solutions to ensure the discharge process goes smoothly and that any and all ancillary concerns, such as nonpayment and resident safety, are fully addressed.
Though New York passed the Marijuana Regulation & Taxation Act (MRTA) on March 31, 2021, the state has since been slow to develop and share its plan to roll out the legalization of recreational marijuana and expansion of the medical marijuana program called for under the MRTA. On October 5, 2021, the first public meeting of the state’s Cannabis Control Board was held, providing some long-awaited insight into the details of the roll out and important updates regarding the state’s medical marijuana program.
Cona Elder Law Sets Legal Precedent, Ensures the Right to a Fair Hearing and Secures Balances Due
A Suffolk County Skilled Nursing Facility (SNF) required the assistance of Cona Elder Law to resolve issues concerning an incapacitated resident’s need to remit his sizeable Net Available Monthly Income (NAMI) as calculated by the agency, which were complicated by the resident’s daughter and power of attorney (POA) who had access to and was converting his income on an ongoing basis.