The Case for Making Home Care the First Option for Seniors

*By: Anthony J. Enea, Esq

During the approximately twenty four (24) years I have been representing seniors I have yet to have a senior say to me "Gee, Anthony, I just can't wait to go to the nursing home". More often than not, the mere mention of the potential admission to a nursing home creates a significant amount of angst and apprehension. Fortunately, New York State (NYS) has had a significant level of commitment to allowing seniors to "age in place" and thus, remain in their homes. NYS has several home care programs, with differing services, providers and reimbursement rates. In the following pages I hope to highlight for you the varies home care options available to seniors and their families.

In determining whether "home care" is a viable option, there are a number of issues that need to be preliminarily addressed. For example, (a) Can the clients be safely maintained and cared for at home? (b) How can the clients care be financed? (Is long term care insurance, private pay, Medicare, Medicaid or supplemental health insurance an option?); (c) What level of home care does the client require? (Does the client need assistance with all activities of daily living?) (Does the client need any skilled care or is custodial care sufficient?); and (d) Which type of home care providers provide the required services, and will accept reimbursement from the available source of financing?

Unless the client has long term care insurance or a significantly large pool of personal assets to finance the cost of home care which averages $6,000 to $8,000 per month (for 12-24 hours per day)in the New York Metropolitan area, the primary funding source remain Medicaid or private payment.

Before I review the three (3) categories of Medicaid home care services, I want to review, some of the important distinctions and similarities between the Medicaid home care and Medicaid nursing home programs with respect to eligibility. First and foremost, it is important to remember that the transfer of asset rules do not apply to the Medicaid home care program. Thus, any gifts (uncompensated transfer) made by the applicant will not impact his or her eligibility. Additionally, "spousal refusal" is available in those home care cases where the spouse of the applicant has income and resources greater than the amounts permitted by Medicaid. Medicaid is a program which has both income and resource eligibility requirements, while Medicare only requires that you be 65 years of age and older, and have paid into the social security system. The spousal impoverishment rules permit the applicant to transfer his or her assets to his or her spouse, who can then refuse to contribute his or her resources and income towards the cost of the Medicaid applicants care. Finally, in recent years an applicant for home care services has had the option of contributing his or her income in excess of the amount permitted by Medicaid to a "pooled trust" (administered by a not-for-profit) which will in turn pay the applicant's bills for various living expenses from the excess income contributed to the pooled trust. Because of the aforestated eligibility provisions, Medicaid home care has become significantly more accessible to a larger pool of potential applicants.

Generally Medicaid divides home care services into three (3) categories:

1. Personal Care Services (a custodial not skilled level of care)

2. Medical Home Health Services (skilled care); and

3. Non-Medical Services (Supportive services to keep the client at home).

1. Personal Care Services are divided into three (3) levels:

Level I services encompass the performance of "nutritional and environmental support functions". For example, Level I services would include (a) the making and changing of beds; (b) dusting and vacuuming; (c) light cleaning of kitchen, bedrooms, and bathrooms; (d) Preparations of simple meals; (e)dishwashing; (f) shopping and laundry; (g) payment of bills and running errands.

Level I services can be authorized for a maximum of eight (8) hours per week, with an exception of up to twelve (12) hours per week if the client necessitates the preparation of meals.

In the counties outside of New York City, Level I is only offered in conjunction with Level II home care. In New York City Level I is provided as a stand alone.

Level II of the Personal Care Services Program is commonly known as the Home Attendant or Personal Care ("PCS") Program. PCS is a custodial level of care which requires the prior approval of Medicaid. It is not covered by Medicare. The applicant must need assistance with a minimum of two (2) activities of daily living (ADL's). ADL's commonly refers to feeding, bathing, toileting, ambulating, transferring and grooming. In addition, to the performance of the Level I services described above, and the assistance with ADL's, the Level II services would also include:(a) bathing the client in bed, tub or shower;(b) dressing the client or assisting with dressing;(c) grooming, including hair care and shaving;(d) toileting and assistance therewith;(e) assistance with walking;(f) assistance with transfer from bed to chair or vice versa; (g) preparation of modified diets (low salt, fat, or sugar); (h) administration of medication "by the client", including prompting of client to take medication; (i) Assistance with the use of medical supplies and equipment.The hours of PCS care provided can be from 4 hours per day to around the clock (split shift)care.

In order to receive PCS, the home care patients health and safety must be able to be "maintained in the home". This requires the patients's medical condition to be "stable" (not expected to suddenly deteriorate or improve), and does not require frequent medical or nursing judgments to determine change in the care plan. Additionally, the care needed is not a skilled level of care, however, assistance at home is needed to prevent a health and safety crisis from developing.

As can be seen from the above, both a significant and highly comprehensive form of home care can be provided to seniors and the disabled through the PCS program provided by Medicaid.

2. Medicaid Home Health Services

Skilled home health care is provided in New York by Certified Home Health Aide Services ("CHHAs") and the Lombardi Long Term Home Health Care program ("LTHHC" or "Lombardi").

Unlike CHHAs a personal care aide, the home health aide performs health care tasks under the supervision of a registered nurse or licensed therapist, who may also assist with personal hygiene, housekeeping and other related supportive tasks.

The following are illustrative of some of the tasks performed by home health aides which cannot be performed by personal care aides:

(A) Preparation of meals in accordance with complex modified diets (only a nurse can add oral medication to food);

(B) Assist with tube feeding, including the assembly, cleaning and setting of equipment

(C) Undertake daily monitoring of patient, taking temperature, weighing and testing for sugar level in urine;

(D) Apply topical medication to patient;

(E) Monitor vital signs;

(F) Performance of maintained exceed.

It is important to note that CHAAs accept both Medicaid and Medicare. However, Medicaid requires that the home health services be provided pursuant to a physicians written plan of care. CHAAs do not require "prior approval" for Medicaid. They can be provided with the Medicaid application pending. With respect too the CHAAs services covered by Medicare, they will usually only cover the cost of services for about 45 days upon a persons discharge from a hospital.

Lombardi Program/LTHHC

Lombardi is strictly a Medicaid program which provides long term skilled care in the home setting. The care provided is considered to be the equivalent of nursing home care at home for a chronically ill patient who would otherwise qualify for nursing home services. Lombardi provides both skilled and waivered services, along with personal care. It is often referred to as the "nursing home without walls program". Lombardi requires that the cost of all the services provided to the patient not exceed seventy-five (75) percent of the cost of nursing home care for the client. With Lombardi, nursing home budgeting and the spousal impoverishment rules are available. The community spouse can also execute a "spousal refusal". The transfer of asset rules do not apply to the Lombardi program.

The "waivered" services covered by Lombardi include, but are not limited to: (a) home maintenance tasks; (b) housing improvement; (c) transportation to social events; (d) respite care; (e) social day care; (f) social work services; (g) respiratory therapy and (h) nutritional counseling. "Waivered" services are originally covered by Medicaid, (not medical) however, the state has obtained a "waiver" from the federal government to provide them as part of a special package of services.

In conclusion, while the programs and services discussed above comprise the heart and soul of the Medicaid home care programs available to seniors and the disabled, there are still other the programs available which perhaps will be the subject for discussion on another occasion. My goal was to provide a basic understanding of the scope and breadth of the home care programs and services available; and to illustrate that these programs and services make home care in many cases the first and perhaps, best option available to seniors and the disabled.