Glossary of Terms

Plenary guardian with total authority over personal and property matters;
Guardian of the person with authority only over personal matters such as medical decisions and residential questions; and
Guardian of the estate with authority over property only.

Providers under contract Under all Medicare+Choice plans, except private fee-for-service (PFFS) plans, physicians and other health care providers who contract with a plan may not balance bill. However, a contracting physician or other health care provider under a PFFS contract that establishes a payment rate for services may balance bill (i.e., charge) for their services an amount not to exceed, including deductibles, coinsurance, copayments or other balance billing, 115% of such payment rate.

Providers not under contract Under all Medicare+Choice plans, except Medicare+Choice medical savings accounts (MSA) and PFFS plans, noncontracting physicians or other health care providers may not balance bill, but must accept as payment in full from a Medicare+Choice plan enrollee, the amount that would have been paid under traditional Medicare fee-for-service arrangement. However, a noncontracting physician or other health provider under an MSA or PFFS plan may balance bill without limitation.

(1) All nonexempt resources belonging to either member of the married couple will be pooled together regardless of who owns them, and regardless of marital property laws (e.g., equitable distribution laws, community property laws).
(2) The community spouse is entitled to an amount (community resource allowance), subject to paragraph 3 below, equal to the greater of:

• $19,824 (2000), as adjusted annually for inflation, or more, if a greater minimum amount is set by the state, or
• one-half the total resources of the couple to a maximum of $16,824 (2000), as adjusted annually for inflation.

(3) A state may establish a dollar amount which is both the minimum and maximum resource amount. Under the foregoing formula, $84,120 represents a maximum and $16,392 represents a minimum on the CSRA. A state, by opting to use the maximum resource amount, can establish $84,120 as both a maximum and minimum. A state may opt to select a spousal share amount which, in the alternative, is that sum (e.g., New York, $74,820) or a greater figure equal to one-half of the couple's resources, but not to exceed the maximum figure of $84,120.
(4) The CSRA amount is determined according to resources owned by the couple on the first day of a continuous period of institutionalization regardless of whether the institutionalized spouse applied for Medicaid at the time. (See also Snapshot rule/Medicaid.) Either spouse may ask the Medicaid agency to complete an assessment of their resources as of that time. The CSRA can be increased above the formula amount in two ways:

• Either spouse can request a fair hearing in which to demonstrate that a larger amount of resources must be protected (i.e., transferred to the community spouse from the institutionalized spouse) to generate income needed to bring the community spouse's income up to the minimum monthly maintenance needs allowance.
• A court order granting a larger amount of resources for the community spouse; the order must be honored by the Medicaid agency.

Continuing Care Retirement Community (CCRC)

This type of housing alternative, sometimes called a life care community, generally requires that an individual be able to live independently upon becoming a resident in the community. As a resident begins to need more assistance, specific additional services are made available. Most CCRCs offer three basic levels of housing on an as-needed basis: fully independent living, assisted living (personal care services) and skilled nursing care.

The basic idea of a CCRC is that once an individual becomes a resident, he/she never has to move again because any housing type and personal care services he/she will probably ever need are provided within the single campus setting. A CCRC guarantees housing and care across the continuum in that one community.

Generally, a CCRC will charge an entrance fee as well as a monthly payment for its residential, leisure and nursing services. In some cases, health care and personal care services can be paid for on an as-needed basis. The entrance fee, formerly nonrefundable, now is generally refundable on departure under a variety of specified conditions.
Basically, there are three types of CCRC contracts:

Extensive contract Covers shelter and residential services, amenities (e.g., swimming pool, possibly tennis courts and other types of recreation facilities) and unlimited long-term nursing care. The entrance fees and the monthly costs are usually higher than those under modified or fee-for-service contracts.

Modified or fee-for-service contract Provides shelter, residential services and amenities, plus a specified amount of nursing care, which the resident can obtain on an unlimited basis provided he/she pays for it at a daily or monthly nursing care rate.

Fee-for-service continuing care contract Covers shelter, meals, residential services and amenities, and in addition emergency and short-term nursing care. Access to long-term nursing care is provided only upon a daily nursing care rate.

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1. Individuals subject to recovery
Recovery must be sought by the state from the following three categories of persons:

A. Permanently institutionalized individuals

These are individuals in nursing facilities, intermediate care facilities for the mentally retarded or other medical institutions where the state has determined that the individual cannot reasonably be discharged from the facility and return home.

B. Individuals age 55 and over

These individuals received from the state, through Medicaid, nursing home facility care, home and community-based services and related hospital and prescription drug services.

C. Individuals with certain state authorized insurance programs

These individuals received Medicaid assistance under provisions of a state law (not recognized by Medicaid law) that permits a disregard by Medicaid of assets because of purchase of long-term care insurance, known as a Robert Wood Johnson Foundation insurance plan. Exempted are those individuals in five states with such state laws, recognized by Medicaid law, that were in effect on May 14, 1993. These states are California, Connecticut, Indiana, Iowa and New York.

2. Assets subject to recovery
The assets of these three categories of individuals which are subject to state recovery are set forth below.

Recovery must be sought from the estates of these individuals, as the term is defined by state probate law. States may adopt a broader definition of estate than is defined in state probate laws to include jointly held property and other property in which the recipient had a legal interest at the time of death. All states, except the five states mentioned in section 1C above, are mandated to apply this broader definition to any individual who received Medicaid nursing facility and other long-term care services under a Robert Wood Johnson insurance plan.

Recovery cannot occur against an individual's assets until after the death of the surviving spouse, and until there are no blind or disabled children or children under age 21.

If a lien has been properly imposed upon a Medicaid recipient's homestead, the state must seek recovery upon the sale of the liened property, or from the estate of the recipient after he/she dies. In either case, the state may not seek recovery if the Medicaid recipient's spouse is alive, if blind or disabled children or children under age 21 are alive, nor if certain siblings or caretaker children reside in the house.

Recovery from a spouse who survived the Medicaid recipient is neither required nor authorized by Medicaid law. However, some state laws do authorize recovery from a surviving spouse's estate, though these laws have been challenged as being beyond the scope of and inconsistent with the Federal law.

In situations where recovery would work undue hardship, Federal law requires states to waive it.

Hospice Care/Medicare

Hospice care is designed for terminally ill persons and is covered by Medicare Part A. Hospice programs will care for patients in a hospice facility or whenever possible in their homes and emphasize relieving pain and managing symptoms rather than undertaking curative procedures. An individual may elect to receive hospice care rather than regular Medicare benefits for the management of his/her illness. For routine home care, Medicare coverage is available for the level of care that is reasonable and necessary. For periods of crisis, Medicare will cover continuous home care, including nursing for up to 24 hours per day. The beneficiary need not be homebound. During a person's lifetime, Medicare pays for up to two 90-day periods of hospice care followed by an unlimited number of 60-day periods that the individual elects to receive hospice, provided the following four conditions are met:

• The attending physician — either in the employ of the hospice, or under contract with the hospice as an independent physician or part of an independent physicians group — and the medical director of the hospice must establish and periodically review a written plan for hospice care and at the beginning of each of the successive periods mentioned above, certify that a patient is terminally ill, i.e., that the patient's life expectancy is six months or less.
• The patient must elect to receive care from a hospice instead of standard Medicare medical benefits for the terminal illness. A patient may elect to revert to standard Medicare benefits, but will then be required to pay any applicable deductibles and copayments.
• Care must be provided by a Medicare-certified hospice program.
• The individual must be eligible for Part A benefits.

If these conditions are met, Medicare will pay for the following services:

• nursing services;
• doctors' services;
• drugs, including outpatient drugs for pain relief and symptom management;
• physical, occupational and speech-language therapy;
• home health aides and homemaker services;
• medical social services;
• medical supplies (including drugs and biologicals) and appliances;
• short-term inpatient care including respite care, procedures necessary for pain control, and acute and chronic symptom management;
• training and counseling for the patient and family members; and
• any other item or service which is specified in the plan mentioned above and for which payment may otherwise by paid by Medicare.

There is no deductible for these hospice care benefits. Copayments, however, are required for two benefits:

• prescription drugs for pain relief and symptom management, for which patients can be charged 5% of the reasonable cost, but no more than $5 per prescription; and
• respite care, for which a patient can be charged about $5 per day, depending on the area of the country.

Medicare+Choice organizations are not required to provide hospice services but may do so on a voluntary basis

Income Cap States/Medicaid

See also Medically needy /Medicaid; Optional categorically needy/Medicaid; Spend down/Medicaid.
Several states, referred to as income cap states, do not have a medically needy program serving nursing facility residents. In these states individuals are not allowed to spend down to the SSI income level (i.e., cap) to become eligible for Medicaid-covered nursing home care.

These states avail themselves of an optional Medicaid program termed the optional categorically needy program under which individuals are provided limited nursing facility coverage. Under this program individuals qualify for Medicaid nursing home coverage if their countable income does not exceed a cap of a prescribed percentage, usually 300%, of the SSI benefit for one person. The cap is categorically fixed and severe: one dollar of excess income above the cap will disqualify the individual. An individual is not permitted to spend down for medical expenses, nor can he/she forego collection of a pension, Social Security benefits or interest income in order to fall within the income cap.

A possible method for reducing the income of an individual seeking to qualify under the optional categorically needy program, also commonly referred to as the 300% program, is to obtain from a state court a Qualified Domestic Relations Order which allocates pension payments to the community spouse. The community spouse as the payee under such order arguably is the beneficiary of the pension, and payments to him/her would constitute his/her income under the name-on-the-check rule, not income of the institutionalized spouse who was the original pensioner.

Another method of qualifying for the optional categorically needy program is available under the provisions of OBRA '93. With this law Congress allowed individuals in income cap states to become eligible for Medicaid nursing home assistance by putting their income (e.g., pension, Social Security benefits) into a so-called Miller trust. During the Medicaid recipient's lifetime, all but a small portion of the money in the trust must go toward paying the nursing home bill. If any money remains in the trust after the recipient's death, it must be paid to the state, up to the amount of Medicaid assistance that was rendered.

The income cap states are Alabama, Alaska, Colorado, Delaware, Idaho, Mississippi, Nevada, New Mexico, Ohio, South Dakota and Wyoming.

• admit and discharge oneself;
• control one's own medical care and be informed of all aspects of one's health;
• choose his/her own physician of own choice and refuse treatment;
• self-administer drugs;
• be free of restraints (physical or chemical);
• see all his/her medical records;
• receive notice of any decision to transfer or discharge or change a roommate;
• manage own financial affairs;
• receive visitors of one's choice as well as refuse visitors; and
• have access to a private telephone.

Transfers or discharges are permitted only under three situations:

• if necessary for the resident's welfare and if her/his needs cannot be met in the facility;
• if a resident's health has improved and he/she no longer needs care; or
• if a resident's presence or nonpayment of charges endangers the health and safety of other residents in the facility.

All residents, whether private pay or receiving Medicaid assistance or Medicare benefits, are entitled to due process, namely, a fair hearing. In this connection, the procedures for Medicaid fair hearings apply to nursing home transfers and discharges. The right to a pretransfer hearing is mandated except for emergency transfers subject to a resident's right to a bedhold pending a post-transfer hearing.

The law requires every resident to undergo a process known as preadmission, screening, and annual resident review. Prior to admission there is to be a functional evaluation, and at the time of admission a comprehensive care plan must be developed. This plan must be prepared annually with a physician and nursing team.

The law contains a number of other significant requirements. Nursing homes may not require as a condition for admission or for continuing stay a guarantee of payment from a third party. They must provide coverage by a registered nurse, not less than eight hours a day, seven days a week. Aides must go through a training program and pass a nursing aide registry certification. States are required to create a nursing aide registry to train, certify and maintain a listing of all approved workers.

Pourover Will

The testator provides in his/her will that designated assets will be paid over and distributed to a previously established trust.

• eligibility to contribute to a Roth IRA is subject to special adjusted gross income limits;
• contributions to a Roth IRA are not deductible;
• Roth IRA contributions may be made after the owner has attained the age of 70½; and,
• qualified distributions from a Roth IRA are not included in gross income or subject to the minimum distribution rules if certain conditions are met.

As with a traditional IRA, the income earned on the assets of a Roth IRA is tax free prior to distribution.
Contributions to a Roth IRA are subject to two limitations:

Dollar limitation Under this a contribution cannot exceed the maximum amount allowed after the deduction for a regular IRA (the lesser of $2,000 or 100% of an individual's compensation), reduced by any contributions that an individual may have made for a taxable year to any other individual retirement plan(s) maintained for the individual's benefit.

Adjusted gross income limitation This is based upon an individual's modified adjusted gross income. The Roth IRA contribution for a taxable year is phased out after adjusted gross income reaches certain levels. The amount an individual can contribute to a Roth IRA declines when his/her income reaches $95,000 and phases out entirely when the adjusted gross income reaches $110,000. For married individuals filing jointly, the phase out occurs when their adjusted gross income is between $150,000 and $160,000, and for married individuals filing separately, the phase out occurs when the adjusted gross income is between $0 and $10,000.

An individual may make a regular contribution to both a traditional IRA and a Roth IRA for a taxable year. In this case a maximum contribution limit for a Roth IRA is the lesser of the amount determined under the dollar limitation reduced by the amount contributed to a traditional IRA for the taxable year; or, the amount determined under the adjusted gross income limitation. Eligible taxpayers may contribute to both a Roth IRA and a deductible IRA by dividing their contribution between the two. But in no event may an individual's combined total annual contributions exceed $2,000.
Withdrawals from a Roth IRA are tax exempt only if: the account has been in existence for at least five years and the taxpayer is at least age 59½ or disabled; or a distribution of no more than $10,000 is made to finance the first-time home buying expenses of a taxpayer, his/her spouse or children, grandchildren, or ancestors of a taxpayer or spouse.

• intravenous injections,
• tube feeding,
• kidney dialysis,
• colostomy care,
• the use of medical gases,
• observation and monitoring of a patient's unstable condition, and
• changing sterile dressings.

Expressly excluded from the term is any service that could be safely and effectively performed (or self-administered) by the average nonmedical personnel without the direct supervision of a licensed nurse.
In determining whether the level of care required by a patient is custodial care, which is not Medicare-covered, or skilled nursing care, which is covered by Medicare, the courts have applied several accepted legal principles:

• The primary responsibility determining a patient's need for skilled nursing care rests with the physician.
• While the opinion of a physician about the need for skilled nursing care is not binding on Medicare, when there is no conflicting evidence, his decision is required to be given great weight.
• The courts will avoid using a technical approach but rather use a common sense meaning and a consideration of the needs and underlying conditions affecting the patient as a whole.