the health law side of elder law: medicare and more...

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THE HEALTH LAW SIDE OF

ELDER LAW: MEDICARE AND

MORE IN 2016

Moderator/Speaker Linda S. Ershow-Levenberg, Esq. Certified as an Elder Law Attorney by the National Elder Law Foundation Fink Rosner Ershow-Levenberg LLC (Clark)

Speakers William P. Isele, Esq. Archer & Greiner, P.C. (Haddonfield, Flemington, Princeton; Philadelphia, PA; Wilmington, DE) Lauren S. Marinaro, Esq. Fink Rosner Ershow-Levenberg LLC (Clark) Sharon Rivenson Mark, Esq.

Certified as an Elder Law Attorney by the National Elder Law Foundation

Law Office of Sharon Rivenson Mark, P.C. (Jersey City)

In cooperation with the New Jersey State Bar Association Senior Lawyers

Special Committee S1762.16

© 2016 New Jersey State Bar Association. All rights reserved. Any copying of material herein, in whole or in part, and by any means without written permission is prohibited. Requests for such permission should be sent to NJICLE, a Division of the New Jersey State Bar Association, New Jersey Law Center, One Constitution Square, New Brunswick, New Jersey 08901-1520.

Table of Contents Page Services Provided Under NJ Family Care Managed Long Term Services and Supports (MLTSS) Lauren S. Marinaro, Esq. 1 Selecting an MCO and Selecting Health Care Providers 3 Care Management and Service Plans 4 Person-Centered Planning 6 Grievances and Appeals 6 Clinical Eligibility Determination for MLTSS 7 Post-Eligibility Issues 7 The ACA, Medicaid and MLTSS 8 DDD and MLTSS 9 Conclusion 9 Attachments Guidance and Resources for Long Term Care Facilities: Using the Minimum Data Set to Facilitate Opportunities to Live in the Most Integrated Setting 11 MLTSS Eligibility/Enrollment Processes: No MCO Enrollment 17 MLTSS Eligibility/Enrollment Processes: MCO Enrolled Individuals 18 State Plan Amendment (SPA) Information 19 Personal Care Assistant (PCA) Nursing Assessment Tool 89 Introduction to Medicare Linda S. Ershow-Levenberg, Esq., CELA 95 Eligibility for Medicare 96 How to Enroll in Medicare 98 Medicare Part A: Services, Co-Payments and Limitations 99 Medicare Part B 103 Exclusions 104 Medicare Part C (Advantage Plans) 104 Medicare Part D – Prescription Drug Benefit 104 Coordination Between Medicare and Medicaid 105 Balance Billing by Physicians and Other Providers; Need for a Secondary Medi-Gap Policy 106 Coordination With Retiree Insurance and Spouse’s Insurance (The Flip) 106 Impact of the Affordable Care Act on Medicare 107 Special Medical Guardianships Sharon Rivenson Mark, Esq. 109 Introduction 109 Court Rules for Special Medical Guardianships 109 Court Rules for Guardianship 111 Case Law 124 Chancery Division Pleading Forms 130

Order Fixing Hearing Date and Appointing Special Medical Guardian for Alleged Incapacitated Person 131 Verified Complaint (Sample) 133 Judgment Appointing Special Medical Guardian 137 N.J.S.A. 30:13-1 et seq. (Nursing Home Rights and Responsibilities) 139 § 30:4-24.2 (Rights of Patients) 149 Pamphlet, Nursing Home Residents Bill of Rights 155 N.J.A.C. 8:39-4.1 (Resident Rights) 157 N.J.A.C. 8:39-5.4 (Discharges) 160 N.J.A.C. 8:85-1.10 (Involuntary Transfer) 161 42 CFR 483.12 – Admission, Transfer and Discharge Rights 165 Sample 30-Day Discharge Notice 169 “The Nursing Home Residents’ Bill of Rights” William P. Isele 171 About the Panelists… 175

Services Provided Under NJ Family Care Managed Long Term Services and Supports

(MLTSS)

by

Lauren S. Marinaro, Esq.

The stated goal of the Managed Long Term Services and Supports (MLTSS) program is

to support individuals who are elderly or disabled by providing services in community settings

wherever possible. MLTSS is intended to combine four previously separate Medicaid 1915(c)

waivers: Global Options (for physically disabled under 65 and over-65, both who need

institutional level of care), AIDS Community Care Alternatives Program (ACCAP), the TBI

Waiver and the and Community Resources for People with Disabilities (CRPD) waiver (highly

physically disabled under 65, can include some minors). Division of Developmental Disabilities

(DDD) waivers ARE NOT included (more on this below).

MLTSS provides services in four settings: home care, assisted living, community

residences and nursing homes. The applicant must be either disabled (i.e., meets the criteria for

disability set by the Social Security Administration) or aged (over 65). Unless the applicant

qualifies under ACA/MAGI standards, an applicant needs to meet both the clinical (medical) and

financial requirements: (1) income, (2) assets/resources, and (3) a 5-year look-back to determine

whether prior uncompensated transfers of assets (i.e., gifts) should disqualify the applicant. To

meet the clinical requirements, the individual must meet the nursing home level of care which

means that they require assistance with several (commonly believed to be three or more) of the

basic Activities of Daily Living (ADL’s) – bathing, toileting, transferring, ambulating, hygiene,

eating, and cognition (the need for prompting or supervision in any of the other areas mentioned).

See N.J.A.C. 8:85-2.1.

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http://www.finkrosner.com

The care plan for each enrollee is controlled by a managed care organization (MCO),

which is an HMO (Health Maintenance Organization). As of July 1, 2014, people who were

already enrolled in Medicaid under Global Options (care at home or assisted living) were

automatically switched over to MLTSS. Medicaid recipients in nursing homes prior to July 1st

were not placed into MLTSS – they are being maintained under the old fee-for-service program.

However, if there is any change in their eligibility or setting of care, that change will trigger

enrollment in MLTSS. Individuals who enter a nursing home after July 1 and apply for NJst

Family Care (Medicaid) will have their care managed through an MCO.

Applications for NJ Family Care MLTSS are still filed with the county board of social

services in the county where the applicant is residing. An online application is in development.

If the applicant’s income is more than three times the SSI amount for that year, a Qualified

Income Trust (QIT) must be established and used to receive and distribute the excess income.

The NJ Family Care MCO is paid a capitated rate and is required provide case

management to each enrollee, this includes inquiring of nursing home residents whether they

wish to move back to the community, and monitoring the cost-effectiveness and safety of

community-based enrollees. There are several major barriers for a return home:

(1) the program does not provide 24/7 care (see PCA assessment tool attached);

(2) the program is still designed to supplement whatever care can be provided by family

and other informal supports;

(3) there may be no safe home to return to;

(4) there may be no friend or family member to help coordinate and oversee the care plan

(5) the services needed in the community should not exceed the Annual Cost Threshold

(ACT) for the individual.

(6) there is a strong profit motive for MCOs to restrict care when possible

If the MCO limits services and the member still wishes to stay in the community, a risk

assessment agreement can be entered into between the member, his or her representative and the

MCO. However, there is no obligation for an MCO’s contracted provider (typically a home care

agency) to service a particular client who has signed a risk agreement, and the provider may find

it to be a liability to do so.

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Selecting an MCO and Selecting Health Care Providers

For applicants who have Medicare, they would select an MCO and would retain their

Medicare as well as their Medicare Part D prescription plan. As with Medicaid previously, NJ

Family Care would be the secondary health insurer. The MCOs differ county by county but most

MCOs are in most counties. If an applicant has a certain MCO in a particular place (home,

assisted living or nursing home) and then changes counties, they may have to disenroll from the

one MCO and select a new MCO. The open enrollment period to change MCO’s is October 1 -

November 15. For “good cause,” a person can change their MCO outside of this time period. If

an MCO is found to have an inadequate network of providers at any given time for any category

of services, the enrollee has “good cause” to switch MCOs. The state is supposed to provide

assistance with this where needed.

In selecting an MCO, the applicant may be faced with the usual problem of finding out

whether their present doctors participate with that particular MCO network if there is no other

Medicare or supplemental coverage. It is likely that many people will have to begin care with a

whole new set of doctors and health care providers. There is a provision in the Comprehensive

Waiver to allow case-by-case determinations that would enable an applicant to receive coverage

for their existing treatment team if necessary to maintain “continuity of coverage” while they are

being transitioned to the new MCO health care personnel. There are no hard and fast rules on

how this will be implemented. Of course, if someone is able to pay for the services provided by

the doctor who is not in the MCO plan, the applicant can certainly see that practitioner. Similarly,

the applicant may need to select a different durable medical goods supplier.

Prescriptions will be filled if they are within the MCO’s formulary. Applicants will have

to go through the same formulary research challenges as they do with selecting a Medicare Part D

plan. However, the Part D benefit is not affected and would be the primary insurer; anyone dually

eligible for Medicare and Medicaid must choose a part D plan or they will be auto-enrolled when

Medicaid is implemented. It is unclear how the Part D plans and the MCO pharmacy formularies

will intersect. An MCO will likely have prior authorization policies for certain more

experimental or more expensive drug treatments.

The participating physician who also accepts the patient’s Medicare must bill the co-

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payments and balances to NJ Family Care and not to the patient. With respect to specialists, each

MCO will have its particular protocols and policies for how a patient can get to a specialist, but

they are subject to Medicaid’s rules regarding network adequacy.

Care Management and Service Plans

The MLTSS program is assigning new care managers to all participants, even those who

previously had a care manager through Medicaid Global Options. The Care manager is

responsible to evaluate the applicant’s needs for services using a standardized tool developed by

the State (without notice and comment), then developing a Plan of Care (POC), coordinating all

services and ensuring that all needed medical and dental visits take place. All issues and disputes

about the services being provided must first be directed to the MCO. The POC will need to align

with certain dollar thresholds established by Medicaid and the MCOs called the Annual Cost

Threshold or ACT. If the budget for the participant reaches or exceeds 85% of the ACT, there

may be a meeting of the Interdisciplinary Team or IDT about whether there needs to be a change

in setting for the participant, or whether services can be frozen or scaled back in a way that safely

manages risk for the participant. Decisions made at the IDT will most likely precipitate appeals,

and it is important that clients know not to sign anything at an IDT that they do not agree with.

Any reduction in hours or services previously provided would be cause for an MCO appeal.

Under the Comprehensive Waiver’s Standard Terms and Condition 71, it states the

following:

71. Institutional and Community-Based MLTSS. The provisions related to

institutional and community-based MLTSS are as follows:

a. Enrollees receiving MLTSS will most often receive a cost-effective placement, which

will usually be in a community environment.

b. Enrollees receiving MLTSS will typically have costs limited/aligned to

the annual expenditure associated with their LOC assessment (e.g. Hospital,

Nursing Home)

c. Exceptions are permitted to the above provisions in situations where a)

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an enrollee is transitioning from institutional care to community-based placement;

b) the enrollee experiences a change in health condition expected to last no more

than six months that involve additional significant costs; c) special circumstances

where the State determines an exception must be made to accommodate an

enrollee’s unique needs. The State will establish a review procedure to describe

the criteria for exceptional service determinations between the State and the

MCOs which shall be approved by CMS. (Emphasis added.)

d. MCOs may require community-based placements, provided the

enrollee’s PoC provides for adequate and appropriate protections to assure the

enrollee’s health and safety.

e. If the estimated cost of providing the necessary community-based

MLTSS to the enrollee exceeds the estimated cost of providing care in an

institutional setting, the MCO may refuse to offer the community-based MLTSS.

However, as described in (c) above, exceptions may be made in individual special

circumstances where the State determines the enrollee’s community costs shall be

permitted to exceed the institutional costs.

f. If an enrollee whose community-based costs exceed the costs of

institutional care refuses to live in an institutional setting and chooses to remain in

a community-based setting, the enrollee and the MCO will complete a special risk

assessment detailing the risks of the enrollee in remaining in a community-based

setting, and outlining the safeguards that have been put in place. The risk

assessment will include a detailed back-up plan to assure the health and safety of

the enrollee under the cost cap that has been imposed by the State.

g. Nothing in these STCs relieves the State of its responsibility to comply

with the Supreme Court Olmstead decision, and the Americans with Disabilities

Act.

This STC is critically important for client advocacy as to services plans, especially in the

area of personal care assistant (PCA or home health) hours and private duty nursing (PDN)

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hours. Special Circumstances under letter e has been further defined and the policy is attached.

Person-Centered Planning

Another area for advocacy is whether the MCO is engaging in “Person-Centered

Planning.” CMS recently came out with new regulations, attached, which lay out parameters for

service plans for enrollees. In short, the MCO cannot simply “steamroll” the enrollee’s stated

preferences for community-based placement, but must work with enrollee in a culturally

competent manner to create a plan that captures those stated preferences. Cultural competence

must include appropriate services for those with Limited English Proficiency (LEP). The

absence of these services in connection with a reduction in PCA hours or other medical services

would be a basis for appeal.

Person-centered planning also requires an understanding that a past history of voluntary

supports should not lead a care manager to assume that those supports will continue with

Medicaid eligibility. 42 C.F.R. § 441.301 “Contents of request for a waiver… (v) Reflect the

services and supports (paid and unpaid) that will assist the individual to achieve identified goals,

and the providers of those services and supports, including natural supports. Natural supports

are unpaid supports that are provided voluntarily to the individual in lieu of 1915(c) HCBS

waiver services and supports.” All family supports need to be affirmatively confirmed by the

care manager. Assuming more family supports than is actually provided and reducing hours of

care accordingly would be a basis for appeal.

Grievances and Appeals

Grievances can be pursued through the MCO’s particular process. Examples of

grievances include refusal to provide a certain service, or failure to provide sufficient hours of

home care or private duty nursing. The status quo of service provision can be asked to be

maintained during the pendency of an MCO grievance proceeding, which has three levels of

escalation. However, many individuals will choose to go directly to a Medicaid fair hearing at

the Office of Administrative Law, and the OAL Rules at N.J.A.C. 1:1-1 et. seq. govern that

process. There are certain Medicaid rules pertaining to Medicaid Fair Hearings. See N.J.A.C.

1:10B -1 et. seq. Fair Hearings as to service provision will be responded to by the MCO’s

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attorney under a provision that allows them to represent DMAHS. See N.J.A.C. 10:74-11.2(c).

The statements, observations and conclusions of IDT meeting participants will likely be at issue,

and subpoenas may need to be issued, with court consent, of MCO and state officials who were

present when decisions were made.

Clinical Eligibility Determination for MLTSS

It is critical to make sure that a Pre-Admission Screening (PAS) is ordered if you are

seeking MLTSS services. If the applicant is in a nursing facility, the facility requests this through

the LTC-2 form. If the applicant is in an Assisted Living facility, the AL facility requests the

PAS through the AL-6 form. If the applicant is at home (even if they are looking to go to a

nursing home or assisted living facility), the applicant’s family must call their county Area

Agency on Aging/Aging and Disability Resource Center (AAA/ADRC) and get screened for

services. Advise the family to truthfully answer all questions asked but in no way should they

downplay the need for services. Then they should forcefully request that a Medicaid PAS be

ordered as soon as possible by the AAA/ADRC.

The Pre-application Screening determines whether the applicant meets the clinical level

of care. The PAS is done by a nurse sent out by the Office of Community Choice Options or

OCCO, which has two regional offices in Edison and Hammonton. The PAS can be performed at

home or in a hospital or in an assisted living facility. Once issued it is valid for 6 months. The

PAS tool also takes down critical medical care plan information that may serve a client later on

for determining whether which ACT is most appropriate. The OCCO office must be kept in the

loop if there is a change in residence for someone who needs a PAS but who has not gotten one

yet. PAS completion can be very slow, and if the request is in the OCCO system and the PAS is

not completed within two weeks, there can be a back-dating of the clinical eligibility date.

Follow up with OCCO is critical.

Post-eligibility issues

The MLTSS recipient at home can keep his/her income and spend it as needed. The

recipient in Assisted Living must pay the ALF room and board fee ($774.05 for 2016), can keep

$109 as a Personal Needs Allowance, can pay a spousal income share if appropriate, can allocate

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funds to pay for health insurance premiums, and then must turn over the remainder to the facility.

There is no limit on the income that the community spouse can have. If gross income is higher

than $2199, there may be a cost share to the state for home care services depending on other

deductions, and gross income must be routed through a QIT to authorized recipients, like a

spouse or the State.

Changes in circumstance must be reported to Medicaid, such as relocation from home to

a facility, or death of a community spouse, or receipt of proceeds of sale of an asset that had been

illiquid, or receipt of an inheritance. Under some circumstances – if the amount is modest -- these

funds will just be turned over to the State to avoid an interruption of MLTSS services. Under

other circumstances, the MLTSS beneficiary will want to avail him or herself of asset transfer

opportunities to preserve the assets for certain individuals as permitted by the transfer

regulations. This may or may not require the beneficiary to go off of MLTSS for some period of

time and then reapply afterwards.

The ACA, Medicaid and MLTSS

You may have a client who has been getting coverage under Medicaid who is about to

obtain Medicare due to a disability determination (and end of two year waiting period) or turning

65. Medicaid eligibility under the ACA is dependent on (1) whether your Modified Adjusted

Gross Income (MAGI) plus non-taxable Social Security or SSD is greater or less than 133% of

poverty for your taxable family unit, including a 5% disregard for earned income and (2) the

absence of other creditable coverage, such as Medicare A or private insurance. Medicaid

provides many services that traditional insurance may not provide: dental, medical transportation,

eyeglasses, hearing aides, smoking cessation, MLTSS and substance abuse/mental health care

services to name a few. However, the presence of other creditable coverage will mean that ACA

Medicaid will not continue. To keep benefits, the client will need to look into other Medicaid

programs such as MLTSS, which looks at assets, transfers and level of care in addition to

income.

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DDD and MLTSS

DDD services are not a part of MLTSS but Medicaid eligibility is required for DDD

waiver enrollment for either “Community Care” or “Supports”. There can also be state plan

PCA services for DDD enrollees that mirror home care benefits that one gets on MLTSS.

Further, a DDD enrollee can choose to forgo DDD waiver services in favor of MLTSS, in

consultation with DDD. This may be beneficial for aging DDD enrollees who could benefit from

assisted living or other MLTSS services more than the residential services DDD provides. DDD

services are now fee-for-service so issues of “double dipping” for assigned benefits that are

DDD-waiver based vs. state plan based are a major headache.

Conclusion

New Jersey believes that MLTSS is being implemented to ensure safe, community-based,

person-centered and conflict-free long-term care while simultaneously trying to save the state

money through the use of for-profit managed care entities. According to the State’s Annual

Report to CMS for Year 3 of the MLTSS demonstration, the program is resulting in a cost

savings to the state, and also, the state’s share of people getting HCBS compared to total

Medicaid long-term care recipients has improved from 26% in 2009, to now 45.2% in the first

quarter of year three of the MLTSS Demonstration. But truly understanding this program must

be based on client’s individual situations and outcomes, and there are few measurements at

present of client satisfaction with the program at this time.

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GUIDANCE AND RESOURCES FOR LONG TERM CARE FACILITIES: USING THE MINIMUM DATA SET TO FACILITATE OPPORTUNITIES TO

LIVE IN THE MOST INTEGRATED SETTING

U.S. Department of Health and Human Services, Office for Civil Rights May 20, 2016

The U.S. Department of Health and Human Services’ Office for Civil Rights (OCR) is issuing this guidance to help long term care facilities comply with their civil rights obligations by administering the Minimum Data Set (MDS) appropriately so that their residents receive services in the most integrated setting appropriate to their needs. Failure to properly administer the MDS places a facility’s Medicaid and Medicare reimbursements in jeopardy.1 Furthermore, inadequate administration of the MDS threatens the state and administrative agencies’ compliance with civil rights laws. The state and state administrative agencies must provide services to residents in the most integrated setting. The unnecessary placement of a resident in a long term care facility may constitute discrimination under Section 504 of the Rehabilitation Act (Section 504) and Title II of the Americans with Disabilities Act, as interpreted by the U.S. Supreme Court in Olmstead v. L.C.2 OCR is responsible for enforcing Section 504 of the Rehabilitation Act as it applies to entities that receive HHS Federal financial assistance. Long term care facilities receive Federal financial assistance by participating in programs such as Medicare and Medicaid. Section 504 prohibits discrimination based on disability, including the unnecessary segregation of persons with disabilities. Unjustified segregation can include continued placement in an inpatient facility when the resident could live in a more integrated setting. This concept was set forth in the Olmstead decision which interpreted the same requirements in the Americans with Disabilities Act. The MDS, a mandated quarterly assessment administered to all nursing home residents, has questions that can connect long term care residents with opportunities to live in the most integrated setting and assist the state in meeting its non-discrimination requirements under Section 504 and the Americans with Disabilities Act. Specifically, Section Q of the MDS provides a process that, if followed correctly, gives the resident a direct voice in expressing preference and gives the facility means to assist residents in locating and transitioning to the most integrated setting. OCR has found that many long term care facilities are misinterpreting the requirements of Section Q of the MDS. This misinterpretation can prevent residents from learning about opportunities to transition from the facility into the most integrated setting. We are therefore providing a series of recommendations for steps that facilities can take to ensure

1 See 42 CFR 483.1(b); 42 C.F.R. 483.20(b)(1)(xvi); and 42 C.F.R. 483.20(g) 2 Olmstead v. L.C., 527 U.S. 581 (1999).

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Section Q of the MDS is properly used to facilitate the state’s compliance with Section 504 and to avoid discrimination.

1. Strong Relationships with the Local Contact Agency can Help Long Term Care Facilities Understand the Availability of Community Based Services

All long term care facilities should know their Local Contact Agency and have a working relationship with it. A Local Contact Agency is a local community organization responsible for providing counseling to nursing facility residents on community support options. Long term care facilities must make referrals to the Local Contact Agency whenever a resident would like more information about community living or alternative living situations to the facility. If you do not have contact information for the Local Contact Agency, you should contact the State Point of Contact found at www.medicaid.gov/medicaid-chip-program-information/by-topics/long-term-services-and-supports/community-living/downloads/state-by-state-poc-list.pdf. When the long term care facility makes a referral to a Local Contact Agency, OCR recommends that a facility representative serve as a liaison to the Local Contact Agency staff member and maintain regular communication with the Local Contact Agency regarding the resident. The Facility must in no way impede the assessment, planning, and transitioning process triggered by the referral to a Local Contact Agency. Facility staff members should work with the Local Contact Agency to incorporate the Local Contact Agency’s Transition Plans for the resident into the resident’s facility discharge plan and active care plan. OCR also recommends that the facility invite the Local Contact Agency to provide seminars/presentations to residents and staff on a regular basis (e.g., every six months), about the services it provides, community-based settings in which residents can choose to receive services, and the residents’ opportunity to seek a referral regarding potential transition to the community.

2. Proper Administration of MDS Section Q, Questions, Q0400, Q0500, and Q0600 is Critical in Assisting Residents to Receive Services in the Most Integrated Setting

The goal of Section Q of the MDS is to “ensure that all individuals have the opportunity to learn about home and community based services and have an opportunity to receive long term care in the least restrictive setting possible.”3 Because Section Q is designed to assist residents in returning to the community or another more integrated setting appropriate to their needs, proper administration of Section Q of the MDS can further a state’s compliance with civil rights laws.

3 Resident Assessment Instrument (RAI) Manual at Q-14.

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http://www.medicaid.gov/medicaid-chip-program-information/by-topics/long-term-services-and-supports/community-living/downloads/state-by-state-poc-list.pdf


a. MDS Section Q, Q0400: Is active discharge planning already occurring for the resident to return to the community?4

OCR found in a survey of long term care facilities that many facilities misunderstand this question. If active discharge planning is not occurring, then the facility must ask the resident the follow up question “Do you want to talk to someone about the possibility of leaving this facility and returning to live and receive services in the community?” 5 Most facilities responding believe that they do not have to ask residents this question if the resident has a “discharge plan.” However, the MDS process requires these individuals to be in active discharge planning, and it appears that some residents have a discharge plan that was created as a matter of course and not as part of an active transition process. An active discharge plan means a plan that is being currently implemented. In other words, the resident’s care plan has current goals to make specific arrangements for discharge, staff are taking active steps to accomplish discharge6, and there is a target discharge date for the near future. If there is not an active discharge plan, residents should be asked if they want to talk to someone about community living and then referred to the Local Contact Agency accordingly. Furthermore, referrals to the Local Contact Agency are recommended as part of many residents’ discharge plans.7 Such referrals are a helpful source of information for residents and facilities in informing the discharge planning process. OCR recommends that facilities continue to use the most current MDS assessment tool and answer MDS question Q0400 (“Is Active Discharge Planning already occurring for the Resident to Return to the Community?”) “no” for all residents of the facility unless a referral to the Local Contact Agency occurred and the Local Contact Agency has met with the resident. MDS Question Q0400 should only be answered “yes” for permitted reasons, such as:

• The resident is currently being assessed for transition by the Local Contact Agency;

• The resident has a Transition Plan8 in place, which has all of the required elements and has been incorporated into the resident’s Discharge Plan; or,

4 RAI Manual at Q-8. 5 RAI Manual at Q-14. 6 The MDS manual states that discharge instructions should include items such as, but not limited to: arrangements for durable medical equipment, arrangements for housing. and arrangement for transportation to follow-up appointments. See RAI Manual at Q-9. 7 RAI Manual at Q-9. 8 The term “Transition Plan” here means documentation completed and maintained by members of a Local Contact Agency pertaining to a particular resident of the facility, that identifies the direction for the care and services the resident needs to live in the most integrated setting, including the provision of necessary care and services to the resident in the most integrated setting and all other arrangements necessary to allow the resident to live in the most integrated setting.

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• The resident has an expected discharge date of three (3) months or less9, has a

discharge plan in place with all the required elements, and the discharge plan could not be improved upon with a referral to the Local Contact Agency.

If the response to MDS question Q0400 is “no” (i.e., the resident does not have an active discharge plan in place), facilities should ask the resident MDS question Q0500, “Do you want to talk to someone about the possibility of leaving this facility and returning to live and receive services in the community?” Any resident who answers “yes” to Q0500 must be referred to the Local Contact Agency.

b. MDS Section Q, Q0500: Do you want to talk to someone about the possibility of leaving this facility and returning to live and receive services in the community?10

Another example of facilities misunderstanding Section Q includes confusion regarding the administration of Q0500. Most facilities never ask, or nearly never ask, Q0500 because they believe they do not need to ask the question because all residents have discharge plans in place. However, unless the resident has an active discharge plan, the resident must be asked Q0500.11 If a resident answers “yes” to this question, a referral to the Local Contact Agency is required12 and the Local Contact Agency will establish contact with the resident to discuss the availability of appropriate services in the community. When asking question Q0500, the RAI manual instructs nursing home staff to convey to residents that this question is intended to “provide the opportunity for the resident to get information and explore the possibility of different settings for receiving ongoing care.”13 In other words, the resident should be encouraged to learn about possibilities by talking to the Local Contact Agency. Most residents do not know what alternatives to inpatient care may exist, so the word “possibility” in the question is essential. It is important for facilities to provide the residents a clear context as to the purpose of Q0500. Failing to provide context for the question could result in residents remaining in institutions longer than necessary.

c. MDS Section Q, Q0600: Has a referral been made to the Local Contact Agency?14

Residents who express interest in learning about living outside of the facility, either through answering affirmatively to question Q0500 or expressing an interest to direct

9 The RAI Manual does not set a time frame for coding this item “yes”; however, OCR believes this timeframe is appropriate and should be considered a best practice concerning facilities’ civil rights obligations. 10 RAI Manual at Q-10. 11 Unless the resident specifically requests to not be asked this question in their quarterly assessment. However, annual comprehensive assessments must ask Q0500. See MDS Q0490 at RAI Manual Q-12. 12 RAI Manual at Q-16. 13 RAI Manual at Q-15. 14 RAI Manual at Q-20.

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care staff15 at other times, should be referred to the appropriate Local Contact Agency for assistance, including education on the process of obtaining community placement and any other appropriate services. Once any facility staff learns of the resident’s interest, a referral to the Local Contact Agency must be made in a reasonable amount of time.16 Furthermore, it is recommended that the referral be documented in the resident’s Discharge Plan. Facilities must recognize that residents can make a free choice about where to receive services and cannot be pressured to remain in the facility. Facilities must not deny residents a referral to the Local Contact agency for inappropriate reasons, including but not limited to:

• The facility inserts its judgment and overrides the resident’s expressed interest

based on factors such as a belief that the resident’s disability is too severe to transition;

• A belief that discharge is not possible because the resident has no home or support in the community, or a previous transition was not successful; and/or

• The family or caregiver does not want the resident to move. The only reason a facility may refrain from making a referral to the Local Contact Agency when requested by the resident is when the resident has an active discharge plan.17

3. The Facility Should Update its Policies and Procedures to Comply with this Guidance Document and Provide Periodic Training.

OCR recommends that facilities review and revise existing policies and procedures or develop new policies and procedures on: (1) discharge planning; (2) MDS administration, and; (3) the Local Contact Agency referral processes. The policies and procedures should comply with this guidance document, and the facility’s practices must be consistent with this guidance. In addition, OCR recommends that each facility train all staff involved in conducting, reviewing, assessing, implementing, or otherwise utilizing the MDS assessment (including direct care staff, care teams, the facility’s senior management team members, and workforce members in any other relevant position) on Section Q of the MDS. OCR recommends using the State Resident Assessment Instrument Coordinator (RAI), who is responsible for coordinating MDS training in the State, or a trainer recommended by the RAI, to conduct the training on the MDS.

15 Direct care staff are the facilities’ workforce members who personally interact with residents while providing health care or similar support services. 16 RAI Manual at Q-16. The manual recommends ten business days as a “reasonable” amount of time to make this referral. 17 See section 2. a. of this guidance document.

5

15

OCR also recommends that each facility train all staff, including direct care staff and Care Teams, the Facility’s senior management members, and work force members in any other relevant position on:

• the Local Contact Agencies which serve the facility’s geographic areas; • the services the Local Contact Agencies provide and the role they play in assisting

individuals interested in living in a community setting; • when and how to contact the Local Contact Agency; • how to work collaboratively with the Local Contact Agency for the benefit of

residents of the facility; and • home and community-based services provided by state agencies.

OCR recommends that individuals from outside the facility with extensive knowledge of the services and role of the Local Contact Agencies and the state home and community-based service systems provide the training. For example, Aging and Disability Resource Center (ADRC) staff, local center for independent living (CIL), Area Agency on Aging (AAA), or another agency that is familiar with transitioning residents to the community, may be able to train staff on these five issues. Furthermore, to fulfill these training recommendations, contact can be made with the State Point of Contact for MDS 3.0 Section Q Referrals for suggestions on trainers who have the recommended knowledge.18

4. Further Resources For more information on the administration of the MDS and technical assistance please visit the following links:

• MDS 3.0 Technical Information at: www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/NursingHomeQualityInits/NHQIMDS30TechnicalInformation.html

• State Operations Manual (SOM) at: www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Internet-Only-Manuals-IOMs-Items/CMS1201984.html

• MDS 3.0 RAI Manual at: www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/NursingHomeQualityInits/MDS30RAIManual.html

• MDS 3.0 Training at: www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/NursingHomeQualityInits/NHQIMDS30TrainingMaterials.html

• Skilled Nursing Facilities Long-Term Care Open Door Forum at: www.cms.gov/Outreach-and-Education/Outreach/OpenDoorForums/ODF_SNFLTC.html

18 See www.medicaid.gov/medicaid-chip-program-information/by-topics/long-term-services-and-supports/community-living/downloads/state-by-state-poc-list.pdf.

6

16

http://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/NursingHomeQualityInits/NHQIMDS30TechnicalInformation.html

http://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/NursingHomeQualityInits/NHQIMDS30TechnicalInformation.html

http://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Internet-Only-Manuals-IOMs-Items/CMS1201984.html

http://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Internet-Only-Manuals-IOMs-Items/CMS1201984.html

http://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/NursingHomeQualityInits/MDS30RAIManual.html

http://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/NursingHomeQualityInits/MDS30RAIManual.html

http://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/NursingHomeQualityInits/NHQIMDS30TrainingMaterials.html

http://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/NursingHomeQualityInits/NHQIMDS30TrainingMaterials.html

http://www.cms.gov/Outreach-and-Education/Outreach/OpenDoorForums/ODF_SNFLTC.html

http://www.cms.gov/Outreach-and-Education/Outreach/OpenDoorForums/ODF_SNFLTC.html



MLTSS Eligibility/Enrollment Processes: No MCO enrollment

2015

DRAFT – not for distribution

•Check eMEVs/REVs to verify Medicaid Eligibility and no MCO Enrollment •Ensure PASRR Level I is completed (NF/SCNF only) • Ensure Level II (if applicable) is completed •Notify OCCO of Admission • NF/SCNF = LTC2 • AL = AL6

Provider Responsibilities

•Conduct Screen for Community Services (SCS) • ADRC ages 19 and above • DDS ages 18 and below •Referral to CWA for financial eligibility •Referral to OCCO for clinical eligibility (if appropriate) •Conduct initial Options Counseling

ADRC and DDS Responsibilities

•Establish clinical eligibility •Conduct Options Counseling •Provide Approval/Denial letter to member •Data enter outcome into NJMMIS system

OCCO Responsibilities

•Establish financial eligibility and data enter outcome into NJMMIS system •Forward referral to OCCO (CP2) •Identify clinical eligibility outcome (if required for eligibility)

CWA Responsibilities

•MLTSS enrollment is dependent upon financial and clinical eligibility entry into NJMMIS •MLTSS enrollment occurs on the 1st of the month prospectively • Cutoff date for next month enrollment is between the 18th to 21st of the month • Medicaid services unavailable until MLTSS enrollment include: Community Residential Services, Home Delivered Meals, Personal Emergency Response System, Adult Private Duty Nursing • Medicaid services eligible within Fee for Service include: Assisted Living, Nursing Facility, Medical Day Care, PCA

•MCO enrollment occurs on the 1st of the month only and often one month after MLTSS enrollment for newly eligible to Medicaid •Welcome Packet sent from the State indicating assigned MCO

MLTSS Eligibility

•New Member enrollment packet including ID Card and Care Manager assignment no later than 7 calendar days after the effective date of enrollment •Care Manager outreach within 5 business days of effective date of enrollment •Face to face visit, plan of care, and initiation of services within 30 days of effective date

of enrollment

MCO Responsibilities

17

MLTSS Eligibility/Enrollment Processes: MCO Enrolled Individuals

2015

DRAFT – not for distribution

•Check eMEVs/REVs to verify Medicaid Eligibility and MCO Enrollment •Ensure PASRR Level I is completed (Nursing Facility and Special Care Nursing Facility only) • Ensure Level II (if applicable) is completed

•Contact MCO for authorization • New authorization required for break in service

Provider Responsibilities

•Authorize non-MLTSS services •Screening for MLTSS - determine need for MLTSS services • Conduct assessment for MLTSS eligibility • Submit to OCCO

•Provide Self Attestation Form to member • Send form/notification to DMAHS within 5 business days

•Communicate Authorized/Approved clinical eligibility outcome to member and provider • Approval Letter to member • Service authorization to provider

•Communicate Not Authorized clinical eligibility outcome to member and provider • OCCO reassessment needed to make an eligibility determination • Not Authorized is an inability to make a determination. It is not a Denial.

MCO Responsibilities

•Review MCO assessment to establish clinical eligibility within 5 business days of submission •Provide Approval Letter to MCO •Conduct reassessment if "Not Authorized" • Provide Approval letter to member and MCO • Provide Denial letter to member and MCO • Provide Denial Notification to CWA and MCO • Once Fair Hearing rights are exhausted, clinical eligibility is termed which facilitates MLTSS

disenrollment. •Data enter outcome into NJMMIS system • Authorization/Approval will enable MLTSS enrollment (new or continued) • Not Authorized entry has no impact on MLTSS enrollment (new or continued) • Denial entry, pending Fair Hearing rights has no impact on MCO or MLTSS enrollment (new or

continued) • Once Fair Hearing rights are exhausted, clinical eligibility is termed which facilitates MLTSS

disenrollment. MCO enrollment continues unless otherwise determined by CWA.

OCCO Responsibilities

•Obtain Self Attestation or conduct 5 year look back

DMAHS/CWA Responsibilities

•MLTSS enrollment occurs on the 1st of the month prospectively • Cutoff date for next month enrollment is between the 18th to 21st of the month • State Plan services are to be provided regardless of MLTSS eligibility and enrollment • Services the MCO cannot cover until MLTSS enrollment include: Assisted Living*, Community

Residential Services, Special Care Nursing Facility, Home Delivered Meals, Personal Emergency Response System, Adult Private Duty Nursing (* Assisted Living FFS billing with clinical eligibility prior to MCO enrollment can occur)

• Services eligible within State Plan Services in the absence of MLTSS enrollment include: Nursing Facility, Medical Day Care, PCA

MLTSS Eligibility

18

Table of Contents

State/Territory Name: New Jersey

State Plan Amendment (SP A) #: 15-0003

This file contains the following documents in the order listed:

1) Approval Letter

2) CMS 179 Form/Summary Form (with 179 like data) 3) Approved SPA Pages

19

DEPARTMENT OF HEALTH & HUMAN SERVICES Centers for Medicare & Medicaid Services New York Regional Office 26 Federal Plaza, Room 37-100 New York, NY 10278

DIVISION OF MEDICAID AND CmLDREN'S HEALTH OPERATIONS

November 10, 2015

Valerie Harr Director of Medical Assistance and Health Services Department of Human Services CN 712 Quakerbridge Plaza Trenton, New Jersey 08625-0712

Dear Ms. Harr:

CMS CENTERS FOR MEDICARE & MEDICAID SERVICES

We have completed our review of New Jersey's State Plan amendment (SPA) 15-0003 received in our office on September 14, 2015 and find it acceptable for incorporation into New Jersey's Medicaid State Plan. This SPA proposes to amend New Jersey's Alternative Benefit Plan to include Managed Long Term Services and Supports and to increase mental health and substance use disorder rates in order to more closely align with existing state rates currently paid by the Division of Mental Health & Addiction Services. This amendment also removes the need to identify medically frail individuals as the ABP is now as rich as the Medicaid State Plan.

Please note the approval date of this SPA is November 10, 2015 with an effective date of July 1, 2015. Copies of the approved State Plan pages and the signed CMS-179 are enclosed.

Should you have any questions or concerns please contact Tara Porcher at (212) 616-2418.

Michael Me{endez Associate Regional Administrator Division of Medicaid & Children's Health

Enclosures

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20

NJ.0666.R00.02 - Jul 01, 2015 (as of Nov 10, 2015) Page 1 of 2

Alternative Benefit Plan:

State/Territory name: New Jersey Transmittal Number:

Please enter the Transmittal Number (TN) in the format ST-YY-0000 where ST= the state abbreviation, YY = the last two digits of the submission year, and 0000 = a four digit number with leading zeros. The dashes must also be entered.

[Bl~ 1 s-0003 1

Proposed Effective Date

._I 0_1_,0_1_12_0_1_s ____ ....,l (mm/ dd/ yyyy)

Federal Statute/Re ulation Citation 1932 (a)(l )(A) and (B); I 937(a)(2): 42 CFR 440.305(b) and (c); 42 CFR 440.31 O: 42 CFR 440.315; 42 CFR 441

Federal Budget Impact Federal Fiscal Year Amount

First Year

Second Year $12194618.00.

Subject of Amendment Amend New Jersey's Alternative Benefit Plan to include Managed Long Term Services and Supports and to increase mental health and substance use disorder rates.

Governor's Office Review

) Governor's office reported no comment

Comments of Governor's office received Describe:

·\ No reply received within 45 days of submittal

!' Other, as specified Describe: Not required pursuant to section 7.4 of the Plan.

Signature of State Agency Official

Submitted By:

Last Revision Date:

Submit Date:

Julie Hubbs

Nov 4, 2015

Sep 14, 2015

https ://wms-mmdl.cdsvdc.corn/MMDL/faces/protected/abp/ dO 1 /print/PrintSelector .j sp 11/10/2015

21

Attachment 3.1-L-

OMB Control Number: 0938‐1148 OMB Expiration date: 10/31/2014

PRA Disclosure Statement

According to the Paperwork Reduction Act of 1995, no persons are required to respond to a collection of information unless it displays a valid OMB control number. The valid OMB control number for this information collection is 0938-1148. The time required to complete this information collection is estimated to average 5 hours per response, including the time to review instructions, search existing data resources, gather the data needed, and complete and review the information collection. If you have comments concerning the accuracy of the time estimate(s) or suggestions for improving this form, please write to: CMS, 7500 Security Boulevard, Attn: PRA Reports Clearance Officer, Mail Stop C4-26-05, Baltimore, Maryland 21244-1850.

V.20130807

Page 1 of 1

Alternative Benefit Plan

Voluntary Benefit Package Selection Assurances - Eligibility Group under Section 1902(a)(10)(A) (i)(VIII) of the Act ABP2a The state/territory has fully aligned its benefits in the Alternative Benefit Plan using Essential Health Benefits and subject to 1937 requirements with its Alternative Benefit Plan that is the state’s approved Medicaid state plan that is not subject to 1937 Yes

requirements. Therefore the state/territory is deemed to have met the requirements for voluntary choice of benefit package for individuals exempt from mandatory participation in a section 1937 Alternative Benefit Plan. Explain how the state has fully aligned its benefits in the Alternative Benefit Plan using Essential Health Benefits and subject to 1937 requirements with its Alternative Benefit Plan that is the state’s approved Medicaid state plan that is not subject to 1937 requirements.

For NJ FamilyCare ABP, the state compared it State Plan benefits with those offered through its base benchmark plan, the largest commercial plan, Horizon HMO. The state concluded that the Medicaid State Plan offers all the Essential Health Benefits at the same or richer amount, duration and scope.

TN: 15-0003 Approval Date: 11/10/2015 Effective Date: 07/01/2015 NEW JERSEY ABP2a

22


OMB Control Number: 0938-1148

Select one of the following:

r The state/territory is amending one existing benefit package for the population defined in Section 1.

r. The state/territory is creating a single new benefit package for the population defined in Section I.

Name of benefit package: ~ ... _J_F_a_m_i_ly_C_a_re_A_B_P ________________ __,

Selection of the Section 1937 Coverage Option

The state/territory selects as its Section 193 7 Coverage option the following type of Benchmark Benefit Package or BenchmarkEquivalent Benefit Package under this Alternative Benefit Plan (check one):

r. Benchmark Benefit Package.

r Benchmark-Equivalent Benefit Package.

The state/territory will provide the following Benchmark Benefit Package (check one that applies):

r The Standard Blue Cross/Blue Shield Preferred Provider Option offered through the Federal Employee Health Benefit Program (FEHBP).

State employee coverage that is offered and generally available to state employees (State Employee Coverage):

r A commercial HMO with the largest insured commercial, non-Medicaid enrollment in the state/territory (Commercial HMO):

r. Secretary-Approved Coverage.

r The state/territory offers benefits based on the approved state plan.

r. The state/territory offers an array of benefits from the section 1937 coverage option and/or base benchmark plan benefit packages, or the approved state plan, or from a combination of these benefit packages.

Please briefly identify the benefits, the source of benefits and any limitations:

State plan Medicaid package, including additional mental health and substance abuse services.

Selection of Base Benchmark Plan

The state/territory must select a Base Benchmark Plan as the basis for providing Essential Health Benefits in its Benchmark or Benchmark-Equivalent Package.

The Base Benchmark Plan is the same as the Section 1937 Coverage option. ~ Indicate which Benchmark Plan described at 45 CFR 156.1 OO(a) the state/territory will use as its Base Benchmark Plan:

r Largest plan by enrollment of the three largest small group insurance products in the state's small group market.

r Any of the largest three state employee health benefit plans by enrollment.

TN: 15-0003 NEW JERSEY

Approval Date: 11/10/2015 ABP3

Effective Date: 07 /01/2015

23


r Any of the largest three national FEHBP plan options open to Federal employees in all geographies by enrollment.

r. Largest insured commercial non-Medicaid HMO.

Plan name: !Horizon HMO

Other Information Related to Selection of the Section 1937 Coverage Option and the Base Benchmark Plan (optional):

The state assures that all services in the base benchmark have been accounted for throughout the benefit chart found in ABP5.

The state assures the accuracy of all information in ABP5 depicting amount, duration and scope parameters of services authorized in the currently approved Medicaid state plan.

PRA Disclosure Statement According to the Paperwork Reduction Act of 1995, no persons are required to respond to a collection of information unless it displays a valid OMB control number. The valid OMB control number for this information collection is 0938-1148. The time required to complete this information collection is estimated to average 5 hours per response, including the time to review instructions, search existing data resources, gather the data needed, and complete and review the information collection. If you have comments concerning the accuracy of the time estimate(s) or suggestions for improving this form, please write to: CMS, 7500 Security Boulevard, Attn: PRA Reports Clearance Officer, Mail Stop C4-26-05, Baltimore, Maryland21244-1850.



V.20130801


24


OMB Control Number: 0938-1148

The state/territory proposes a "Benchmark-Equivalent" benefit package. LJ The state/territory is proposing "Secretary-Approved Coverage" as its section 1937 coverage option.

Secretary-Approved Benchmark Package: Benefit by Benefit Comparison Table

The state/territory must provide a benefit by benefit comparison of the benefits in its proposed Secretary-Approved Alternative Benefit Plan with the benefits provided by one of the section 1937 Benchmark Benefit Packages or the standard full Medicaid state plan under Title XIX of the Act. Submit a document indicating which of these benefit packages will be used to make the comparison and include a chart comparing each benefit in the proposed Secretary-Approved benefit package with the same or similar benefit in the comparison benefit package. including any limitations on amount, duration and scope pertaining to the benefits in each benefit package.

Benefits Included in Alternative Benefit Plan

Enter the specific name of the base benchmark plan selected:

Enter the specific name of the section 193 7 coverage option selected, if other than Secretary-Approved. Otherwise. enter ··secretary-Approved.··


Approval Date: 11/10/2015 ABPS


25


~ Essential Health Benefit 1: Ambulatory patient services

Benefit Provided: Source:

I Physicians Services j jstate Plan l 905(a)

Authorization: Provider Qualifications:

jNone I !Medicaid State Plan

Amount Limit: Duration Limit:

!None I !None

Scope Limit:

I Elective cosmetic surgery not covered unless it is determined medically necessary.

Other information regarding this benefit, including the specific name of the source plan if it is not the base benchmark plan:

INJ FamilyCare Plan A Standard Medicaid.


!Outpatient Hospital j jstate Plan l 905(a)


!None I !Medicaid State Plan


jNone I !None

Scope Limit:

'Cosmetic Surgery must be pre-authorized for medical necessity


INJ FamilyCare Plan A Standard Medicaid


'Chiropractic Services/OLP I !state Plan l 905(a)


I None I !Medicaid State Plan


!None l !None

Scope Limit:

'limited to spinal manipulation




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11

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26

Alternative Benefit Plan·




!Clinic Services - Ambulatory I !state Plan 1905(a)




'None I !None

Scope Limit:

!Medical Services, procedures or prescription drugs whose use is to promote or enhance fertility are not a covered service.


'NJ FamilyCare Plan A Standard Medicaid


. jPediatric & Family Adv. Practice Nurse Services I !state Plan 1905(a)


!None I 'Medicaid State Plan


I None I I None

Scope Limit:

I None



Benefit Provided:

jPodiatrist Services

Authorization:

!None

Amount Limit:

jNone


Source:

I !state Plan I 905(a)

Provider Qualifications:

I !Medicaid State Plan

Duration Limit:

I !None



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27


Scope Limit:

Routine foot care, subluxations of the foot and treatment of flat foot conditions are not covered unless medically indicated.


NJ FamilyCare Plan A Standard Medicaid


jDental Services I !state Plan l 905(a)


Authorization required in excess oflimitation / I Medicaid State Plan


I visit for dental exams, flouride and prophylaxis I lper calendar year

Scope Limit:

Space maintainers, flouride varnish and sealants are not covered for adults.


NJ FamilyCare Plan A Standard Medicaid; Prior authorization required for dental exams, flouride treatments and prophylaxis in excess of 1 visit per year, and prior authorization required for prosthodonic replacements, periodontal work and select dental services, including TMJ, and orthodontic work for children under 21.


!Hospice - Home Care I !state Plan l 905(a)


'None I !Medicaid State Plan


jNone I !None

Scope Limit:

Individual must be diagnosed with a terminal illness with a prognosis of a life expectancy of six months or less as certified by a licensed physician.


NJ FamilyCare Plan A Standard Medicaid; An individual under the age of2 l is eligible to receive hospice services concurrently with services related to the treatment of the child for the condition for which a diagnosis of terminal illness has been made.

Benefit Provided:

I Abortion


Source:

I !state Plan l 905(a)



I i .:;\!ii J> ;0( l

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29



._IN_o_n_e ________________ __,j lMedicaid State Plan


l~N_o_n_e ________________ ~j !None

Scope Limit:

covered if mother's life is endangered if pregnancy goes to term, or in the case of rape or incest.


NJ FamilyCare Plan A Standard Medicaid; coverage within parameters of the Hyde Amendment.




Add

30


~ Essential Health Benefit 2: Emergency services


!Outpatient Hospital: Emergency I !state Plan I 905(a)




jNone I !None

Scope Limit:

jNone


INJ FamilyCare Plan A Standard Medicaid; includes Emergency Room Services.


!Outpatient Hospital Transportation Services ! I state Plan I 905(a)




I None j jNone

Scope Limit:

jNone




I Physicians Services I I state Plan I 905(a)




!None I !None

Scope Limit:

jNone




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11' [,t <:, I '?,

l

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31


Other information regarding this benefit, including the specific name of the source plan if it is not the base

,~~n~::~~~:l~n~Jan A StandardMedicaid I n:~ "'' ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~--'



Add


32


~ Essential Health Benefit 3: Hospitalization


I Inpatient Hospital Services I !state Plan 1905(a)




!None I IN one

Scope Limit:

Elective cosmetic surgery not covered unless determined medically necessary.




!Hospice I I state Plan I 905(a)




I none I !none

Scope Limit:

Individual must be diagnosed with a terminal illness with a prognosis of a life expectancy of six months or less as certified by a licensed physician.


NJ FamilyCare Plan A Standard Medicaid; An individual under the age of 21 is eligible to receive hospice services concurrently with services related to the treatment of the child for the condition for which a diagnosis of terminal illness has been made.


I Physicians Services I !state Plan I 905(a)




!None I I None

Scope Limit:

None




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Other information regarding this benefit, including the specific name of the source plan if it is not the base

~b=en=c=h=m=a=rk~~nl=l~=n:.__~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

1 ~l:_....-_~ .......... I




Add


34


~ Essential Health Benefit 4: Maternity and newborn care


!Nurse-midwife Services I !state Plan l 905(a)




jNone I !None

Scope Limit:

I None

Other information regarding this benefit, including the specific name of the source plan ifit is not the base benchmark plan:



I Physicians Services j lstate Plan l 905(a)




!None I !None

Scope Limit:

I none




'Clinic Services I !state Plan l 905(a)




IN one I !None

Scope Limit:

!None




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35



NJ FamilyCare Plan A StandardMedicaid


~'l-np_a_t_ie_n_t _H_o_sp_1_·ta_1_s_e_rv_i_ce_s ___________ j !state Plan 1905( a)


1 .... N_o_n_e ________________ __.j lMedicaid State Plan


1 .... N_o_n_e ________________ __,j jNone

Scope Limit:

None




._IN_e_w_b_o_m_H_e_a_r_in_g_S_c_re_e_n_in_g _________ ____,j jstate Plan 1905(a)


._IN_o_n_e ________________ __.J IMedicaid State Plan


.... IN_o_n_e ________________ _.l jNone

Scope Limit:

must be performed within 30 days of birth


NJ FamilyCare Plan A Standard Medicaid; must be billed under mother's benefit.




Add

36


~ Essential Health Benefit 5: Mental health and substance use disorder services including behavioral health treatment


!Inpatient Medical Detox-Inpatient Hospital I !state Plan 1905(a)

Authorization: Provjder Qualifications:

!None I 'Medicaid State Plan


'None I 'None

Scope Limit:

!None




jNon-Hospital based detox -Rehabilitative Services I !state Plan 1905(a)




jNone I 'None

Scope Limit:

'None


Service under the State Plan Authority I 905(a)(13)

Service Descriptions: Non-hospital-based detoxification is a residential rehabilitative substance use disorders treatment facility designed primarily to provide short-term care prescribed by a physician and conducted under medical supervision to treat a client's physical symptoms caused by addictions, according to medical protocols appropriate to each type of addiction. This level provides care to clients whose withdrawal signs and symptoms are sufficiency severe to require 23-hour medical monitoring care but can be monitored outside of a inpatient hospital setting. All other licensing requirements for medical services must be followed. This service generally approximates ASAM, Level III.7 D treatment modality. Subject to !MD exclusion, i.e. sixteen beds or less.

Non-hospital detox services are provided by licensed clinical practitioners (LCP) or clinical staff under the supervision of a LCP > 2 hours per week of each service below: -individual counseling -group counseling




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38


Service Limitations: Detoxification level ASAM, Level 111.7 D (per diem) Service admission is recommended by a physician or other licensed practitioner of the healing arts within their scope of practice under State law. Duration of service is expected to be 3-5 days but can be longer if medically necessary.

Provider Specifications: -Licensed Substance Abuse facility

Unit of Service: Per Diem Licensing entity: OHS Regulation Cite: NJAC 10:161A


!Substance Use disorder outpatient - Rehabilitative I !state Plan J 905(a)




!None I IN one

Scope Limit:

!None


Service under the State Plan Authority 1905(a)( 13)

Service Descriptions: Outpatient Treatment Services is a set of treatment activities such as individual counseling, family counseling or group therapy designed to help the client achieve changes in his or her alcohol or other drug using behaviors. Services are provided in regularly scheduled sessions offewerthan nine contact hours a week in a licensed substance abuse treatment facility.

Services include: -Intake and Assessment (I hour) - Licensed Clinical Professional (LCP) or clinical staff supervised by a LCP -Physician Visit: Physician or APN under supervision of a physician. -Outpatient substance abuse individual counseling - LCP or clinical staff supervised by aLCP -Outpatient substance abuse group counseling - LCP or clinical staff supervised by a LCP -Outpatient - Family Counseling/Conference- LCP or clinical staff supervised by a LCP

" Service Limitations: -Cannot bill for more than one outpatient service on the same day with the exception of a physician visit. -If an individuals needs more than 9 contract hours per week, services can be increased if it is medically necessary or an individual is reassessed for appropriate level of care.

Provider Specifications: -NJ OHS Licensed Substance Abuse facility -NJ Medicaid Licensed Independent Clinic




I e), . I

I

I

I

39





40


Unit of Service: as defined by each code Licensing entity: OHS Regulation Cite: NJAC 10:1618


!Case Management - Chronically Mentally Ill I !state Plan I 905(a)


I Prior Authorization j jMedicaid State Plan


I None I !None

Scope Limit:

None




!Inpatient pyschiatric services I !state Plan 1905(a)




I None I !None

Scope Limit:

None


NJ FamilyCare Plan A Standard Medicaid; subject to IMO exclusion


!Clinic Services - mental health I !state Plan I 905(a)


Authorization required in excess oflimitation I !Medicaid State Plan

Amount Limit:

11 service


Duration Limit:

' 'per day



I ,::(",, ., I

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I

41


Scope Limit:

None


NJ FamilyCare Plan A Standard Medicaid; prior authorization for medical necessity for partial care. No prior authorization required for other mental health services. Partial care is limited to 25 hours perweek.


~IP_a_rt_ia_l_H_o_sp_i_ta_i ______________ l !state Plan 1905(a)


Prior Authorization jMedicaid State Plan


Scope Limit:

acute partial hospitalization requires prior authorization




.... lc_o_m_m_u_n_it_y_s_u_p_p_ort_s_e_rv_i_ce_s _________ __.l lState Plan l 905(a)


.... IP_r_io_r_A_u_t_h_o_ri_z_at_io_n ____________ ...... l lMedicaid State Plan


~IN_o_n_e-----------------~ .... IN_o_n_e _________________ ~ Scope Limit:

None


NJ FamilyCare Plan A Standard Medicaid; authorization based on medical necessity


.... 1o_u_t_p_at_ie_n_t_H_o_s_p_it_a1_-_M_e_nt_a_l _H_e_a1_th _______ __.l I State Plan 1905( a)


INone jMedicaid State Plan




42



IN one I !None

Scope Limit:

I None




IPACT I !state Plan 1905(a)


I Prior Authorization I !Medicaid State Plan


I None I INone

Scope Limit:

INot available to individuals receiving Partial Care/Partial Hospitalization Services except during brief periods of transition between delivery systems.


INJ FamilyCare Plan A StandardMedicaid


!Inpatient Mental Health I !state Plan 1905( a)




!None I !None

Scope Limit:

I None


'NJ FamilyCare Plan A Standard Medicaid, subject to !MD exclusion




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43


~ Essential Health Benefit 6: Prescription drugs

Benefit Provided:

Coverage is at least the greater of one drug in each U.S. Pharmacopeia (USP) category and class or the same number of prescription drugs in each category and class as the base benchmark.

Prescription Drug Limits (Check all that apply.): Authorization: Provider Qualifications:

181 Limit on days supply jNo I etate licensed I D Limit on number of prescriptions

D Limit on brand drugs

D Other coverage limits

D Preferred drug list

Coverage that exceeds the minimum requirements or other:

The State of New Jersey's ABP prescription drug benefit plan is the same as under the approved Medicaid state plan for prescribed drugs.




44


~ Essential Health Benefit 7: Rehabilitative and habilitative services and devices


I Physical Therapy and related services - Rehab I !State Plan l 905(a)




I ' treatment session I !per day

Scope Limit:

!None


'NJ_ FamilyCare Plan A Standard Medicaid; also includes Home Health Services, I treatment session is 6 units.


!Occupational Therapy - Rehab j jstate Plan I 905(a)


!Prior Authorization ' 'Medicaid State Plan


I ' treatment session 11 per day

Scope Limit:

IN one


'NJ_ FamilyCare Plan A Standard Medicaid; also includes Home Health Services. I treatment session is 6 units.


I Speech Therapy - Rehab I !state Plan 1905(a)


!Prior Authorization ' 'Medicaid State Plan


11 treatment session I lper day

Scope Limit:

jNone




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45



NJ FamilyCare Plan A Standard Medicaid; also includes Home Health Services and Cognitive Therapy. I treatment session is 6 units.


I .... P_h_y_si_c_aI_T_h_e_r_a_PY_-_ha_b_i_li_ta_t1_·v_e ________ __,j jstate Plan 1905(a)


.... IP_r_io_r_A_u_t_h_o_ri_z_at_io_n ____________ _.j lMedicaid State Plan


~j1_t_r_ea_t_m_e_n_t_s_es_s_io_n ____________ ~j lperday

Scope Limit:

Provided within the scope of the New Jersey state definition ofhabilitative services. See "Other information" for definition.


NJ Fam1lyCare Plan A Standard Medicaid; Dehmt1on of Hab1htat1ve Services: Medically necessary services/ equipment recommended by a licensed practitioner, to maintain or slow the deterioration ofa person's health status. Absence of services could result in a preventable deterioration ofa person's health status or deter the acquisition of a developmental function not yet attained.


.... lo_c_c_u_p_a_ti_o_na_I_T_h_e_r_a_PY_-_h_a_b1_·1i_·t_at_iv_e _______ ~11state Plan 1905(a)


1 .... P_r_io_r_A_u_t_h_o_ri_za_t_io_n ____________ _.l lMedicaid State Plan

Amount Lim.it: Duration Limit:

1 .... I_t_re_a_t_m_e_n_t_se_s_s_io_n ____________ _.l lperday

Scope Limit:

Provided within the scope of the New Jersey state definition ofhabilitative services. See "Other information" for definition.


NJ Fam1 yCare Plan A Stan ar Med1cat ; De m1t1on o Ha 1 1tat1ve Services: Me 1ca ynecessary services/ equipment recommended by a licensed practitioner, to maintain or slow the deterioration ofa person's health status. Absence of services could result in a preventable deterioration of a person's health status or deter the acquisition of a developmental function not yet attained.


1 .... s_p_e_ec_h_T_he_r_a_P_Y_-_H_a_b_iI_it_at_iv_e _________ ~I IState Plan 1905(a)




46





I I treatment session I lper day

Scope Limit:

irrovided within the scope of the New Jersey state definition ofhabilitative services. See "Other information" for definition.


NJ FamilyCare Plan A Standard Medicaid; Also includes Cognitive Therapy. Definition ofHabilitative Services: Medically necessary services/ equipment recommended by a licensed practitioner, to maintain or slow the deterioration of a person's health status. Absence of services could result in a preventable deterioration of a person's health status or deter the acquisition of a developmental function not yet attained.


!Prosthetic and orthotic appliances I !state Plan 1905(a)


!Authorization required in excess oflimitation I !Medicaid State Plan


!None I !None

Scope Limit:

!None


NJ FamilyCare Plan A Standard Medicaid; prior authorization required for prostheses when charges are in excess of $1000 and orthotics when charges are in excess of$500.


jHome Health - Nursing & Home Health Aid Services I !state Plan 1905( a)


I Other I !Medicaid State Plan


!None I IN one

Scope Limit:

1cost equal to or in excess of institutional care may be limited or denied dependent upon medical necessity.




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NJ FamilyCare Plan A Standard Medicaid; Authorization required in excess of scope limit.


Home Health- Med. supplies, Equipment &Appliances .... ls_ta_t_e_P_la_n_I 9_o_s_(a_) ___________ ~ Authorization: Provider Qualifications:

Authorization required in excess oflimitation .... IM_ed_i_c_ai_d_s_t_a_te_P_l_a_n ___________ ~ Amount Limit: Duration Limit:

j I month supply for certain supplies 1 .... N_o_n_e _________________ ~ Scope Limit:

None


NJ FamilyCare Plan A Standard Medicaid; Some items require prior authorization regardless ofamount. More than one month supplies may be given dependent on medical necessity.


~N_u_r_si_n_g_F_a_c_il_ity_1_s_k_i1_1e_d_N_u_r_s_in_g_F_a_c_il_it_y_s_e_rv_i_ce_s __ ~ 1 .... s_ta_t_e_P_la_n_I_9_o_s_(a_) ___________ ___. ,......_... ...... _...._.....


1 .... P_r_io_r_A_u_t_h_o_ri_za_t_io_n ____________ ~ I Medicaid State Plan


!None !None

Scope Limit:

None


NJ FamilyCare Plan A Standard Medicaid; Prior authorization required for medical necessity. Duration based on plan of care documents and progress of individual. Includes both rehabilitation and custodial care.




Add

48


~ Essential Health Benefit 8: Laboratory services


I laboratory and x-ray services I !state Plan 1905(a)




!None I !None

Scope Limit:

!None




!Diagnostic Services I !state Plan I 905(a)




I None I !None

Scope Limit:

!Limited to non-experimental procedures






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49


~ Essential Health Benefit 9: Preventive and wellness services and chronic disease management Collapse All D The state/territory must provide, at a minimum, a broad range of preventive services including: "A" and "B" servicesrecommended by the United States Preventive Services Task Force; Advisory Committee for Immunization Practices (ACIP)recommended vaccines; preventive care and screening for infants, children and adults recommended by HRSA's Bright Futures program/project; and additional preventive services for women recommended by the Institute ofMedicine(IOM).


~'D_i_ab_·e_t_ic_s_u_P_P_h_·e_s_a_n_d_E_q_u_ip_m_e_n_t ________ j jstate Plan 1905(a)


1 ... N_o_n_e _________________ _.l lMedicaid State Plan


Scope Limit:






Add

50


~ Essential Health Benefit I 0: Pediatric services including oral and vision care

Benefit Provided: Source: Medicaid State Plan EPSDT Benefits

!state Plan 1905(a)




!None I !None

Scope Limit:

!None


I




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51


O Other Covered Benefits from Base Benchmark




Collapse All O

52


IZJ Base Benchmark Benefits Not Covered due to Substitution or Duplication Collapse All O Base Benchmark Benefit that was Substituted: Source:

I Base Benchmark

jPrimary Care Visit to Treat Injury/Illness .._ __________________ ___.

Explain the substitution or duplication, including indicating the substituted benefit(s) or the duplicate section 1937 benchmark benefit(s) included above under Essential Health Benefits:

!This benefit was mapped to EHB 1, and will be duplicated by the Physician Services under the Medicaid I State Plan package.

Base Benchmark Benefit that was Substituted: Source:

~------------------_...I Base Benchmark !_specialist Visit .


!This benefit was mapped to EHB 1 and will be duplicated by the Physicians Services under the Medicaid I State Plan package.


'--___________________ __,! Base Benchmark !other Practitioner Office Visit _


!This benefit was mapped to EHB I and will be duplicated by the Physicians Services and Pediatric and I Family Advanced Practice Nurse Services benefits under the Medicaid State Plan package.


~------------------_...,' Base Benchmark j_?utpatient Facility Fee .


!This benefit was mapped to EHB 1 and will be duplicated by the Outpatient Hospital benefit underthe I Medicaid State Plan package.


I Base Benchmark

joutpatient Surgery: Physician/Surgical Services .._ __________________ ___.


!This benefit was mapped to EHB I and will be duplicated by the Outpatient Hospital benefit underthe I Medicaid State Plan package.


... -----------------------'' BaseBenchmark I Hospice Services _




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This benefit was mapped to EHB I and EHB 3 and will be duplicated under the Medicaid State Plan Hospice benefit.


I Infertility Treatment - Substitution Base Benchmark


New Jersey will be substituting infertility treatment and the limited dental package that was mapped to EHB I with the full dental package offered through our Medicaid State Plan package.


I Urgent Care Centers or Facilities Base Benchmark


This benefit was mapped to EHB I and will be duplicated under the Medicaid State Plan Clinic Services benefit.


jHome Health Care Services Base Benchmark

Explain the substitution or duplication, including indicating the substituted benefit(s) or the duplicate section 193 7 benchmark benefit( s) included above under Essential Health Benefits:

This benefit was mapped to EHB 7 and will be duplicated by the Medicaid State Plan Home Health CareNursing & Home Health Aid Services.


I Emergency Room Services Base Benchmark


This benefit was mapped to EHB 2 and will be duplicated by the Medicaid State Plan package Emergency Hospital Services: Outpatient benefit and Physicians Services.


jEmergency Transportation/ Ambulance Base Benchmark


This benefit was mapped to EHB 2 and will be duplicated by the Medicaid State Plan package Outpatient Hospital Transportation benefit.


!Inpatient Hospital Services


Base Benchmark



54





55



This benefit was mapped to EHB 3 and will be duplicated by the Medicaid State Plan package Inpatient Hospital Services benefit.

Base Benchmark Benefit that was Substituted: Source: Base Benchmark

Inpatient Physician and Surgical Services


This benefit was mapped to EHB 3 and will be duplicated by the Medicaid State Plan package Inpatient Hospital and Physician Services benefit.


IBariatric Surgery Base Benchmark




I Prenatal and Postnatal Care Base Benchmark


This benefit was mapped to EHB 4 and will be duplicated by the Nurse-Midwife services, Physician and Clinic Services benefits.


Delivery & All Inpatient Maternity Services

Explain the substitution or duplication, including indicating the substituted benefit(s) or the duplicate section 193 7 benchmark benefit( s) included above under Essential Health Benefits:

This benefit was mapped to EHB 4 and will be duplicated by the Inpatient Hospital benefit.


Mental/Behavioral Health OutpatientServices


This benefit was mapped to EHB 5 and will be duplicated by the Outpatient Hospital - Mental Health, Clinic Services - Mental Health, Partial Hospital, Community Support Services, PACT, and Case Management - Chronically Ill benefits.




56



!Mental/Behavioral Health InpatientServices I Base Benchmark


This benefit was mapped to EHB 5 and will be duplicated by the Medicaid State Plan Inpatient Mental Health Services, and Inpatient Psychiatric benefits.


I substance Abuse Disorder OutpatientServices I Base Benchmark


This benefit was mapped to EHB 5 and will be duplicated by the Medicaid State Plan Substance Abuse Disorder Outpatient benefit.


!substance Abuse Disorder Inpatient Services I Base Benchmark


This benefit was mapped to EHB 5 and will be duplicated by the Medicaid State Plan Substance Abuse Disorder Inpatient Medical Detox and Non-medical Detox benefits.


I Prescription Benefits I Base Benchmark


This benefit was mapped to EHB 6 and will be duplicated by the Medicaid State Plan Prescription drug coverage.


'Chiropractic Care I Base Benchmark


This benefit was mapped to EHB 1 and will be duplicated with the Medicaid State Plan package Chiropractic Services/OLP benefit. The benchmark benefit is limited to therapeutic manipulation and 30 visits per year and two modalities per visit. The Medicaid State Plan benefit does not limit by visits or modalities.


I Durable Medical Equipment


I Base Benchmark



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This benefit was mapped to EHB 7 and will be duplicated by the Medicaid State Plan Home HealthMedical Supplies, Equipment and Appliances and Home Health - PT, OT, ST benefits.


I Diagnostic Test (X-ray and Lab Work) Base Benchmark


This benefit was mapped to EHB 8 and will be duplicated by the Medicaid State Plan Laboratory and X-ray Services benefit.


I Imaging (CT/PET Scans, MRI) Base Benchmark


This benefit was mapped to EHB 8 and will be duplicated by the Medicaid State Plan Diagnostic Services benefit.


Preventative Care/Screening/Immunization

Explain the substitution or duplication, including indicating the substituted benefit(s) or the duplicate section 1937 benchmark benefit(s) included above under Essential Health Benefits:-

· s benefit was mapped to EHB 9 and will be duplicated by the Medicaid State Plan Preventative Services d Immunizations benefit.


I Foot Care Base Benchmark


This benefit was mapped to EHB I and will be duplicated by the Medicaid State Plan Podiatrist Services benefit.


I Acupuncture Base Benchmark


This benefit was mapped EHB I and 3 and will be duplicated by the Medicaid State Plan Outpatientand Impatient Hospital Services benefits.


I Routine Eye Exam for children


Base Benchmark



58





59



This benefit was mapped to EHB 10 and will be duplicated by Medicaid State Plan EPSDTbenefits.


jDental Check-up for Children Base Benchmark


This benefit was mapped to EHB 10 and will be duplicated by Medicaid State Plan EPSDTbenefits.


Autism/Developmental Disabilities - SpeechTherapy


This benefit was mapped to EHB 10 and will be duplicated by the Medicaid State Plan EPSDT benefit. This benefit under the base benchmark includes a 30 visit per calendar year limit. The Medicaid State Plan does not include a visit limit.


Autism/Developmental Disabilities-PhysicalTherapy


This benefit was mapped to EHB 10 and will be duplicated by the Medicaid State Plan EPSDTbenefit. This benefit under the base benchmark includes a 30 visit per calendar year limit. The 30 visit limit is a combined limit with Occupational Therapy. The Medicaid State Plan does not include a visit limit.


Autism/Developmental Disability-OccupationalThera


This benefit was mapped to EHB 10 and will be duplicated by the Medicaid State Plan EPSDT benefit. This benefit under the base benchmark includes a 30 visit per calendar year limit. The 30 visit limit is a combined limit with Physical Therapy. The Medicaid State Plan does not include a visit limit.


Food/Food Products for Inherited Metabolic Disease


This benefit was mapped to EHB 7 and will be duplicated under the Medicaid State Plan Home HealthMedical Supplies, Equipment and Appliances Benefit.




60



I Base Benchmark

!Blood, blood products and blood transfusions ~-------------------~


!This benefit was mapped to EHB I and 3 and will be duplicated by the Medicaid State Plan Inpatient I Hospital Services, Outpatient Hospital Services and Clinic Services benefits.


I Base Benchmark I Dental Care and Treatment: Illness and Injury

'-----------------------' Explain the substitution or duplication, including indicating the substituted benefit(s) or the duplicate section 1937 benchmark benefit(s) included above under Essential Health Benefits:

'

New Jersey will be substituting infertility treatment and the limited dental package that was mapped to I EHB 1 with the full dental package offered through our Medicaid State Plan package.


.... ---------------------'' Base Benchmark !Dental Care and Treatment: Anesthesia _


!New Jersey will be substituting infertility treatment and the limited dental package that was mapped to I EHB 1 with the full dental package offered through our Medicaid State Plan package.


~-------------------~' Base Benchmark l:emporomandibular Joint Disorder _


'

This benefit was mapped to EHB 1 and will be duplicated by the Medicaid State Plan package Dental I Services benefit.


.____ ___________________ __,, Base Benchmark j~ancer Clinical Trials _


'

This benefit was mapped to EHB 1 and 3 will be duplicated by the Medicaid State Plan package Outpatient I Hospital and Inpatient Hospital benefits.


I Base Benchmark

!Pain Management Services _ '-----------------------~


'

This benefit was mapped to EHB 1 and will be duplicated by the Medicaid State Plan package Physicians I Services benefit.




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61



!chelation Therapy Base Benchmark


This benefit was mapped to EHB 1 and 3 and will be duplicated by the Medicaid State Plan Inpatient Hospital Services, Outpatient Hospital Services, and Clinic Services Benefits.


jchemotherapy Base Benchmark




I Dialysis Treatment Base Benchmark




!Radiation therapy Base Benchmark




!Infusion Therapy Base Benchmark


This benefit was mapped to EHB 1 and 3 and will be duplicated by the Medicaid State Plan Inpatient and Outpatient Hospital Benefits.


I Transplants Base Benchmark






;J

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62



L.

____________________ _,I Base Benchmark I Hemophilia Services _


'

This benefit was mapped to EHB I, 3, and 7 and will be duplicated by the Medicaid State Plan Inpatient I Hospital, Outpatient Hospital, Clinic Services and Home Health Care benefits.


'---------------------~' Base Benchmark !orthotics and Prosthetics _


!This benefit was mapped to EHB 7 and will be duplicated by the Medicaid State Plan Orthoticsand I Prosthetics benefit.


'---------------------~' Base Benchmark ,~ewbom Hearing Screening _


'

This benefit was mapped to EHB 4 and will be duplicated under the Medicaid State Plan Newborn Hearing I Screening benefit.


.... ---------------------'' Base Benchmark !Mammograms _


!This benefit was mapped to EHB 9 and will be duplicated by the Medicaid State Plan Preventative Services I benefit.


.__ ___________________ __.! Base Benchmark t~astectomy inpatient stay _


'

This benefit was mapped to EHB 3 and will be duplicated by the Medicaid State Plan InpatientHospital I Benefit.


~-------------------~' Base Benchmark ,~econstructive breast surgery _


'

This benefit was mapped to EHB 3 and will be duplicated by the Medicaid State Plan Inpatient Hospital I Benefit.




63



Diabetes Treatment - services and supplies


This benefit was mapped to EHB 9 and will be<iuplicated under the Medicaid State Plan Diabetic Supplies & Equipment benefit.


!Nutritional Counseling Base Benchmark


This benefit was mapped to EHB 9 and will be duplicated by the Medicaid State Plan Preventive Services benefit.


Skilled Nursing Facility - Skilled NursingCare


This benefit was mapped to EHB 7 and will be duplicated by the Medicaid State Plan Nursing Facility/ Skilled Nursing Facility Services benefit. Base Benchmark does not have a duration limit but prior authorization is required for medical necessity. Duration based on plan of care documents and progress of individual. Custodial Care is not covered under the base benchmark.


Speech and Cognitive Therapy - Rehab/Hab


This benefit was mapped to EHB 7 and will be duplicated by the Medicaid State Plan Speech Therapy benefit. The base benchmark includes a combined 30 visit per calendar year limit and is limited to I session per day. The Medicaid State Plan does not include a visit limit. Cognitive Therapy is a part of the Medicaid State Plan Speech Therapy benefit.


Physical and Occupational Therapy - Rehab/Hab


This benefit was mapped to EHB 7 and will be duplicated by the Medicaid State Plan Physical Therapyand Occupational benefit. The base benchmark includes a combined 30 visit per calendar year limit and is limited to I session per day. The Medicaid State Plan does not include a visit limit.


Autism/Developmental Disabilities - ABA or Related




64



'This benefit was mapped to EHB JO and will be substituted by the Medicaid State Plan EPSDT benefit.


I Abortion - Hyde Amendment I Base Benchmark


I This benefit was mapped to EHB I and is duplicated by the Medicaid State Plan Abortion benefit.


I Eyeglasses for Children I Base Benchmark


'This benefit was mapped to EHB IO and is duplicated by the Medicaid State Plan EPSDT benefit. The benchmark benefit is limited to children ages 18 and under.


I Hearing Aid Services I Base Benchmark


!This benefit was mapped to EHB JO and is duplicated by the Medicaid State Plan EPSDT benefit. The benchmark benefit is limited to children ages 15 and under.




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1ZJ Other Base Benchmark Benefits Not Covered Collapse All IZ! Base Benchmark Benefit not Included in the Alternative Source: Benefit Plan: Base Benchmark

Abortion Services greater than Hyde Amendment



Add


66


~ Other I 937 Covered Benefits that are not Essential Health Benefits Collapse All D Other 193 7 Benefit Provided: Source:

I Section I 937 Coverage Option Benchmark Benefit

1 ... F_Q_H_C ________________ ___._ Package


j._o_t_h_er ________________ __.l lMedicaid State Plan I Amount Limit: Duration Limit:

j._N_o_n_e ________________ __.l !None

Scope Limit:

None

Other:

No prior authorization required; NJ FamilyCare Plan A Standard Medicaid; Source: State Plan I 905(a)

Other I 93 7 Benefit Provided: Source:

IN on-medical transportation I Section I 937 Coverage Option Benchmark Benefit )ii}(! . ,J '---------'------~--------'- Package -'w-·'-i='-~---'

0-'1 Authorization: Provider Qualifications:

.... IP_r_io_r_A_u_th_o_r_iz_a_ti_o_n ___________ ___,j jMedicaid State Plan


I._N_o_n_e ________________ _.l !None

Scope Limit:

None

Other:

NJ FamilyCare Plan A Standard Medicaid; Source: State Plan I 905(a)

Other I 937 Benefit Provided: Source:

I Section I 937 Coverage Option Benchmark Benefit

l ... 1_n'-pa_t_ie_n_t _-_re_l_ig'"""io_u_s_n_o_n_-_m_e_d_ic_a_l s_e_rv_i_c_es _____ _, Package


l._o_t_h_er ________________ _.l lMedicaid State Plan


~IN_on_e~~~~~~~~~--'l~IN_on_e~~~~~~~~~-----"I

Scope Limit:


Other:

)NJ FamilyCare Plan A Standard Medicaid; Source: State Plan I 905(a)




67





68


I

Other 193 7 Benefit Provided: Source:

I substance Use Disorder - Partial Care I Section 1937 Coverage Option Benchmark Benefit

Package


I other I !Medicaid State Plan


!None I I None

Scope Limit:

jNone

Other:

Full benefit name: Rehabilitative Services - Substance Use Disorder - Partial Care

Service covered under the State Plan Authority 1905(a)(l 3)

Service Descriptions: Partial Care-Day or Evening - A licensed rehabilitative program that provides abroad range of clinically intensive treatment services in a structured environment for a minimum of twenty (20) hours a week, during the day or evening hours. Services are delivered for no less than 4 hours per day and include individual, group, family therapy. This level of care approximates to ASAM Level 11.5.

Services include: -Physician visit: Physician or APN under supervision of a physician. -Individuals counseling - Licensed clinical professional (LCP) or clinical staff supervised by a LCP -Group substance abuse counseling - LCP or clinical staff supervised by aLCP -Group counseling - LCP or clinical staff supervised by a LCP -Family Counseling- LCP or clinical staff supervised by aLCP -Laboratory services- Medically Licensed clinical professional

Service Limitations: Service admission is recommended by a physician or other licensed practitioner of the healing arts within their scope of practice under State law. Ifan individuals needs more than 20 hours per week, services can be increased if medically necessary oran individual is reassessed for appropriate level of care.

Provider Specifications: -NJ OHS Licensed Substance Abuse Facility -NJ Medicaid Licensed Independent Clinic

Unit of Service= I day, up to 5 days/wk Licensing Entity: OHS Regulation Cite: NJAC 10:1618




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!substance Use Disorder Intensive Outpatient I Section 1937 Coverage Option Benchmark Benefit

Package Authorization: Provider Qualifications:

!other I !Medicaid State Plan


!None l IN one

Scope Limit:

!None

Other:

Full benefit name: Rehabilitative Services - Substance Abuse Disorder Intensive Outpatient

Service under the State Plan Authority 1905(a)( 13)

Service Descriptions: A rehabilitative service designed to help clients change his or her alcohol or other drug using and related behaviors. This service consists of approximately nine to 12 hours of services each week and provides counseling about substance related problems. Services delivered are at a minimum of three hours per day for a minimum of three days per week. This level of care approximates to ASAM Level II. I.

Services include: -Physician visit: Physician or APN under supervision of a physician. -Individuals counseling - Licensed Clinical Professional (LCP) or clinical staff supervised by aLCP -Group substance abuse counseling - LCP or clinical staff supervised by aLCP -Group counseling - LCP or clinical staff supervised by a LCP -Family Counseling- LCP or clinical staff supervised by a LCP

Service Limitations: -Service admission is recommended by a physician or other licensed practitioner of the healing arts within their scope of practice under State law. -Services delivered are at a minimum of three hours per day for a minimum of three days per week. -!fan individuals needs more than 12 hours per week, services can be increased ifit is medically necessary or an individual is reassessed for appropriate level of care.

Provider Specifications: -NJ OHS Licensed Substance Abuse Facility -NJ Medicaid Licensed Independent Clinic

Unit of Service: Per diem Licensing Entity: OHS Regulation Cite: NJAC 10:1618


I substance Use Disorder - short term residential I Section 1937 Coverage Option Benchmark Benefit Package






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I

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70





71



!None I IN one

Scope Limit:

I None

Other:

Full benefit name: Rehabilitative Services - Substance Use Disorder - short term residential

Service underthe State Plan Authority l 905(a)( 13)

Service Descriptions: Short-term residential substance use disorder treatment facilities are rehabilitative treatment facilities in which treatment is designed primarily to address specific addiction and living skills problems through a prescribed 23-hour per day activity regimen on a short-term basis, and generally approximates ASAM PPC-2R, Level 111.7 treatment services. Subject to IMO exclusion i.e. sixteen beds or less.

A minimum of7 hours of structured programming must be provided on a billable day. Structured activities must include at a minimum of 12 hours per week of counseling services provided by a licensed clinical practitioner (LCP) or by clinical staff under the supervision of a LCP to include: -individual therapy -group therapy -family therapy

Service Limitations: Service admission is recommended by a physician or other licensed practitioner of the healing arts within their scope of practice under State law.

Provider Specifications: -NJ OHS Licensed Substance Abuse facility

Unit of Service: Per diem Licensing Entity: OHS Regulation Cite: NJAC 10:161A


I Psychiatric Emergency Rehabilitation Services l Section 1937 Coverage Option Benchmark Benefit Package




!None I !None

Scope Limit:

None

Other:

INo prior authorization required; NJ FamilyCare Plan A Standard Medicaid


Approval Date: 11/10/2015 ABPS


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Service Description: Psychiatric Emergency Rehabilitation Services (PERS) services are provided to a person who is experiencing a behavior health crisis, designed to interrupt and/or ameliorate a crisis experience including an assessment, immediate crisis resolution and de-escalation, and referral and linkage to appropriate services to avoid, where possible, more restrictive levels of treatment. The goals of PERS are symptom reduction, stabilization, and restoration to a previous level of functioning. All activities must occur within the context ofa potential or actual behavioral health crisis. PERS is a face-to-face intervention and can occur in a variety of locations, including but not limited to an emergency room or clinic setting, in addition to other community locations where the person lives, works, attends school, and/or socializes. Eligible providers of PERS services must meet the rehab qualifications under the SPA and individuals may choose from any providers meeting the established provider qualifications.

Specific services include; A. An assessment of risk and mental status; as well as the need for further evaluation or other mental health services. Includes contact with the client, family members or other collateral sources (e.g. caregiver,school personnel) with pertinent information for the purpose of an assessment and/or referral to other alternative mental health services at an appropriate level. B. Short-term PERS including crisis resolution and de-briefing with the identified Medicaid eligible individual. C. Follow-up with the individual, and as necessary, with the individual's caretaker and/or family member(s). D. Consultation with a physician or with other qualified providers to assist with the individuals' specific crisis

Certified assessors and/or licensed professional of the healing arts shall assess, refer and link all Medicaid eligible individuals in crisis. This shall include but not be limited to performing any necessary assessments; providing crisis stabilization and de-escalation; development of alternative treatment plans; consultation, training and technical assistance to other staff; consultation with the psychiatrist; monitoring of consumers; and arranging for linkage, transfer, transport, or admission as necessary for Medicaid eligible individuals at the conclusion of the PERS.

PERS specialists shall provide PERS counseling, on and off-site; monitoring of consumers; assessment under the supervision of a certified assessor and/or licensed professional of the healing arts; and referral and linkage, if indicated. PERS specialists who are nurses may also provide medication monitoring and nursing assessments.

Psychiatrists in each crisis program perform psychiatric assessments, evaluation and management as needed; prescription and monitoring of medication; as well as supervision and consultation with PERS program staff.

Consumer Participation Criteria These rehabilitation services are provided as part of a comprehensive specialized psychiatric program available to all Medicaid eligible consumers. PERS services must be medically necessary. The medical necessity for these rehabilitative services must be recommended by a licensed practitioner of the healing arts who is acting within the scope of his/her professional licensed and applicable state law to promote the maximum reduction of symptoms and/or restoration of an individual to his/her best age-appropriate functional level. All individuals who are identified as experiencing a seriously acute psychological/ emotional change which results in a marked increase in personal distress and which exceeds the abilities and the resources of those involved to effectively resolve it are eligible. Individuals may choose from any providers meeting the established provider qualifications outlined in this SPA.

NEW JERSEY ABPS

74


t'rov1aerl.,!ua1mcanons: Programs shall be certified by Medicaid and/or its designee as meeting state requirements for PERS programs.

PERS services are delivered by certified assessors, temporary assessors, PERS specialists, and licensed professionals of the healing arts. Prior to achieving full status as a certified assessor, an individual shall serve as a temporary assessor for one year, complete certification training, and pass a proficiency exam. Certified assessors must have: I. a MA/MS in a mental health related field from an accredited institution, plus one year of post-master's full time professional experience in a psychiatric setting; OR 2. a BA/BS in a mental health related field from an accredited institution, plus three years of post-bachelor's full time professional experience in a mental health setting, one of which is in a crisis setting; OR 3. a BA/BS in a mental health related fiend from an accredited institution, plus two years of post-bachelor's full time professional experience in a mental health setting, one of which is in a crisis setting and currently enrolled in a master's program; OR 4. a licensed registered nurse with three years full-time, post RN, professional experience in the mental health field, one of which is in a crisis setting.

PERS specialists shall have: I. A MA/MS in a mental health related field from an accredited institution; OR 2. A BA/BS in a mental health related field from an accredited institution, plus two years of full time professional experience in a psychiatric setting; OR 3. Licensure as a registered professional nurse.

Each PERS program is supervised by a medical director who is a psychiatrist. A licensed professional of the healing arts who is acting within the scope of his/her professional licensed and applicable state law is available for consultation and able to recommend treatment 24 hours a day, seven days a week to the PERS program. Amount, Duration and Scope: A unit of service is defined according to the HCPCS approved code set unless otherwise specified.

PERS services by their nature are crisis services and are not subject to prior approval. Components thatare not provided to, or directed exclusively toward the treatment of, the Medicaid eligible individual are not eligible for Medicaid coverage.

The PERS services should follow any established crisis plan already developed for the consumer as part of an individualized treatment plan, called a care plan. The PERS activities must be intended to achieve identified care plan goals or objectives.

If no crisis plan has yet been developed for the consumer, then the PERS services should stabilize the individual, identify appropriate aftercare for the consumer including referral and linkage to a community provider who will develop a formal care plan, admission to an inpatient/residential setting where a formal care plan will be developed or the development of an alternative care plan by the certified assessor. In all circumstances, the goal of PERS should be the de-escalation and stabilization of the individual as well as determining longer-term care goals through the implementation of or development of a care plan either directly or through referral. The crisis/aftercare/care plan (care plan) should be developed in a personcentered manner with the active participation of the individual, family and providers and be based on the individual's condition and the standards of practice for the provision of these specific rehabilitative services. An individual in crisis may be represented by a family member or other collateral contact who has knowledge of the individual's capabilities and functioning. The care plan should identify the medical or remedial services intended to reduce the identified condition as well as the anticipated outcomes of the individual. The care plan must specify the frequency, amount and duration of services. The care plan must be recommended by a licensed practitioner of the healing arts and should, where possible, be signed by the

T~•· 1 i::::_nnn-::i /\---- ._, n-.. -· 11 /1 n/"">n1 i::::

NEW JERSEY ABPS

75


consumer as appropna e or 1s or er iagnos1s. e care p an eve ope unng w1 spec1 ya timeline for reevaluation as applicable. Ideally, the care plan developed in PERS will be replaced almost immediately (e.g., in a few weeks) by a more permanent care plan once the individual is stabilized and ina longer term community or institutional placement. The reevaluation should involve the individual, family and providers and include a reevaluation of plan to determine whether services have contributed to meeting the stated goals. A new care plan should be developed if there is no measureable reduction of disability or restoration of functional level. The new plan should identify a different rehabilitation strategy with revised goals and services. Coordination with crisis intervention teams in community support services is required and includes receiving referrals from individuals enrolled in that program and ensuring coordination back to that community program where necessary de-escalation and stabilization has occurred.

Substance use must be recognized and addressed in an integrated fashion as it may add to the risk of increasing the need for engagement in care. Individuals may not be excluded from service due to active, current, substance abuse or history of substance abuse.

Limitations: Providers must maintain medical records that include a copy of the care plan, the name of the individual, dates of services provided, nature, content and units of rehabilitation services provided, and progress made toward functional improvement and goals in the care plan. Services cannot be provided to a resident ofan institution including any residents of Institutions for Mental Disease (IMO). Room and board is not included in Medicaid coverage of PERS.

Services provided to children and youth must include communication and coordination with the family and/ or legal guardian and custodial agency for children in state custody. Coordination with other child serving systems should occur as needed to achieve the treatment goals and should include appropriate referrals to the child mobile response program(s). All coordination. must be documented in the youth's medical record.

Other I 93 7 Benefit Provided: Source: Section 1937 Coverage Option Benchmark Benefit I Behavioral Health Home (Adult) Package


~lo_t_h_e_r ________________ __,I IMedicaid State Plan


~IN_o_n_e _________________ _, ~IN_o_n_e-----------------~

Scope Limit:

Adults with SMI who are at risk for high utilization of medical and behavioral health care services.

Other:

This benefit is identical to NJ FamilyCare Plan A Standard Medicaid Plan 1945 described on pages: Attachment 3. I H page 9 of 48 to page 48 of 48.

Geographic Limitations: BHH is currently available to adults in Bergen County (Effective Date: 7/1/14); and Mercer County (Effective I 0/1/14).

Service Descriptions: Comprehensive Care Management: Care Management is the primary coordinating function in a BHH. The goal of Care Management is the assessment of consumer needs, development of the care plan, coordination of the services identified in the care plan and the ongoing assessment and revisions to the plan based on evaluation of the consumer's needs. The Care Manager is the Team Leader.




76





77


comprehensive care management services are con<1ucte<1 by registered nurses, phys1c1an s assistants or advanced practice nurses.

Service Limitations: Entry to this service is based on diagnostic and service utilization criteria. An adult consumer must have a diagnosis of Serious Mental Illness (SMI) and be at risk for high utilization of services.

Consumer Eligibility: NJ plans to provide Behavioral Health Home (BHH) services to adults with a Serious Mental Illness (SM!) who are high utilizers of services or who are at risk of high utilization of services and are residents of Bergen County (effective 1/1/14) and Mercer County (effective l 0/1/14). For this service SMI is defined a mental illness that causes serious impairments in emotional and behavioral functioning that interfere with an individual's capacity to remain in the community unless supported by treatment and services. The determination of risk is made using the Chronic Illness and Disability Payment System (COPS).

Enrollment: NJ Division of Medical Assistance and Health Services (DMAHS) and Division Mental Health and Addiction Services (DMHAS) will partner with providers to identify and refer to the BHH service. Using claims data, DMAHS will identify consumers for the BHH service. NJ DMAHS will notify the consumers via hard copy mail of their eligibility, how to engage in the service, and choice of provider. Individuals will not be auto enrolled in the BHH service. For those individuals receiving the ABP benefit package, BHH eligibility is driven by diagnosis. The list of BHH eligible diagnosis will be available to BHH providers enabling them to screen individuals for eligibility and enroll in the BHH. The BHH will also be required to outreach to consumers who are not currently receiving services.

Provider Specifications: • A mental health treatment provider licensed by OHS. • Certified to provide BHH by OHS • Accredited by NCQA or other nationally recognized accrediting body as a Health Home within two years of initial state certification

Provider Eligibility: All BHH provider agencies must be licensed as a mental health provider by the New Jersey Department of Human Services (NJDHS) and serve Bergen County and Mercer County residents. The DMHAS will use a qualification process to certify licensed mental health providers as BHHs. Providers will have two years from certification as a BHH to become accredited as a BHH by a nationally recognized and state approved accrediting body.

Provider Infrastructure: The BHH Core Team will include: a Nurse Care Manager, a Care Coordinator, a Health and Wellness Educator, consultative services of a Psychiatrist and a Primary Care Physician, and Support Staff. Physician time for BHH services is limited to the time spent in face to face team meetings and consultation. Optional team members include a nutritionist/dietician, Peer, pharmacist and Hospital Liaison. Support for both the required and optional members were built into the BHH rate. Staff Qualifications: Care Management is the primary coordinating function in a BHH (BHH). The goal of Care Management is the assessment of consumer needs, development of the care plan, coordination of the services identified in the care plan and the ongoing assessment and revisions to the plan based on evaluation of the consumer's needs. The Care Manager is the Team Leader. Comprehensive care management services are conducted by licensed registered nurses, physician's assistants or advanced practice nurses.

Care Coordination services are provided by Care Coordinators and other Health Team members with the primary goal of implementing the individualized service plan, with active involvement by the consumer, to ensure the plan reflects consumer needs and preferences. Care coordination emphasizes access to a wide variety of services required to improve overall health and wellness. Care Coordinators can be trained social

r11.1. , r;_nnn'.:I.

NEW JERSEY ABPS

cff, · ,_ n-""-. n7 in, /'ln1 r;

78


worKers or Llcensea Yracncat Nurses.

Health promotion activities are conducted with an emphasis on empowering the consumer to improve health and wellness. Health Promotion can be provided by any member of the team, a certified peer wellness counselor or other certified health educator.

Individual and family support services (including authorized representatives) can be delivered by nurse care manager or other members of the home health team. Helping the individual and family recognize the importance of family and community support in recovery, health and wellness, and helping them develop and strengthen family and community supports to aid in the process ofrecovery and health maintenance.

BHHs provide comprehensive transitional care and follow-up to consumers transitioning from inpatient care and/or emergency care to the community. Comprehensive transitional care can be provided by the Nurse Care Manager or other BHH team members.

Referral to community and social support services involves providing assistance for consumers to obtain necessary community and social supports. Referral activities are most often provided by the Care Coordinator but can be performed by any member of the team.

SERVICE BASED ON STAGES OF INVOLVEMENT: o Engagement o Active o Maintenance Unit of Service= Monthly Case Rate for the service based on level ofinvolvement Licensing Entity: DHS Accredited by: Accredited by NCQA, JACHO, CARF or other nationally recognized accrediting body asa Health Home within two years of initial state certification


!Personal Care Services I Section 1937 Coverage Option Benchmark Benefit

Package




140 hours per week I !None

Scope Limit:

None

Other:

NJ FamilyCare Plan A Standard Medicaid; Source: State Plan I 905(a); Includes 19150) Self-directed service delivery model as part of benefit.

Other 193 7 Benefit Provided:

I Family Planning Services


Source:

I Section 1937 Coverage Option Benchmark Benefit

Package



IL Cc I

I' n I

I

I

79



1 .... o_t_h_e_r ________________ __.j jMedicaid State Plan


!None IN one

Scope Limit:

None

Other:

No prior authorization required; NJ FamilyCare Plan A Standard Medicaid; Source: State Plan l 905(a)



:robacco Cessation Package


.... lo_t_h_er ________________ __.l lMedicaid State Plan


!None jNone

Scope Limit:

None

Other:

NJ FamilyCare Plan A Standard Medicaid; Source: State Plan 1905(a)


I Extended Services for Pregnant Women Section 1937 Coverage Option Benchmark Benefit

Package Authorization: Provider Qualifications:

!other !Medicaid State Plan


jNo Limitations During pregnancy and 60 days post partum

Scope Limit:

Extended services to pregnant women includes all major categories of services as long as the services are determined to be medically necessary and related to the pregnancy

Other:

Prior authorization is not required. Source: State Plan l 905(a)




80



I Dentures I Section 1937 Coverage Option Benchmark Benefit

Package


!Prior Authorization I !Medicaid State Plan


I 1 device in each arch I !every 7.5 years

Scope Limit:

None

Other:

NJ FamilyCare Plan A Standard Medicaid; Source: State Plan 1905(a); Exceptions to the amount limit may be made for medical necessity which must be documented.


lc1inic Services - Medical Day Care I Section 1937 Coverage Option Benchmark Benefit

Package




!12 hours I lper day

Scope Limit:

Must be provided at least 5 hours per day, 5 days per week

Other:



jMedical/Surgical Services furnished by a Dentist I Section 1937 Coverage Option Benchmark Benefit Package




I None I !None

Scope Limit:


Other:

NJ FamilyCare Plan A Standard Medicaid. Source: State Plan 1905(a); No prior authorization required.




I ,,,,' ~,' I

I

I

1.i!i·~111i:· . YI

I

I

I

I

81



I Eyeglasses I Section 1937 Coverage Option Benchmark Benefit

Package


Authorization required in excess oflimitation I !Medicaid State Plan


11 pair I 12 years

Scope Limit:

Prescription sunglasses not provided; bifocals only when prescribed; tinted lenses only when medically indicated; and contact lenses only for specific ocular pathological conditions for patient who cannot be fitted with regular lenses.

Other:


Other 1937 Benefit Provided: Source:

I Hearing Aid Services I Section 1937 Coverage Option Benchmark Benefit

Package




IN one I !None

Scope Limit:

Ii hearing aid per client

Other:

NJ FamilyCare Plan A Standard Medicaid; Source: State Plan 1905(a)(l I) Full benefit name: Hearing Aid Services - Physical Therapy and Related Services

Other 1937 Benefit Provided:

I screening Services

Authorization:

I other

Amount Limit:

INone


Source:


Package Provider Qualifications:

I !Medicaid State Plan

Duration Limit:

I IN one



~:'.fi:I

1::iuettt+i!::'..':ic s:tl

I

I

I c>:111L .">:ri I

I

I

I

I

I

82


Scope Limit:

None

Other:

NJ FamilyCare Plan A Standard Medicaid; Source: State Plan 1905(a); No prior authorization required.


!opioid Treatment/Maintenance I Section 1937 Coverage Option Benchmark Benefit

Package




I None I IN one

Scope Limit:

None

Other:

NJ FamilyCare Plan A Standard Medicaid; Source: State Plan 1905(a); No prior authorization required.


!Mental Health Adult Rehabilitation (group homes) I Section 1937 Coverage Option Benchmark Benefit Package




I dependent on level of care I I None

Scope Limit:

None

Other:

NJ FamilyCare Plan A Standard Medicaid; Source: State Plan 1905(a); No prior authorization needed; subject to IMO exclusion i.e. sixteen beds or less. Residential Levels of Care: • Supervised Residence A+: refers to licensed group homes or apartments. Community mental health rehabilitation services are available to consumer residents up to 23 hours per day as needed when clinically necessary, seven days a week. This includes awake overnight staff coverage. • Supervised Residence A: refers to licensed group homes or apartments. Community mental health rehabilitation services are available to consumer residents 12 hours or more per day, (but less than 24 hours per day), seven days per week. • Supervised Residence B: refers to licensed group homes or apartments. Community mental health rehabilitation services are available to consumer residents for 4 or more hours per day, (but less than 12 hours per day), seven days per week.




I ,. ...... ( I

I"' :.1

I

I

I

I

83





84


• :::.uperv1seo K.es1oence L: rerers to 11censeo group nomes or apartments. communny mental neann rehabilitation services are available to consumer residents for one or more hours per week, (but less than 4 hours per day). • Family Care (Level D): refers to a licensed program in a private home or apartment in which community mental health rehabilitation services are available to consumer residents for 23 hours per day by a Family Care Home provider.


I Behavioral Health Home (Children) I Section 1937 Coverage Option Benchmark Benefit

Package




!None I IN one

Scope Limit:

Young adults, children, and adolescents with serious emotional disturbance (SED) and a chronic medical condition.

Other:

This benefit is identical to NJ FamilyCare Plan A Standard Medicaid State Plan 1945 described on pages: Attachment 3.1.H page 9 of 46 to page 46 of 46.

Service Descriptions: Comprehensive Care Management: Care Management is the primary coordinating function in a BHH. The goal of Care Management is the assessment of consumer needs, development of the care plan, coordination of the services identified in the care plan and the ongoing assessment and revisions to the plan based on evaluation of the child's needs. The Care Manager is the Team Leader. The BHH Team enhances the existing care management team by providing the medical expertise and support needed to help the child and family manage the chronic condition.

Care Coordination: Care Coordination services are provided by the Care Manager with support from the Nurse Manager, with the primary goal of implementing the individualized service plan/plan of care, with active involvement by the child/family, to ensure the plan reflects the child/family needs and preferences. Care coordination emphasized access to a wide variety of services required to improve overall health and wellness. Care Managers can be social workers and/or other trained health care professionals. A license in the health care professions is not required. Nurse Manager must be properly licensed and credentialed (Minimum RN).

Health Promotion: Health promotion activities are conducted with an emphasis on empowering the child/ family to improve health and wellness. Whenever possible these activities are accomplished using evidence based practices and/or curriculum.

Population Criteria: The Children's Behavioral Health Home will service children with SED, DD/Ml, Co-occurring MH/SA, or are DD eligible, with one other chronic condition.

Geographic Limitations: BHH is currently available to children, adolescents and young adults in Bergen County (Effective Date: 7/1/14) and Mercer County (Effective I 0/1/14).




I , ,

'.I ,v,

I

I

85


IAutnonzatton Kequirement:

Provider Criteria: The Department of Children and Families, Children System of Care (CSOC) hasan existing network of Care Management Organizations (CM Os) that provide a variety of care management and support services. The BHH will be an enhancement to the existing CMO services for youth thatmeet BHH eligibility criteria. CMOs will become Children's BHHs through a state BHH certification process and national accreditation.


IICF/IID Section 1937 Coverage Option Benchmark Benefit

_ Package


.... lo_t_h_er ________________ __,j jMedicaid State Plan


.... IN_o_n_e ________________ ~J !None

Scope Limit:

None

Other:

NJ FamilyCare Medicaid State Plan 1905(a). Intermediate Care Facility/Individuals with Intellectual Disability services are provided with no limitations.




Add

86


D Additional Covered Benefits (This category of benefits is not applicable to the adult group under section 1902(a)(IO)(A)(i)(VIII) of the Act.)

PRA Disclosure Statement

Collapse All O

According to the Paperwork Reduction Act of 1995, no persons are required to respond to a collection of information unless it displays a valid OMB control number. The valid OMB control number for this information collection is 0938-1148. The time required to complete this information collection is estimated to average 5 hours per response, including the time to review instructions, search existing data resources, gather the data needed, and complete and review the information collection. If you have comments concerning the accuracy of the time estimate(s) or suggestions for improving this form, please write to: CMS, 7500 Security Boulevard, Attn: PRA Reports Clearance Officer, Mail Stop C4-26-05, Baltimore, Maryland21244-1850.



V.20130808


87

Supplement 1 to Attachment 4.19 – B Page 6

STATE PLAN UNDER TITLE XIX OF THE SOCIAL SECURITY ACT

STATE OF NEW JERSEY

METHODS AND STANDARDS FOR ESTABLISHING PAYMENT RATES-OTHER TYPES OF CARE

Reimbursement for Rehabilitation Services – Mental Health Community Services

Substance Abuse Disorder non-Medical Detox

Substance Abuse Disorder Short-Term Residential

Substance Abuse Disorder Partial Care

Substance Abuse Disorder Intensive Outpatient (Non-Hospital)

Substance Abuse Disorder Outpatient (Non-Hospital)

Methodology of rates:

Substance abuse services listed above will be reimbursed on a fee-for-service basis utilizing

HCPCS codes. Outpatient services will be reimbursed utilizing the fee schedule for like outpatient

mental health services with common HCPCS codes rendered in an independent clinic setting.

The fee schedule and any annual/periodic adjustments to the fee schedule are published in

N.J.A.C. 10:52-4.3. Non-medical detox, short-term residential, partial care, and intensive

outpatient services will be reimbursed on a per diem basis at rates that align reimbursement with

the cost of adherence to Division of Mental Health and Addiction Services (DMHAS) facility

standards for each level of care including staffing credentials, staff to client ratios, and clinical

contact hours.

The fees in the referenced State’s fee schedules are effective as of July 1, 2015 and are effective

for services provided on or after that date and are published on the Department’s fiscal agent’s

website at www.njmmis.com under the link for “rate and code information”.

15-0003 MA NJ

TN: 15-0003 Approval Date: November 10, 2015

SUPERCEDES: NEW Effective Date: July 01, 2015_____

88

http://www.njmmis/

(c) Linda S. Ershow-Levenberg, 2016

INTRODUCTION TO MEDICARE

by

Linda S. Ershow-Levenberg, Esq. Certified Elder Law Attorney

by the Nat’l Elder Law Foundation, approved accrediting agency by the ABA

and NJ Supreme Court The Medicare Program was one of the “Great Society Programs” signed into law by President Johnson in 1965. The Health Insurance for the Aged Act (PL 89-97) is codified at 42 USC § 1395 - 1395iii. This is also referred to as Subchapter XVIII of Chapter 7 of the Social Security Act which is found in Title 42 of the US Code. The regulations can be found in 42 CFR Parts 405 through 426. There have been many amendments to the Act since its inception. Unlike SSI or Medicaid, Medicare is an insurance program and not a welfare program. The participant’s income and assets are irrelevant to their eligibility. However, premiums for Part B do increase for high-income earners. There are four components to the Medicare Program. Part A includes hospital care and sub acute and rehabilitation services, as well as home health care for home bound individuals. Part B covers outpatient services. Part C is for the Medicare Advantage Plans, and Part D was enacted in 2006 and is the Prescription Benefit plan. Medicare benefits are administered exclusively by the federal government by the Centers for Medicare & Medicaid Services (CMS) (formerly known as HCFA-the Health Care Financing Agency) which is housed within the Department of Health and Human Services (HHS).

Services must be reasonable and necessary for the diagnosis or treatment of illness or injury, or to improve the functioning of a malformed body member. 42 USC § 1395y(a)(1)(A). Experimental, investigational or medically unproven treatments may be excluded. This article will focus on the benefits provided to eligible individuals. Payment methodologies, reimbursement standards, quality assurance methods, appeals processes, facility compliance requirements, licensing requirements, and the like are beyond the scope of this presentation. For further

95


information, see the CMS website (www.ssa.gov/pgm/medicare.htm. Other useful sites are: www.benefits.gov, www.ssa.gov/pubs/topic (for PDF publications). Attached to these materials are charts showing:

A. Medicare 2016 costs at a glance B. How Medicare works with other insurance C. Coverage choices at a glance D. What’s not covered by A and B E. Part A home health services F. CMS’ Fact Sheet on Jimmo settlement G. Comparison - Hospice vs home health

Additional information can be found in “Home-Health Care Coverage under Medicare;” Marquette Elder’s Advisor, Vol. 2, Issue 3 winter; and David A. Pratt Social Security & Medicare Answer Book (Walters Kluwer 2013 - updated annually). The Center for Medicare Advocacy is a nonprofit organization in Connecticut that advises Medicare beneficiaries about their rights and appeals. www.medicareadvocacy.org

ELIGIBILITY FOR MEDICARE An individual who has insured status may receive Medicare Part A benefits if s/he is a) over 65 years old, b) has end-stage renal disease, or c) receiving Social Security Disability benefits (subject to the initial 24 month waiting period). 42 USC § 426, 426.1. The individual must be a citizen or lawfully admitted alien. However, if the alien’s Social Security benefits are suspended due to residing outside of the United States for more than six consecutive months (or would be suspended if s/he were entitled to same), Medicare part A benefits may not be paid. 42 CFR § 406.50. The individual “attains age 65" the day before his/her 65th birthday, and accordingly, Medicare benefits would be payable for services rendered on and after the first day of that month.

96

http://www.ssa.gov/pgm/medicare.htm.

http://www.benefits.gov,/

http://www.ssa.gov/pubs/topic

http://www.medicareadvocacy.org/


There are several pathways to attain insured status under the Social Security Act for both Social Security Retirement benefits as well as Medicare. The primary pathway is that an individual must work for at least forty calendar quarters (10 years) in “covered employment” or be self-employed. If a person reaches age 62 but didn’t work for 40 quarters, s/he needs at least 6 quarters and the exact number is 1 quarter for each year between 1950 (or his/her 21st birthday) and reaching age 62. The other option is to have 6 quarters of covered employment out of the 13 quarters ending with the one in which s/he is eligible for Social Security benefits. 42 USC § 426; 414; 42 CFR § 406.10. For each year, there is a prescribed minimum dollar amount of earnings to qualify as an earned quarter. For instance, in 1989, it was $500; in 2008, it was $1,050. If work is sporadic and the person over the course of the year earns 4 x the quarterly amount, that will suffice. 20 CFR §404.140( c) - 404.143(a). In 2016, it is $1,260. According to the CMS website, www.ssa.gov/oact/cola/QC.html,

For years before 1978, an individual generally was credited with a quarter of coverage for each quarter in which wages of $50 or more were paid, or an individual was credited with 4 quarters of coverage for every taxable year in which $400 or more of self-employment income was earned. Beginning in 1978, employers generally report wages on an annual, instead of quarterly, basis. With this change to annual reporting, the law provided that a quarter of coverage be credited for each $250 of an individual's total wages and self-employment income for calendar year 1978 (up to a maximum of 4 quarters of coverage for the year). After 1978, the amount of earnings needed for a quarter of coverage changes automatically each year with changes in thenational average wage index.

Determination of the quarter of coverage amount for 2016

The law specifies that the quarter of coverage (QC) amount for 2016 is equal to the 1978 amount of $250 multiplied by the ratio of the national average wage index for 2014 to that for 1976, or, if larger, the 2015 amount of $1,220. If the amount so determined is not a multiple of $10, it shall be rounded to the nearest multiple of $10.

For the person who is over 65, eligibility can be established in several ways: (1) s/he

97

http://www.ssa.gov/oact/cola/QC.html,

https://www.ssa.gov/oact/cola/AWI.html#Series

https://www.ssa.gov/oact/cola/AWI.html


must receive or be entitled to receive Social Security retirement benefits under 42 USC § 402; would be entitled but for the fact that s/he hasn’t filed an application; (3) s/he is certified as a Railroad Retirement beneficiary. See 42 USC § 426(a)(1), (2)(B), 426 (d); (4) s/he is a spouse, survivor or dependent of a person over 65 who is entitled to Medicare Part A, (5) is a survivor or dependent of a person who is younger than 65 who is entitled to Social Security Disability benefits; (6) s/he is engaged in “Medicare-qualified government employment” which is of a type that would be covered were it not for the exclusions for governmental employment, or (7) dependent parent of a fully insured child. Finally, some individuals over 65 may enroll voluntarily and pay premiums for Part A (see below) even though they would not be otherwise eligible. To be eligible for Medicare Part A on the basis of disability, the individual must have been approved for Social Security Title II disability benefits and entitled to receive benefits for at least 24 months. 42 USC § 426(b)(2); 42 CFR § 406.12. The first five months after the proven Date of Onset are a “waiting period” in which benefits are not payable; generally, then, the individual is eligible 29 months after the Date of Onset of the disability. The 24-month waiting period is waived for people who have ALS, which is amyotrophic lateral sclerosis (“Lou Gehrig’s Disease”). This category covers disabled workers as well as those who were not insured under Social Security Disability but could achieve benefits based on the earnings record of another person who was receiving disability or retirement benefits (or eligible for same at time of death). This latter category would include: disabled widows/widowers over 50; a woman over 50 entitled to mother’s benefits; child of the worker who is over 18 but became disabled before age 22; and a disabled Railroad Retirement annuitant. To be eligible to enroll in Medicare Part B, the individual can be (1) eligible for Part A coverage or (2) a resident of the United States who is over 65 and is either a citizen or an alien lawfully admitted for permanent residence who has resided in the United States continuously throughout the five-year period immediately prior to the month in which s/he applies for benefits. 42 USC § 1395a; 42 USC § 407.10.

HOW TO ENROLL IN MEDICARE

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Generally, a person who receives Social Security Retirement or Railroad Retirement monthly checks is automatically enrolled in Medicare Part A upon reaching their 65th birthday, as well as Medicare Part B unless the person elects to opt out of Part B. No action on their part is required. See 42 CFR § 406.6(b) (re: Part A) and 42 CFR § 407.17(b) (re: Part B). The application for Social Security Retirement Benefits or Railroad Retirement Benefits actually triggers automatic enrollment. 42 USC § 426.(a)(1), (2); 42 CFR § 406.10(a). A Medicare card will be mailed to the individual about three months before the 65th birthday. Similarly, a person receiving Social Security Disability benefits will receive a Medicare card on or about the 25th month of receipt of benefits. Some individuals are not automatically enrolled in Medicare. This would include an individual who did not become eligible for Social Security retirement benefits, or who is the survivor or dependent of a person who received Social Security benefits. Additionally, a person who is not otherwise eligible for Medicare can voluntarily enroll and pay the required premiums. An individual who isn’t automatically enrolled must enroll for Medicare A and B through the local Social Security Office (or Railroad Retirement Board, as the case may be). 42 CFR § 406.6 (c) -(e). The application may be filed before the 65th birthday. The monthly premium for Part A (hospital insurance) for voluntary enrollees in 2016 is $411. The monthly premium for Part B is $104.90 (more for high-earners). The SSA recommends filing the application 3 months before the 65th birthday. For individuals who are either disabled or over 65 who are covered by a large employer plan, Medicare is the secondary payor and the employer plan is the primary payor. 42 USC § 1395p(I); 42 CFR § 407.20. Accordingly, they may still wish to enroll in Medicare Part B, and can do so during the applicable “special enrollment period,” which begins while they are on the company plan and ends on the last day of the 8th consecutive month following the end of employment or end of coverage under the plan of a spouse or other family member. 42 USC §1395p(i)(3)(A), (B); 42 CFR § 406.24. Failure to enroll during the special enrollment period will result in a permanent premium surcharge if an application is filed later. 42 USC § 1396r(b); 42 CFR § 408.22.

MEDICARE PART A:

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SERVICES, CO-PAYMENTS AND LIMITATIONS

Hospital Care

Inpatient care in a hospital that participates in Medicare is covered under Medicare Part A if the patient requires care that can only be performed in a hospital and a physician has prescribed in-patient care for treatment of an illness or injury. Additionally, there must be no disapproval by the hospital’s utilization committee or Medicare intermediary. 42 USC § 1395; 1395f(d),(f). The Part A “benefit period” is sometimes called a “spell of illness.” This is a period of consecutive days in which the patient received inpatient hospital or extended care benefits up through the last day that the person receives benefits in a hospital or skilled nursing facility, plus 60 days. 42 USC § 1395x(a). If a person is discharged and readmitted in less than 60 days, the days for the readmission will be counted as part of the same spell of illness even if it is for an unrelated condition. 42 CFR § 409.60 (b). For each benefit period, a new deductible must be paid. Part A covers 90 to 150 days per benefit period for inpatient stays, as follows: A stay in a skilled nursing facility (see below) extends the benefit period for up to 100 days.

H. The initial deductible is $1,288 (2016), adjusted annually. Medicare then pays 100% of the cost for the first 60 days.

I. For the next 30 days there is a daily copayment of $ 322.00 (in 2016)

J. If hospitalization is necessary beyond 90 days, the patient pays all costs or

can make use of some of their one-time-use lifetime reserve days. There are 60 of these. The daily copayment is 2x the normal copayment. 42 USC § 1395d(a)(1); 42 CFR § 409.65 ($ 644.00/day in 2015).

In 2016, a patient who is hospitalized 150 days and uses their reserve days would pay a

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total of $49,588.00 (deductible + coinsurance). CAUTION! If a patient receives custodial care in a hospital due to inability to discharge (.e.g. a guardianship action is pending), their spell of illness will end and Medicare will not pay for their hospital services. 42 CFR § 409.60(b)(2) and ( c). All of the health and room/board services necessary for treatment of the patient will be covered as part of the inpatient services, with certain exclusions. Among the exclusions are private-duty nurse or attendants (hired by patient privately); supplies for use outside of the hospital; physicians’ services (see Part B); dental services unless it is medically necessary that it be performed on an inpatient basis. 42 USC § 1395x(b)(4), (6) and 42 USC § 1395y(a)(12).

Psychiatric Treatment

There is a 190-day lifetime maximum for inpatient psychiatric benefits. 42 USC § 1395d(b)(3); 42 CFR § 409.62 The deductibles and co-insurance requirements for general hospital stays is applicable, as well as the availability of lifetime reserve days.

Subacute and Rehabilitation

Medicare Part A pays for up to 100 days of skilled nursing services in a facility per spell of illness. Skilled services are defined as those daily services which as a practical matter can only be performed in a Skilled Nursing Facility. The patient’s condition must require that the services be performed by or supervised by a licensed nurse or professional therapist (typically licensed). 42 CFR § 409.32,33 (a)(b). Patients may require that level of care either to prevent or slow further deterioration in their clinical condition, or to improve/restore their level of functioning. The regulations can be found at 42 USC § 409.31, to 409.35. See Exhibit F regarding the settlement in January 2013 in the class action called Jimmo v. Sebelius, which resulted in a major clarification of CMS’ Interpretation of the law. The patient must have been an admitted inpatient for 3 days or more, consecutive, and be

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admitted to the Skilled Nursing Facility within 30 days of leaving the hospital. The skilled care to be provided must be for a condition that was the reason for the hospitalization or arose during the hospital stay. 42 USC § 1395x(I), §1395d(a)(2); 42 CFR § 409.30, and 31. The covered extended care services include semi-private room & board, nursing care, drugs, supplies, diagnostic and therapeutic services, physical therapy, occupational therapy, speech-language pathology and more. 42 USC § 1395x(h) and 42 CFR § 409.20-26. The first 20 days of skilled nursing facility care are paid 100% by Medicare. From days 21-100 the patient must pay a daily co-insurance amount ($161.00 in 2016). If an individual is remaining in the facility as a long term care patient, ongoing skilled services can be prescribed by a physician and billed to Medicare Part B. The facility must provide a written notice advising the patient of the end date for skilled services and of their appeal rights.

Home Health Services

Medicare Part A will pay for certain home health services furnished to an eligible patient under a plan of care established and periodically reviewed by the physician. 42 CFR § 409. Post-Institutional home health services are provided in a home setting to a patient within 14 days of discharge from an inpatient stay of 3 days or more. The “spell of illness” is measured the same as it is throughout Medicare Part A. To be eligible, the patient must be confined to the home, under the care of a physician, require skilled nursing or therapy services, and receive the care pursuant to a plan established by a physician. 42 CFR § 409.42 (a) - (d) and § 424.22(d). “Confined to the home” means essentially that as a result of a condition, illness or injury, it would be medically unsafe to leave the home or would take a considerable and taxing effort and could not be done alone. 42 USC § 1395 n (a); 42 CFR § 409.42 (a). If the patient is enrolled in Medicare Part B, Part A will cover only up to 100 visits per spell of illness for Post-Institutionalization Care an all others would be covered by Part B. Limited home health aide (nonskilled) services can be covered by Medicare Part A

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provided that the patient is receiving skilled care as well. These are personal care services that are reasonable and necessary which the patient cannot perform for themself. 42 CFR § 409.45(b). Medical supplies are also covered, along with 80% of the approved cost of durable medical equipment. 42 USC § 1395x(m)(5); 42 CFR § 409.45.

Hospice Care

Hospice Care is an interdisciplinary care plan designed for terminally ill patients as an alternative to rehospitalization and “aggressive” treatment. A physician must certify that the patient’s life expectancy is six months or less. The patient must affirmatively elect hospice benefits but can revoke the election at any time. The patient chooses a hospice service provider and can receive services in a hospice facility, nursing home or at home. 42 USC § 1395x(dd)(2) and 42 CFR § 418. The patient can receive services for two 90 day periods plus an unlimited number of 60 day periods. By electing hospice, the patient must waive the right to receive Medicare-covered services that are related to treating the underlying terminal condition. Hospice is designed as a substitute for intensive curative care.

MEDICARE PART B

As noted above, individuals enrolled in Part A are automatically enrolled in Part B for a monthly premium of $104.90 (in 2016)which is deducted from their Social Security checks. Other individuals can voluntarily enroll and pay the premiums. Premiums are higher for higher-income individuals. See Exhibit A page 3. Part B covers outpatient services, physicians’ visits, durable medical equipment, ambulatory surgery, prosthetics and orthotics, tests, drugs and biologicals, home health and outpatient physical therapy, and occupational therapy. 42 USC § 1395K and § 1395x(s). There are exclusions such as routine physicals, eyeglasses, cosmetic surgery, household caregivers, and immunizations. Since 2002, Medicare does pay for treatment of Alzheimers’ Disease. Home health care is covered other than the first 100 days of post-hospital care.

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42 USC § 1395 d (a)(3); 1395 K (a)(2)(A). “Partial hospitalization” and ambulatory care services are covered (outpatient hospital services). 42 USC § 1395 x(s)( c)(D); § 1395 x(ff)(1). The annual deductible in 2016 is $166. The coinsurance is 20% of the Medicare-approved cost.

EXCLUSIONS

Generally speaking, Medicare does not cover dental care, optometry or eye glasses, foot care, immunizations, routine checkups, personal comfort care, custodial/long term care, war-related claims, services provided outside the United States (limited exception in Canada and Mexico), cosmetic surgery, and charges by immediate relatives.

MEDICARE PART C

(ADVANTAGE PLANS)

Medicare A & B are sometimes called “Original Medicare.” Congress created the Medicare Advantage program as an alternative to Medicare Part A and B in 1997. 42 USC § 1395 W-21 to 29. Individuals elect to enroll in a Medicare Advantage Plan at the time they become eligible for A and B. There are special election periods when one can disenroll, as well as the annual coordinated election period. The election is made directly to the sponsoring plan organization. Part C Plans were offered in selected markets around the country. Medi-Gap policies were unnecessary, as there were no copayments or deductibles. There are 4 types of plans: managed care plans, similar to HMO’s; preferred provider plans (PPP’s), private fee-for-service plans, and specialty plans. The plans must provide all of the services available under A and B and could offer additions such as prescriptions or wellness care. The cost is the monthly Part B premium, and the Part A premium if the participant has one (due to his/her higher income), but the plans could charge higher rates as a supplemental beneficiary premium. Each plan has its own combination of deductibles, coinsurance and copays. Plans vary widely. There is a cap on the participant’s out-of-pocket costs for in-network providers. In 2016 this cap is $6,000. Traditional Medicare, on the other hand, has no such cap.

MEDICARE PART D

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PRESCRIPTION DRUG BENEFIT

Part D is a voluntary prescription drug benefit program that was enacted effective January 1, 2006. The monthly premium varies based on the plan. Low income beneficiaries receive subsidies for their premiums. Individuals with annual incomes above $85,000 and couples with annual incomes above $170,000 are charges a surcharge on the premium. There are cost-share requirements. See attached Exhibits. If a person has a prescription plan similar to Part D - called “creditable coverage” - they can wait to sign up, but if they don’t have creditable coverage and they delay, they will pay a permanently higher premium as a penalty. There are annual coordinated enrollment periods. Some plans offer nationwide coverage and others are geographically limited. Not all plans allow mail order pharmacy services. Each plan has its own service area, so if a person moves to a different county (such as if they move into a nursing home or a CCRC), they may have to choose a new plan. There is a $4,850 (2016) out of pocket limit which does not include the premiums. After that, the participant is eligible for the catastrophic coverage category which requires small coinsurance or copay per prescription. Each plan has its own formulary, so applicants need to study the formularies carefully when selecting their Part D plan. At the time a person becomes eligible for Medicare Part A or enrolls in Part B (their initial enrollment period), they can enroll in a Part D Plan. After that, there are limited enrollment periods each year. A person who is eligible for Part A or is enrolled in Part B cannot be refused enrollment. The annual open enrollment period is from October 15 through December 7th.

COORDINATION BETWEEN MEDICARE AND MEDICAID Medicaid is considered to be the payor of last resort. Accordingly, if an individual is a Medicaid beneficiary, health care services will first be billed to Medicare; then to the patient’s secondary insurance policy, and finally, to Medicaid. If a client enters a hospital or rehabilitation facility for Medicare-covered services and a prolonged stay is anticipated - either for acute care

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or subacute rehabilitative skilled care – and the client’s assets are limited, it is vital to investigate ways to achieve Medicaid eligibility at the earliest possible date. This is particularly important if the individual has no Medi-Gap insurance policy to cover the copayments and deductibles, or if s/he will likely be remaining in the facility for long-term care immediately following the period of skilled care. Similarly, if a patient is receiving prolonged acute care in the hospital (see above under Part A), they need to find out about how to become eligible for Medicaid so as to avoid wiping out the family assets paying for acute care.

BALANCE BILLING BY PHYSICIANS AND OTHER PROVIDERS;

NEED FOR A SECONDARY MEDI-GAP POLICY Medicare beneficiaries are responsible for copayments and deductibles as noted above. Medicare pays 80% of the Medicare-approved rate, and physicians may bill the patient for the 20% balance of the Medicare-approved rates. Accordingly, it is important that individuals have a secondary policy. If a person is covered by a secondary policy through an employer or other group, it may not be necessary to purchase a Medi-Gap policy, though. A variety of such policies are available and are regulated by CMS. These are referred to as Medicare supplemental insurance. See 42 USC § 1395ss. For more information look at the CMS Guide to Health Insurance for People with Medicare, available as a pdf on the CMS Medicare website. Many policies are sold that are designed to bridge the “gap” in Medicare coverage which results from deductibles, coinsurance requirements and Part B excess charges. There are ten different plans, known as Plans A, B, C, D, F, G, K, L, M and N. Other than the basic requirement that the Plan cover the Part A hospital coinsurance and 365 extra hospital days, each one is different. There are insurance professionals who can help a customer navigate the field and select initial plans and change plans if they move to a new location. If a person is enrolled in a Medicare Advantage Plan, they would n not require a gap policy.

COORDINATION WITH RETIREE INSURANCE

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AND SPOUSE’S INSURANCE

(THE FLIP)

There are three situations in which an employer group plan would be the primary payor, and Medicare the secondary payor: (1) If the employee is 65 or older or the spouse of the employee is 65 or older, and the employer provides health care coverage; (2) If the employee has End-Stage Renal Disease (ESRD), is younger than 65 and the group health plan provides coverage; and (3) if a disabled individual who receives Medicare as a result of receiving Title II Social Security Disability benefits is also covered by a large group health plan (either because they are the employee or they are a covered family member). In these circumstances, the health care provider must bill the plan first, and then can bill Medicare second. Medicare will pay conditional benefits upon notice that the primary plan has denied the claim in whole or in part, or the beneficiary was incapacitated and therefore failed to file a proper claim. See 42 CFR § 411.165(a), 411.175(b), 411.206(b). Once the above conditions no longer pertain – such as when the employed person over 65 is no longer covered by their company’s plan due to retirement or termination of the plan – then Medicare becomes the primary payor.

IMPACT OF THE AFFORDABLE CARE ACT ON MEDICARE The Affordable Care Act has no impact on Medicare coverage or Medicare eligibility. People over 65 will continue to receive health insurance through Medicare.

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Special Medical Guardianships By: Sharon Rivenson Mark, Esq. INTRODUCTION

Hospitals, nursing homes, physicians, and other interested and appropriate persons may commence an application to the court seeking the appointment of a special medical guardian to make medical decisions for a patient who is incapacitated and unable to make informed decisions for himself or herself regarding medical treatment. The standards, venue, and procedural requirements for the appointment of a special medical guardian for an alleged incapacitated person are governed by Rule 4:86-12.

COURT RULES FOR SPECIAL MEDICAL GUARDIANSHIPS

The requisites for special medical guardianship proceedings are detailed in Rule

4:86-12 [Special Medical Guardian in General Equity]. These requirements set the standards, venue, procedures and order for special medical guardianship proceedings. The requirements of Rule 4:86-12 are as follows:

(a) Standards. On the application of a hospital, nursing home, treating physician, relative or other appropriate person under the circumstances, the court may appoint a special guardian of the person of a patient to act for the patient respecting medical treatment consistent with the court's order, if it finds that: (1) the patient is incapacitated, unconscious, underage or otherwise unable to consent to medical treatment; (2) no general or natural guardian is immediately available who will consent to the rendering of medical treatment; (3) the prompt rendering of medical treatment is necessary in order to deal with a substantial threat to the patient's life or health; and

(4) the patient has not designated a health care representative or executed a health care instruction directive pursuant to the New Jersey Advance Directives for Health Care Act, N.J.S.A. 26:2H-53 to -78, determining the treatment question in issue. (b) Venue. The application shall be made to the Superior Court judge assigned to general equity in the vicinage in which the patient is physically located when the application is made and, in the event of that judge's unavailability, to the

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Assignment Judge of the vicinage or the judge designated as the emergent judge, or if neither is available, any judge in the vicinage. (c) Procedure. The procedure on the application shall conform as nearly as practicable to the requirements of R. 4:86-1 to R. 4:86-6, but the judge may, if the circumstances require, accept an oral complaint and oral testimony either by telephone, in court, or at any other suitable location. If the circumstances do not permit the making of a verbatim record, the judge shall make detailed notes of the allegations of the complaint and the supporting testimony. Whenever possible an attorney shall be appointed to represent the patient. (d) Order. The order granting the application, if orally rendered, shall be reduced to writing as promptly as possible and shall recite the findings on which it is based.

If questions arise as to the patient's ability to understand the nature of the medical problem, the procedures suggested, the attendant risks and the prognosis, the court may consider, where time permits, the appointment of an independent psychiatrist to examine the patient and testify at the hearing. Matter of Schiller, 148 N.J. Super. 168, 372 A.2d 360 (Ch. Div. 1977). Incapacity in and of itself if not the determining factor for a special medical guardianship. The court should make an inquiry to determine whether the patient understands his or her medical problem, the treatment available and the risks attendant thereto so as to be able to make an informed judgment or to give an informed consent to the recommended medical procedure. The court should consider, wherever possible, having the patient testify or be present at the hearing and having all next of kin notified and given an opportunity to be present, all within the time constraints of the particular emergent situation. Some of the most serious problems arise when an application is made and doctors are not readily available to testify. It is the obligation of counsel for plaintiff to ensure that the requisite medical testimony as well as psychiatric testimony (if necessary) should be made available to the court as quickly as possible. The special medical guardianship order that is submitted at the conclusion of the hearing should reflect the appearance of the attorney for the patient as well as all other appearances. The order should make reference, where applicable, to the appointment of counsel, nunc pro tunc as of the particular date the court made the appointment. If time constraints did not permit the appointment of counsel for the patient, the order should state the pertinent facts and circumstances. The special medical guardianship order should appoint a special medical guardian or reflect a denial of such appointment if that has occurred. The order should reflect the date and time on which the hearing concluded. The order should further provide for the award of counsel fees to the court appointed counsel, with the fees being paid by the hospital, the moving party, or the patient, as the court determines. Matter of Clark, 216 N.J. Super. 497, 524 A.2d 448 (App. Div. 1987).

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The special medical guardianship order shall also specify the exact medical procedure to be performed, and should direct and authorize the special medical guardian to consent to the specific medical procedures the court has authorized. The order should, were appropriate, authorize the hospital and medical staff to render such other and further medical treatment as is necessitated by or results from or is a sequelae of the authorized procedure. This latter authorization permits the hospital or doctor to immediately treat problems that may arise as a result of the authorized procedure. The order appointing the special medical guardian may require plaintiff's attorney to keep the court informed as to the status of the patient in a time frame appropriate to the particular case. Once the medical procedure has been concluded and the patient is ready for discharge, the case is not closed or the special medical guardian discharged until an appropriate care plan has been established for the patient's return to the outside world. While there is no specific authority for this, a court of equity, which is a court of conscience, should whenever possible see to it that the patient is cared for upon release. An order is appropriate, and is in some counties required, at the conclusions of the special medical guardianship proceedings. The court should be advised, by certification or affidavit from the special medical guardian or the medical staff on personal knowledge as to the procedure that was followed, the results of that procedure and the current status of the patient. All orders closing the case and discharging the special medical guardian should provide for the future care of the patient. If another application is required for a different procedure on the same patient, an amended and supplemental complaint using the original docket number can be filed and heard by the court. COURT RULES FOR GUARDIANSHIPS

The Court Rules for guardianship proceedings in general are detailed in Rule

4:86. Amendments to Rule 4:86 took effect September 1, 2016. Rule 4:86-1 specifies the contents of the complaint for a determination of incapacity, and now provides:

(a) Every action for the determination of incapacity of a person and for the appointment of a guardian of that person or of the person's estate or both, other than an action with respect to a veteran under N.J.S.A.3B:13–1 et seq., or with respect to a kinship legal guardianship under N.J.S.A. 3B:12A–1 et seq., shall be brought pursuant to R. 4:86–1 through R. 4:86–8 for appointment of a general, limited or pendente lite temporary guardian. (b) Judiciary records of all actions set forth in R. 4:86–1(a) shall be

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maintained by the Surrogate and shall be accessible pursuant to R. 1:38–3(e). (c) Each vicinage shall operate a Guardianship Monitoring Program through the collaboration of the Superior Court, Chancery Division, Probate Part: the County Surrogates: and the Administrative Office of the Courts, Civil Practice Division. (1) The functions of guardianship support and monitoring shall be established by the Administrative Director of the Courts. Such functions shall include guardianship training and review of inventories and periodic reports of financial accounting filed by guardians as required by R. 4:86–6(e). (2) Post-adjudicated case issues identified through monitoring may be forwarded for further action by the Superior Court, Chancery Division, Probate Part and/or the Administrative Office of the Courts. (3) Case monitoring issues referred to the attention of the Superior Court, Chancery Division, Probate Part shall be promptly reviewed and such further action taken as deemed appropriate in the discretion of the court, (4) Quasi-judicial immunity shall be extended to Judiciary staff. County Surrogates. County Surrogate staff, and volunteers performing monitoring responsibilities in the Guardianship Monitoring Program.

Rule 4:86-2 further proscribes the contents of the complaint, accompanying documents and alternative affidavits or certifications, and now provides:

(a) Complaint. The allegations of the complaint shall be verified as prescribed by R. 1:4–7. The complaint shall state: (1) the name, age, domicile and address of the plaintiff, of the alleged incapacitated person and of the alleged incapacitated person's spouse, if any; (2) the plaintiff's relationship to the alleged incapacitated person; (3) the plaintiff's interest in the action; (4) the names, addresses and ages of the alleged incapacitated person's children, if any, and the names and addresses of the alleged incapacitated person's parents and nearest of kin, meaning at a minimum all persons of the same degree of relationship to the alleged

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incapacitated person as the plaintiff; (5) the name and address of the person or institution having the care and custody of the alleged incapacitated person; (6) if the alleged incapacitated person has lived in an institution, the period or periods of time the alleged incapacitated person has lived therein, the date of the commitment or confinement, and by what authority committed or confined; and (7) the name and address of any person named as attorney-in-fact in any power of attorney executed by the alleged incapacitated person, any person named as health care representative in any health care directive executed by the alleged incapacitated person, and any person acting as trustee under a trust for the benefit of the alleged incapacitated person. (b) Accompanying Documents. The complaint shall have annexed thereto: (1) An affidavit or certification stating the nature, description, and fair market value of the following, in such form as promulgated by the Administrative Director of the Courts: (A) all real estate in which the alleged incapacitated person has or may have a present or future interest, stating the interest, describing the real estate fully and stating the assessed valuation thereof; (B) all the personal estate which he or she is, will or may in all probability become entitled to, including stocks, bonds, mutual funds, securities and investment accounts: money on hand, annuities, checking and savings accounts and certificates of deposit in banks and notes or other indebtedness due the alleged incapacitated person; pensions and retirement accounts, including annuities and profit sharing plans; miscellaneous personal property; and the nature and total monthly amount of any income which may be payable to the alleged incapacitated person; and (C) the encumbrance amount of any debt including any secured associated debt related to the real estate or personal estate of the alleged incapacitated person. (2) Affidavits or certifications of two physicians having qualifications set forth in N.J.S.A. 30:4–27.2t, or the affidavit or certification of one such physician and one licensed practicing psychologist as defined in N.J.S.A. 45:14B–2, in such form as promulgated by the Administrative

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Director of the Courts. Pursuant to N.J.S.A. 3B:12–24.1(d), the affidavits or certifications may make disclosures about the alleged incapacitated person. If an alleged incapacitated person has been committed to a public institution and is confined therein, one of the affidavits or certifications shall be that of the chief executive officer, the medical director, or the chief of service providing that person is also the physician with overall responsibility for the professional program of care and treatment in the administrative unit of the institution. However, where an alleged incapacitated person is domiciled within this State but resident elsewhere, the affidavits or certifications required by this rule may be those of persons who are residents of the state or jurisdiction of the alleged incapacitated person's residence. Each affiant shall have made a personal examination of the alleged incapacitated person not more than 30 days prior to the filing of the complaint, but said time period may be relaxed by the court on an ex parte showing of good cause. To support the complaint, each affiant shall state: (A) the date and place of the examination; (B) whether the affiant has treated or merely examined the alleged incapacitated individual; (C) whether the affiant is disqualified under R. 4:86–3; (D) the diagnosis and prognosis and factual basis therefor; (E) for purposes of ensuring that the alleged incapacitated person is the same individual who was examined, a physical description of the person examined, including but not limited to sex, age and weight; (F) the affiant's opinion of the extent to which the alleged incapacitated person is unfit and unable to govern himself or herself and to manage his or her affairs and shall set forth with particularity the circumstances and conduct of the alleged incapacitated person upon which this opinion is based, including a history of the alleged incapacitated person's condition; (G) if applicable, the extent to which the alleged incapacitated person retains sufficient capacity to retain the right to manage specific areas, such as residential, educational, medical, legal, vocational or financial decisions; and (H) an opinion on whether the alleged incapacitated person is capable of attending or otherwise participating in the hearing and, if not, the reasons for the individual's inability; and

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(3) A Case Information Statement in such form as promulgated by the Administrative Director of the Courts. Said Case Information Statement shall include the date of birth and Social Security number of the alleged incapacitated person. (c) Alternative Affidavits or Certifications. (1) If the plaintiff cannot secure the information required in paragraph (b)(1), the complaint shall so state and give the reasons therefor, and the affidavit or certification submitted shall in that case contain as much information as can be secured in the exercise of reasonable diligence. (2) In lieu of the affidavits or certifications provided for in paragraph (b)(2), an affidavit or certification of one affiant having the qualifications as required therein shall be submitted, stating that he or she has endeavored to make a personal examination of the alleged incapacitated person not more than 30 days prior to the filing of the complaint but that the alleged incapacitated person or those in charge of him or her have refused or are unwilling to have the affiant make such an examination. The time period herein prescribed may be relaxed by the court on an ex parte showing of good cause.

R. 4:86-33 requires that no affidavit shall be submitted by a physician or psychologist who is related, either through blood or marriage, to the alleged incapacitated person or to a proprietor, director, or chief executive officer of any institution (except state, county, or federal institutions) for the care and treatment of the ill in which the alleged incapacitated person is living, or in which it is proposed to place him or her, or who is professionally employed by the management thereof as a resident physician or psychologist, or who is financially interested therein. A new Rule 4:86-3A, adopted August 1, 2016 and effective September 1, 2016, provides for action of a complaint as follows:

(a) Review of Complaint Prior to Docketing. Prior to docketing, the Surrogate shall review the complaint to ensure that proper venue is laid and that it contains all information required by R. 4:86–2.

3

Former R. 4:83-3 amended and rule redesignated June 29, 1990, to be effective September 4, 1990; amended July 12, 2002, to be effective September 3, 2002; caption and text amended July 28, 2004, to be effective September 1, 2004; amended July 9, 2008, to be effective September 1, 2008.

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(b) Docketing. (1) Upon the filing of a complaint for the determination of incapacity of a person and for the appointment of a guardian, if it appears that there is jurisdiction and that the complaint is substantially complete in all respects, the complaint shall be docketed. (2) If, after docketing, there is a lack of jurisdiction, the court shall dismiss the complaint forthwith. If a complaint is not substantially complete in all respects, the Surrogate shall process the complaint in accordance with R. 1:5–6. (c) Availability of Guardianship File. The Surrogate shall make the complete guardianship file available to the court upon request.

Rule 4:86-4 provides for (a) the contents of an order, (b) the appointment and duties of counsel, (c) the examination of an allegedly incapacitated person, (d) the appointment of a guardian ad litem, and (e) compensation for counsel and the guardian ad litem. Rule 4:86-4 provides for (a) the contents of an order, (b) the appointment and duties of counsel, (c) the examination of an allegedly incapacitated person, and (d) the appointment of a guardian ad litem, and (e) compensation, and requires:

(a) Contents of Order. (1) If the court is satisfied with the sufficiency of the complaint and supporting affidavits and that further proceedings should be taken thereon, it shall enter an order fixing a date for hearing. (2) The order shall require that at least 20 days' notice thereof be given to the alleged incapacitated person, any person named as attorney-in-fact in any power of attorney executed by the alleged incapacitated person, any person named as health care representative in any health care directive executed by the alleged incapacitated person, and any person acting as trustee under a trust for the benefit of the alleged incapacitated person, the alleged incapacitated person's spouse, children 18 years of age or over, parents, the person having custody of the alleged incapacitated person, the attorney appointed pursuant to R. 4;86–4(b), and such other persons as the court directs. Notice shall be effected by service of a copy of the order, complaint and supporting affidavits upon the alleged incapacitated person personally and upon each of the other persons in such manner as the court directs. (3) The order for hearing shall expressly provide that appointed

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counsel for the alleged incapacitated person is authorized to seek and obtain medical and psychiatric information from all health care providers. (4) The court, in the order, may, for good cause, allow shorter notice or dispense with notice, but in such case the order shall recite the ground therefor, and proof shall be submitted at the hearing that the ground for such dispensation continues to exist. (5) A separate notice shall, in addition, be personally served on the alleged incapacitated person stating that if he or she desires to oppose the action, he or she may appear either in person or by attorney, and may demand a trial by jury. (6) The order for hearing shall require that any proposed guardian complete guardianship training as promulgated by the Administrative Director of the Courts: however, agencies authorized to act pursuant to P.L.1985, c. 298 (C.52:27G–20 et seq.), P.L.1985, c. 145 (C.30:6D–23 et seq.), P.L.1965, c. 59 (C.30:4–165.1 et seq.) and P.L.1970, c. 289 (C.30:4–165.7 et seq.) and public officials appointed as limited guardians of the person for medical purposes for individuals in psychiatric facilities listed in R.S.30:1–7 shall be exempt from this requirement. (7) If the alleged incapacitated person is not represented by counsel, the order shall include the appointment by the court of counsel for the alleged incapacitated person. (b) Duties of Counsel. (1) Counsel shall (i) personally interview the alleged incapacitated person; (ii) make inquiry of persons having knowledge of the alleged incapacitated person's circumstances, his or her physical and mental state and his or her property; (iii) make reasonable inquiry to locate any will, powers of attorney, or health care directives previously executed by the alleged incapacitated person or to discover any interests the alleged incapacitated person may have as beneficiary of a will or trust. (2) At least ten days prior to the hearing date, counsel shall file a report with the court and serve a copy thereof on plaintiff's attorney and other parties who have formally appeared in the matter. The report shall include the following: (i) the information developed by counsel's inquiry;

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(ii) recommendations concerning the court's determination on the issue of incapacity; (iii) any recommendations concerning the suitability of less restrictive alternatives such as a conservatorship or a delineation of those areas of decision-making that the alleged incapacitated person may be capable of exercising; (iv) whether a case plan for the incapacitated person should thereafter be submitted to the court; (v) whether the alleged incapacitated person has expressed dispositional preferences and, if so, counsel shall argue for their inclusion in the judgment of the court; (vi) recommendations concerning whether good cause exists for the court to order that any power of attorney, health care directive, or revocable trust created by the alleged incapacitated person be revoked or the authority of the person or persons acting thereunder be modified or restricted. (3) If the alleged incapacitated person obtains other counsel, such counsel shall notify the court and appointed counsel at least ten days prior to the hearing date. (c) Examination. If the affidavit or certification supporting the complaint is made pursuant to R. 4:86–2(c), the court may, on motion and upon notice to all persons entitled to notice of the hearing under paragraph (a), order the alleged incapacitated person to submit to an examination. The motion shall set forth the names and addresses of the physicians who will conduct the examination, and the order shall specify the time, place and conditions of the examination. Upon request, the report thereof shall be furnished to either the examined party or his or her attorney.

(d) Guardian Ad Litem. At any time prior to entry of judgment, where special circumstances come to the attention of the court by formal motion or otherwise, a guardian ad litem may, in addition to counsel, be appointed to evaluate the best interests of the alleged incapacitated person and to present that evaluation to the court.

(e) Compensation. The compensation of the attorney for the party

seeking guardianship, appointed counsel, and of the guardian ad litem,

if any, may be fixed by the court to be paid out of the estate of the

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alleged incapacitated person or in such other manner as the court

shall direct. Rule 4:86-5 sets forth the requirements for proof of service and the appearance of the alleged incapacitated person at a hearing, and well as the filing of an answer.

(a) Not later than ten days prior to the hearing, the plaintiff shall file proof of service of the notice, order for hearing, complaint and affidavits or certifications and proof by affidavit that the alleged incapacitated person has been afforded the opportunity to appear personally or by attorney, and that he or she has been given or offered assistance to communicate with friends, relatives or attorneys. (b) Prior to the hearing, unless good cause shown, but no later than prior to qualification, any proposed guardian must complete guardianship training as promulgated by the Administrative Director of the Courts. Agencies authorized to act pursuant to P.L.1985, c. 298 (C.52:27G–20 et seq.), P.L.1985, c. 145 (C.30:6D–23 et seq.), P.L.1965, c. 59 (C.30:4–165.1 et seq.) and P.L.1970, c. 289 (C.30:4–165.7 et seq.) and public officials appointed as limited guardians of the person for medical purposes for individuals in psychiatric facilities listed in R.S.30:1–7 shall be exempt from this requirement. (c) The plaintiff or appointed counsel shall produce the alleged incapacitated person at the hearing, unless the plaintiff and the court-appointed attorney certify that the alleged incapacitated person is unable to appear because of physical or mental incapacity. (d) If the alleged incapacitated person or any person receiving notice of the hearing intends to appear by an attorney, such person shall not later than ten days before the hearing, serve and file an answer, affidavit or motion in response to the complaint.

Note that N.J.S.A. 3B:12-24.1(e) also requires that the alleged incapacitated person shall appear in court unless the plaintiff and the court-appointed attorney certify that the alleged incapacitated person is unable to appear because of physical or mental incapacity. Rule 4:86-6 provides for the trial of a guardianship action, and the appointment of a guardian:

(a) Trial. Unless a trial by jury is demanded by or on behalf of the alleged incapacitated person, or is ordered by the court, the court shall, after taking testimony in open court, determine the issue of incapacity. The court, with the consent of counsel for the alleged

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incapacitated person, may take the testimony of a person who has filed an affidavit or certification pursuant to R. 4:86-2(b) by telephone or may dispense with oral testimony and rely on the affidavits or certifications submitted. Telephone testimony shall be recorded verbatim. (b) Motion for New Trial. A motion for a new trial shall be served not later than 30 days after the entry of the judgment. (c) Appointment of General or Limited Guardian. If a general or limited guardian of the person or of the estate or of both the person and estate is to be appointed, the court shall appoint and letters shall be granted to any of the following: (1) the incapacitated person's spouse, if the spouse was living with the incapacitated person as husband or wife at the time the incapacity arose; (2) the incapacitated person's next of kin; or (3) the Office of the Public Guardian for Elderly Adults within the statutory mandate of that office. If none of them will accept the appointment, or if the court is satisfied that no appointment from among them will be in the best interests of the incapacitated person or estate, then the court shall appoint and letters shall be granted to such other person who will accept appointment as the court determines is in the best interests of the incapacitated person. Such persons may include registered professional guardians or surrogate decision-makers chosen by the incapacitated person before incapacity by way of a durable power of attorney, health care proxy, or advanced directive. (d) Judgment. (1) The judgment of legal incapacity and appointment of guardian shall be in such form and include all such provisions as promulgated by the Administrative Director of the Courts, except to the extent that the court explicitly directs otherwise. (2) Unless expressly waived therein, the judgment appointing the guardian shall fix the amount of the bond. If there are extraordinary reasons justifying the waiver of a bond, that determination shall be set forth in a decision supported by appropriate factual findings. (3) A proposed judgment of legal incapacity and appointment of

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guardian shall be filed with the Surrogate not later than ten days prior to the hearing. (e) Duties of Guardian. (1) Not later than 30 days after entry of the judgment of legal incapacity and appointment of guardian, the guardian shall qualify and accept the appointment in accordance with R. 4:96-1. The acceptance of appointment shall include an acknowledgment that the guardian has completed guardianship training as promulgated by the Administrative Director of the Courts in accordance with R. 4:86-5(b). (2) Unless expressly waived in the judgment, the guardian of the estate shall file with the Surrogate, and serve on all interested parties, within 90 days of appointment an inventory in such form as promulgated by the Administrative Director of the Courts specifying all property and income of the incapacitated person's estate. (3) Unless expressly waived in the judgment, the guardian of the estate shall file with the Surrogate reports of the financial accounting of the incapacitated person as required by N.J.S.A. 3B:12-42 and in such form as promulgated by the Administrative Director of the Courts. The report shall be filed annually unless otherwise specified in the judgment. (4) Unless expressly waived in the judgment, the guardian of the person shall file with the Surrogate reports of the well-being of the incapacitated person as required by N.J.S.A. 3B:12-42 and in such form as promulgated by the Administrative Director of the Courts. The report shall be filed annually unless otherwise specified in the judgment. (5) The judgment shall also require the guardian to keep the Surrogate reasonably advised of the whereabouts and telephone number of the guardian and of the incapacitated person, and to advise the Surrogate within 30 days of the incapacitated person's death or of any major change in his or her status or health. As to the incapacitated person's death, the guardian shall provide written notification to the Surrogate and shall provide the Surrogate with a copy of the death certificate within seven days of the guardian's receipt of the death certificate. (6) A guardian shall cooperate fully with any Court or Surrogate staff or volunteers until the guardianship is terminated by the death or return to capacity of the incapacitated person, or the guardian's death, removal or discharge.

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(7) The guardian shall monitor the capacity of the incapacitated person over time and take such steps as are necessary to protect the interests of the incapacitated person, including but not limited to initiating an action for return to capacity as provided in N.J.S.A. 3B:12-28. (f) Duties of Surrogate. (1) The Surrogate shall provide the entire complete guardianship file to the court for review no later than seven days before the hearing. (2) At the time of qualification and issuance of letters of guardianship, the Surrogate shall review the acceptance of appointment and letters of guardianship with the guardian in such form as promulgated by the Administrative Director of the Courts. (3) The Surrogate shall issue letters of guardianship following the guardian's qualification. The Surrogate shall record issuance of all letters of guardianship. Letters of guardianship shall accurately reflect the provisions of the judgment. (4) The Surrogate shall record receipt of all inventories, reports of financial accounting, and reports of well-being filed pursuant to paragraphs (e)(3) thru (e)(5) above. (5) The Surrogate shall notify the court, and shall issue notices to the guardian in such form as promulgated by the Administrative Director of the Courts, in the event that: (A) the guardian fails to qualify and accept the appointment within 30 days after entry of the judgment of legal incapacity and appointment of guardian in accordance with paragraph (e)(1) above; or (B) the guardian fails to timely file inventories, reports of financial accounting, and/or reports of well-being filed in accordance with paragraphs (e)(3) thru (e)(5) above. [NOTE – The effective date of this section 4:86-6(f)(5) was delayed until March 1, 2017] (6) The Surrogate shall immediately notify the court if they are informed through oral or written communication, or become aware by other means, of emergent allegations of substantial harm to the physical or mental health, safety and well-being, and/or the property or business affairs, of an alleged or adjudicated incapacitated person. However, the Surrogate shall have no obligation to review inventories,

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periodic reports of well-being, informal accountings, or other documents filed by guardians, except for formal accountings subject to audit by the Surrogate. (7) The Surrogate shall record the death of the incapacitated person. Credits

Rule 4:86-7 provides for the commencement of a separate summary action and the procedures when it is alleged that an incapacitated person is no longer fully or partially incapacitated, that his or her guardianship should be modified or discharged subject to the duty to account, and that his or her person and estate should be restored to his or her control:

(a) An individual subject to a general or limited guardianship shall retain: (1) The right to be treated with dignity and respect; (2) The right to privacy; (3) The right to equal treatment under the law: (4) The right to have personal information kept confidential; (5) The right to communicate privately with an attorney or other advocate; (6) The right to petition the court to modify or terminate the guardianship, including the right to meet privately with an attorney or other advocate to assist with this legal procedure, as well as the right to petition for access to funds to cover legal fees and costs: and (7) The right to request the court to review the guardian's actions, request removal and replacement of the guardian, and/or request that the court restore rights as provided in N.J.S.A. 3B:12-28. (b) An incapacitated person, or an interested person on his or her behalf, may seek a return to full or partial capacity by commencing a separate summary action by verified complaint. The complaint shall be supported by affidavits or certifications as described in Rule 4:86-2(b)(2), and shall set forth facts evidencing that the previously incapacitated person no longer is incapacitated or has returned to partial capacity. The court shall, on notice to the persons who would be set forth in a complaint filed pursuant to Rule 4:86-1, set a date for hearing and take oral testimony in open court with or without a jury. The court may render judgment that the person no longer is fully or partially incapacitated, that his or her guardianship be modified or discharged subject to the duty to account, and that his or her person and estate be restored to his or her control, or may

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render judgment that the guardianship be modified but not terminated. (c) An incapacitated person, or an interested person on his or her behalf, may seek review of a guardian's conduct and/or review of a guardianship by filing a motion setting forth the basis for the relief requested.

Rule 4:86-8 governs the appointment of a guardian for a non-resident mentally incapacitated person.

An action for the appointment of a guardian for a nonresident who has been or shall be found to be an incapacitated person under the laws of the state or jurisdiction in which the incapacitated person resides shall be brought in the Superior Court pursuant to R. 4:67. The plaintiff shall exhibit and file with the court an exemplified copy of the proceedings or other evidence establishing the finding. If the plaintiff is the duly appointed guardian, trustee or committee of the incapacitated person in the state or jurisdiction in which the finding was made, and applies to be appointed guardian in this State, the court may forthwith appoint that person without issuing an order to show cause.

Rule 4:86-9 governs guardianship proceedings for mentally incapacitated persons under the Uniform Veterans Guardianship Law. Rule 4:86-10 sets forth the court rules for an action for the appointment of a guardian for persons receiving services from the Division of Developmental Disabilities. Rule 4:86-11 provides for conservatorship actions and details the requirements for the form and content for the complaint, hearing, acceptance, and accounting.

Rule 4:86-12 as detailed above governs special medical guardianship actions.

CASE LAW

In Matter of Quinlan,1 a father sought to be appointed guardian of person and property of his 21-year-old daughter who was in a persistent vegetative state and sought the express power of authorizing the discontinuance of all extraordinary procedures for sustaining daughter's vital processes. The Superior Court, Chancery Division2 denied authorization for termination of the life-supporting apparatus and withheld letters of guardianship over the person of the incompetent, and the father appealed and the Attorney General cross-appealed. The Supreme Court held that a decision by the

1Matter of Quinlan, 70 N.J. 10, 355 A.2d 647, 79 A.L.R.3d 205 (1976).

2 Matter of Quinlan, 137 N.J. Super. 227, 348 A.2d 801 (Ch. Div. 1975), decision modified and remanded, 70 N.J. 10, 355 A.2d 647, 79 A.L.R.3d 205 (1976).

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daughter to permit a non cognitive, vegetative existence to terminate by natural forces was a valuable incident of her right to privacy which could be asserted on her behalf by her guardian. The Supreme Court further held that the state of the pertinent medical standards and practices which guided the attending physicians who held the opinion that removal from the respirator would not conform to medical practices, standards, and traditions was not such as would justify the Court in deeming itself bound or controlled thereby in responding to the case for declaratory relief. The Supreme Court further held that upon the concurrence of guardian and family, should the attending physicians conclude there was no reasonable possibility of the daughter's ever emerging from her comatose condition to a cognitive, sapient state and that the life-support apparatus should be discontinued, physicians should consult with the hospital ethics committee and if the committee should agree with the physicians' prognosis, the life-support systems may be withdrawn and said action shall be without any civil or criminal liability therefor, on the part of any participant, whether guardian, physician, hospital, or others. In Matter of Grady,3 the parents of a noninstitutionalized daughter seriously afflicted with Down's Syndrome sought the appointment of a special guardian authorized to consent to the sterilization of their daughter by tubal ligation. The Supreme Court held that: (1) the right to be sterilized is included in privacy rights protected by the Federal and State Constitutions; (2) an appropriate court must make a final determination as to whether consent to sterilization should be given on behalf of an incompetent individual; (3) the provision within the “Bill of Rights for the Mentally Retarded” did not apply; (4) the public school, at which the daughter attended special education class, was not a “facility for the developmentally disabled” within the meaning of another statute; (5) the Chancery Division has inherent power under its parens patriae jurisdiction to decide whether to authorize sterilization for incompetent persons; (6) if an application is made for authorization to sterilize an incompetent person, the court should appoint an independent guardian ad litem as soon as possible; and (7) the trial court must not authorize sterilization of an incompetent unless persuaded by clear and convincing proof that sterilization is in such person's best interests. In Matter of Conroy,4 the guardian of an incapacitated nursing home patient

3 Matter of Grady, 85 N.J. 235, 426 A.2d 467 (1981). 4 Matter of Conroy, 98 N.J. 321, 486 A.2d 1209, 48 A.L.R.4th 1 (1985). Cf. John F. Kennedy Memorial Hospital v. Heston, 58 N.J. 576, 279 A.2d 670 (1971) (overruled by, Matter of Conroy, 98 N.J. 321, 486 A.2d 1209, 48 A.L.R.4th 1 (1985)), which the Conroy decision arguably overruled. In Heston, the Supreme Court held that the interest of the hospital and its staff as well as the state's interest in life, warranted the blood transfusion under the circumstances of that case. The patient in Heston was age 22 and unmarried. She was severely injured in an auto accident and the hospital determined she would die unless whole blood was administered. The patient refused the blood transfusion. The evidence indicated that she was in shock on admission and soon became disoriented. The patient's mother opposed transfusion.

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sought permission to remove nasogastric feeding tube, the primary conduit for nutrients, from the patient, an 84-year-old bedridden woman with serious and irreversible physical and mental impairments and a limited life expectancy. The application was opposed by the patient's guardian ad litem. The Superior Court, Chancery Division, Essex County,5 granted permission and the guardian appealed. The Appellate Division,6 reversed. The Supreme Court7 held that: (1) the death of the patient did not moot the case because it presented a substantial issue capable of repetition while evading review; (2) a competent adult generally has the right to refuse medical treatment and does not lose that right upon incompetency; (3) a surrogate decision maker for an incapacitated person may direct the withdrawal or withholding of life-sustaining treatment under certain circumstances if certain procedures are followed; (4) notification must be given to the Office of the Ombudsman for the Institutionalized Elderly; (5) there must be a determination that the incapacitated nursing home patient is incompetent to make the decision in question; and (6) the evidence in the instant case did not meet any of the three tests for termination of life sustaining treatment. In Matter of Farrell,8 a husband applied to be appointed special medical guardian for his wife, who had amyotrophic lateral sclerosis, including a request for express permission to remove a respirator. The Superior Court, Chancery Division, Ocean County,9 granted the requested relief, but stayed order the pending appellate review. The guardian ad litem appointed for the couple's children appealed and petitioned the Supreme Court for direct certification, and the husband's counsel filed a memorandum joining in the guardian's request. After certification was granted, the Supreme Court held that: (1) the Supreme Court would render a decision on the merits although the wife had died while still connected to the respirator; (2) the right of the wife, who was a competent, terminally ill adult patient living at home, to withdraw the life-sustaining respirator outweighed the State's interests in preserving life, preventing suicide, safeguarding the integrity of the medical profession, and protecting innocent third parties; (3) the procedures that would be applicable when competent patients requested discontinuance of life-sustaining medical treatment were set forth; and (4) no civil or criminal liability would be incurred by any person who, in good-faith reliance on procedures established by the State Supreme Court, withdrew life-sustaining treatment at the request of an informed and competent patient who had undergone a required

5 Matter of Conroy, 188 N.J. Super. 523, 457 A.2d 1232 (Ch. Div. 1983). 6 Matter of Conroy, 190 N.J. Super. 453, 464 A.2d 303 (App. Div. 1983). 7 Matter of Conroy, 98 N.J. 321, 486 A.2d 1209, 48 A.L.R.4th 1 (1985). 8 Matter of Farrell, 108 N.J. 335, 529 A.2d 404 (1987). 9 Matter of Farrell, 212 N.J. Super. 294, 514 A.2d 1342 (Ch. Div. 1986), judgment aff'd, 108 N.J. 335, 529 A.2d 404 (1987).

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independent medical examination. In Matter of Jobes,10 the husband brought suit seeking removal of a life-sustaining food nutrition system from his comatose wife. The nursing home moved for the appointment of a “life advocate.” The Superior Court, Chancery Division, Morris County,11 denied the motion, and the nursing home unsuccessfully appealed. The Public Advocate intervened and the court authorized the husband to implement removal of the system. Certification was granted. The Supreme Court held that: (1) the evidence supported a finding that the patient was in an irreversible vegetative state; (2) the right of a patient in an irreversibly vegetative state to determine whether to refuse life-sustaining medical treatment may be exercised by the patient's family or close friend; (3) a surrogate decision maker who declines life-sustaining medical treatment must secure statements from at least two independent physicians knowledgeable in neurology that the patient is in a persistent vegetative state and that there is no reasonable possibility that the patient will ever recover to a cognitive, sapient state; and (4) the nursing home could not refuse to participate in the withdrawal of the system by keeping the patient connected to the system until she was transferred out of the facility. In Matter of Peter by Johanning,12 a surrogate, who the patient had authorized, by a power of attorney, to make medical decisions on her behalf, filed a complaint seeking his appointment as guardian. After appointment, the surrogate requested that the Ombudsman for the Institutionalized Elderly approve the removal of the patient's nasogastric tube. The Ombudsman decided that a previous court ruling prevented him from consenting to removal of the tube. The Supreme Court held that: (1) the Conroy subjective test, under which life-sustaining treatment may be withdrawn or withheld whenever there is clear and convincing proof that if the patient were competent, he or she would decline treatment, is applicable in every surrogate-refusal-of-treatment case, regardless of the patient's medical condition or life expectancy and (2) the instrument which the patient executed shortly before she became incompetent, the surrogate's explanation that the patient had directed him to refuse life-sustaining treatment on her behalf, and nine reliable hearsay accounts of the patient's disinclination for type of the treatment that the surrogate was seeking to discontinue, established clearly and convincingly that the patient would, if competent, choose to withdraw the nasogastric tube which was sustaining her. In Cruzan, by Cruzan v. Director, Missouri Department of Health,13 the

10 Matter of Jobes, 108 N.J. 394, 529 A.2d 434 (1987). 11 Matter of Jobes, 210 N.J. Super. 543, 510 A.2d 133 (Ch. Div. 1986), judgment aff'd as modified, 108 N.J. 394, 529 A.2d 434 (1987). 12 Matter of Peter by Johanning, 108 N.J. 365, 529 A.2d 419 (1987). 13 Cruzan by Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 110 S. Ct. 2841, 111 L. Ed. 2d 224 (1990).

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guardians of a patient in a persistent vegetative state brought a declaratory judgment action seeking judicial sanction of their wish to terminate artificial hydration and nutrition for the patient. The United States Supreme Court held that: (1) the United States Constitution did not forbid Missouri from requiring clear and convincing evidence of an incompetent's wishes to the withdrawal of life-sustaining treatment; (2) the State Supreme Court did not commit constitutional error in concluding that the evidence adduced at trial did not amount to clear and convincing evidence of the patient's desire to cease hydration and nutrition; and (3) due process did not require the State to accept the one substituted judgment of close family members absent substantial proof that their views reflected those of the patient. In Matter of Moorhouse,14 an application for emergent relief was brought after the Superior Court, Chancery Division, Probate Part, Cumberland County, authorized removal of life support from never-competent resident of state hospital who had been retarded since birth. The Superior Court, Appellate Division, stayed the authorization to terminate life support and held that: (1) the trial judge's determination that clear and convincing evidence supported removal of life support was not supported by sufficient credible evidence in the record and (2) the judge's refusal to grant a stay pending emergent appeal and his failure to promptly issue an order memorializing his oral allowance of removal of life support was improper. In Matter of Hughes,15 the Superior Court, Chancery Division, entered judgment appointing a hospital administrator as guardian of a surgical patient, for the purpose of consenting to blood transfusions. The Superior Court, Appellate Division, held that the trial court did not err in making the appointment, even though the patient had given written instructions prior to the operation that she was not to receive blood. In Matter of Schiller,16 a hospital filed a complaint asking that a special guardian be appointed to consent to the amputation of the leg of a patient who was alleged to be mentally incapable of giving consent to the operation. The Superior Court, Chancery Division, held that, in view of the testimony of a psychiatrist that the patient with a gangrenous foot was incapable of understanding his condition, that the amputation was a lifesaving technique, and that the patient was incapable of either consenting to or refusing to consent to amputation, the cousin of the patient would be appointed special guardian with authority to consent to the lifesaving medical treatment. In Matter of J.M.,17 the Court in an unpublished decision, addressed a woman's

14 Matter of Moorhouse, 250 N.J. Super. 307, 593 A.2d 1256 (App. Div. 1991). 15 Matter of Hughes, 259 N.J. Super. 193, 611 A.2d 1148 (App. Div. 1992). 16 Matter of Schiller, 148 N.J. Super. 168, 372 A.2d 360 (Ch. Div. 1977). 17 In re J.M., 416 N.J. Super. 222, 3 A.3d 651 (Ch. Div. 2010). Bergen County (Docket

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refusal of dialysis on religious grounds. The opinion dealt with determining a patient's capacity to refuse a specific medical procedure, especially when she had capacity to make other medical decisions. The patient declined to appeal the decision. J.M. was determined to have lacked the capacity to decide, requiring appointment of a special medical guardian. J.M. had consented to other medical procedures and executed a resuscitation order. J.M. was a single mother from Jamaica with a 17-year-old son and an eighth grade education. She refused dialysis for a variety of reasons, including fear of the dialysis machine and the anticipated loss of income that would result from time spent in dialysis several days a week. J.M.'s main objection was religious. The Valley Hospital sought the appointment of a special medical guardian to consent to life-saving dialysis treatment. The court found by clear and convincing evidence that J.M. lacked capacity to refuse dialysis treatment because she demonstrated a lack of understanding of the high risk of death without dialysis and through her other medical choices had demonstrated an unequivocal desire to live. The court appointed a temporary special medical guardian. In the unpublished decision of Matter of the Appointment of a Special Medical

Guardian for G.S.,18 decided on May 25, 2011, the Appellate Division issued a per curiam opinion. Following an evidentiary hearing at which several medical experts testified, the trial court issued an order on June 11, 2010 designating the parents of G.S., a developmentally-disabled minor who was then fifteen years old, as her special medical guardians for the specific purpose of authorizing a laparoscopic hysterectomy for their daughter for reasons of medical necessity. In particular, the parents sought the appointment based upon the advice of their daughter's physicians, as a means to alleviate her suffering from repeated seizures that occurred during her menstrual cycle. Thereafter, intervenor, the Division of Mental Health and Guardianship Advocacy (“the Division”),

No. P-036-10). Note that Rule 1:36-3 provides that no unpublished opinion shall constitute precedent or be binding upon any court. Except for appellate opinions not approved for publication that have been reported in an authorized administrative law reporter, and except to the extent required by res judicata, collateral estoppel, the single controversy doctrine or any other similar principle of law, no unpublished opinion shall be cited by any court. No unpublished opinion shall be cited to any court by counsel unless the court and all other parties are served with a copy of the opinion and of all contrary unpublished opinions known to counsel. 18 On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Camden County, Docket No. C--117--09, Cited as 2011 WL 2348746 (N.J. Super. A.D.). Note that Rule 1:36-3 provides that no unpublished opinion shall constitute precedent or be binding upon any court. Except for appellate opinions not approved for publication that have been reported in an authorized administrative law reporter, and except to the extent required by res judicata, collateral estoppel, the single controversy doctrine or any other similar principle of law, no unpublished opinion shall be cited by any court. No unpublished opinion shall be cited to any court by counsel unless the court and all other parties are served with a copy of the opinion and of all contrary unpublished opinions known to counsel.

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sought emergent appellate relief to stay the parents' appointment and the surgical procedure, pending appeal. The emergent applications were denied, first, by a panel of this court, and ultimately, by an order of the Supreme Court on July 8, 2010. The hysterectomy was subsequently performed, which reportedly improved G.S.'s symptoms. Despite the fact that the surgery has been performed and the need for a special medical guardian for that purpose has lapsed, the Division continues to pursue the present appeal. It advocates, among other things, that this court should repudiate the procedures that the trial court followed in this case and prospectively fashion more stringent procedures and standards for the appointment of special medical guardians in comparable circumstances. Regardless of the potential wisdom of such proposed measures, we dismiss this appeal as moot, and instead leave the Division's policy recommendations to be considered in either the legislative or rule-making arenas.

CHANCERY DIVISION PLEADING FORMS

Forms of Order to Show Cause are set forth on the judiciary’s website: www.njcourtsonline.com. The New Jersey Judiciary prepared these materials for attorneys practicing law in the State of New Jersey. The website notes that if you are not an attorney and you are planning to represent yourself in your legal matter, you should visit the NJ Courts Self-Help Resource Center, which offers general information about representing yourself in court, what the court can and cannot do for you, contact information, brochures, forms and kits. It is further notes on the website that because these forms were created for lawyers, they do not include instructions. Further, although the forms are intended for use by attorneys, self-represented litigants are permitted to use them, where appropriate. A complete list of the presently promulgated forms (by forms number) published on www.njcourtsonline.com for Chancery Division, General Equity and Probate Part and for Guardianship of Incapacitated Adults, is as follows: No. 10705 - Order to Show Cause Preliminary Injunction Pursuant to Rule 4:52 (Court Rules Appendix XII-G) No. 10704 - Order to Show Cause Summary Action (Court Rules Appendix XII-F) No. 10308 - Order to Show Cause with Temporary Restraints Pursuant to Rule 4:52 (Court Rules Appendix XII-H) No.11215 - Order to Show Cause Probate Part Action (Court Rules Appendix XII-I) No. 11233 - Monthly Report of Probate Part and Surrogate Court Cases - Effective July 1, 2008 No. 10964 - Surrogates' Judiciary Records Request Form No. 11795 - Introductory Instructions - Guardianship Reporting Forms

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No. 11796 - Guardianship Terms and Procedures No. 11797 - Report of the Guardian Cover Page (Mobile friendly version) No. 11798 - Report of Well-Being (Mobile friendly version) No. 11799 - Guardian Inventory (Mobile friendly version) No. 11800 - EZ-Accounting Form (Mobile friendly version) No. 11801 - Comprehensive Accounting Form (Mobile friendly version) No. 11802 - Model Order - Judgment of Legal Incapacity and Appointment of a Guardian of the Person and Estate (Word form) No. 11220 - Order Scheduling Guardianship Hearing No. 11939 - Guardianship Monitoring Program brochure Pleadings

ORDER FIXING HEARING DATE AND APPOINTING

SPECIAL MEDICAL GUARDIAN FOR ALLEGED INCAPACITATED PERSON

This matter having been opened to the Court by ______ attorneys for plaintiff ______, and the Court having considered the Verified Complaint and the testimony of Dr. ______, a physician licensed to practice in New Jersey, and the Court having been satisfied that further proceedings should be conducted concerning the capacity of ______ and the appointment of a special medical guardian to consent to certain proposed treatment and procedures on the patient's behalf, and the Court having read and considered the verified complaint, the supporting certifications or affidavits, and all other papers and pleadings filed in this matter, and for good cause shown: IT IS on this ___ day of ____, ____, ORDERED that: 1. This matter be set down for hearing before this Court at the _ County Court House, ____, New Jersey, on the _ day of ____, ____, at _ o'clock in the _ noon, or as soon thereafter as plaintiff may be heard, to determine the issues of incapacity of ____ and the appointment of a special medical guardian. 2. Pending further Order in this Court: A. ______ is declared to be unable to consent to the medical and surgical procedures required for his / her care and treatment due to ____________;

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B. ______ be and is appointed as Special Medical Guardian for and on behalf of the patient ______ for the purposes herein set forth; C. Said Special Medical Guardian be and is hereby directed to execute a consent to the administration of such treatment and procedures as the patient's treating physician and surgeons may, from time to time, deem to be in the patient's best interests. 3. A copy of this order to show cause, verified complaint, legal memorandum and any supporting affidavits or certifications submitted in support of this application be served upon the defendant(s) [personally or alternate: _ describe form of substituted service] within _ days of the date hereof, in accordance with R. 4:4-3 and R. 4:4-4, this being original process. 4. The plaintiff must file with the court his/her/its proof of service of the pleadings on the defendant no later than three (3) days before the return date. 5. Defendant(s) shall file and serve a written response to this order to show cause and the request for entry of injunctive relief and proof of service by ____, ____. The original documents must be filed with the Clerk of the Superior Court in the county listed above. A list of these offices is provided. You must send a copy of your opposition papers directly to Judge ______, whose address is ______________, New Jersey. You must also send a copy of your opposition papers to the plaintiff's attorney whose name and address appears above, or to the plaintiff, if no attorney is named above. A telephone call will not protect your rights; you must file your opposition and pay the required fee of $____ and serve your opposition on your adversary, if you want the court to hear your opposition to the injunctive relief the plaintiff is seeking. 6. The plaintiff must file and serve any written reply to the defendant's order to show cause opposition by ____, ____. The reply papers must be filed with the Clerk of the Superior Court in the county listed above and a copy of the reply papers must be sent directly to the chambers of Judge _. 7. ____________, Esquire, whose address is: _______ and telephone number is: _______ be and hereby is appointed as attorney for the alleged incapacitated person. Said attorney shall personally interview the alleged incapacitated person, examine the medical records, make inquiry of persons having knowledge of the alleged incapacitated person's circumstances, his/her physical and mental state and his/her property, make reasonable inquiries to locate any Will, powers of attorney or health care directives previously executed by the alleged incapacitated person, or to discover any interests the alleged incapacitated person may have as a beneficiary of a will or trust. Said attorney shall prepare a written report of findings and recommendations and an affidavit of services to be filed with the Court and with the plaintiff's attorney and other parties who have filed a written response at least _ days prior to the hearing. 8. A copy of the verified complaint, supporting affidavits or certifications and this Order shall be immediately served on the attorney for the alleged incapacitated person by

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personal service or certified mail, return receipt requested. 9. The attorney above appointed to represent the alleged incapacitated person is hereby regarded as a HIPAA (Health Insurance Portability and Accountability Act) representative for the alleged incapacitated person and shall have the right and power to examine records, including medical and psychiatric records, pertaining to the alleged incapacitated person and to visit and confer with the alleged incapacitated person. 10. The plaintiff shall file with the Surrogate of _ County a proof of service of the pleadings required by this order to be served on the alleged incapacitated person and the parties in interest no later than ___ (___) days before the date this matter is scheduled to be heard. 11. Any next-of-kin and other party-in-interest who wishes to be heard with respect to any of the relief requested in the verified complaint shall file with the Surrogate of ______ County at [insert address of Surrogate in the County where the action is being brought] together with the applicable filing fee and serve upon the attorney for the plaintiff and the attorney for the alleged incapacitated person at the address set forth above, a written answer, an answering affidavit, a motion returnable on the date this matter is scheduled to be heard or other written response _ days before the date this matter is scheduled to be heard.

__________________________ J.S.C.

VERIFIED COMPLAINT (sample)

Plaintiff _______________ (Hospital), a corporation of the State of New Jersey (hereinafter referred to as “Hospital”) located at ___________ (Address) by way of Verified Complaint, says: 1. The Hospital is a not-for-profit corporation conducting the business of a general hospital and is domiciled at the above address. 2. On _ (Date), ___________________ (Name of alleged incapacitated person) was admitted as a patient to the hospital and was placed under the care of Dr. ___________. (Name) is _____ (Age) years old. 3. Dr. _______________ (name) has been treating physician for approximately (___) years. Dr. _ diagnosed her as having _______________. She was admitted to the Hospital on ______ (date). Dr. ____________ examined ____________ and diagnosed her as having ________________________________________. 4. Dr. ______________ consulted with Dr. ____________ whose specialty is ____________________ and whose opinion is that ___________________'s condition

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requires ___________________________________. 5. The purpose of the proposed treatment is to ________________________. 6. The proposed therapy will help preserve neurological functions, thus allowing __________ to eventually be discharged to a full-care nursing facility. 7. The potential risks of the proposed treatment are ___________________________. 8. If the proposed treatment is not rendered, ___________’s life expectancy and quality of life will deteriorate substantially. 9. Plaintiff has been advised by medical personnel that the alleged incapacitated person requires immediate life sustaining medical treatment. 10. The alleged incapacitated person is incapable of understanding the nature of this condition, the benefits and risks attendant to the proposed medical treatment, and is incapable of rendering informed consent to the proposed medical treatment. 11. Without a valid consent, the necessary life sustaining medical treatment that is proposed cannot be performed. 12. There has not previously been a judgment entered declaring this individual to be an incapacitated person, nor has a guardian been appointed for her. 13. The alleged incapacitated person does not have a living will or advance directive, nor does said person have a durable power of attorney for health care. 14. The alleged incapacitated person will suffer immediate and substantial harm if a special medical guardian is not appointed to consent to the proposed medical treatment. 15. The Hospital medical staff has determined it to be in the best medical interest of _ to have this therapy to improve her condition. 16. Dr. ______ will perform the proposed treatment. 17. Dr. ____ and Dr. ____ board certified psychiatrists, examined ____ on ____ (Date) and ____ (Date) respectively and observed that_______________________________ (a) she was unable to give any history; (b) was unaware of her condition; (c) could not recall her address, her age, or her date of birth; (d) did not know the month or the year; (e) was completely unaware of her medical problems or the nature of the necessary treatment; and (f) was disoriented as to the time and place and had a marked impairment of memory. 18. As a result of these examinations, Drs. ____ and ____ independently concluded

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that _ is confused and disoriented; that she is unfit and unable to govern herself and to manage her affairs, and that she is an incapacitated person who is unable to understand the nature of her medical problem or to consent to or refuse proper care and treatment. Dr. ____ her treating physician over the last few years, concurs in Drs. ____ and ____'s assessment of ____'s mental condition. 19. Prior to her admittance to the Hospital, Ms. _ lived at _, Apartment _, _ New Jersey. The Hospital has located relatives of ___________ consisting of _________________________________________. These are her only known relatives. After a full explanation of __________________'s mental and medical condition and of the responsibilities of guardianship, all are unwilling to be appointed Special Medical Guardian for _____________. The Hospital has mailed certified letters, return receipt requested, to all of __________________'s known relatives advising then of its intention to seek the appointment of a Special Guardian for their aunt. The Hospital also advised the relatives of their right to object to this procedure at a hearing. 20. The patient ____________ is possessed of the following assets: ____________________. 21. ______, whose title is _______________ at the Hospital, is fully familiar with the facts and circumstances surrounding _________________'s condition and hospitalization, and agrees that the radiation therapy is necessary. 22. __________ is willing to be appointed Special Guardian by this Court for the following purposes: a. To consent or withhold consent to radiation therapy; b. To consent or withhold consent to additional medical treatments of procedures made necessary by the radiation therapy and by Ms. _'s medical condition; and c. To sign all documents and papers that are necessary for the radiation therapy and accompanying medical treatments or procedures. WHEREFORE, the _ (Hospital) seeks an Order: A. Appointing an attorney for said patient, pursuant to Rule 4:86-4 (a). B. Appointing _______________________, whose title is ______________ at _________________, Special Medical Guardian for ___________________ for the purposes of: 1. consenting to or withholding consent to radiation therapy for ________________; 2. consenting to or withholding consent to additional medical treatments or procedures made necessary by the approved treatment and by _________________'s

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medical condition; and 3. signing all documents and papers that are necessary for the approved medical treatments or procedures; C. For such other and further relief as this Court deems just and equitable. Dated: Attorneys for Plaintiff By: ____________________________

VERIFYING CERTIFICATION I, ________________, of full age, certify as follows: 1. I am the _____________________ at _________________ (Hospital). 2. In that position in ________________ (Hospital), I am fully familiar with the facts surrounding the Hospital's application for an Order appointing a Special Guardian for _____________________. 3. I have read the Verified Complaint to which this Certification is annexed, and the facts stated therein are true. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. Dated: _____________ _____________________________________

CERTIFICATION

1. I hereby certify that the within pleadings are served within the time allowed by law pursuant to the Rules of Court. 2. I hereby certify that the matter in controversy is not the subject of any other pending action in any other Court, the subject of any pending arbitration proceeding, nor is there any other action or arbitration proceeding contemplated. 3. I certify that confidential personal identifiers have been redacted from documents now submitted to the court, and will be redacted from all documents submitted in the future in accordance with Rule 1:38-7(b). Dated: Attorneys for Plaintiff By: _______________________

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JUDGMENT APPOINTING TEMPORARY SPECIAL MEDICAL GUARDIAN Application having been made to this Court on __________________ at 9:00 A.M. by plaintiff for an Order appointing a special medical guardian pursuant to Rule 4:86-12 for _________________, an alleged incapacitated person, to consent to the administration of certain medical treatment and/or surgical procedures, and the court having considered the testimony taken this date from Dr. ____ and Dr. ____, and the Court having considered the report of ______________ and for good cause appearing, It is on this ______ day of __________, ______________ Ordered, Adjudged and Decreed at _____________ A.M.: A. ______________ is unable to consent to the medical and surgical procedures required for her care and treatment due to incapacity and inability to give informed consent; B. _____________ is appointed as Special Medical Guardian for and on behalf of ________________ for the purposes herein set forth for a period of thirty (30) days from the date of this Judgment; C. Said Special Medical Guardian be and is hereby directed to execute a consent to the administration of such treatment and procedures as the patient's treating physician and surgeons may, from time to time, deem to be in the patient's best interests and for such follow-up treatment as may be required; D. A copy of this Order shall be served upon counsel for all parties within 2 days hereof.

_______________________ J.S.C.

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----- Reprinted with permission of LexisNexis.

N.J.S.A 30:13-1 et seq.

Nursing Home Rights and Responsibilities

§ 30:13-1. Legislative findings and declarations

The Legislature hereby finds and declares that the well-being of nursing home

residents in the State of New Jersey requires a delineation of the responsibilities of

nursing homes and a declaration of a bill of rights for such residents.

§ 30:13-2. Definitions

2. For the purposes of this act:

a. "Administrator" means any individual who is charged with the general

administration or supervision of a nursing home whether or not such individual has

an ownership interest in such home and whether or not his function and duties are

shared with one or more other individuals.

b. "Guardian" means a person, appointed by a court of competent jurisdiction,

who shall have the right to manage the financial affairs and protect the rights of any

nursing home resident who has been declared an incapacitated person. In no case

shall the guardian of a nursing home resident be affiliated with a nursing home, its

operations, its staff personnel or a nursing home administrator in any manner

whatsoever.

c. "Nursing home" means any institution, whether operated for profit or not, which

maintains and operates facilities for extended medical and nursing treatment or care

for two or more nonrelated individuals who are suffering from acute or chronic illness

or injury, or are crippled, convalescent or infirm and are in need of such treatment or

care on a continuing basis. Infirm is construed to mean that an individual is in need

of assistance in bathing, dressing or some type of supervision.

d. "Reasonable hour" means any time between the hours of 8 a.m. and 8 p.m.

daily.

e. "Resident" means any individual receiving extended medical or nursing

treatment or care at a nursing home.

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§ 30:13-3. Responsibilities of nursing homes

Every nursing home shall have the responsibility for:

a. (1) Maintaining a complete record of all funds, personal property and

possessions of a nursing home resident from any source whatsoever, which have

been deposited for safekeeping with the nursing home for use by the resident. This

record shall contain a listing of all deposits and withdrawals transacted, and these

shall be substantiated by receipts given to the resident or his guardian. A nursing

home shall provide to each resident or his guardian a quarterly statement which

shall account for all of such resident's property on deposit at the beginning of the

accounting period, all deposits and withdrawals transacted during the period, and

the property on deposit at the end of the period. The resident or his guardian shall

be allowed daily access to his property on deposit during specific periods

established by the nursing home for such transactions at a reasonable hour. A

nursing home may, at its own discretion, place a limitation as to dollar value and size

of any personal property accepted for safekeeping.

(2) Offering an incoming resident or the resident's guardian, in accordance with

current law, at the time of admission to a nursing home on or after the effective date

[Aug. 1, 2016] of P.L.2015, c.230, a form designating the beneficiary of any

remaining balance in the resident's personal needs allowance account that does not

exceed $ 1,000 upon the resident's death. In the case of a person residing in a

nursing home prior to the effective date of P.L.2015, c.230, the nursing home shall

have the responsibility for offering the resident or the resident's guardian, in

accordance with current law, whenever possible, a form designating the beneficiary

of any remaining balance in the resident's personal needs allowance account that

does not exceed $ 1,000 upon the resident's death. Funds remaining in a personal

needs allowance account at the time of a resident's death shall be included in that

resident's estate and shall, consistent with N.J.S.3B:22-2, be subject to claims made

by estate creditors prior to distribution to a designated beneficiary.

b. Providing for the spiritual needs and wants of residents by notifying, at a

resident's request, a clergyman of the resident's choice and allowing unlimited visits

by such clergyman. Arrangements shall be made, at the resident's expense, for

attendance at religious services of his choice when requested. No religious beliefs or

practices, or any attendance at religious services, shall be imposed upon any

resident.

c. Admitting only that number of residents for which it reasonably believes it can

safely and adequately provide nursing care. Any applicant for admission to a nursing

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home who is denied such admission shall be given the reason for such denial in

writing.

d. Ensuring that an applicant for admission or a resident is treated without

discrimination as to age, race, religion, sex or national origin. However, the

participation of a resident in recreational activities, meals or other social functions

may be restricted or prohibited if recommended by a resident's attending physician

in writing and consented to by the resident.

e. Ensuring that no resident shall be subjected to physical restraints except upon

written orders of an attending physician for a specific period of time when necessary

to protect such resident from injury to himself or others. Restraints shall not be

employed for purposes of punishment or the convenience of any nursing home staff

personnel. The confinement of a resident in a locked room shall be prohibited.

f. Ensuring that drugs and other medications shall not be employed for purposes

of punishment, for convenience of any nursing home staff personnel or in such

quantities so as to interfere with a resident's rehabilitation or his normal living

activities.

g. Permitting citizens, with the consent of the resident being visited, legal

services programs, employees of the Office of Public Defender and employees and

volunteers of the Office of the Ombudsman for the Institutionalized Elderly, whose

purposes include rendering assistance without charge to nursing home residents,

full and free access to the nursing home in order to visit with and make personal,

social and legal services available to all residents and to assist and advise residents

in the assertion of their rights with respect to the nursing home, involved

governmental agencies and the judicial system.

(1) Such access shall be permitted by the nursing home at a reasonable hour.

(2) Such access shall not substantially disrupt the provision of nursing and

other care to residents in the nursing home.

(3) All persons entering a nursing home pursuant to this section shall promptly

notify the person in charge of their presence. They shall, upon request, produce

identification to substantiate their identity. No such person shall enter the immediate

living area of any resident without first identifying himself and then receiving

permission from the resident to enter. The rights of other residents present in the

room shall be respected. A resident shall have the right to terminate a visit by a

person having access to his living area pursuant to this section at any time. Any

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communication whatsoever between a resident and such person shall be

confidential in nature, unless the resident authorizes the release of such

communication in writing.

h. Ensuring compliance with all applicable State and federal statutes and rules

and regulations.

i. Ensuring that every resident, prior to or at the time of admission and during his

stay, shall receive a written statement of the services provided by the nursing home,

including those required to be offered by the nursing home on an as-needed basis,

and of related charges, including any charges for services not covered under Title

XVIII and Title XIX of the Social Security Act, as amended, or not covered by the

nursing home's basic per diem rate. This statement shall further include the

payment, fee, deposit and refund policy of the nursing home.

j. Ensuring that a prospective resident or the resident's family or guardian

receives a copy of the contract or agreement between the nursing home and the

resident prior to or upon the resident's admission.

§ 30:13-3.1. Provisions relative to Medicare, Medicaid.

a. A nursing home shall not, with respect to an applicant for admission or a resident

of the facility:

(1) require that the applicant or resident waive any rights to benefits to which he

may be entitled under the Medicare program established pursuant to Title XVIII of

the federal Social Security Act, Pub.L.89-97 (42 U.S.C. § 1395 et seq.) or the

Medicaid program established pursuant to P.L.1968, c. 413 (C. 30:4D-1 et seq.); or

(2) require a third party guarantee of payment to the facility as a condition of

admission or expedited admission to, or continued residence in, that facility; except

that when an individual has legal access to a resident's income or resources

available to pay for facility care pursuant to a durable power of attorney, order of

guardianship or other valid document, the facility may require the individual to sign a

contract to provide payment to the facility from the resident's income or resources

without incurring personal financial liability.

b. A nursing home shall prominently display in that facility, and provide to an

applicant for admission or a resident of the facility, written information about how to

apply for benefits under the Medicare or Medicaid program, and how to receive a

refund of previous payments to the facility which may be covered by those benefits.

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c. The provisions of subsections a. and b. of this section shall only apply to those

distinct parts of a nursing home certified to participate in the Medicare or Medicaid

program.

§ 30:13-3.2. Applicability of act.

Except as otherwise provided in this act, the provisions of P.L.1976, c.120 (C.30:13-

1 et seq.) and section 3 of P.L.1997, c.241(C.30:13-3.1) shall apply to any applicant

for admission to a nursing home or any resident of the facility, whether the applicant

or resident is eligible for benefits under the Medicare or Medicaid program or is a

private pay patient, or may in the future convert from a private pay patient to a

Medicare or Medicaid patient.

§ 30:13-4. Responsibilities as inclusive but not limitation

The responsibilities of nursing homes shall include, but shall not be limited to, those

enumerated in this act.

§ 30:13-4.1. Nursing home security deposits; disposition

Whenever a nursing home requires a security deposit advanced prior to the

admission of a person to the nursing home, the money or other form of security, until

repaid or applied to payments in accordance with the terms of the contract or

agreement, including the resident's portion of the interest or earnings accumulated

thereon as hereinafter provided, shall continue to be the property of the resident and

shall be held in trust by the nursing home and shall not be mingled with the personal

property or become an asset of the nursing home.

a. The nursing home shall: (1) invest that money in shares of an insured money

market fund established by an investment company based in this State and

registered under the "Investment Company Act of 1940," 54 Stat. 789 (15 U.S.C.

80a-1 et seq.) whose shares are registered under the "Securities Act of 1933," 48

Stat. 74 (15 U.S.C. 77a et seq.) and the only investments of which fund are

instruments maturing in one year or less, or (2) deposit that money in a State or

federally chartered bank, savings bank or savings and loan association in this State

insured by an agency of the federal government in an account bearing a variable

rate of interest, which shall be established at least quarterly, which is similar to the

average rate of interest on active interest bearing money market transaction

accounts paid by the bank or association, or equal to similar accounts of an

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investment company described in paragraph (1) of this subsection, less an amount

not to exceed 1% per annum of the amount so invested or deposited for the costs of

servicing and processing the accounts.

b. Immediately after the security money is invested, the nursing home shall notify

the resident in writing of the name and address of the investment company, State or

federally chartered bank, savings bank or savings and loan association in which the

deposit or investment of security money is made, and the amount of the deposit.

c. All of the money so deposited or advanced may be deposited or invested by

the nursing home in one interest-bearing or dividend yielding account as long as the

nursing home complies with all the other requirements of this act.

d. The nursing home is entitled to receive as administration expenses, a sum

equivalent to 1% per annum thereon or 12.5% of the aggregate interest yield on the

security deposit, whichever is greater, less the amount of any service fee charged by

an investment company, a State or federally chartered bank, savings bank or

savings and loan association for money deposited pursuant to this section, which is

in lieu of all other administrative and custodial expenses. The balance of the interest

or earnings paid thereon by the investment company, State or federally chartered

bank, savings bank or savings and loan association shall belong to the resident and

shall be permitted to compound to the benefit of the resident, or be paid to the

resident in cash, or be credited toward the payments due on the anniversary of the

resident's admission to the nursing home in accordance with the terms of the

contract or agreement.

e. If the nursing home fails to notify the resident of the name and address of the

investment company, State or federally chartered bank, savings bank or savings and

loan association in which the deposit or investment of the security is made, and the

amount thereof, within 30 days after receipt of the money from the resident, the

resident may give written notice to the nursing home that the security money shall

be applied on account of payments due or to become due from the resident, and

thereafter the resident shall be without obligation to make any further security

deposit and the nursing home shall not be entitled to make further demand for a

security deposit.

f. Within 60 days after the person is no longer a resident of the nursing home, the

nursing home shall return to the former resident or, if appropriate, to the resident's

estate, by personal delivery, registered or certified mail the sum so deposited plus

the former resident's portion of the interest or earnings accumulated thereon, less

any charges expended in accordance with the terms of a contract or agreement. The

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interest or earnings and any such deductions shall be itemized and the resident or, if

appropriate, the resident's estate, notified thereof by personal delivery, registered or

certified mail.

g. The Commissioner of Banking may promulgate rules and regulations with

respect to the establishment of the method of computing the interest due to either

the nursing home or to the resident pursuant to the provisions of this act in

accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et

seq.) if the money is deposited in an account or in shares of an investment company

upon which the interest varies on a periodic basis.

§ 30:13-4.2. Violations; enforcement

2. A person shall have a cause of action against the nursing home for any violation

of this act [C.30:13-4.1, 30:13-4.2]. The Department of Health may maintain an

action in the name of the State to enforce the provisions of this act and any rules

and regulations promulgated pursuant to this act. The action to recover actual and

punitive damages shall be brought in a court of competent jurisdiction. A plaintiff

who prevails in an action shall be entitled to recover reasonable attorney's fees and

costs of the action.

§ 30:13-5. Rights of nursing home residents

Every resident of a nursing home shall:

a. Have the right to manage his own financial affairs unless he or his guardian

authorizes the administrator of the nursing home to manage such resident's financial

affairs. Such authorization shall be in writing and shall be attested by a witness that

is unconnected with the nursing home, its operations, its staff personnel and the

administrator thereof, in any manner whatsoever.

b. Have the right to wear his own clothing. If clothing is provided to the resident

by the nursing home, it shall be of a proper fit.

c. Have the right to retain and use his personal property in his immediate living

quarters, unless the nursing home can demonstrate that it is unsafe or impractical to

do so.

d. Have the right to receive and send unopened correspondence and, upon

request, to obtain assistance in the reading and writing of such correspondence.

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e. Have the right to unaccompanied access to a telephone at a reasonable hour,

including the right to a private phone at the resident's expense.

f. Have the right to privacy.

g. Have the right to retain the services of his own personal physician at his own

expense or under a health care plan. Every resident shall have the right to obtain

from his own physician or the physician attached to the nursing home complete and

current information concerning his medical diagnosis, treatment and prognosis in

terms and language the resident can reasonably be expected to understand, except

when the physician deems it medically inadvisable to give such information to the

resident and records the reason for such decision in the resident's medical record. In

such a case, the physician shall inform the resident's next-of-kin or guardian. The

resident shall be afforded the opportunity to participate in the planning of his total

care and medical treatment to the extent that his condition permits. A resident shall

have the right to refuse treatment. A resident shall have the right to refuse to

participate in experimental research, but if he chooses to participate, his informed

written consent must be obtained. Every resident shall have the right to

confidentiality and privacy concerning his medical condition and treatment, except

that records concerning said medical condition and treatment may be disclosed to

another nursing home or health care facility on transfer, or as required by law or

third-party payment contracts.

h. Have the right to unrestricted communication, including personal visitation with

any persons of his choice, at any reasonable hour.

i. Have the right to present grievances on behalf of himself or others to the

nursing home administrator, State governmental agencies or other persons without

threat of discharge or reprisal in any form or manner whatsoever. The administrator

shall provide all residents or their guardians with the name, address, and telephone

number of the appropriate State governmental office where complaints may be

lodged. Such telephone number shall be posted in a conspicuous place near every

public telephone in the nursing home.

j. Have the right to a safe and decent living environment and considerate and

respectful care that recognizes the dignity and individuality of the resident, including

the right to expect and receive appropriate assessment, management and treatment

of pain as an integral component of that person's care consistent with sound nursing

and medical practices.

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k. Have the right to refuse to perform services for the nursing home that are not

included for therapeutic purposes in his plan of care as recorded in his medical

record by his physician.

l. Have the right to reasonable opportunity for interaction with members of the

opposite sex. If married, the resident shall enjoy reasonable privacy in visits by his

spouse and, if both are residents of the nursing home, they shall be afforded the

opportunity, where feasible, to share a room, unless medically inadvisable.

m. Not be deprived of any constitutional, civil or legal right solely by reason of

admission to a nursing home.

n. Have the right to receive, upon request, food that meets the resident's religious

dietary requirements, provided that the request is made prior to or upon admission

to the nursing home, and if the resident is not a Medicaid recipient, that the resident

agrees to assume any additional cost incurred by the nursing home in order to meet

those dietary requirements. If the resident is a Medicaid recipient upon admission, or

becomes eligible for Medicaid after admission, the nursing home shall include the

cost of the religious dietary requirements in its Medicaid cost report for consideration

under applicable reimbursement processes. As used in this section, "Medicaid"

means the Medicaid program established pursuant to P.L.1968, c.413 (C.30:4D-1 et

seq.).

§ 30:13-6. Discharge or transfer of residents

Any nursing home resident may discharge himself from a nursing home upon presentation of a

written release and if the resident is an adjudicated mental incompetent, upon the

written consent of his guardian. In such case, the nursing home is free from any

responsibility for the resident upon his release. When a nursing home wishes to

transfer or discharge a competent or an adjudicated mental incompetent resident on

a nonemergency basis, it may do so for medical reasons or for his welfare or that of

other residents upon receiving a written order from the attending physician, or for

nonpayment of his stay, except as prohibited by Title XVIII or Title XIX of the Social

Security Act, as amended, and such action shall be recorded in the resident's

medical record. When a transfer or discharge on a nonemergency basis of a

resident is requested by a nursing home, the resident or, in the case of an

adjudicated mental incompetent resident, the guardian, shall be given at least 30

days advance notice of such transfer or discharge.

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§ 30:13-7. Written notice of rights, obligations and prohibitions; copy to

residents; posting

The administrator of a nursing home shall ensure that a written notice of the rights,

obligations and prohibitions set forth in this act be given to every resident or his

guardian upon admittance to the nursing home and to each individual already in

residence or to his guardian. The administrator shall also post this notice in a

conspicuous, public place in the nursing home.

§ 30:13-8. Violations; causes of action; damages.

a. Any person or resident whose rights as defined herein are violated shall have a

cause of action against any person committing such violation. The Department of

Health and Senior Services may maintain an action in the name of the State to

enforce the provisions of this act and any rules or regulations promulgated pursuant

to this act. The action may be brought in any court of competent jurisdiction to

enforce such rights and to recover actual and punitive damages for their violation.

Any plaintiff who prevails in any such action shall be entitled to recover reasonable

attorney's fees and costs of the action.

b. In addition to the provisions of subsection a. of this section, treble damages may

be awarded to a resident or alleged third party guarantor of payment who prevails in

any action to enforce the provisions of section 3 of P.L.1997, c.241 (C.30:13-3.1).

§ 30:13-8.1. Clauses waiving right to sue in nursing home admission

agreements void, unenforceable

Any provision or clause waiving or limiting the right to sue for negligence or

malpractice in any admission agreement or contract between a patient and a nursing

home or assisted living facility licensed by the Department of Health and Senior

Services pursuant to the provisions of P.L. 1971, c. 136 (C. 26:2H-1 et seq.),

whether executed prior to, on or after the effective date of this act, is hereby

declared to be void as against public policy and wholly unenforceable, and shall not

constitute a defense in any action, suit or proceeding.

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Hospital Patients’ Rights

§ 30:4-24.2. Rights of Patients

a. Subject to any other provisions of law and the Constitution of New Jersey and the United States, no patient shall be deprived of any civil right solely by reason of his receiving treatment under the provisions of this Title nor shall such treatment modify or vary any legal or civil right of any such patient including but not limited to the right to register for and to vote at elections, or rights relating to the granting, forfeiture, or denial of a license, permit, privilege, or benefit pursuant to any law.

b. Every patient in treatment shall be entitled to all rights set forth in this act

and shall retain all rights not specifically denied him under this Title. A notice of the rights set forth in this act shall be given to every patient within 5 days of his admission to treatment. Such notice shall be in writing and in simple understandable language. It shall be in a language the patient understands and if the patient cannot read it shall be read to him. In the case of an adjudicated incompetent patient, such procedure shall be followed for the patient's guardian. Receipt of this notice shall be acknowledged in writing with a copy placed in the patient's file. If the patient or guardian refuses to acknowledge receipt of the notice, the person delivering the notice shall state this in writing with a copy placed in the patient's file.

c. No patient may be presumed to be incompetent because he has been

examined or treated for mental illness, regardless of whether such evaluation or treatment was voluntarily or involuntarily received. Any patient who leaves a mental health program following evaluation or treatment for mental illness, regardless of whether that evaluation or treatment was voluntarily or involuntarily received, shall be given a written statement of the substance of this act.

d. Each patient in treatment shall have the following rights, a list of which

shall be prominently posted in all facilities providing such services and otherwise brought to his attention by such additional means as the department may designate:

(1) To be free from unnecessary or excessive medication. No medication

shall be administered unless at the written order of a physician. Notation of each patient's medication shall be kept in his treatment records. At least weekly, the attending physician shall review the drug regimen of each patient under his care. All physician's orders or prescriptions shall be written with a termination date, which shall not exceed 30 days. Medication

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shall not be used as punishment, for the convenience of staff, as a substitute for a treatment program, or in quantities that interfere with the patient's treatment program. Voluntarily committed patients shall have the right to refuse medication.

(2) Not to be subjected to experimental research, shock treatment,

psychosurgery or sterilization, without the express and informed consent of the patient after consultation with counsel or interested party of the patient's choice. Such consent shall be made in writing, a copy of which shall be placed in the patient's treatment record. If the patient has been adjudicated incompetent a court of competent jurisdiction shall hold a hearing to determine the necessity of such procedure at which the client is physically present, represented by counsel, and provided the right and opportunity to be confronted with and to cross-examine all witnesses alleging the necessity of such procedures. In such proceedings, the burden of proof shall be on the party alleging the necessity of such procedures. In the event that a patient cannot afford counsel, the court shall appoint an attorney not less than 10 days before the hearing. An attorney so appointed shall be entitled to a reasonable fee to be determined by the court and paid by the county from which the patient was admitted. Under no circumstances may a patient in treatment be subjected to experimental research which is not directly related to the specific goals of his treatment program.

(3) To be free from physical restraint and isolation. Except for emergency

situations, in which a patient has caused substantial property damage or has attempted to harm himself or others and in which less restrictive means of restraint are not feasible, a patient may be physically restrained or placed in isolation only on a medical director's written order or that of his physician designee which explains the rationale for such action. The written order may be entered only after the medical director or his physician designee has personally seen the patient concerned, and evaluated whatever episode or situation is said to require restraint or isolation. Emergency use of restraints or isolation shall be for no more than 1 hour, by which time the medical director or his physician designee shall have been consulted and shall have entered an appropriate order in writing. Such written order shall be effective for no more than 24 hours and shall be renewed if restraint and isolation are continued. While in restraint or isolation, the patient must be bathed every 12 hours and checked by an attendant every 2 hours with a notation in writing of such checks placed in the patient's treatment record along with the order for restraint or isolation.

(4) To be free from corporal punishment.

e. Each patient receiving treatment pursuant to this Title, shall have the

following rights, a list of which shall be prominently posted in all facilities

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providing such services and otherwise brought to his attention by such additional means as the commissioner may designate:

(1) To privacy and dignity.

(2) To the least restrictive conditions necessary to achieve the purposes

of treatment.

(3) To wear his own clothes; to keep and use his personal possessions including his toilet articles; and to keep and be allowed to spend a reasonable sum of his own money for canteen expenses and small purchases.

(4) To have access to individual storage space for his private use. (5) To see visitors each day.

(6) To have reasonable access to and use of telephones, both to make and receive confidential calls.

(7) To have ready access to letter writing materials, including stamps, and

to mail and receive unopened correspondence.

(8) To regular physical exercise several times a week. It shall be the duty of the hospital to provide facilities and equipment for such exercise.

(9) To be outdoors at regular and frequent intervals, in the absence

of medical considerations.

(10) To suitable opportunities for interaction with members of the opposite sex, with adequate supervision.

(11) To practice the religion of his choice or abstain from religious

practices. Provisions for such worship shall be made available to each person on a nondiscriminatory basis.

(12) To receive prompt and adequate medical treatment for any physical ailment.

f. Rights designated under subsection d. of this section may not be denied

under any circumstances.

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g. (1) A patient's rights designated under subsection e. of this section may be denied for good cause in any instance in which the director of the program in which the patient is receiving treatment feels it is imperative to deny any of these rights; provided, however, under no circumstances shall a patient's right to communicate with his attorney, physician or the courts be restricted. Any such denial of a patient's rights shall take effect only after a written notice of the denial has been filed in the patient's treatment record and shall include an explanation of the reason for the denial.

(2) A denial of rights shall be effective for a period not to exceed 30 days

and shall be renewed for additional 30-day periods only by a written statement entered by the director of the program in the patient's treatment record which indicates the detailed reason for such renewal of the denial.

(3) In each instance of a denial or a renewal, the patient, his attorney, and his

guardian, if the patient has been adjudicated incompetent, and the department shall be given written notice of the denial or renewal and the reason therefor.

h. Any individual subject to this Title shall be entitled to a writ of habeas

corpus upon proper petition by himself, by a relative, or a friend to any court of competent jurisdiction in the county in which he is detained and shall further be entitled to enforce any of the rights herein stated by civil action or other remedies otherwise available by common law or statute.

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L.1965, c. 59, s. 10. Amended by L.1975, c. 85, s. 2, eff. May 7, 1975.

153

Example of residents’ concerns include: Violation of residents’ rights or dignity; Physical, verbal or mental abuse,

deprivation of services necessary to maintain residents’ physical and mental health or unreasonable confinement;

Poor quality of care, including inadequate personal hygiene and slow response to requests for assistance;

Improper transfer or discharge; Inappropriate use of chemical or

physical restraints; Financial exploitation

James W. McCracken, Ombudsman State of New Jersey

Office of the Ombudsman for the Institutionalized Elderly

PO BOX 852 Trenton, NJ 08625-0852

Toll-free Hotline:

1-877-582-6995

Volunteer Advocate

Program:

609-826-5053

DELETE THIS

BOX OR ENTER

A QUOTE OR

TO CALLOUT

TEXT FROM

THE BROCHURE.

The Office of the Ombudsman for the

Institutionalized Elderly investigates allegations of abuse and neglect of people, age 60 and

older, living in nursing homes and other long-term healthcare facilities.

If you or someone you know may be abused or

neglected, please contact the Elder Ombudsman office. By law, callers may remain anonymous and our case files are closed to the

public.

SELF – DETERMINATION You have the right: • To be offered choices and allowed

to make decisions important to you • To receive services with

reasonable accommodations to individual needs and preferences

• To participate in the planning of your care and services

• To self-administer medications • To accept or refuse care and

treatment to choose your health care providers, including your doctor and pharmacy

• To manage your own personal finances, or to be kept informed of your finances if you choose to let someone else manage them for you

• To refuse to perform work or services for the facility

New Jersey Office of the

Ombudsman for the Institutionalized

Elderly

TRANSFER OR DISCHARGE You have the right: • To remain in the facility

unless there is a valid, legal reason for your transfer or discharge

• To receive a 30 day written notice with the reason for the transfer or discharge, including appeal rights and information

• To receive assistance to assure a safe transfer

• To be offered to hold your bed if your transfer is temporary, such as for hospitalization or therapeutic leave

As a resident in this facility, you have rights guaranteed to you by state and federal laws. This facility is required to protect and promote your rights. Your rights strongly emphasize individual dignity and self-determination, promoting your independence and enhancing your quality of life. You have the right to exercise all of your rights free from interference, coercion, discrimination or reprisal.

N.J.S.A 30:13-5 Nursing Home

Residents’

Bill of Rights

155

You have the right:

To be valued as an individual, to be treated with dignity and respect in full recognition of your self-worth;

To be cared for in a manner that enhances their quality of life, free from humiliation, harassment or threats;

To be free from physical, sexual, mental, verbal abuse, and financial exploitation.

ACCESS

www.state.nj.us/OOIE

You have the right: • To be fully informed, both orally and in

writing, of your rights and the facility’s rules before admission and during your stay in the facility

• To be fully informed of the services available and related costs

• To not provide a third party guarantee of payment or accept any gifts as a condition of stay

• To be informed and to receive assistance in accessing Medicare or Medicaid benefits

• To equal access to quality care

• To be told in advance about care and treatment, including all risks and benefits

• To look at your records and receive copies at a reasonable cost

• To have reasonable access to any personal funds held for you by the facility

• To retain and use personal possessions

• To receive notice in advance of any plans to change your room and refuse room changes

• To organize and participate in a Resident Council and for your family to organize and participate in a Family Council

• To participate in social, religious and community activities, including the right to vote

• To read the results of the most recent State or Federal inspection survey and the facility’s plan to correct any violations

• To contact your Ombudsman, or any advocate or agency which provides health, social, legal, or other services

STATE OMBUDSMAN

New Jersey Office of the Ombudsman

for the Institutionalized Elderly

1(877)

582-6995

• To personal privacy during care and treatment

• To confidentiality concerning your personal and medical information

• To private and unrestricted visits with any person of your choice, in person and by telephone

• To send and receive mail without interference

COMPLAINTS You have the right: • To voice grievances or complaints about

care or services without discrimination or reprisal

• To expect the facility to promptly investigate and try to resolve your concerns

• To contact the Ombudsman to advocate on your behalf, free from discrimination or reprisal, if you feel any of your rights have been violated

(609)

826-5053

1(888)

576-5529

1(800)

792-9770

PRIVACY You have the right:

VOLUNTEER ADVOCATE

LEGAL SERVICES

HEALTH & SENIOR SERVICES

Important Contact Information

156

----- Reprinted with permission of LexisNexis and the Office of Administrative Law.

SUBCHAPTER 4. MANDATORY RESIDENT RIGHTS

8:39-4.1 Resident rights

(a) Each resident shall be entitled to the following rights:

1. To retain the services of a physician or

advanced practice nurse the resident chooses, at the resident's own expense or through a health care plan; 2. To have a physician or advanced

practice nurse explain to the resident, in language that the resident understands, his or her complete medical condition, the recommended treatment, and the expected results of the treatment, except when the physician deems it medically inadvisable to give such information to the resident and records the reason for such decision in the resident's medical record; and provides an explanation to his or her next of kin or guardian; 3. To participate, to the fullest extent that

the resident is able, in planning his or her own medical treatment and care; 4. To refuse medication and treatment after

the resident has been informed, in language that the resident understands, of the possible consequences of this decision. The resident may also refuse to participate in experimental research, including the investigations of new drugs and medical devices. The resident shall be included in experimental research only when he or she gives informed, written consent to such participation; 5. To be free from physical and mental

abuse and/or neglect; 6. To be free from chemical and physical

restraints, unless they are authorized by a physician or advanced practice nurse for a limited period of time to protect the resident or others from injury. Under no circumstances shall the resident be confined in a locked room or restrained for punishment, for the

convenience of the nursing home staff, or with the use of excessive drug dosages; 7. To manage his or her own finances or to

have that responsibility delegated to a family member, an assigned guardian, the nursing home administrator, or some other individual with power of attorney. The resident's authorization must be in writing, and must be witnessed in writing; 8. To receive a written statement or

admission agreement describing the services provided by the nursing home and the related charges. Such statement or admission agreement must be in compliance with all applicable State and Federal laws. This statement or agreement must also include the nursing home's policies for payment of fees, deposits, and refunds. The resident shall receive this statement or agreement prior to or at the time of admission, and afterward whenever there are any changes; 9. To receive a quarterly written account of

all resident's funds and itemized property that are deposited with the facility for the resident's use and safekeeping and of all financial transactions with the resident, next of kin, or guardian. This record shall also show the amount of property in the account at the beginning and end of the accounting period, as well as a list of all deposits and withdrawals, substantiated by receipts given to the resident or his or her guardian; 10. To have daily access during specified

hours to the money and property that the resident has deposited with the nursing home. The resident also may delegate, in writing, this right of access to his or her representative; 11. To live in safe, decent, and clean

conditions in a nursing home that does not admit more residents than it can safely accommodate while providing adequate

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nursing care;

12. To be treated with courtesy, consideration, and respect for the resident's dignity and individuality;

13. To receive notice of an intended transfer

from one room to another within the facility or a change in roommate, including a right to an informal hearing with the administrator prior to the transfer as well as a written statement of the reasons for such transfer. The nursing home shall not move the resident to a different bed or room in the facility if the relocation is arbitrary and capricious. A transfer would not be considered arbitrary and capricious if a facility can document a clinical necessity for relocating the resident, such as a need for isolation or to address behavior management problems, or there is a hardship to an applicant for admission through a delay caused by inefficient distribution of beds by gender;

14. To wear his or her own clothes, unless

this would be unsafe or impractical. All clothes provided by the nursing home shall fit in a way that is not demeaning to the resident;

15. To keep and use his or her personal

property, unless this would be unsafe, impractical, or an infringement on the rights of other residents. The nursing home shall take precautions to ensure that the resident's personal possessions are secure from theft, loss, and misplacement;

16. To have physical privacy. The resident

shall be allowed, for example, to maintain the privacy of his or her body during medical treatment and personal hygiene activities, such as bathing and using the toilet, unless the resident needs assistance for his or her own safety;

17. To have reasonable opportunities for

private and intimate physical and social interaction with other people, including arrangements for privacy when the resident's spouse visits. If the resident and his or her spouse are both residents of the same nursing

home, they shall be given the opportunity to share a room, unless this is medically inadvisable, as documented in their records by a physician or advanced practice nurse;

18. To confidential treatment of information

about the resident. Information in the resident's records shall not be released to anyone outside the nursing home without the resident's approval, unless the resident transfers to another health care facility, or unless the release of the information is required by law, a third-party payment contract, or the New Jersey State Department of Health and Senior Services;

19. To receive and send mail in unopened

envelopes, unless the resident requests otherwise. The resident also has a right to request and receive assistance in reading and writing correspondence unless it is medically contraindicated, and documented in the record by a physician or advanced practice nurse;

20. To have unaccompanied access to a

telephone at a reasonable hour to conduct private conversations, and, if technically feasible, to have a private telephone in his or her living quarters at the resident's own expense;

21. To stay out of bed as long as the

resident desires and to be awakened for routine daily care no more than two hours before breakfast is served, unless a physician recommends otherwise and specifies the reasons in the resident's medical record;

22. To receive assistance in awakening,

getting dressed, and participating in the facility's activities, unless a physician or advanced practice nurse specifies reasons in the resident's medical record;

23. To meet with any visitors of the resident's

choice between 8:00 A.M. and 8:00 P.M. daily. If the resident is critically ill, he or she may receive visits at any time from next of kin or a guardian, unless a physician or advanced

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practice nurse documents that this would be harmful to the resident's health;

24. To take part in nursing home activities, and to meet with and participate in the activities of any social, religious, and community groups, as long as these activities do not disrupt the lives of other residents; 25. To leave the nursing home during the

day with the approval of a physician or advanced practice nurse and with the resident's whereabouts noted on a sign-out record. Arrangements may also be made with the nursing home for an absence overnight or longer; 26. To refuse to perform services for the

nursing home; 27. To request visits at any time by

representatives of the religion of the resident's choice and, upon the resident's request, to attend outside religious services at his or her own expense. No religious beliefs or practices shall be imposed on any resident; 28. To participate in meals, recreation, and

social activities without being subjected to discrimination based on age, race, religion, sex, nationality, or disability. The resident's participation may be restricted or prohibited only upon the written recommendation of his or her physician or advanced practice nurse; 29. To organize and participate in a Resident

Council that presents residents' concerns to the administrator of the facility. A resident's family has the right to meet in the facility with the families of other residents in the facility; 30. To discharge himself or herself from the

nursing home by presenting a release signed by the resident. If the resident is an adjudicated mental incompetent, the release must be signed by his or her next of kin or guardian; 31. To be transferred or discharged only for

one or more of the following reasons, with the

reason for the transfer or discharge recorded in the resident's medical record: i. In an emergency, with notification of the

resident's physician or advanced practice nurse and next of kin or guardian; ii. For medical reasons or to protect the

resident's welfare or the welfare of others; iii. To comply with clearly expressed and

documented resident choice, or in conformance with the New Jersey Advance Directives for Health Care Act, as specified in N.J.A.C. 8:39-9.6(d); or

iv. For nonpayment of fees, in situations not

prohibited by law. 32. To receive written notice at least 30

days in advance when the nursing home requests the resident's transfer or discharge, except in an emergency. Written notice shall include the name, address, and telephone number of the New Jersey Office of the Ombudsman for the Institutionalized Elderly, and shall also be provided to the resident's next of kin or guardian 30 days in advance; 33. To be given a written statement of all

resident rights as well as any additional regulations established by the nursing home involving resident rights and responsibilities. The nursing home shall require each resident or his or her guardian to sign a copy of this document. In addition, a copy shall be posted in a conspicuous, public place in the nursing home. Copies shall also be given to the resident's next of kin and distributed to staff members. The nursing home is responsible for developing and implementing policies to protect resident rights; 34. To retain and exercise all the

constitutional, civil, and legal rights to which the resident is entitled by law. The nursing home shall encourage and help each resident to exercise these rights; and

35. To voice complaints without being threatened or punished. Each resident is entitled to complain and present his or her

159

grievances to the nursing home administrator and staff, to government agencies, and to anyone else without fear of interference, discharge, or reprisal. The nursing home shall provide each resident and his or her next of kin or guardian with the names, addresses, and telephone numbers of the government agencies to which a resident can complain and ask questions, including the Department and the Office of the Ombudsman for the Institutionalized Elderly. These names, addresses, and telephone numbers shall also be posted in a conspicuous place near every public telephone and on all public bulletin boards in the nursing home.

(b) Each resident, resident's next of kin, and

resident's guardian shall be informed of the resident rights enumerated in this subchapter, and each shall be explained to him or her. None of these rights shall be abridged or violated by the facility or any of its staff.

SUBCHAPTER 5. MANDATORY ACCESS TO CARE

8:39-5.4 Discharges

(a) No resident shall be discharged

between 5:00 P.M. and 8:00 A.M., except in an emergency or with the consent of the resident and family or responsible person.

(b) Discharge plans, for those residents considered to be likely candidates for discharge into the community or a less intensive care setting, shall be developed by the interdisciplinary team prior to discharge and shall reflect communication with the resident and/or the resident’s family.

(c) All discharges shall be in accordance with N.J.A.C. 8:39-4.1 and 39.

8:39-39.4 Mandatory resident social work services

(a) A social worker shall interview the resident and family within 14 days before or after admission to the facility to identify any social work needs or problems, and to take a social history that includes family, education, and occupational background, adjustment and level of functioning, interests, support systems, and observations.

(b) A social worker shall provide counseling

for residents and families. (c) A social worker shall facilitate

communication between staff and non-English speaking residents.

(d) A social worker shall offer information

and help to each resident and family on obtaining financial assistance and on the meaning of administrative forms and releases to be signed by the resident or family.

(e) A social worker shall coordinate the

facility's outreach services to the families of residents. 108

(f) A social worker shall coordinate

discharge services for residents, which shall include linking the resident to necessary community services.

(g) A social worker shall perform advocacy

services on behalf of the residents to ensure that concrete needs are met, such as clothing, laundry, and the resident's personal needs allowance if one is maintained.

(h) A social worker shall help residents and

families identify and gain access to community services, using resource materials and a knowledge of the residents' needs and abilities.

(i) The facility shall provide clinical social

work services to residents as needed and to families if related to issues that directly affect the resident.

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----- Reprinted with permission of LexisNexis and the Office of Administrative Law.

Long-Term Care Services

N.J.A.C. § 8:85-1.10. Involuntary transfer

(a) The Department recognizes that there may be problems in relocating infirm aged

persons from a NF. The purpose of this rule is to specify the circumstances in which the

involuntary transfer of a Medicaid beneficiary in a NF is authorized and to establish

conditions and procedures designed to minimize the risks, trauma and discomfort which

may accompany the involuntary transfer of a Medicaid beneficiary from a NF.

(b) This rule shall be interpreted consistent with the Federal requirement that care and

service under the Medicaid program be provided in a manner consistent with the best

interests of the resident.

(c) This rule shall apply to the involuntary transfer of a Medicaid beneficiary at the

request of a NF. This rule shall not apply to the Department's utilization review process,

nor to the movement of a Medicaid beneficiary to another bed within the same facility.

(d) A transfer of a Medicaid beneficiary which was not consented to or requested by the

beneficiary or by the beneficiary's family or authorized representative shall be considered

an involuntary transfer. A Medicaid beneficiary is a Medicaid eligible individual residing in

a NF which has a Medicaid provider agreement. This includes Medicaid beneficiaries over

the minimum number stipulated in the agreement or an individual who had entered the

facility as non-Medicaid and is awaiting resolution of Medicaid eligibility.

(e) A Medicaid beneficiary shall only be involuntarily transferred when adequate

alternative placement, acceptable to the Department, is available. A Medicaid beneficiary

may be transferred involuntarily only for the following reasons:

1. The transfer is required by medical necessity;

2. The transfer is necessary to protect the physical welfare or safety of the beneficiary

or other residents;

3. The transfer is required because the resident has failed, after reasonable and

appropriate notice, to reimburse the NF for a stay in the facility from his/her available

income as reported on the PA-3L; or

4. The transfer is required by the New Jersey State Department of Health and Senior

161

Services pursuant to licensure action or to the facility's suspension or termination as a

Medicaid provider.

(f) In any determination as to whether a transfer is authorized by this rule, the burden

of proof, by a preponderance of the evidence, shall rest with the party requesting the

transfer, who shall be required to appear at a hearing if one is requested and scheduled.

Where a transfer is proposed, in addition to any other relevant factors, the following

factors shall be taken into account:

1. The effect of relocation trauma on the beneficiary;

2. The proximity of the proposed placement to the present facility and to the family and

friends of the beneficiary; and

3. The availability of necessary medical and social services as required by Federal and

State rules and regulations.

(g) The procedure for involuntary transfer shall be as follows:

1. The NF shall submit to the LTCFO a written notice with documentation of its intention

and reason for the involuntary transfer of a Medicaid beneficiary from the facility;

2. If the LTCFO determines that an involuntary transfer is appropriate, the beneficiary

and/or the beneficiary's authorized representative shall be given 30 days prior written

notice by the NF that a transfer is proposed by the NF and that such transfer will take

effect upon completion of the relocation program specified in (h) below. Additionally, the

NF shall forward a copy of the written notice to the LTCFO and Ombudsman. The written

notice to the beneficiary and/or authorized representative shall advise of the right to a

hearing and shall include the address where to send the request for a hearing. If the

beneficiary requests a hearing within 30 days of the date of the written notice, the transfer

is stayed pending the decision following the hearing. In those instances where the LTCFO

determines that an acute situation or emergency exists, the transfer shall take place

immediately. The beneficiary and/or the beneficiary's authorized representative shall be

given 30 days after transfer to request a hearing;

3. DMAHS will comply with the hearing time requirements in State and Federal rules

and regulations, unless an adjournment is requested by the appellant;

4. The hearing shall be conducted at a time and place convenient to the beneficiary.

Notification shall be sent to all parties concerned;

5. All hearings shall be conducted in accordance with the Fair Hearing procedures

adopted by the DMAHS.

162

(h) The relocation procedure shall be as follows:

1. In the event the relocation of a beneficiary is the final Department determination, the

Department shall afford relocation counseling for all prospective transferees in order to

reduce as much as possible the impact of transfer trauma.

2. The staff of the transferring and receiving NFs shall carry out the transfer process,

although responsibility and authority for the coordination and transfer rests with the

Department and will include:

i. Evaluation and review by appropriate LTCFO staff;

ii. Initial beneficiary, family or authorized representative counseling;

iii. Involvement of the beneficiary, family or authorized representative in the placement

process with recognition of their choices;

iv. Beneficiary preparation and site visit for all able to do so within the capability of the

transferring agent;

v. Accompaniment on the transfer day by a family member, authorized representative

or attendant, unless the beneficiary otherwise requests;

vi. Follow-up counseling at the new location; and

vii. No right to an administrative hearing on a claim for failure to implement the

requirements of this subsection for relocation counseling.

(i) No owner, administrator or employee of a NF shall attempt to have beneficiaries seek

relocation by harassment or threats. Such action by or on behalf of the NF may be cause

for the curtailment of future admission of Medicaid beneficiaries to the NF or for

termination of the Medicaid Provider Agreement with the NF, depending upon the nature

of the action.

(j) Any complaints regarding the handling of beneficiaries relative to their transfer shall

be referred to the Department for investigation and corrective action.

163

42 CFR 483.12 - Admission, transfer and discharge rights.

§ 483.12 Admission, transfer and discharge rights.

(a) Transfer and discharge -

(1) Definition: Transfer and discharge includes movement of a resident to a bed outside of the certified facility whether that bed is in the same physical plant or not. Transfer and discharge does not refer to movement of a resident to a bed within the same certified facility.

(2) Transfer and discharge requirements. The facility must permit each resident to remain in the facility, and not transfer or discharge the resident from the facility unless -

(i) The transfer or discharge is necessary for the resident's welfare and the resident's needs cannot be met in the facility;

(ii) The transfer or discharge is appropriate because the resident's health has improved sufficiently so the resident no longer needs the services provided by the facility;

(iii) The safety of individuals in the facility is endangered;

(iv) The health of individuals in the facility would otherwise be endangered;

(v) The resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare or Medicaid) a stay at the facility. For a resident who becomes eligible for Medicaid after admission to a facility, the facility may charge a resident only allowable charges under Medicaid; or

(vi) The facility ceases to operate.

(3) Documentation. When the facility transfers or discharges a resident under any of the circumstances specified in paragraphs (a)(2)(i) through (v) of this section, the resident's clinical record must be documented. The documentation must be made by -

(i) The resident's physician when transfer or discharge is necessary under paragraph (a)(2)(i) or paragraph (a)(2)(ii) of this section; and

(ii) A physician when transfer or discharge is necessary under paragraph (a)(2)(iv) of this section.

(4) Notice before transfer. Before a facility transfers or discharges a resident, the facility must -

(i) Notify the resident and, if known, a family member or legal representative of the resident of the transfer or discharge and the reasons for the move in writing and in a language and manner they understand.

(ii) Record the reasons in the resident's clinical record; and

(iii) Include in the notice the items described in paragraph (a)(6) of this section.

(5) Timing of the notice.

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(i) Except as specified in paragraphs (a)(5)(ii) and (a)(8) of this section, the notice of transfer or discharge required under paragraph (a)(4) of this section must be made by the facility at least 30 days before the resident is transferred or discharged.

(ii) Notice may be made as soon as practicable before transfer or discharge when -

(A) the safety of individuals in the facility would be endangered under paragraph (a)(2)(iii) of this section;

(B) The health of individuals in the facility would be endangered, under paragraph (a)(2)(iv) of this section;

(C) The resident's health improves sufficiently to allow a more immediate transfer or discharge, under paragraph (a)(2)(ii) of this section;

(D) An immediate transfer or discharge is required by the resident's urgent medical needs, under paragraph (a)(2)(i) of this section; or

(E) A resident has not resided in the facility for 30 days.

(6) Contents of the notice. The written notice specified in paragraph (a)(4) of this section must include the following:

(i) The reason for transfer or discharge;

(ii) The effective date of transfer or discharge;

(iii) The location to which the resident is transferred or discharged;

(iv) A statement that the resident has the right to appeal the action to the State;

(v) The name, address and telephone number of the State long term care ombudsman;

(vi) For nursing facility residents with developmental disabilities, the mailing address and telephone number of the agency responsible for the protection and advocacy of developmentally disabled individuals established under Part C of the Developmental Disabilities Assistance and Bill of Rights Act; and

(vii) For nursing facility residents who are mentally ill, the mailing address and telephone number of the agency responsible for the protection and advocacy of mentally ill individuals established under the Protection and Advocacy for Mentally Ill Individuals Act.

(7) Orientation for transfer or discharge. A facility must provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility.

(8) Notice in advance of facility closure. In the case of facility closure, the individual who is the administrator of the facility must provide written notification prior to the impending closure to the State Survey Agency, the State LTC ombudsman, residents of the facility, and the legal representatives of the residents or other responsible parties, as well as the plan for the transfer and adequate relocation of the residents, as required at § 483.75(r).

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(9) Room changes in a composite distinct part. Room changes in a facility that is a composite distinct part (as defined in § 483.5(c)) must be limited to moves within the particular building in which the resident resides, unless the resident voluntarily agrees to move to another of the composite distinct part's locations.

(b) Notice of bed-hold policy and readmission -

(1) Notice before transfer. Before a nursing facility transfers a resident to a hospital or allows a resident to go on therapeutic leave, the nursing facility must provide written information to the resident and a family member or legal representative that specifies -

(i) The duration of the bed-hold policy under the State plan, if any, during which the resident is permitted to return and resume residence in the nursing facility; and

(ii) The nursing facility's policies regarding bed-hold periods, which must be consistent with paragraph (b)(3) of this section, permitting a resident to return.

(2) Bed-hold notice upon transfer. At the time of transfer of a resident for hospitalization or therapeutic leave, a nursing facility must provide to the resident and a family member or legal representative written notice which specifies the duration of the bed-hold policy described in paragraph (b)(1) of this section.

(3) Permitting resident to return to facility. A nursing facility must establish and follow a written policy under which a resident, whose hospitalization or therapeutic leave exceeds the bed-hold period under the State plan, is readmitted to the facility immediately upon the first availability of a bed in a semi-private room if the resident -

(i) Requires the services provided by the facility; and

(ii) Is eligible for Medicaid nursing facility services.

(4) Readmission to a composite distinct part. When the nursing facility to which a resident is readmitted is a composite distinct part (as defined in § 483.5(c) of this subpart), the resident must be permitted to return to an available bed in the particular location of the composite distinct part in which he or she resided previously. If a bed is not available in that location at the time of readmission, the resident must be given the option to return to that location upon the first availability of a bed there.

(c) Equal access to quality care.

(1) A facility must establish and maintain identical policies and practices regarding transfer, discharge, and the provision of services under the State plan for all individuals regardless of source of payment;

(2) The facility may charge any amount for services furnished to non-Medicaid residents consistent with the notice requirement in § 483.10(b)(5)(i) and (b)(6) describing the charges; and

(3) The State is not required to offer additional services on behalf of a resident other than services provided in the State plan.

(d) Admissions policy.

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https://www.law.cornell.edu/cfr/text/42/483.12#b_3



https://www.law.cornell.edu/cfr/text/42/483.12#b_1




https://www.law.cornell.edu/definitions/index.php?width=840&height=800&iframe=true&def_id=2ddad91e12c4bf8ccf55f89c9061ffbe&term_occur=1&term_src=Title:42:Chapter:IV:Subchapter:G:Part:483:Subpart:B:483.12


https://www.law.cornell.edu/cfr/text/42/483.5#c


https://www.law.cornell.edu/definitions/index.php?width=840&height=800&iframe=true&def_id=c482be595f28d9624d5973551606c30a&term_occur=1&term_src=Title:42:Chapter:IV:Subchapter:G:Part:483:Subpart:B:483.12




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(1) The facility must -

(i) Not require residents or potential residents to waive their rights to Medicare or Medicaid; and

(ii) Not require oral or written assurance that residents or potential residents are not eligible for, or will not apply for, Medicare or Medicaid benefits.

(2) The facility must not require a third party guarantee of payment to the facility as a condition of admission or expedited admission, or continued stay in the facility. However, the facility may require an individual who has legal access to a resident's income or resources available to pay for facility care to sign a contract, without incurring personal financial liability, to provide facility payment from the resident's income or resources.

(3) In the case of a person eligible for Medicaid, a nursing facility must not charge, solicit, accept, or receive, in addition to any amount otherwise required to be paid under the State plan, any gift, money, donation, or other consideration as a precondition of admission, expedited admission or continued stay in the facility. However, -

(i) A nursing facility may charge a resident who is eligible for Medicaid for items and services the resident has requested and received, and that are not specified in the State plan as included in the term “nursing facility services” so long as the facility gives proper notice of the availability and cost of these services to residents and does not condition the resident's admission or continued stay on the request for and receipt of such additional services; and

(ii) A nursing facility may solicit, accept, or receive a charitable, religious, or philanthropic contribution from an organization or from a person unrelated to a Medicaid eligible resident or potential resident, but only to the extent that the contribution is not a condition of admission, expedited admission, or continued stay in the facility for a Medicaid eligible resident.

(4) States or political subdivisions may apply stricter admissions standards under State or local laws than are specified in this section, to prohibit discrimination against individuals entitled to Medicaid.

[56 FR 48869, Sept. 26, 1991, as amended at 57 FR 43924, Sept. 23, 1992; 68 FR 46072, Aug. 4, 2003;76 FR 9511, Feb. 18, 2011; 78 FR 16805, Mar. 19, 2013]

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http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?dbname=%7b1991%7d_register&position=all&page=48869





Sample 30-Day Discharge Notice

Dear ________:

This is to notify you that [name of facility] will [discharge or transfer] you to [location] on [date]. The reason for this transfer or discharge is:

Your bill for services at this facility has not been paid, after reasonable and

appropriate notice to pay.

This facility is ceasing to operate.

Your needs can no longer be met in this facility.

Your health has improved sufficiently, so that you no longer need the services

provided by this facility.

The health of other individuals in this facility is endangered.

The safety of other individuals in this facility is endangered.

You have a legal right to appeal this transfer or discharge to the State of New Jersey. If you

appeal, a hearing will be held at which you or your representative will have the opportunity

to explain your side of the dispute. You may be represented by anyone you choose. You may

settle the disagreement at any time.

You may appeal and have a hearing by writing to:

New Jersey Department of Human Services

Division of Medical Assistance and Health

Services Fair Hearing Unit

P.O. Box 712

Trenton, NJ 08625

The appeal request must be made in writing within 30 days of receiving this notice

of discharge or transfer. It should include the following information:

1. Resident's name;

2. Name and address of the nursing home;

3. A brief description of why you think the discharge or transfer is improper;

4. A request for a hearing; and

5. If possible, a copy of this notice of transfer or discharge.

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You may also contact the Ombudsman for the Institutionalized Elderly for information

or assistance. Call or write:

Ombudsman for the Institutionalized Elderly

P.O. Box 852

Trenton, NJ 08625

1-877-582-6995

Very truly yours,

Administrator

C: Office of the Ombudsman

Legal Guardian or Representative

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Reprinted with permission from the Sept. 9, 2008, issue of the New Jersey Law Journal.

Further duplication without permission is prohibited. All rights reserved.

© 2008 ALM Media Properties, LLC.

The Nursing Home Residents' Bill of Rights

The responsibilities nursing homes have to their residents

By William P. Isele

It is not enough that nursing homes provide

a neat, clean environment, where state and

federal laws, rules and regulations are, for

the most part, dutifully followed.

When I met Angelica, she was in tears. A

diminutive woman, her deep, dark eyes

probed my blue ones. "Are you a priest?"

She asked, eyeing my dark suit. "No," I

allowed, "I'm here to talk about your

complaint." "I need a priest, not a lawyer,"

she said, and quietly resumed crying. What

possible sin could this gentle octogenarian

have committed, that was the cause of such

remorse, such despair? "Do you want to tell

me about it?" I asked. This time, she did not

look me in the eye. She hung her head and

softly, almost in a whisper, said, "I missed

Mass last Sunday. It's a mortal sin. I pleaded

with them, but they ignored me."

For 87 years, she had unquestioningly

followed her church's dictum to assist at

mass on Sundays and Holy Days of

Obligation, never missing a one, until last

week. Her increasingly frail health had

caused her children to commit her to the

care of a local, nonsectarian nursing home.

All day that first Saturday, she pestered the

nurses and nurse aides: How will I get to

Mass tomorrow? Who will take me?

Saturday night and Sunday passed, and her

inquiries were never answered. On Sunday

night, in terrorem morti, she called the

phone number of the state agency listed on

the poster by the pay phone. She didn't know

what else to do.

The title "Nursing Home Residents' Bill of

Rights" is not found in the statutes, but

refers to portions of N.J.S.A. 30:13, which

was adopted under the title: "An act

concerning the responsibilities of nursing

homes and the rights of nursing home

residents," Laws of 1976, Ch. 120, effective

November 30, 1976.

True to its name, the Statute, after

presenting legislative findings and

definitions, first lists nine responsibilities

nursing homes have to their residents:

• Maintaining a complete record of all funds,

personal property and possessions of a

nursing home resident;

• Providing for the spiritual needs of

residents;

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• Admitting only that number of residents

for which it can reasonably care;

• Ensuring that discrimination is prohibited;

• Prohibiting restraints except on physician

orders;

• Ensuring that drugs not be used for

punishment or the convenience of the staff;

• Permitting access to governmental

representatives and legal services;

• Ensuring compliance with all state and

federal laws, rules and regulations; and

• Providing a written statement of services

provided by the nursing home.

In New Jersey, it is not enough that nursing

homes provide a neat, clean environment,

where state and federal laws, rules and

regulations are, for the most part, dutifully

followed. That is the minimum that is

expected. In addition, nursing homes have

affirmative duties to their residents, that

include assuring that their spiritual needs are

met (an area in which this "Care" home

failed Angelica), that their financial affairs

are properly managed, and that the needs of

the residents are put before the convenience

of the staff and the profits of the owners.

In addition to itemizing the duties of nursing

homes toward their residents, the Statute

goes on to list 13 rights to which residents of

nursing homes are entitled. Some are tersely

stated, such as the right to privacy; others

are expressed in lengthy detail, such as the

right to make decisions about one's

treatment.

N.J.S.A. 30:13-6 separately sets forth a

resident's rights regarding transfer or

discharge, and N.J.S.A. 30:13-7 requires that

residents be informed of their rights.

Private Cause of Action, Costs and Fees

Of particular interest to lawyers who

represent the elderly, N.J.S.A. 30:13-8

creates a private right of action on the part

of a resident whose rights have been

violated, as well as entitling a prevailing

plaintiff to reasonable attorney fees and

costs.

The portion of N.J.S.A. 30:13-8 relevant to a

private right of action reads as follows:

"Any person or resident whose rights as

defined herein are violated shall have a

cause of action against any person

committing such violation. The action may

be brought in any court of competent

jurisdiction to enforce such rights and to

recover actual and punitive damages for

their violation. Any plaintiff who prevails in

such action shall be entitled to recover

reasonable attorney's fees and costs of the

action."

Treble Damages

Effective September 5, 1997, N.J.S.A.

30:13-8 was amended by addition of a sub-

section (b). This amendment has caused

some confusion regarding the availability of

treble damages.

Sub-section (b) reads as follows: "In

addition to the provisions of subsection a. of

this section, treble damages may be awarded

to a resident or alleged third party guarantor

of payment who prevails in any action to

enforce the provisions of section 3 of P.L

1997, c. 241." P.L. 1997, c. 241, § 3, is

codified at N.J.S.A. 30:13-3.1, and prohibits

nursing homes from (1) requiring that

applicants or residents waive any right to

benefits under Medicare or Medicaid; and

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(2) requiring a third-party guarantee of

payment as a condition of admission or

continued residence. It also requires nursing

homes to inform applicants and residents

how to apply for and receive benefits under

Medicare and Medicaid. Although there are

no judicial decisions on point, it seems clear

that the treble damages provision of N.J.S.A

30:13-8(b) relates only to violations of that

section of the statute, and not to violations

of the more general rights listed at N.J.S.A.

30:13-3, 30:13-5, and 30:13-6.

Case Law

Since its enactment in 1976, there have only

been two reported cases judicially

interpreting N.J.S.A. 30:13-8.

In Profeta v. Dover Christian Nursing

Home, 189 N.J. Super.83 (App. Div., 1983),

the Appellate Division ruled that next of kin

of a nursing home resident lack standing to

bring an action under N.J.S.A. 30:13-8.

Only the resident or the resident's legal

representative can enforce the resident's

rights in court.

In Brehm v. Pine Acres Nursing Home, Inc.,

190 N.J. Super 103 (App. Div., 1983), the

Appellate Division ruled that, even though

the nursing home violated the resident's

rights related to transfer under N.J.S.A

30:13-6, the resident's wife could not

recover damages for her emotional distress

under this statute. The Appellate Division

did, however, approve the award of

compensatory damages to the resident's

estate, plus attorney fees and costs.

With the understanding, therefore, that only

the resident or the resident's legal

representative is covered, counsel should

carefully evaluate each case in the light of

the specific language of N.J.S.A. 30:13-3,

30:13-5 and 30:13-6, to determine whether

any of the specific responsibilities or rights

listed there has been violated. It should be

noted that the Department of Health and

Senior Services ("DHSS") has an even more

comprehensive listing of 35 enumerated

rights in its Standards for Licensing of

Long-Term Care Facilities (N.J.A.C. 8:39-

4.1). In every case involving a nursing

home, an OPRA request should be made for

records of deficiencies cited against the

facility, because under N.J.S.A. 30:13-3(h),

any violation of state or federal law, rules or

regulations applicable to nursing homes

should be able to trigger a private right of

action under this statute.

Punitive Damages

Neither of the cases cited above deals with

the issue of punitive damages. The plaintiffs

in Profeta alleged punitive damages, but

since the court dismissed the family's claims

on summary judgment, the issue was never

reached. The estate in Brehm was awarded

compensatory damages only.

Accordingly, one must look to the Punitive

Damages Act (N.J.S.A. 2A:15-5.9 to 5.17)

and cases decided thereunder for guidance.

N.J.S.A. 2A:15-5.12 sets forth the standard

of proof for punitive damages as follows:

Punitive damages may be awarded to the

plaintiff only if the plaintiff proves, by clear

and convincing evidence, that the harm

suffered was the result of the defendant's

acts or omissions, and such acts or

omissions were actuated by actual malice or

accompanied by a wanton and willful

disregard of persons who foreseeably might

be harmed by those acts or omissions. This

burden of proof may not be satisfied by

proof of any degree of negligence including

gross negligence.

Instructive is the case of Smith v. Whittaker,

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160 N.J. 221 (1999). In Smith, a 60-year-old

widow was killed in a vehicular crash. Her

executor sought punitive damages, alleging

that the defendant's negligent maintenance

of the vehicle was "willful, wanton, and with

knowledge of a high degree of probable

harm to others." The jury awarded

$1,250,000 in punitive damages, and the

appellate division affirmed. In further

affirming the award, the Supreme Court

stated: "Beyond proof of a negligently-

caused death, the assertion of a claim for

punitive damages requires a plaintiff to

prove by clear and convincing evidence that

defendant's conduct amounted to a

'deliberate act or omission with knowledge

of a high degree of probability of harm and

reckless indifference to the consequences.'"

[citation omitted].

In Summary and Conclusion

Treble damages are available under the

statute only for violations related to N.J.S.A.

30:13-3.1, requiring a resident to waive

rights to benefits under Medicare or

Medicaid, or requiring a third-party

guarantee of payment.

Attorney's fees and costs are available if

violations of N.J.S.A. 30:13-3, 30:13-3.1,

30:13-5 or 30:13-6 can be proven.

Punitive damages are available if there is

clear and convincing evidence that those

violations constituted "deliberate acts or

omissions with knowledge of a high degree

of probability of harm and reckless

indifference to the consequences."

What was the outcome of Angelica's dark

night of the soul? A compassionate local

priest was contacted, who visited Angelica

and assured her of God's love and

forgiveness. He, in turn, arranged with a

member of the parish's social concerns

group to pick Angelica up every Sunday and

bring her to mass. Within a month, the

parish was sending a seven-passenger van to

transport residents to Sunday mass. Within

three months, arrangements had been made

to offer Sunday mass in a make-shift chapel

at the nursing home. Within a year, a

permanent chapel area had been dedicated,

and mid-week as well as weekend services

were offered for several denominations, both

Christian and Jewish. When Angelica died,

her funeral was held in that chapel now

called the Chapel of Care.

Isele is of counsel to the Corporate Services

Department of Archer & Greiner in

Princeton. He also served as the New Jersey

Ombudsman for the Institutionalized

Elderly. Portions of this article come from

the author's updated chapter in NJICLE's

"New Jersey Elder & Disability Law

Practice" 2008 revision.

174

About the Panelists… Linda S. Ershow-Levenberg, Certified as an Elder Law Attorney by the ABA-approved National Elder Law Foundation, is the Managing Partner of Fink Rosner Ershow-Levenberg LLC in Clark, New Jersey. She concentrates her practice in elder and disability law, including Medicaid planning, applications and appeals; special needs trusts; guardianship and estate planning; and estate administration. She is also an Accredited Veterans Claims Attorney. Admitted to practice in New Jersey and before the United States District Court for the District of New Jersey and the Third Circuit Court of Appeals, Ms. Ershow-Levenberg is Past Chair of the New Jersey State Bar Association Elder & Disability Law Section and of the Union County Bar Association’s Elder Law Committee. She is a member of the National Academy of Elder Law Attorneys (NAELA) and NAELA’s Council of Advanced Practitioners (CAP), and was the AARP Representative in the New Jersey Governor’s Medicaid Long-Term Care Funding Advisory Council from 2008-2009. The author of Inside the Minds: Best Practices for Long Term Care Planning & Nursing Home Protection (Aspatore Books, 2011) and the Lexis-Nexis Practice Guide: NJ Elder Law (2011), Ms. Ershow-Levenberg has written articles on elder and disability law which have appeared in the Marquette Elder’s Advisor, NAELA News, the New Jersey Lawyer newspaper and other professional publications. She is a frequent lecturer on elder law issues to professional and community groups, and has received an Appreciation Award from GANJI for her amicus curiae argument on behalf of NAELA’s New Jersey Chapter in In re Keri, the seminal case on Medicaid planning by guardians. Ms. Ershow-Levenberg received her B.A., magna cum laude, from Douglass College, where she was elected to Phi Beta Kappa, and her J.D. from Rutgers Law School-Newark. She clerked for the late Honorable Lawrence Lasser, Chief Judge of the New Jersey Tax Court. William P. Isele is Of Counsel to Archer & Greiner, P.C., in the firm’s Princeton, New Jersey, office. He has experience in dealing with matters of bio-medical ethics, including end-of-life decision-making and issues relating to palliative care. Mr. Isele served as New Jersey’s Ombudsman for the Institutionalized Elderly from October 1999 to October 2007 and was also a member of the Health Law Division in the Office of General Counsel of the American Medical Association in Chicago. As Chair of the Health & Hospital Law Section of the New Jersey State Bar Association, he was instrumental in advocating for the passage of the New Jersey Advance Directives for Health Care Act and the New Jersey Definition of Death Act. Past Chair of the NJSBA Elder & Disability Law Section, Mr. Isele also served as a member of the American Health Lawyers Association’s Alternative Dispute Resolution Service from 1992 to 2001. He has been a member of the Boards of Trustees of the Middlesex County Bar Association and Foundation, the New Jersey Hospice and Palliative Care Organization and the Princeton Senior Resource Center, where he is a past President. A former adjunct professor in the evening division of Seton Hall University School of Law, Mr. Isele is an Adjunct Professor of Law and Ethics at DeVry University and an adjunct lecturer on Health and Aging at the Rutgers University School of Social Work. His articles have appeared

175

in the New Jersey Law Journal, New Jersey Lawyer and other professional publications, and he is the recipient of several honors, including the NJ Hospice and Palliative Care Organization’s Spirit of Hospice Award and the NJSBA Health Law Section’s Distinguished Service Award. Mr. Isele received his B.A. and M.A. in Philosophy, with a concentration in Ethics, from the Catholic University of America. He received his J.D. from Georgetown University Law Center and holds a Certificate in Gerontology from Rutgers University School of Social Work. Lauren S. Marinaro is an associate with Fink Rosner Ershow-Levenberg LLC in Clark, New Jersey, and focuses her practice in elder and disability law matters including estate planning, guardianship, Medicaid Asset preservation planning, Medicaid fair hearings, estate administration, and estate and fiduciary litigation. She is also an Accredited Veterans Attorney (pension benefits). Admitted to practice before the United States District Court for the District of New Jersey, Ms. Marinaro is Past Chair of the New Jersey State Bar Association Elder & Disability Law Section and has been a member of the National Academy of Elder Law Attorneys (NAELA) and Women Lawyers of Union County. She has lectured for ICLE and at county and state bar events on topics including elder law case updates, New Jersey power of attorney issues, psychiatric advance directives and the Medicaid Global Options for Long-Term Care programs. Ms. Marinaro received her B.A. and M.P.A.P. from Rutgers University, and her J.D. and LL.M. in Elder Law from the University of Kansas School of Law. Sharon Rivenson Mark, Certified as an Elder Law Attorney by the ABA-approved National Elder Law Foundation, is the Principal of the Law Office of Sharon Rivenson Mark, P.C. in Jersey City, New Jersey. She concentrates her practice in elder law, including guardianship, conservatorship and estate matters, estate planning and administration, disability and special needs planning and trusts, and Medicaid. She regularly serves as court-appointed counsel; Guardian Ad Litem; and court-appointed guardian, conservator, executor and administrator of estates; and has served as a mediator in estate and probate matters. Ms. Rivenson Mark is admitted to practice in New Jersey and New York, and before the United States District Court for the District of New Jersey and the Southern and Eastern Districts of New York, the Third Circuit Court of Appeals and the United States Supreme Court. She is a Fellow of the National Academy of Elder Law Attorneys (NAELA), a member of NAELA’s Council of Advanced Practitioners (CAP) and Past President of NAELA-NJ. Ms. Rivenson Mark is the author of the Tomson Reuters Westlaw NJ Practice Series on Elder Law (guardianships, conservatorships and Medicaid). She has lectured and published numerous articles on elder law and guardianship topics, and is the recipient of several awards for her service to the elder and disability, and legal, communities. Ms. Rivenson Mark received her B.A. from New York University and her J.D. from Seton Hall University.

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