ERA Law Group

A New Era of Attorneys

Nursing Home Care

Apr 09

Personal Care Contracts

By: Jessica L. Estes

If you currently provide care for a chronically ill, disabled, or aged family member, likely you spend, on average, twenty hours per week providing that care.  This is in addition to your own personal commitments, which may, and often do, include managing a full-time job and your own family.  Not only can this be overwhelming, but it can be extremely stressful.  Moreover, family caregivers usually are not paid, as they feel some responsibility to provide this care solely out of love and affection.  

But what happens when they can no longer provide adequate care for their loved one?  The loved one may not have the resources to afford in-home, assisted living or nursing home care.  And, unless the loved one has less than $2,500 in countable assets, they will not qualify for Medicaid benefits.  Although one can “spend-down” assets below the $2,500 limit, Medicaid does not allow reimbursement for the care you provided.  If you are reimbursed and your loved one files an application for Medicaid benefits, that reimbursement will be considered a gift subject to penalty and your loved one may not qualify for benefits for a very long time.

However, a family caregiver may be compensated for their services without any impact to their loved one’s Medicaid benefits if they have a personal care contract.  A personal care contract is an agreement between a caregiver (one who provides care) and a care recipient (one who needs care) detailing the services to be provided for a set amount each month.  To avoid a Medicaid penalty, the personal care contract should be written, signed and dated before you begin providing services or receiving payment.  Also, the personal care contract should specify which services will be included and which will be excluded.  Services can include meals, lodging, furnishings, utilities, laundry, housekeeping, personal assistance (bathing, dressing, grocery shopping, transportation to/from medical appointments, etc.), medical care and costs, and materials and supplies necessary to perform the services.

Additionally, the personal care contract should include the amount the caregiver will charge the care recipient for these services.  You cannot, though, be paid more than someone with your equivalent experience and skills who does this professionally in your general area.  For Medicaid purposes, though, the caregiver should keep a log of the services they are performing on a daily basis and a record of the payments received for these services.  In the event the care recipient applies for Medicaid, the caseworker will want to see a record of the services provided and the payments made, which should be in accordance with the contract.  As long as the services and payments are in accordance with the personal care contract, Medicaid will not penalize payments made to the family caregiver.

Finally, because this is a legal contract, I recommend having a qualified elder law attorney draft the contract for you, especially if Medicaid benefits might be needed in the future.

Sep 25

#TuesdayTips: About the Elderly Population in the United States

The older population (persons 65 years or older) numbered 40 million in 2015, representing 13% of the U.S. population, or one in every eight Americans. It is predicted that by 2030, there will be about 72.1 million older persons, more than twice their number in 2000. People 65+ represented 12.4% of the population in the year 2000 but are expected to grow to be 20% of the population by 2030 (U.S. Census Bureau, 2013). How these people will be tended to is an issue of import today. Here are just several of the issues that must be considered.

  • More and more of these elderly adults will need round-the-clock care in full-time residential convalescence facilities.The federal law and regulations regarding nursing home issues are contained in the Nursing Home Reform Act of 1987. Current standards of care can be traced back to the congressionally enacted Omnibus Budget Reconciliation Act of 1987 (OBRA 1987) or NHRA 1987.
  • The legislation set forth certain requirements for quality of care – with regard to nursing homes that receive Medicare and Medicaid funding, but individual states were permitted to pass stricter standards if they chose According to the U.S. Code of Federal Regulations long term care facilities were required to adhere to a list of expectations including (but not limited to) such things as promoting quality of life and maintaining resident dignity, preventing the deterioration of a resident’s physical and communicative needs, ensuring residents receive proper treatment and assistive devices to maintain vision and hearing abilities, and develop a comprehensive care plan for each resident.
  • The purpose of this legislation was to set minimum standards for nursing home care while offering a guarantee of a level of quality to the greatest extent possible. The statute include the incorporation of a Bill of Rights to further support the nursing home resident. The federal government had the ability to intervene because nursing homes rely on the receipt of Medicare and Medicaid programs to continue to function, although this is less true in ‘for profit’ facilities than ‘not for profit’ centers. In either case they must be in compliance with the requirements of the NHRA 1987 unless they have received a waiver.

Do you have an elder family member who currently resides or whom you are considering placing in a nursing home? The legal experts at ERA Law Group in Annapolis will work with you to ensure he or she is receiving proper medical care and support.