Struggling to make sense of the status of health care reform in America? Don’t worry; neither can Congress, the White House, nor the Courts say with certainty whether The Patient Protection and Affordable Care Act (the Act) will ultimately be considered successful legislation, whether it will be repealed, or if certain contested provisions are constitutional. The goal of this article is one of education and not political persuasion.

Last year, I discussed how the health reforms will help Medicare recipients and early retirees in my article entitled, Health Reform: Changes in Store for the Elderly.  This year, I want to briefly reiterate the most important 2011 changes.  As you may know, the sweeping health reform law passed last year is designed for long-term implementation.

Two Important 2011 Reforms for Seniors

There are two monumental changes worth mentioning briefly.  First, preventive services (including annual physicals and cancer screenings) will now be free for most beneficiaries, including people who enrolled in private plans as of last September.

Second, a 50% discount on brand-name medicines will be available for people in the Medicare Part D “donut hole.” Seniors on the Medicare Part D drug plan subject to the donut hole pay out-of-pocket when their annual drug costs are between $2,840 and $4,550.

Illustrating the likely unpopularity of health reform repeal, US News quoted Kenneth Thrope, Head of the Department of Health Policy and Management at Emory University:

“If you do repeal the law, you’ll have to start charging people for preventive benefits.  You’ll have to increase what seniors pay for prescription drugs . . . . [n]either one of those would be very popular.”

My goal is not to convince my readers to support or oppose the Act, nor is my goal to explain it: consisting of over 1,000 pages of law and policy reform, it is becoming increasingly clear that top lawmakers do not even fully understand or agree on the law.  Instead, I seek to enlighten my readers on the law’s current status.  Paradoxically, the same principle that ensures Democracy in America is the source of the maddening confusion, delay, and uncertainty: “the Separation of Powers.”

If you are interested in a summary of the Act, you can view the bill on OpenCongress here.  For information on related legislation that will modernize America’s health system, you may want to read my recent article on the HI-TECH Act, How New Health Information Technology Will Save Money and Lives.

For those who may feel lost, allow me to quickly bring you up to speed

Obama signed the Act in March of 2010

The Act was introduced September 17, 2009, passed both the House and Senate by late December, 2009, and was later signed into law by the President on March 23, 2010.  Republicans vow to repeal the law, while Democrats dismiss repeal of reform as an impossibility.  One thing is certain; this is a major piece of legislation that implicates millions of lives and billions of dollars.

Virginia Attorney General Ken Cuccinilli and 13 other states sued the federal government shortly after the law took effect. Presently, more than 20 states have filed suit against the federal government over the legislation. Virginia Governor Bob McDonnell said the new laws would have “a significant and unavoidable impact on the bottom line of [Virginia’s] state budget,” reported Richmond Times-Dispatch.  The Virginia Interfaith Center for Public Policy has voiced its opposition to Cuccinelli and McDonnell’s challenge, proclaiming, “[T]he political actions of Attorney General Ken Cuccinelli may simply allow health-insurance industry abuse of small business, seniors and children to continue.”

Sources of Confusion

Opposition from state Governors and their Attorney Generals is a major source of the public confusion.  The New York Times criticized such efforts and said these state suits “create confusion among the public and further destabilize political support for legislation that is under fierce attack from Republicans in Congress and in many statehouses.” The media’s undivided attention to the individual mandate provision has been broad, as opposed to the seemingly jaded level of concentration allocated to the other stories related to the law.  For example, beginning September 23, 2010, a key provision took effect prohibiting insurance companies from denying coverage to children based on health status.  But America is divided, as evidenced by a recently introduced state law in California: According to NewAmericaMedia.org, the backlash from insurance companies started in California when large insurers announced that they would no longer offer “child-only” policies.  Only after a law was introduced that would penalize these insurers for such behavior by banning them from the individual market for five years did the insurers reconsider their policy.  This is but one example of how important news stories are being overshadowed by the “individual mandate” debate.

What Role does Virginia Play in Shaping America’s Health Care Reform Debate?

Fast-forward to the present day, and Republicans in the House vow to repeal the law, while Democrats insist it isn’t possible (because they control the Senate).  On the other hand, there is speculation that it would be possible for the House to “de-fund” the legislation because they control the “purse strings.”  It is no wonder that the American public is confused.  Meanwhile, states are challenging provisions of the law in Federal Courts, and there is likely a Supreme Court case in the making, because Federal Courts can’t seem to agree on the constitutionality of a key provision – the “Individual Mandate.”

The "Individual Mandate" of the Act has been challenged in Federal District Courts

Henry Hudson, a federal judge for the United States District Court for the Eastern District of Virginia, recently found, this key provision of the Act to be unconstitutional.  Hudson did not undermine the Act and even refused to suspend its implementation pending appeal … he referred to Congress’s enactment as laudable but disagreed that the Commerce Clause granted the powers contained in the Act.  The New York Times provides the full opinion here.  Judge Hudson is the third federal district court judge to decide one of these cases on the merits; more than 20 other judges have cases pending which seek to challenge the law.

Demonstrating the “tit-for-tat” nature of the debate, the Obama administration responded just one day after the Virginia decision in an op-ed piece posted on the Washington Post website.  U.S. Attorney General Eric Holder along with Health and Human Services Secretary Kathleen Sebelius are of the belief that Americans who are presently insured are paying too much for their insurance, because of an inequitable burden placed upon them by those who don’t have health insurance. “Every insured family pays an average of $1,000 more a year in premiums to cover the care of those who have no insurance,” they said, reported CNN.

Though analysts agree that there may be a Supreme Court case in the making, it will most likely take some time before winding its way up to our nation’s highest court.  Illinois State University Political Science Professor Bob Bradley commented on the aftermath of the Virginia case, stating, “The Supreme Court [is] not going to hear this for awhile…what they’re going to do is let this play through all the other federal district court challenges.” Lawyers involved say it could take two years for the Supreme Court to hear the case.

“The problem is that if [state challenges succeed], they’ll all be left high and dry with half-baked reform plans that won’t work.”  Bnet offered this interesting take on the irony of state-developed reform plans, which would provide more state-autonomy but could do so at the expense of federal grant money.

An American tragedy has delayed the Republican effort to repeal.

Because of the recent shooting of Rep. Gabrielle Giffords (D-Ariz) that left six dead, the vote to repeal the Act has been postponed.  Scheduled to take place this week, the vote was delayed by House majority Leader Eric Cantor (R-Va.), along with the rest of the legislative agenda.

Major Groups that Support and Oppose Health Reform.

Of the groups that  support the Act, OpenCongress lists health professionals, consumer groups, elder groups, the U.S. military, and various trade unions.  The opposition is composed of groups such as accident and health insurance companies, construction companies, security brokers, investment companies, and milk and dairy producers.

To conclude this article, I would like to reiterate that you should not feel bad if you are still confused about the status of the U.S. health reform law. Every day, the mainstream media plasters headlines across its networks and they can be very misleading.  Some headlines I have seen could lead a casual reader to assume the Act never became law.  Still others may perhaps lead one to think the Act is doomed.  Whether you support health reform or not, and no matter what your political philosophy may be, something everyone can agree on is that patience is needed as Congress, the White House, and the Courts sort it out.  Here is the bottom line: the Affordable Care Act is currently law.  Any potential attempt at repeal or prospective landmark Supreme Court case is pure speculation at this point.

Image Credits:

Image: renjith krishnan / FreeDigitalPhotos.net

Image: renjith krishnan / FreeDigitalPhotos.net

Image: Hubpages.com/hub/inauguration-day-clip-art

As Halloween approaches this year, I can’t help but draw an analogy between the nights I spent meandering my neighborhood as a kid looking for handouts, and our current economic times.  I recall my grade-school friends and I operating our minds at their collective capacities, as we planned the best streets to target and the best routes to take to get from house to house most efficiently. Some of the parents surpassed expectations and gave out the good stuff — like king size candy bars! Others doled out the less-desirable treats, such as candy corns, smarties, or the dreaded raisins.  Some neighbors, when they were gone for the evening, left out giant bowls of candy for us trick-or-treaters to help ourselves.  Other neighbors were always gone, and their houses completely dark.  But fortunately for us candy-loving kids, most or our neighbors participated in the fun of Halloween. In fact, many of our neighbors offered a variety of different candy to choose from each year.  We never knew how much candy we’d wind up with at the end of the night, or how much of the “good stuff” we’d have in our bag.

Similar to the unpredictability of household Halloween generosity encountered by children, the Federal Government is providing the public with what can appropriately be called a “mixed bag” of economic solutions. It might just depend on what house, or rather, what state you live in.

Social Security and Supplemental Security Income recipients will not receive an increase in 2011 because there has been no increase in the federal Consumer Price Index.  Read the Social Security News Release Here (released October 15, 2010).

Though the federal Social Security Administration is not able to provide an increase for its beneficiaries because of long-standing federal law that ties Social Security and Supplemental Security to the Consumer Price Index, other federal agencies, and some state agencies, are doing what they can to help alleviate the financial struggles of the elderly and disabled.

One prime example:  the federal Administration on Aging and the Centers for Medicare and Medicaid Services (both part of the U.S. Dept. of Health and Human Services) recently awarded more than $2 million in grant funding to the Virginia Department for the Aging and the Virginia Department of Medical Assistance Services, the latter being the Virginia agency that runs our state’s Medicaid system.   Read the Commonwealth of Virginia Press Release Here (released October 6, 2010).

This grant funding to Virginia’s Medicaid system comes with high hopes and great expectations. The over $2 million in funding will be used to bolster services for two key underprivileged groups – the elderly and the disabled – by alleviating burdens in the following areas:

•    Prescription drug coverage
•    Long-term care services
•    Transition support from nursing homes to community based services
•    In-home support services for sufferers of Alzheimer’s disease

In providing these much-needed funds to Virginia for the improvement of Virginia’s Medicaid program and the development of additional services for the elderly and the disabled, the Federal Government has demonstrated its continuing commitment to improving and strengthening the Medicaid system throughout the United States.  As Senator Rockefeller wrote in 2005, on the 40th anniversary of the Medicaid program,  ”taking care of our most vulnerable people is a moral obligation . . . our representative democracy has a responsibility to do for the future what we have repeatedly done in the past: protect, preserve, and strengthen Medicaid.”

Medicaid is what pays for the vast majority of nursing home care in the United States. With both the Federal Governemtn and the Virginia State Goverment now strenghtening the Medicaid program, smart long-term care planning (i.e., Medicaid Asset Protection Planning) has never been as important as it is now. According to the Virginia Department for the Aging, the population of elderly adults in Virginia will double in less than 20 years — to the point where one in five residents of Virginia is expected to be aged 65 or older.

A statistic I cited in a previous article demonstrates the importance of Medicaid Asset Protection Planning — about 70% of Americans who live to age 65 will wind up needing long-term care at some point in their lives.  For the more than 40% who will require long-term placement in a nursing home, the cost of such care will be financially devastating without a smart Medicaid Asset Protection Plan focused on structuring assets in a way that protects those assets while allowing earlier Medicaid eligibility.

For most seniors over age 65, Medicaid is the equivalent of government-subsidized long-term care insurance, just as Medicare is governement-subsidized health insurance.  But remember — the fact that Medicaid is “government-subsidized” does not mean that it’s a “handout.” On the contrary, it’s your tax dollars that fund the Medicaid program, just as it’s your tax dollars that fund Medicare.  It’s also important to note that the Federal Government and Virginia State Government both encourage Americans to engage in smart Medicaid Asset Protection Planning — for example:  there are laws that protect spouses of nursing home residents; there are laws that encourage Americans to engage in Medicaid Asset Protection by purchasing Long-Term Care Insurance “Partnership” policies; there are laws that allow the exemption of certain types of assets when applying for Medicaid; there are laws that permit individuals to qualify for Medicaid even after transferring assets to a spouse, or to a disabled family member, or to a caregiver child.  To smartly plan and protect assets while accelerating qualification for Medicaid is no different than planning ahead to maximize your income tax deductions in order to minimize your income taxes.   It is no different than taking advantage of tax-free municipal bonds.  It is no different than planning your estate to avoid estate taxes (which, incidentally, a lot more people are going to be doing again next year when the Federal Estate Tax returns with a vengeance – with an Exemption Equivalent Amount of only $1 million – but that’s for another article . . . ).

At a time when much federal spending leads to controversy, Medicaid is an example of the government legitimately promoting the best interests of society.  Similar to how my mom always made sure I ate a well-balanced dinner before embarking upon my annual October 31st sugar binge, our Federal Government and State Government are truly looking after the citizens of America (even in these gloomy economic times) by directing funds to programs that benefit and protect our most fragile citizens — the elderly and disabled.

The Farr Law Firm specializes in Family Protection Planning (i.e., Estate Planning, Incapacity Planning, and Medicaid Asset Protection Planning), and we are here to help you.  If you have not yet done your Family Protection Planning, I encourage you to call us to take advantage of a free consultation to determine the planning solution that’s best for you and your family.

In Part 1 of this series I outlined the necessity to create a good Long Term Care Plan and in Part 2 I discussed the three most essential documents found in that plan.

The first essential document is a General Power of Attorney (POA) containing Asset Protection Powers. This document authorizes your “Agent” to act on your behalf and to sign your name to legal and financial documents. The Asset Protection powers contained therein enable your agent to do Medicaid Asset Protection if you have not already begun this process. The second essential document is an Advance Medical Directive (AMD) containing a Long-Term Care Directive. This document authorizes your “Medical Agent” to make decisions with respect to your medical care. Both the POA and AMD authorize your agents to intervene in the event that you are physically or mentally unable to do so. The third essential document is an Advance Care Plan that identifies and details your specific needs, desires and habits for your future caregiver so that you will receive long-term care uniquely tailored to you.

As explained in Part 2, a good Long-Term Care Plan will also typically a Living Trust – either a Revocable Living Trust (RLT) or an Irrevocable Income-Only Trust (IOT). If you become incapacitated, an RLT can provide management of your assets by your trustee similar to a POA. However, as was noted, an RLT does not protect your assets from the expenses of long-term care. An IOT, which will be discussed in detail in Part 4, is a tool that protects you not only from probate, as an RLT does, but also from the expenses of long-term care.

Part 3 will now discuss using long-term care insurance as part of a Long-Term Care Plan.

Virginia’s Qualified State Long-Term Care Insurance Partnership
Virginia’s Long-Term Care Insurance Partnership Program, which became effective on September 1, 2007, allows consumers to obtain Long-Term Care Insurance as part of a Long-Term Care Plan andas part of a Medicaid Asset Protection Plan. This program allows individuals obtaining Partnership-qualified policies to protect assets that otherwise might have to be paid to a nursing home prior to obtaining eligibility for Medicaid benefits. A Partnership-qualified policy enables policyholders to protect one dollar of personal assets for every dollar the policy pays out in benefits.

One of the main purposes of this Long-Term Care Insurance Partnership Program is to offer government-endorsed “Medicaid Asset Protection” to consumers who buy long-term care insurance, enabling these consumers to protect an additional dollar amount of personal assets while still remaining eligible to apply for Medicaid coverage of long-term care. The amount protected with a Partnership-qualified policy will be equal to the sum of all benefits paid under the Partnership-qualified policy when the applicant seeks to qualify for Medicaid. The total amount of assets that a policyholder may protect as a result of a Partnership-qualified policy is above and beyond the basic allowances that a client and a client’s spouse may keep under the basic rules of the Medicaid program.

Benefits of Partnership LTC Insurance
Long-term care insurance was, and is (especially in light of Virginia’s Long-Term Care Insurance Partnership Program), one of the best ways to provide for you future long-term care needs. With the baby boomers facing projected federal deficits, reductions in Medicaid spending, as well as rapidly rising health care costs, it is clear that alternative methods of financing long-term care support are critical. Long-term care insurance is preferred not just by consumers, but by the Commonwealth of Virginia and by the Federal Government because it is often the only option that can help keep clients out of the nursing home — by paying for home care. We’ve had many clients over the years who were forced to spend their final days in a facility simply because they ran out of money to pay for home health aides.

Elder Law Considerations
When shopping for a long-term care insurance policy, it is crucial to consider carefully the entire financial situation of both spouses and to consider the possible alternative of not purchasing long-term care insurance. Failure to consider these issues can result in purchasing too little coverage, which can actually be worse than purchasing no coverage at all.

For example, consider Joe and Linda, a married couple, facing Joe’s nursing home costs of $7,500 per month (a few hundred dollars lower than the average cost in Northern Virginia). Joe has $2,000 in monthly retirement income, as well as a long-term care insurance policy with a monthly benefit of $6,000 (based on a daily benefit of $200). Linda’s only income is Social Security of $700 per month. At first glance, the couple seems better off with the long-term care policy; they have an extra $6,000 per month, without which they could not afford the nursing home. They can pay for Joe’s nursing home and have an extra $500 per month to put towards Linda’s monthly expenses. Unfortunately, Linda’s regular expenses are approximately $2,400 per month, so with only $1,200 per month of income she is unable to make ends meet. Joe is not eligible for Medicaid assistance because his income (including the long-term care insurance benefit) is greater than the nursing home bill. In this example, Joe’s long-term care insurance policy does not provide enough of a benefit to allow Linda to have sufficient income to meet her needs. If Joe’s long-term care insurance policy provided a $7,500 monthly benefit ($250 per day instead of $150), all of Joe’s retirement income would be available for Linda’s monthly expenses, so Linda would still have enough income to live on.

If Joe and Linda had recognized this shortfall and decided to not purchase the long-term care insurance, or if they could not afford the increased premiums for the increased monthly benefit, they could instead use Medicaid assistance to help pay for Joe’s nursing home costs. Most of Joe’s $2,000 per month of income would normally be required to pay the nursing home expenses; Linda would keep her $700 per month. However, because Linda’s income is so low, the Medicaid rules would allow Linda to receive part of Joe’s income to help her with her monthly living expenses. Linda could receive a monthly maintenance needs allowance of up to $2,610, (including her income) which includes allowances for housing and utilities. Therefore, in this case, Joe and Linda would have the nursing home costs paid, and Linda would have $2,610 monthly for her support – more than enough for her regular needs.

The bottom line? Be sure to buy enough coverage, and be sure to buy it for the right spouse. It doesn’t make sense to pay insurance premiums and then be bankrupted by nursing home fees anyway because of insufficient coverage. As with other medical expenses, the inflation rate in nursing home fees is currently quite high. In 10 years, the cost of the nursing homes, at the current rate of inflation, will be about twice what it is today.

How Much Coverage Do You Need?
On average, someone age 65 today will need long-term care services for three years. Women need care for longer (on average 3.7 years) than do men (on average 2.2 years). Although twenty percent of today’s 65-year-olds will need care for more than five years, I don’t recommend anyone purchasing more than five years of long-term care insurance, because after moving to a nursing home, your family can commence the process of Medicaid Asset Protection so long as you have a good Long-Term Care Plan in place.

Purchasing Long-Term Care Insurance
Lifecare Financial Services, LLC is a Virginia insurance brokerage co-owned by Evan Farr and specializing in Medicaid-Friendly Long-Term Care Insurance (i.e., Partnership Qualified) and Medicaid-Friendly Annuities. Lifecare Financial is dedicated to assisting and supporting not just consumers, but also Elder Law and Trust & Estate attorneys with clients in Virginia who face the challenges of assisting their clients as they plan for long-term care.

Lifecare Financial offers a unique value proposition to referring attorneys and other professionals because it only works with the top financially rated companies for long-term care insurance and annuities. Referring professionals can be confident in knowing that the insurance products recommended by Lifecare Financial have been thoroughly vetted for financial strength, stability, and measurable experience in their relevant product line. For further information about Lifecare Financial, call 703-691-1888.

How Do I Know The LTC Insurance Company Won’t Go Bankrupt?
You don’t, and that’s why it’s important to deal only with top-rated companies. For your protection, it is the policy of Lifecare Financial Services, LLC to work only with insurance companies that have a Comdex Rating (a rating that combines the ratings from all of the top rating agencies) of at least 95%.

Conclusion
A good Long-Term Care Plan may or may not include long-term care insurance. As you make your decision, it is prudent to seek the advice of a Certified Elder Law Attorney. The Farr Law Firm can help guide you through the considerations of whether or not long-term care insurance makes sense for your Long-Term Care Plan.

A 2003 study of caregivers has proven that the off-repeated adage “stress can kill you” is true. The focus of the investigation was the effect the stress of caregiving had on caregivers.

A team of researchers at Ohio State University Medical Center has found a chemical marker in the blood that shows a significant increase under chronic stress and is linked to an impaired immune system response in aging adults. The team, led by Dr. Janice Kiecolt-Glaser, reports in the June 30, 2003 issue of Proceedings of the National Academy of Sciences on a 6-year study of elderly people caring for spouses with Alzheimer’s Disease. With the caregivers, the team found a four-fold increase in an immune system protein — interleukin 6 (IL-6) — as compared to a control group of non-caregivers. Only the stress of caregiving correlated to the marked increase of IL-6 in the caregiver group. All other factors, including age, were not significant to the outcome. Even the younger caregivers saw an increase in IL-6.

The study also found that the caregivers had a 63% higher death rate than the control group. About 70% of the caregivers died before the end of the study and had to be replaced by new subjects. Another surprising result was that high levels of IL-6 continued even three years after the caregiving stopped. Dr. Glaser proposes that prolonged stress may have triggered a permanent abnormality of the immune system.

The problem is if this response is initiated repeatedly over a long period; it can have a dangerous effect on the body. This repetitive initiation of the stress response is common among caregivers — especially those caring for loved ones with dementia. Providing supervision or physical assistance many hours a week and over a period of years turns out to be extremely stressful. This type of stress is often unrelenting, occurring day after day and week after week. And the long-term effects of this stress are more pronounced in middle-aged and older people who are precisely the group most likely offering long-term care to loved ones.

If you are a caregiver, please give us a call.  Through a properly-designed Life Care Plan for your loved one, the Farr Law Firm can help you minimize or eliminate much of your stress.

When a person requires someone else to help with physical or emotional needs over an extended period of time, this is long-term care. This help may be required for many of the activities or needs that healthy, active people take for granted and may include such things as:

- Walking
- Bathing 
- Dressing
- Using the bathroom
- Helping with incontinence
- Managing Pain
- Preventing unsafe behavior
- Preventing wandering
- Providing comfort and assurance
- Providing physical or occupational therapy
- Attending to medical needs
- Counseling
- Feeding
- Answering the phone
- Meeting doctors’ appointments
- Providing meals
- Maintaining the household
- Shopping and running errands
- Providing transportation 
- Administering medications
- Managing money
- Paying bills
- Doing the laundry
- Attending to personal hygiene
- Helping with personal grooming
- Writing letters or notes
- Making repairs to the home
- Maintaining a yard
- Removing snow

The need for long-term care help might be due to a terminal condition, disability, illness, injury, or infirmity due to advanced age. Estimates by experts are that at least 60% of all individuals will need extended help in one or more of the areas above during their lifetime.  

When the need for care lasts only for a few weeks or months, it is typicallyed called “short-term care” or “rehab care.”  Typical reasons for short-term care include:

- Rehabilitation from a hospital stay
- Recovery from illness
- Recovery from injury
- Recovery from surgery

True long-term care, meaning care needed indefinitely, or at least for many months or years, is typically needed due to the following conditions:

- Chronic medical conditions
- Chronic severe pain
- Permanent disabilities
- Dementia
- Ongoing need for help with activities of daily living
- Need for supervision

Long-term care services may be provided in any of the following settings:

- In the home of the recipient
- In the home of a family member or friend of the recipient
- At an adult day services location
- In an assisted living facility or adult foster home
- In a hospice facility
- In a nursing home

Custodial Care vs. Skilled Care
Custodial care and skilled care are terms used by the medical community and health care plans such as health insurance plans, Medicare, Medicaid, and the Veterans Administration. They are used primarily to differentiate care provided by medical specialists as opposed to care provided by aides, volunteers, family or friends. The use of these terms and their application is important in determining whether a health care plan will pay for services. Generally, skilled services are paid for by a health care plan and custodial services, not in conjunction with skilled care, are not covered. However, custodial services are almost always a part of a skilled service plan of care and, by being included, custodial services are paid by the health care plan as well.   

According to the American College of Medical Quality:

” Skilled care is the provision of services and supplies that can be given only by or under the supervision of skilled or licensed medical personnel. Skilled care is medically necessary when provided to improve the quality of health care of patients or to maintain or slow the decompensation of a patient’s condition, including palliative treatment. Skilled care is prescribed for settings that have the capability to deliver such services safely and effectively.  

Custodial care is the provision of services and supplies that can be given safely and reasonably by individuals who are neither skilled nor licensed medical personnel. The medical necessity and desired results of skilled care must be clearly documented by a written treatment plan approved by a physician. A patient may have skilled and custodial needs at the same time. In these circumstances, only those services and supplies provided in connection with the skilled care are to be considered as such. The treatment plan must include:  
- The applied therapies;
- The frequency of the treatment which is consistent with the therapeutic goals;
- The potential for a patient’s restoration within a predictable period of time, if applicable;
- The time frame in which the prescribing physician will review the case for the purpose of evaluating a patient’s status and before reassessing the medical necessity of ongoing treatment; or
- The maintenance, palliative relief, or the slowing of decompensation in a patient’s status, if applicable.
- Determinations of the medical necessity of skilled care must be based on the applicable standard of care.”

A skilled care provider can also provide services normally thought to be provided by custodial caregivers. Such things as help with activities of daily living and so-called instrumental activities of daily living are often furnished by skilled providers in the course of their treatment. Or a skilled care plan may call for services that can be delivered by a custodial caregiver but it would still be under the skilled plan of care for that individual. On the other hand people who deliver custodial services may from time to time perform those activities supposedly reserved for skilled providers. Such things as taking blood pressure, administering medicines, giving shots or changing wounds might be provided under certain circumstances by a custodial provider.  

The terms skilled and custodial do not refer to specific types of long-term care services but rather who delivers those services. Also the delivery of skilled services must be done under a written plan of care which often includes custodial care services.  

Does Medicare Cover Custodial Care?
Yes, but only for short-term care, not for long-term care. Medicare pays for custodial care in a nursing home, but only if the patient is in the nursing home in a skilled care setting for which it provides payment. Medicare will not pay for custodial care in the absence of a skilled care plan.  If you are enrolled in a traditional Medicare plan, and you’ve been in the hospital at least three days, and you are admitted directly from the hospital into a skilled nursing facility for rehabilitation or skilled nursing care, then Medicare may pay the full cost of the nursing home stay for the first 20 days, and may continue to pay part of the cost of the nursing home stay for the next 80 days — with a per day deductible that you must pay privately (although there are Medicare supplement insurance policies that sometimes cover that deductible).  

Medicare-covered Nursing Home Stay
A patient receiving skilled care in a nursing home from Medicare not only receives care from skilled providers such as nurses, therapists or doctors but also receives care from custodial providers such as aides or CNA’s. This care usually consists of help with bathing, dressing, walking, toileting, incontinence, feeding and medicating. Medicare does not exclude the custodial services but pays the entire bill because custodial care is a necessary part of the skilled care plan in a nursing home.  

Medicare-covered Home Care
Custodial care is always a part of a skilled care plan for home care. The patient receives skilled care from a nurse or therapist and custodial care from an aide for help with bathing, dressing, ambulating , toileting, incontinence, medicating and possibly feeding. Medicare pays for both types of services.  

Medicare-covered Hospice Care
The hospice team consists of a doctor, a nurse, a social worker, a therapist when needed, a counselor and an aide to provide custodial care. Help with activities of daily living is provided at home or in a Medicare approved hospice facility. Custodial care is always a part of a hospice plan of care and Medicare routinely pays for these services.  

Please note that there is no such thing as a custodial nursing home.  All nursing homes are by definition skilled care facilities because they have nurses who are skilled care providers.  Also be aware that not all states license intermediate care facilities which might provide less than 24 hour registered nursing care. “Skilled care patients” in nursing homes are referred to as such because they are receiving payment from Medicare or sometimes payment from private health insurance plans.  Practically all nursing home residents have medical needs but Medicare and other insurance plans will only pay for patients that have certain acute medical needs where recovery is anticipated.  Patients with chronic medical problems are typically not covered by Medicare but will be covered by Medicaid provided that all of the financial and medical eligibilty crieria for Medicaid are met.  

For more information about long-term care, nursing homes, qualifying for Medicaid, and other related topics, please click on the links below which will take you to the corresponding chapter in my book — The Virginia Nursing Home Survival Guide. You may also access all of these chapters from my Website under the “Resources” tab:  

chapter 1 – THE CAREGIVER’S ROLE
chapter 2 – WHAT IS A NURSING HOME?
chapter 3 – SELECTING A FACILITY
NURSING HOME EVALUATION TOOL
chapter 4 – MOVING YOUR LOVED ONE
chapter 5 – HOW TO PAY FOR NURSING HOME CARE
chapter 6 – MEDICAID PLANNING
chapter 7 – MEDICAID FAQs
chapter 8 – HOW TO GET THE BEST POSSIBLE CARE
chapter 9 – THE RIGHTS OF NURSING HOME RESIDENTS
chapter 10 – RECOGNIZING ABUSE & NEGLECT
chapter 11 – PROTECTION FROM ABUSE AND NEGLECT
chapter 12 – IF YOU SUSPECT ABUSE OR NEGLECT
chapter 13 – ESTATE PLANNING & POWERS OF ATTORNEY
chapter 14 – LEGAL ASSISTANCE
APPENDIX A: VIRGINIA NURSING HOMES BY REGION
APPENDIX B: VIRGINIA AND NATIONAL RESOURCES
APPENDIX C: AREA AGENCIES ON AGING
APPENDIX D: ELDER ABUSE RESOURCES
APPENDIX E: GERIATRICIANS
APPENDIX F: GERIATRIC CARE MANAGERS