Archive for May, 2017

Negligence vs. Abuse in a Nursing Home: What’s the difference?

Posted on: May 18th, 2017 by Mark R. Friedman

We’ll occasionally be posting blog articles from other attorneys on topics that may be relevant to our clients.  This one is from a Phoenix-area law firm on nursing home abuse and neglect, a topic we get asked about.  We hope you find it helpful!

The long-term care industry is an essential part of the American healthcare industry. Many institutions within the long-term care industry are committed to providing compassionate care to elderly patients. There are some exceptions, however. Some organizations fail to provide a reasonable standard of care for their patients — many of whom could be very vulnerable, and all of whom deserve the utmost respect. Nursing home negligence and nursing home abuse are two types of personal injury cases that involve the exploitation of residents living in long-term care facilities.

Nursing Home Abuse

Abuse implies some level of intent. This could mean the blatant intention of causing physical harm or it could mean clear indifference to the consequences of one’s actions. Nursing home abuse may be prosecuted in criminal court because it could be considered a criminal offense.

Some cases of elder abuse don’t involve the staff members of the long-term care facility; rather, a family member of the injured individual could be to blame. This may be particularly evident if a relative is attempting to take advantage of the elder’s financial situation.

In a nursing home setting, abuse may manifest itself in many forms. Residents may be physically, sexually, and/or emotionally abused. They might be financially abused by someone who wants to take advantage of their vulnerability.

Nursing Home Negligence

Negligence, on the other hand, is legally defined as the failure to perform some duty that is owed to another person. If someone is negligent, it doesn’t necessarily mean that they acted deliberately. It simply means that the individual failed to act in a reasonable way, and this failure led to another person’s injury.

In a nursing home environment, it could be easy for staff members to become distracted and fail to perform their regular duties to a reasonable standard. It’s possible for staff members to forget to provide the correct medication to patients or fail to pay attention to basic hygienic needs. The staff members in these situations might not be considered abusive because they did not intend physical or emotional harm to residents.

As a Phoenix nursing home negligence lawyer might explain, extreme cases of negligence could potentially be prosecuted as criminal charges. Depending on the jurisdiction where the act occurs, if an act of negligence is done in a manner that would suggest “willful disregard” for the safety of another, or is done “with reckless abandon,” such an act could be prosecuted in a criminal court.

Taking Action in a Nursing Home Negligence or Abuse Case

If you suspect that your elderly relative is being abused in a nursing home facility — by a staff member, by another resident, or even by a family member — don’t hesitate to contact a personal injury lawyer today.

Thanks to our friends and contributors from Alex & Saavedra, P.C. for their insight into nursing home negligence and elder abuse cases.

NJ Medicaid increases Penalty Divisor

Posted on: May 15th, 2017 by Mark R. Friedman

Today, New Jersey Medicaid increased the penalty divisor for applicants who make gifts.  This is a very good thing for people who need Medicaid to pay for long term care.

If you apply for Medicaid to pay for long term care (in a nursing home, assisted living facility or with home health aides), you must submit five years of financial records and disclose any gifts made in the past five years.  If you or your spouse has made any gifts, then Medicaid imposes a gift penalty.

The penalty is a period of time (called a “penalty period”) for which you will not receive Medicaid, and will have to pay for your own long term care.  Let’s say you’ve made gifts and Medicaid assigns you a two-month penalty period.  If you meet Medicaid’s requirements on June 1, and Medicaid would have started paying for your nursing home care then, this means that instead Medicaid will start on August 1, and you’ll have to pay for an extra two months of nursing home care.

The length of the penalty period is based on the amount you have made in gifts, and is determined using the penalty divisor.  Effective April 1, 2017, New Jersey Medicaid increased the penalty divisor from $332.50 / day to $423.95 / day.  If you make $10,000 in gifts, you would incur a 24-day penalty.  If you make a $30,000 gift, you could incur a 70 day penalty, a little over two months.

The penalty divisor is based on a survey the state conduct of the average cost of nursing home care in New Jersey.  That the divisor is higher is a good thing for FriedmanLaw and its clients.  It means clients will be penalized less for gifts already made, and it potentially opens new planning opportunities that FriedmanLaw can use to help our clients preserve assets when they need long term care.

If you or a loved one may need long term care in the future, we encourage you to call or email FriedmanLaw for information about your options.

Medicaid to Pay for Long Term Care in Nursing Home, Assisted Living, or Home

Posted on: May 1st, 2017 by Lawrence A. Friedman

Medicaid can pay for long term in a nursing home, assisted living facility, or at home with aides, but with long term care costing thousands of dollars each month, long term care could easily wipe out your life savings unless you plan effectively.  In  “What-should-you do-now-to-protect-against-nursing-home-costs?” [April 26, 2017] Mark Friedman discusses Medicaid and other long term care planning tools  This article focuses on how to get New Jersey Medicaid or New York Medicaid to pay nursing home, assisted living, or in home aide long term care costs– particularly in crisis situations.


So what should you do if a spouse or parent has a stroke or contracts dementia?  The first thing to consider is engaging an elder law attorney.  Do it yourself Medicaid planning is hard because Medicaid is governed by complex rules that often defy common sense.  A mistake that delays Medicaid eligibility for as little as one month can cost you over $10,000!


Clearly trying to qualify for Medicaid without consulting an elder law attorney is risky.  What about the friendly Medicaid planning firm recommended by dad’s nursing home?  Well, the longer dad stays off Medicaid, the more the nursing home earns because Medicaid pays only a fraction of private pay long term care costs.  Therefore, a firm chosen by the nursing home may not be eager to qualify dad for Medicaid while he still has assets left.


So what are some Medicaid planning options?  To qualify for Medicaid, you must have limited  finances and pass a Medicaid care screening (which NJ Medicaid calls a PAS).  Depending on where you receive care, you may have t0 take steps to obtain the PAS.  At FriedmanLaw, elder law attorneys employ various techniques such as gifts, purchases, and home improvements to qualify clients for Medicaid to fund long term care– often protecting substantial savings.


While Medicaid may impose penalties for some gifts made during the five year lookback period, it hardly ever is too late to benefit from Medicaid planning.  Some gifts are exempt and even non-exempt gifts can yield savings (sometimes very large savings) in the right situations. We also may suggest coupling gifts with annuities to save large amounts.  However, planning must take account of complicated Medicaid laws and regulations.  Gifting too much or too little or applying for Medicaid too soon can be very costly.


While most gifts (whether or not taxable) during the lookback period trigger a penalty period that delays Medicaid eligibility, some gifts for a spouse or disabled person and some gifts of a home are exempt– provided the gift meets various technicalities.  For instance, a caregiver child gift can protect mom’s home but only if it meets stringent Medicaid requirements.  Starting the  Medicaid gift penalty period at the right time can save a lot.  For instance,  $150,000 gift to grandchildren in January 2017 would trigger a roughly 15 month penalty period but the 15  months won’t even start until much later unless the gift is designed to accelerate the penalty start date.


Sometimes we help clients protect assets by funding long term care in a nursing home, assisted living facility, or at home without incurring a Medicaid penalty period.  This may involve gifts to or in trust for a disabled child, spousal annuities, prepaid funeral accounts or other techniques.  Yet savings won’t occur unless these techniques follow Medicaid law, which can be tricky.  Finally, unless wills and powers of attorney are coordinated with Medicaid planning, savings may never arise.  Therefore, like other elder law attorneys, FriedmanLaw strongly advises against do it yourself Medicaid planning especially since technicalities and exceptions apply to all the planning techniques discussed in this post.




As this website provides general information and isn’t tailored to your particular situation, it doesn’t constitute legal advice and may not take into account rules and exceptions that affect you. Although updated from time to time, this website may not take account of recent legal developments or differences in laws from state to state. For safety sake, obtain individual legal advice before you act! You assume all risk of acting on information contained in this website. This website doesn’t constitute legal advice, and no attorney-client relationship exists unless FriedmanLaw and you execute a written engagement agreement. Please contact us at 908-704-1900 to discuss engaging FriedmanLaw to help resolve your legal concerns.
Homepage photo: Cows grazing at Meadowbrook Farm, Bernardsville, NJ by Siddharth Mallya. October 23, 2012.
Interior photo: Somerset hills pastoral scene by Lawrence Friedman.