S3023

An Act concerning individuals in long-term care facilities and supplementing Titles 26 and 46 of the Revised Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. a. For the purposes of this section:

“Family member” means a spouse, domestic partner, partner in a civil union, child, parent, sibling, aunt, uncle, niece, nephew, grandparent, or grandchild.

“Long-term care facility” means a nursing home, inclusive of all beds in a skilled nursing facility licensed as a long-term care facility by the Department of Health, an assisted living residence, a comprehensive personal care home, a residential health care facility, or a dementia care home licensed pursuant to P.L.1971, c.136 (C.26:2H-1 et seq.).

“Principal” means a resident of a long-term care facility or long-term acute care hospital or an individual who is in the admission process to enter a long-term care facility or long-term acute care hospital.

b. No owner, administrator, director, officer, or employee of a long-term care facility or long-term acute care hospital, person or entity affiliated with or related to an owner, administrator, director, officer, or employee of a long-term care facility or long-term acute care hospital, or other person who benefits financially from a long-term care facility or long-term acute care hospital shall be authorized to manage the financial affairs of a principal except pursuant to an order of the Superior Court appointing that person guardian of the principal. The determination whether to appoint a long-term care facility or long-term acute care hospital owner, administrator, director, officer, employee, or affiliated or related person or entity as guardian for a principal pursuant to this subsection shall be made by the Superior Court in consultation with the Office of the Public Guardian for Elderly Adults.

c. No owner, administrator, director, officer, or employee of a long-term care facility or long-term acute care hospital, person or entity affiliated with or related to an owner, administrator, director, officer, or employee of a long-term care facility or long-term acute care hospital, or other person who benefits financially from a long-term care facility or long-term acute care hospital, shall be eligible to act as an attorney-in-fact for a principal. Any power of attorney instrument executed by a principal naming an owner, administrator, director, officer, or employee of a long term care facility or long-term acute care hospital, a person or entity affiliated with or related to an owner, administrator, director, officer, or employee of a long-term care facility or long-term acute care hospital, or another person who benefits financially from a long-term care facility or long-term acute care hospital shall be deemed invalid.

d. Nothing in subsection b. of this section shall be construed to prohibit the appointment of a guardian of the person or estate of a resident of a long-term care facility or long-term acute care hospital by a court of competent jurisdiction.

e. Nothing in subsection c. of this section shall be construed to prohibit a family member of a principal from acting as attorney-in-fact for the principal.

f. A principal who sustains injury to person or property as a result of a violation of this section shall have a cause of action against any person who committed the violation resulting in injury. The action may be brought in any court of competent jurisdiction to enforce the provisions of this section and to recover:

(1) actual, compensatory, and punitive damages, and other injunctive and equitable relief as the court determines to be appropriate;

(2) treble damages upon proof of willful, malicious, or reckless disregard of the law; and

(3) reasonable attorney's fees and other litigation costs reasonably incurred by the principal.

2. As used in sections 2 through 5 of P.L. , c. (C. ) (pending before the Legislature as this bill):

“Long-term care facility” means a nursing home, inclusive of all beds in a skilled nursing facility licensed as a long-term care facility by the Department of Health, an assisted living residence, a comprehensive personal care home, a residential health care facility, a long-term acute care hospital or a dementia care home licensed pursuant to P.L.1971, c.136 (C.26:2H-1 et seq.).

“Medicaid application assistance” means any assistance provided in connection with the Medicaid enrollment process, including providing information on insurance programs and coverage options, assistance completing a Medicaid application, assistance identifying and calculating income and assets, assistance submitting a Medicaid application, attending and participating in or representing the applicant at hearings on a Medicaid application, and assistance with communications pertaining to a Medicaid application. “Medicaid application assistance” may include estate planning, developing spend-down plans, tax planning, developing plans to transfer assets and property, and, provided the individual providing the services is an attorney licensed in this State, related legal services.

“Representative” means any person who is authorized to make decisions on behalf of a resident of a long-term care facility, including, but not limited to, the resident’s guardian or a friend or family member of the resident.

3. a. No later than four months after the effective date of this act, the Department of Health shall develop a standard resident admission agreement form for use by long-term care facilities. The department shall develop unique standard resident admission agreement forms for use by each type of long-term care facility, when appropriate. The department, in developing the standard resident admission agreement form, shall solicit input from interested stakeholder groups including, but not limited to, representatives of the long-term care industry, the State Long-Term Care Ombudsman, elder law attorneys, and resident advocacy groups.

Commencing on the first day of the sixth month next following the effective date of this act, each long-term care facility shall use the applicable standard resident admission form developed by the department for each new admission to the long-term care facility. A long-term care facility shall not alter a standard resident admission agreement form unless approved by the department.

b. The department may develop an abbreviated standard resident admission agreement form for residents whose length of stay in a long-term care facility is anticipated to be 14 days or less. If the resident’s stay exceeds 14 days, the long-term care facility shall obtain agreement to the remainder of the stay pursuant to an applicable standard resident admission agreement form.

c. Except as set forth in subsection e. of this section, a resident or representative of a resident shall not be required to sign any document at the time of, or as a condition of, admission to a long-term care facility, or as a condition of continued stay in the facility, other than the applicable standard resident admission agreement form developed pursuant to this section and the acknowledgementsrequired pursuant to sections 4 and 5 of this act.

d. The department shall publish on its Internet website a copy of all standard resident admission agreement forms developed pursuant to this section, which forms shall be made available in English, Spanish, and Chinese, as well as in any other language the department deems appropriate.

e. No provision of the standard resident admission agreement or this act shall be interpreted or construed to limit the ability of an assisted living provider and resident to enter into an individualized resident service plan, health service plan, or managed risk agreement in accordance with N.J.A.C. 8:36-1.1 et seq. provided that nothing in the individualized resident service plan, health service plan, or managed risk agreement shall be inconsistent with the standard resident admission agreement.

4. a. Commencing on the first day of the sixth month next following the effective date of this act, each operator of a long-term care facility shall provide each resident and the resident’s representative, if any, at the time of the admission to the facility, a notice, separate from the applicable standard resident admission agreement form required pursuant to section 3 of this act, which notice shall be typed or printed using letters which are legible or of clear type in a font of not less than 12-point size, and shall state:

“YOU HAVE THE OPTION TO HIRE AN ATTORNEY TO ASSIST WITH APPLYING FOR MEDICAL ASSISTANCE LONG-TERM CARE BENEFITS:

Relying on a non-attorney service might expose you and your family to unnecessary financial risk. There are non-attorney agencies and companies which may offer to prepare and submit a Medicaid application. These entities are not permitted to give legal advice or to implement legal strategies that may best protect your interests, and they are not obligated to advise you of your rights. Moreover, these entities may have conflicts of interest, such as a financial relationship with the long-term care facility.

New Jersey does not mandate that a Medicaid applicant obtain the assistance of an attorney when completing an application.

You may, however, seek the assistance of an attorney who is knowledgeable about elder law and Medicaid eligibility rules. If you wish to identify such an attorney, you may contact the State or local bar association attorney referral service.”

b. A resident of a long-term care facility, or the resident’s representative, shall acknowledge receipt of the notice provided pursuant to subsection a. of this section by signing the bottom of the notice at the time of admission to the facility. A copy of the signed notice shall be furnished to the resident or the resident’s representative, and a copy of the signed notice shall be retained by the long-term care facility for the duration of the resident’s stay at the facility.

c. The operator of a long-term facility shall prominently display the notice described in subsection a. of this section at the entrance to the facility and in such other locations as the department may require.

d. A person providing Medicaid application assistance to a resident or prospective resident of a long-term care facility shall, prior to providing any application assistance services to the resident or prospective resident, disclose any financial relationship between the application assistance provider and any long-term care facility, including financial relationships with any parent companies or subsidiaries of the long-term care facility. The person providing Medicaid application assistance shall additionally advise that the resident or prospective resident has the right to seek the advice of an attorney prior to signing any legal documents.

5. a. Commencing on the first day of the sixth month next following the effective date of this act, each operator of a long-term care facility subject to 42 C.F.R. s.483.70 shall provide each resident and the resident's representative, if any, at the time of the admission to the facility, a notice, separate from the applicable standard resident admission agreement form required pursuant to section 3 of this act, which notice shall be typed or printed using letters which are legible or of clear type in a font of not less than 12-point size, and shall state:

"This facility is subject to federal regulations which prohibit it from requiring any resident or his or her representative to sign an agreement for binding arbitration as a condition of admission to, or as a requirement to continue to receive care at, the facility. Federal regulations require that this facility explicitly inform the resident or his or her representative of his or her right not to sign the agreement as a condition of admission to, or as a requirement to continue to receive care at, the facility."

b. A resident of a long-term care facility subject to 42 C.F.R. s.483.70, or the resident's representative, shall acknowledge receipt of the notice provided pursuant to subsection a. of this section by signing the bottom of the notice at the time of admission to the facility. A copy of the signed notice shall be furnished to the resident, or the resident's representative, and a copy of the signed notice shall be retained by the long-term care facility for the duration of the resident's stay at the facility.

c. The operator of a long-term care facility subject to 42 C.F.R. s.483.70 shall prominently display the notice described in subsection a. of this section at the entrance to the facility and in such other locations as the department may require.

6. a. The Commissioner of Health may adopt rules and regulations, pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), to implement the provisions of this act.

b. The Commissioner of Human Services shall adopt rules and regulations, pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), establishing uniform standards of care for non-attorney individuals providing Medicaid application assistance, including, but not limited to:

(1) defining who is permitted to act as a Medicaid application assistor before Medicaid agencies and the Office of Administrative Law;

(2) outlining the scope and nature of the services that non-attorney Medicaid application assistors are authorized to provide; and

(3) requiring Medicaid application assistors to complete training on: Medicaid program rules; handling confidential financial and medical information; conflicts of interest; and what constitutes the unauthorized practice of law.

7. This act shall take effect immediately.

STATEMENT

This bill prohibits an owner, administrator, director, officer, or employee of a long-term care facility or long-term acute hospital or any person or entity affiliated or related to the owner, administrator, director, officer, or employee from being eligible to act as an attorney-in-fact for a principal. A “principal” is defined in the bill as a resident of a long-term care facility or an individual who is in the admission process to enter a long-term care facility. Further, the bill prohibits any person who benefits financially from a long-term care facility or long-term acute hospital from acting as an attorney-in-fact. The bill explicitly states that these provisions are not to be construed to prohibit a family member of a principal from acting as attorney-in-fact for the principal.

The determination as to whether to appoint an individual affiliated with a long-term care facility or long-term acute hospital as guardian of a principal is required to be made by the Superior Court in consultation with the Office of the Public Guardian for Elderly Adults. Under the bill, a power of attorney instrument executed by a principal naming an enumerated person is deemed invalid.

The bill provides that a principal who sustains injury to person or property as a result of a violation of the provisions regarding the principal’s attorney-in-fact and guardian are to have a cause of action against any person who committed the violation resulting in injury. The action may be brought in any court of competent jurisdiction to enforce the provisions and to recover: 1) actual, compensatory, and punitive damages, and other injunctive and equitable relief as the court determines to be appropriate; 2) treble damages upon proof of willful, malicious, or reckless disregard of the law; and 3) reasonable attorney's fees and other litigation costs reasonably incurred by the principal.

The bill requires the Department of Health to develop a standard resident admission contract. The bill requires the department to develop unique standard resident admission agreement forms for use by each type of long-term care facility, when appropriate. Long-term care facilities are required to use the applicable admission contract developed by the department beginning on the first day next following the sixth month of the date of enactment. The bill provides the manner in which a long-term care facility can require a resident or the resident’s representative to sign certain documentation at the time of, or as a condition of, admission into care.

The bill requires an operator of a long-term facility to provide each resident, or a resident’s representative, notice that they may use an attorney to apply for Medicaid long-term care benefits at the time of admission. Further, the notice is required to be posted conspicuously in the nursing home or health care facility.

The bill requires each operator of a long term care facility subject to 42 CFR §483.70 to provide each resident, or a resident’s representative, notice that the facility is subject to federal regulations which prohibit it from requiring any resident or his or her representative to sign an agreement for binding arbitration as a condition of admission to, or as a requirement to continue to receive care at, the facility.

Finally, the bill requires the Commissioner of Human Services to promulgate rules establishing uniform standards of care for non-attorney individuals providing Medicaid application assistance, including, but not limited to: (1) defining who is permitted to act as a Medicaid application assistor before Medicaid agencies and the Office of Administrative Law; (2) outlining the scope and nature of the services that non-attorney Medicaid application assistors are authorized to provide; and (3) requiring Medicaid application assistors to complete training on: Medicaid program rules; handling confidential financial and medical information; conflicts of interest; and what constitutes the unauthorized practice of law.