The new long-term care law signed by Governor Maura Healey on September 6th aims to improve long-term care in Massachusetts. Among its provisions are improvements regarding two issues about which we have written extensively: pooled trusts and estate recovery.
Elimination of Transfer Penalty for Pooled Trusts
Until this year, disabled individuals of any age could freely transfer assets into so-called “pooled disability” or “(d)(4)(C)” trusts in order to qualify or maintain eligibility for MassHealth. This has been especially important to individuals over the age of 65 who are limited to $2,000 in countable assets. In many cases it can be crucial to their remaining in the community since they need a combination of their own funds and support by MassHealth to pay for their care, neither being sufficient by itself.
For reasons that were never clear, MassHealth decided to impose a penalty for those aged 65 or over who transferred assets to pooled disability trusts. This new rule went into effect earlier in the year after being delayed for several years by Covid-19 protections of Medicaid beneficiaries.
Fortunately, the legislature has now overruled this misguided change, reinstating the ability of older Massachusetts residents with disabilities to make use of pooled disability trusts. The one open question is when the change will be implemented. The new law doesn’t take effect for 90 days, until December 4th by my count, so MassHealth may continue to penalize transfers to pooled trusts made before then.
Narrowing Estate Recovery
We have described the mean-spirited and arbitrary nature of estate recovery, the practice of MassHealth to seek repayment of its expenses from beneficiaries’ probate estates. Up until now, MassHealth sought such recovery for all MassHealth payments made after the beneficiary reached age 55 and for nursing home care provided at any age.
The new law limits estate recovery to the costs of nursing home care so the heirs of those who received CommonHealth will no longer be surprised by a claim after their relative’s death. The actual elimination of estate recovery must be accomplished on the federal level, but Massachusetts should keep working to do what it can to protect our citizens from its deleterious effects.
Other Long-Term Care Improvements
The estate recovery provision is only a small part of the Act, which is a comprehensive effort to improve the quality of care for both older and younger disabled residents in Massachusetts. It includes the following elements:
- Inclusion for LGBTQ+ Residents. The Act requires training of long-term care facility staff to avoid discrimination and insensitivity towards LGBTQ+ residents of nursing homes and assisted living facilities.
- Building the Long-Term Care Workforce. A new fund will provide grants to pay for training that enables care workers to become certified as licensed practical nurses. In addition, the fund will institute a forgivable loan program to help facilities finance capital improvements.
- Expanded Services. Assisted living facilities will now be able to assist residents with their medications, oxygen management and home diagnostic tests.
- Enhanced Assisted Living Enforcement. The Act provides for expanded ownership disclosures for assisted living facilities, gives the Executive Office of Elder Affairs expanded powers to enforce compliance with regulations by assisted living facilities, adds whistleblower protections for staff and residents at assisted living facilities, and authorizes the attorney general to file civil actions against individuals who commit abuse, mistreatment or neglect of residents.
- Oversight of Nursing Homes. The Department of Public Health now must inspect every nursing home at least once a year and provides it with expanded enforcement tools.
- Hospital Discharges. A task force will study and propose recommendations to facilitate the discharge of patients who no longer need a hospital level of care but can’t find an appropriate placement. Along with the task force, MassHealth is required to study whether easing eligibility would reduce the time patients spend in hospitals awaiting placement.
These are among the provisions in the bill which is, in part, a response to the high number of deaths of nursing home residents during the Covid-19 pandemic and the result of years of negotiation and lobbying by patient advocates and the long-term care industry. We can hope that it will result in better care in the Commonwealth. And, of course, MassHealth estate recovery should be further curtailed.