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President Biden has introduced a plan to spend $400 billion over eight years on home and community-based care for the elderly and people with disabilities. The money would go to expand access to care and support higher-paying caregiving jobs.

As the elderly population grows, our long-term care system is becoming increasingly strained. The AARP found that in 2020, more than one out of every five Americans — 21.3 percent — were acting as caregivers, either caring for a relative or a close friend. Many women have had to drop out of the workforce to care for aging family members. In the meantime, paid caregivers are typically underpaid and overworked, with one in six paid caregivers living in poverty. And our elderly population is only expected to grow: By 2030, one in five Americans is projected to be over 65.

Recognizing that the United States is “in the midst of a caregiving crisis,” President Biden has proposed boosting funding for home and community based long-term care as part of his $2 trillion American Jobs Plan. While the plan does not have specifics, it proposes to expand access to long-term care services under Medicaid that help people stay at home and avoid care in an institution. Currently, only nursing home care is mandated under Medicaid, with states providing care at home or in the community at their discretion. Waiting lists for home and community-based services under state Medicaid programs can stretch on for years, and only a small fraction of those who need care receive these services, according to Kaiser Health News.

Among other things, President Biden wants to extend the Money Follows the Person program, which is a federal initiative designed to move people out of nursing homes and into home-based care. The program provides grants to states to create innovative home and community-based programs.

President Biden is also proposing that money be put toward creating well-paying caregiving jobs and that home health care workers be able to join a union and engage in collective bargaining. The White House states that this “will improve wages and quality of life for essential home health workers and yield significant economic benefits for low-income communities and communities of color.”

President Biden’s plan does not provide details, leaving It up to Congress to fill in the particulars when drafting its legislation. It is unclear how much of Biden’s proposed funding will make it into a final bill.

To read about the American Jobs Plan, click here.

For more about the home health care proposal, click here and here.

The one-year deadline for nursing home residents on Medicaid to spend down their first round of stimulus checks is here, but they may have a little extra time.

In March 2020, the Coronavirus Aid, Relief, and Economic Security (CARES) Act authorized $1,200 stimulus checks to most Americans, including Medicaid recipients. Another round of $600 checks was authorized in December 2020, and $1,400 checks were ordered in February 2021. The stimulus checks are not considered income for Medicaid recipients, and the payments have been excluded from Medicaid’s strict resource limits for 12 months.

While the one-year deadline for spending down the first round of checks is here, another COVID-19 bill gives beneficiaries more time. The Families First Coronavirus Response Act passed in March 2020 provides that if you were enrolled in Medicaid as of March 18, 2020, the state cannot terminate a recipient’s benefits even if there is a change in circumstances that would normally cause the benefits to be stopped. The law states that the recipient’s Medicaid coverage must continue through the end of the month in which the Secretary of Health and Human Services declares that the public health emergency has ended. The public health emergency is set to end April 20, 2021, but it will likely be extended.

While Medicaid recipients may have a little extra time, they shouldn’t delay too long in spending down the money if it has pushed them over the resource limit, which is $2,000 in most states. The following are examples of what a Medicaid recipient may be able to spend the money on without affecting their eligibility:

• Make a payment toward paying off debt.
• Make small repairs around the house.
• Update personal effects. Buy household goods or personal comfort items. Buy a new wardrobe, electronics, or furniture.
• Buy needed medical equipment, see a dentist or get eyes checked if those items aren’t covered by insurance.

While Medicaid recipients usually cannot gift money or assets and remain eligible for benefits, recipients in at least some states should be able to make gifts from the stimulus money during the first 12 months following receipt. If you have questions about how you or a family member in a nursing home can spend the money, contact your attorney.

President Biden has signed the latest COVID-19 relief bill, which in addition to authorizing stimulus checks, funding vaccine distribution, and extending unemployment benefits, also provides assistance to seniors in a number of ways.

The $1.9 trillion American Rescue Plan Act (ARPA) delivers a broad swath of relief, covering families, employers, health care, education, and housing. The following are the provisions that most directly affect older Americans:

• Relief checks. The ARPA provides $1,400 direct payments to individuals earning up to $75,000 in annual income and couples with incomes up to $150,000. The payments phase out for higher earners, and there are no payments for individuals earning more than $80,000 a year or couples making more than $160,000. Eligible dependents, including adult dependents, also receive $1,400. People collecting Social Security, railroad retirement, or VA benefits will automatically receive the payment even if they don’t file a tax return. The checks will not affect eligibility for Medicaid or Supplemental Security Income as long as any amount that pushes recipients above the programs’ asset limits is spent within 12 months.
• Medicaid home care. The Act provides more than $12 billion in funding to expand Medicaid home and community-based waivers for one year. This funding will allow states to provide additional home-based long-term care, which could keep people from being forced into a nursing home. The money will also allow states to increase caregivers’ pay.
• Nursing homes. Nursing homes have been hit hard during the pandemic. The Act supports the deployment of strike teams to help nursing homes that have COVID-19 outbreaks. It also provides funds to improve infection control in nursing homes.
• Pensions. Many multi-employer pension plans are on the verge of collapse due to underfunding. The Act creates a system to allow plans that are insolvent to apply for grants in order to keep paying full benefits.
• Medical deductions. If you have a large number of medical expenses, you may be able to deduct some of them from your taxes, including long-term care and hospital expenses. The Act permanently lowers the threshold for deducting medical expenses. Taxpayers can deduct unreimbursed medical expenses that exceed 7.5 percent of their income. The threshold was lowered to 7.5 percent under the 2017 tax law, but was set to revert to 10 percent for some taxpayers in 2021.
• Older Americans Act. The ARPA provides funding to programs authorized under the Older Americans Act, including vaccine outreach, caregiver support, and the long-term care ombudsman program. It also directs funding for the Elder Justice Act and to improve transportation for older Americans and people with disabilities.

For more information about what is in the ARPA, click here and here.

The Pennsylvania Supreme Court recently granted allocatur in a zoning case involving, among other things, the role of the appellate courts and standard applied upon review of credibility determinations made by municipal zoning boards.

Protect PT (“Appellant”) objected to the application for special exception of Olympus Energy, LLC (“Appellee”)to develop oil and gas operations (unconventional gas wells), in a process commonly known as ‘fracking.’ Appellee’s application involved a 53.5-acre property located at in the Mineral Extraction Overlay (MEO) of Penn Township’s Rural Resource (RR) Zoning District.

The Penn Township Zoning Hearing Board (“Board”), granted Appellee’s application (subject to certain conditions), concluding that, in its objections, Appellant “failed to establish sufficient, credible evidence that if [Appellee] has been found to have met the Ordinance requirements and the application is granted, with conditions, that the said use would create a high probability that an adverse, abnormal or detrimental effect will occur to public health, safety and welfare.”

The Westmoreland County Court of Common Pleas (“Trial Court”) affirmed the Board’s decision, and Appellant appealed.

In an unpublished opinion affirming the Trial Court, the Commonwealth Court noted that, “Because [Appellant] pointed to evidence of traffic counts and hazardous road conditions, it met its burden of proving that the proposed use will generate traffic that threatens health and safety,” and further, that Appellant’s expert witness testified “[Appellant’s] construction and operation will result in air emissions and significantly increased exposure to volatile organic compounds such as ozone and particulate matter that is not usually experienced in the Township.” Protect PT v. Penn Twp. Zoning Hearing Bd., 238 A.3d 530,  (Pa.Cmwlth. 2020), appeal granted in part, 243 A.3d 969 (Pa. 2021).

Appellant argued that the foregoing evidence went uncontradicted in the proceedings before the Board, but the Court held, “[a]ssuming the record contains substantial evidence, we are bound by the [B]oard’s findings that result from resolutions of credibility and conflicting testimony rather than a capricious disregard of evidence. [The Board] is free to reject even uncontradicted testimony it finds lacking in credibility, including testimony offered by an expert witness.” Id.

In a separate opinion, Judge McCullough, while concurring in the Court’s decision, noted concern that “judicial review in matters such as the one presently before the Court has been severely reduced to a point where this Court functions merely to ascertain whether a zoning hearing board found the objector’s evidence credible.” Id.

The Supreme Court may share in Judge McCullough’s concern, given one of the limited issues upon which allocatur was granted: “Whether the Commonwealth Court’s opinion conflicts with the Court’s previous application of the capricious disregard of evidence standard and creates an issue of such substantial public importance as to require prompt and definitive resolution by this Honorable Court?”

 

Lindsay Dunn is a partner in MacElree Harvey’s Land Use Department and represents diverse clientele in matters related to zoning, land use, and construction litigation. She can be reached directly at (610) 840-0202 or [email protected].

The Centers for Medicare and Medicaid Services (CMS) has issued new guidance on whether families can visit loved ones in nursing homes. The guidance allows indoor visitation even when the resident has not been vaccinated.

The coronavirus pandemic has hit long-term care facilities particularly hard, with more than 170,000 residents and employees dying of COVID-19. Most nursing homes have had at least some restrictions on visitors in place since the start of the pandemic in March 2020. Some nursing homes have banned all visitors, some allow visits by appointment only, and some restrict visitation to outdoors only. The absence of close contact with loved ones has been extremely difficult for both residents and their families over the past year.

Now that millions of vaccines have been administered to nursing home residents and staff, CMS has revised its guidance on nursing home visitation. The new non-binding guidance notes that outdoor visitation is preferred, even when both the resident and visitor are fully vaccinated. However, the guidance goes on to advise that indoor visitation should be allowed regardless of the visitor’s or resident’s vaccination status in most situations. CMS recommends limiting indoor visitation in the following circumstances:

• If the resident is unvaccinated and the county’s COVID-19 positivity rate is greater than 10 percent and less than 70 percent of the residents in the facility are fully vaccinated.
• The resident has a confirmed COVID-19 infection.
• The resident is in quarantine because of exposure to a person infected with COVID-19.

CMS also states that while physically distancing should be maintained, a fully vaccinated resident may choose to have close contact with a masked visitor who performs good hand hygiene before and after.

If the nursing home has a resident or staff member who tests positive for COVID-19, the CMS guidance recommends that visitation be suspended until the entire facility has been tested. If the outbreak is contained, then visitation can continue, but if additional cases are found, then CMS recommends suspending visitation once again.

While the CMS provides recommendations, each state is free to make its own visitation rules.

To read the guidance, click here.

For resources on visiting long-term care facilities from The National Consumer Voice for Quality Long-Term Care, click here.

 

To learn more or seek help with your Elder Law matters, contact Kristen Matthews at [email protected] or call (610) 840-0272.

The COVID-19 Pandemic highlighted the importance of Force Majeure Clauses in contracts, in particular those contained in leases for commercial real estate. A force majeure event is an extreme event that arises and prevents the impacted party from performing its obligations under the lease at issue. The government mandated shutdowns that took place beginning in March of 2020 are an example of an event that may qualify as force majeure and, at least temporarily, excuse performance by the impacted party under the lease. Other types of events that may qualify as force majeure are war, strike, riots, and acts of God, to name a few.

In negotiating the force majeure provision contained in the lease, the objectives are two- fold:  (1) to define those events as specifically as possible that permit the impacted party to obtain relief; and (2) define the nature of the excused performance by the impacted party. Force majeure clauses are strictly construed so, from a tenant’s standpoint, it is beneficial to make the clause as broad as possible and state specific events that will trigger the clause. With regard to the excuse of performance, a landlord will often agree to delay performance, in most cases the payment of rent, but it is very unlikely that the landlord will consent to the forgiveness or a complete abatement of the rent. As such, whether it is the landlord or tenant negotiating the force majeure provision, it is important to be clear on the precise events that will trigger the provision and the precise remedy that will be afforded the impacted party.

Due to the fact that performance, (in most cases the nonpayment of rent) will only be temporary, it is important for tenants, but landlords as well, to make sure that they are adequately insured against force majeure type events and that the contractual language of the insurance policies cover the events. While tenants will typically be the first and most directly impacted by the loss of business, the landlord can also be impacted if tenants cease operations for substantial periods or end up going out of business. As such, it is important for both the landlord and tenant to be adequately insured.

Business Interruption Insurance typically covers losses resulting from direct interruptions to business operations and may generally include lost revenue, fixed costs such as rent and utilities, and other expenses related to temporary or relocated operation. A contingent Business Interruption Insurance policy can additionally cover lost profits and indirect costs that are incurred due to impacts to third parties relied upon by the insured to conduct business. Over the course of the last 20 years, in response to smaller viral and bacterial outbreaks, the scope of insurance policies were narrowed to exclude such outbreaks from standard business interruption policies. Thus, diligence and close examination of both leases and insurance policies are critical.

As the U.S. economy reopens and both landlords and tenants negotiate new leases or renegotiate existing leases, it is more important never to focus on the specific terms of a force majeure clause as well as the specific terms and coverage of Business Interruption Insurance.