S1962 1R

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:

¹“Family member” means a spouse, domestic partner, partner in a civil union, child, parent, sibling, aunt, uncle, niece, nephew, grandparent, or grandchild.¹

“Long-term care facility” means a nursing home ¹, inclusive of all beds in a skilled nursing facility licensed as a long-term care facility by the Department of Health¹, ¹an¹ assisted living residence, ¹a¹comprehensive personal care home, ¹a¹residential health care facility, ¹a long-term acute care hospital¹ or ¹a¹dementia 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 an individual who is in the admission process to enter a long-term care facility.

b. No owner, administrator, director, officer, or employee of a long-term care facility, person or entity affiliated with or related to an owner, administrator, director, officer, or employee of a long-term care facility, or other person who benefits financially from a long-term care facility shall be authorized to manage the 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 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, person or entity affiliated with or related to an owner, administrator, director, officer, or employee of a long-term care facility, or other person who benefits financially from a long-term care facility, 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, a person or entity affiliated with or related to an owner, administrator, director, officer, or employee of a long-term care facility, or another person who benefits financially from a long-term care facility shall be deemed invalid.

d. Nothing in subsection b. of this section shall be construed to prohibit the appointment of a guardian of the ¹[body] person¹ or estate of a resident of a long-term care facility by a court of competent jurisdiction.

¹e. 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.¹

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 ¹,inclusive of all beds in a skilled nursing facility licensed as a long-term care facility by the Department of Health¹, ¹an¹ assisted living residence, ¹a¹comprehensive personal care home, ¹a¹residential health care facility, ¹a long-term acute care hosptial¹ or ¹a¹dementia 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. ¹The department may develop unique standard resident admission agreement forms for each type of long-term care facility, when appropriate.¹ 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 ¹applicable¹ 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 ¹[the] a¹ standard resident admission agreement ¹form¹ unless directed and approved by the department.

b. The department may develop an abbreviated standard resident admission agreement ¹form¹ 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 ¹[a] an applicable¹ standard resident admission agreement ¹form¹.

c. 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 ¹applicable¹ standard resident admission agreement ¹form¹ developed pursuant to this section and the acknowledgement required pursuant to section 4 of this act.

d. A long-term care facility shall not ¹require the execution of an arbitration agreement by a prospective resident as a condition of admission to the facility, nor¹ present any arbitration agreement to a prospective resident as part of the standard resident admission agreement. Any arbitration agreement between a long-term care facility and a resident of the facility shall be executed in a document that is separate from the standard resident admission agreement, and shall contain the following advisory in a prominent place at the top of the proposed arbitration agreement, in bold-face font of not less than 12 point type: “Residents shall not be required to sign this arbitration agreement as a condition of admission to this facility. ¹Signing this arbitration agreement will give up your rights to a jury trial.¹”

e. The department shall publish on its Internet website a copy of ¹[the] all¹ standard resident admission agreement ¹forms¹ developed pursuant to this section, which ¹[agreement] forms¹ shall be made available in English, Spanish, and Chinese, as well as in any other language the department deems appropriate.

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 ¹applicable¹ standard resident admission agreement ¹form¹ 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. Federal law restricts these non-attorney services from charging a fee in connecting with a Medicaid application.

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. 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; ¹and¹

(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 law¹[; and

(4) prohibiting non-attorney Medicaid application assistors from charging any fee for providing Medicaid application assistance services]¹.

6. This act shall take effect immediately.