Tuesday, February 24, 2015
The National Consumer Law Center (NCLC) is offering a free webinar on "Medical Debt: Overview of New IRS Regulations and Industry Best Practices" on March 4, 2015 from 2 to 3 p.m. Eastern Time.
The hosts describe the webinar as follows:
This webinar will present an overview of the IRS final regulations governing financial assistance and collection policies of nonprofit hospitals. The regulations require nonprofit hospitals to have written financial assistance policies; regulate debt collection by nonprofit hospitals and third party
agencies; and prohibit the imposition of "chargemaster" rates to patients eligible for financial assistance.
Find out how to use the regulations to help clients who owe medical debts to nonprofit hospitals and protect them from lawsuits, liens, and credit reporting damage. The webinar will also review the voluntary best practices on medical account resolution issued by the Healthcare Financial Management Association.
Here is the link for REGISTRATION. Thanks to the National Senior Citizens Law Center (soon to be "officially" Justice in Aging) for sharing news of this educational opportunity of clear relevance to older persons and their families.
Wednesday, February 18, 2015
A long-running investigation of a doctor in Illinois for Medicaid and Medicare fraud is coming to a close. Michael Reinstein, "who for decades treated patients in Chicago nursing homes and mental health wards," has pleaded guilty to a felony charge for taking kickbacks from a pharmaceutical company. As detailed by the Chicago Tribune, on February 13, Reinstein admitted prescribing, and thus generating public payment for, various forms of the drug clozapine, widely described as a "risky drug of last resort."
The 71-year old doctor has been the target of the state and federal prosecutors for months, and he's also agreed to pay (which is, of course, different than actually paying) more than $3.7 million in penalties. He may still be able to reduce his prison time from 4 years to 18 months, if he "continues to assist investigators."
The investigation traces as far back as 2009, as detailed by a Chicago-Tribune/ProPublica series that revealed he had prescribed more of the antipsychotic drug in question to patients in "Medicaid's Illinois program in 2007 than all doctors in the Medicaid programs of Texas, Florida and North Carolina combined." Further, the Tribune/ProPublica series pointed to autopsy and court records that showed that, "by 2009, at least three patients under Reinstein's care had died of clozapine intoxication." Reinstein's, and one assumes, the pharmaceutical company's, defense was that the drug could have appropriate, therapeutic effects for patients, beyond the limited "on-label" realm.
Assuming that the government ever sees a dime in repayment, from either the doctor or the drug company, my next question is what happens to that money? At a minimum, shouldn't there be review of the effect of the drugs on these patients, some of whom may have been administered the drug for years? We keep reading that the drugs are "risky," but shouldn't there be evidence of real harm -- or perhaps even benefit -- from the documented "off-label" use? Certainly, prosecutions for off-label drugs are understandable attempts to claw-back, or at least reduce, public expenditures. But isn't more at stake, including the search for relief or workable solutions for patients who are in distress?
In March 2014, for example, Teva Pharmaceutical Industries Ltd., the maker of generic clozapine, reportedly agreed to pay more than $27.6 million to settle state and federal allegations that it induced Reinstein to prescribe the drug. Recovering misspent dollars is important. But I also would like to see evidence of the harm alleged by the government -- or the benefit asserted by the defendants -- from the administration of the drugs. Isn't objective study of the history of these real patients a very proper use of the penalties?
February 18, 2015 in Cognitive Impairment, Consumer Information, Crimes, Dementia/Alzheimer’s, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Cases | Permalink | Comments (0) | TrackBack (0)
Monday, February 16, 2015
The themes for the two day conference are:
November 12 (Day 1): Connecting Across Discipline and Geography:
Join practitioners from law, social work, health care, finance, non-profit and other sectors from across the country and around the world to talk about the challenges and issues involved in working with older adults. Particular topic areas we are seeking include:
- elder abuse,
- assisted living and retirement housing,
- financial abuse,
- age friendly communities, and
- outreach strategies.
November 13 (Day 2): Key Practice Challenges and Hot Topics in Legal
Explore issues engaged in powers of attorney and substitute decision-making, health care decision-making and end of life care, mental capacity and dementia, elder abuse and neglect, and other challenging subjects that arise in representing older adults and their families.
Contact National Director Krista Bell with any questions, and additional details, including submission information are available here.
February 16, 2015 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, International, Retirement, Social Security | Permalink | Comments (0) | TrackBack (0)
Wednesday, February 11, 2015
The Center for Retirement Research at Boston College has a nifty pamphlet on Using Your House for Income in Retirement. The booklet covers home ownership in retirement and options, including downsizing and reverse mortgages. The booklet includes graphics and checklists, helpful examples and list of other helpful "decision aids" available on their website.
Tuesday, February 10, 2015
With the shift from defined benefit pensions to 401(k)plans, the welfare of retirees increasingly depends on their ability to make sound financial decisions. This situation has raised concerns that the cognitive decline that comes with age could compromise the elderly’s decision-making ability and thereby their financial well-being. This brief, based on a recent study,1 addresses this issue using a unique dataset that follows a group of elderly individuals over time.
The report is divided into four parts: literature review, data, analysis and conclusion. The conclusion paints an interesting picture
The findings confirm that declining cognition, a common occurrence among individuals in their 80s, is associated with a significant decline in financial literacy. The study also finds that large declines in cognition and financial literacy have little effect on an elderly individual’s confidence in their financial knowledge, and essentially no effect on their confidence in managing their finances. Individuals with declining cognition are more likely to get help with their finances. But the study finds that over half of all elderly individuals with significant declines in cognition get no help outside of a spouse. Given the increasing dependence of retirees on 401(k)/IRA savings, cognitive decline will likely have an increas-ingly significant adverse effect on the well-being of the elderly.
Monday, February 9, 2015
I received an email recently from the National Center on Elder Abuse listserv about free training materials. The National Council of Certified Dementia Practitioners/International Council of Certified Dementia Practitioners are offering for free their toolkits and in-service materials through March 15, 2015. Sign up here for the free training materials. There is a wide array of topics available, including a large library of dementia topics and some on elder abuse. According to the website, the took kits include the following:
Free Power Point / Over Head In-services for Health Care Staff, Tests and Answers, Seminar Evaluation and Seminar Certificates
97 Ideas To Recognize Alzheimer's Disease and Dementia Care Staff Education Week
20 Reasons Why You Should Provide Comprehensive Alzheimer's Disease and Dementia Training to Your Staff by A Live Instructor
Dementia Word Search Games & Interactive Exercises
Movies and Books About Alzheimer’s You Don’t Want To Miss
Proclamation & Sample Agenda for Opening Ceremony & Sample Letter to Editor
Contest Entry Forms- Staff Education week
Alzheimer’s Disease Bill of Rights & Alzheimer’s Patient Prayer
Nurse Educator / In-service Director of The Year Nomination Form
Corporate and Associate Membership Forms
Songs to Inspire You
Letter to the Editor
AARP has a fabulous video, using the voices of brave victims, to examine the Weapons of Fraud employed by con artists. The speakers span all ages (in fact, I think I saw a Penn State logo on one of the candid, younger victims), and thus the clear message is that anyone can be a risk.
The short (about 15 minute) and intriguing video seeks to inoculate viewers from the risk factors of the pitch. as discussed further on Boston College's Squared Away Blog.
I think one of the most useful parts of this video is identifying and naming the ways that standard marketing tactics are magnified and used to persuade individuals to participate in the con. The techniques include establishing a "phantom fixation," through promise of a sudden windfall that will be available to you and only you... if you just talk to them long enough (oh, and yes, send them money).
Law students will also appreciate the example of the "Miracle Shim" to demonstrate misuse of "social proof," "authority," and fake "scarcity," and other techniques.
Hat tip to ElderLawGuy Jeff Marshall, Esq. for these links.
Recently Elder Law Attorney Bob Anderson from Marquette, Michigan, spoke to law students at Dickinson Law on the theme of "planning" and his presentation stressed the importance of understanding long-term care insurance or, because our world loves acronyms, "LTCI."
Bob used his thirty years of experience in counseling families to outline key points, and to explain factors that have impacted the LTCI industry. I asked the students to summarize what they found to be most interesting and important. Their "takeaway" highlights included:
- LTCI is an important consideration, part of the same evaluation for insuring against "unacceptable" losses, that should take place in deciding whether to insure against home fires or early death, recognizing that such events are "unlikely" to happen, but can happen to a significant percentage of the population;
- LTCI has a "cost of waiting," both in terms of the potential to become "uninsurable" because of a disqualifying medical condition arising, and because of the cost increase in first time premiums as you get closer to the age of potential need; and
- The cost of LTCI has several important variables, which lawyers can help families understand when advising about planning options, including the term of coverage (e.g., 1, 3 or 5 years), the "elimination" period, the interaction with Medicare's 100 day maximum for post-acute care, and the need to consider inflation protection for the daily benefit.
Bob also talked about "hybrid" insurance products, combining life insurance with an LTCI option. I think it is safe to say that regardless of their goals after graduation, all of the law students came away with an appreciation for the need to understand all available options, including LTCI, in planning or advising for post-retirement needs.
One of our students, who is thinking about general practice, said that he can see clients asking questions about LTCI. Bob was excellent at reminding all of us that effective elder law and estate planning attorneys address more than just what happens after death.
Bob, whose diverse interests include cross-country ski racing and hockey, also provided a bit of surprise during his visit when he began speaking Russian -- and, I think, Ukrainian -- with our Russian and Ukrainian Law expert, Bill Butler.
We especially appreciate Pennsylvania elder law attorney Amos Goodall and the National Elder Law Foundation (NELF) for their roles in making this interactive program possible; the recording will be available to practitioners in the future through NELF's educational arm. Amos also addressed our students, adding important Pennsylvania specifics to the discussion.
In a timely coincidence, AARP has a newly published Money Column, on "Should I Buy Long-Term Care Insurance?"
Friday, February 6, 2015
H. R. Moody edits an electronic newsletter, called "Teaching Gerontology," under the auspices of the Creativity, Longevity & Wisdom Program at Fielding Graduate University in Santa Barbara, California. It is distributed by the Association for Gerontology in Higher Education. A recent newsletter contained this interesting item:
"We've all heard that famous statistic: only 4% of people over 65 are in a long-term care facility (sometimes called simply "nursing home"). But there's a reason why this statistic has been called the "4 Percent Fallacy." The reason is that it's simply a cross-sectional figure, a snapshot at a single point in time. What is the likelihood of being in a long-term care facility when we look at it longitudinally, that is, over the life-course? The bad news is that the risk is not 4% but more like 50%: 44% for men and 58% for women. The good news is the stays in a nursing home may not necessarily be long: 11 months for a single man and 17 months for a single woman."
H.R. Moody suggests that for more details, visit:http://crr.bc.edu/briefs/long-term-care-how-big-a-risk/
Further, he notes that CRR's calculation of average length-of-stay has been challenged and is worth closer examination: http://centerltc.com/bullets/latest/1070.htm
Tuesday, February 3, 2015
This Blog has followed the complicated recent history of bankrupt Lemington Home for the Aged, in Pittsburgh, with posts here and here. New America Media, a national association of over 3000 ethnic media organizations, has begun an important, multi-part series examining the "impoverished history of race" in long-term care for persons of color. The Lemington Home becomes a case study. The series is titled The Death of a Black Nursing Home.
"[W]hat happened to Lemington is not uncommon. Researchers at Brown University found that more than 600 other nursing homes in African American, Hispanic and low-income neighborhoods also went bankrupt during this period.
Their study examined the closings of more than 1,700 independent nursing homes between 1999-2009 and found that those located in largely ethnic and low-income communities were more likely to have been closed, mostly because of financial difficulties.
Specifically, nursing homes in the zip codes with the highest percentage of blacks and Latinos were more than one-third more likely to be closed, and the risk of closure in zip codes with the highest level of poverty was more than double that of those in zip codes with the lowest poverty rate."
Observing that "Medicaid homes can't compete" successfully, the article examines reimbursement rates under Medicare and Medicaid and the disproportionate effect of underfunding on minority communities.
"The principal authors of the study, Vincent Mor and Zhanlian Feng, both of Brown at the time (Feng is now at the Research Triangle Institute), noted 'closures were more likely to occur among facilities in states providing lower Medicaid nursing home reimbursement rates.' That left these homes without the resources they needed to compete successfully in an industry experiencing an oversupply of beds and intensified competition....
While Medicaid reimbursement rates vary by state, they are always below Medicare’s reimbursement levels or the fees charged to people who pay for their own care. The demise of Lemington and other nursing homes in minority and low-income neighborhoods is a direct result of this flawed payment scheme. However, large for-profit nursing home chains, some of which are owned by private equity companies and real estate investment trusts, can maximize profits by using expensive and aggressive marketing practices to cherry pick the wealthier residents in a given area while reducing the number of their own Medicaid clients.
Medicaid’s payment structure also has impacted the quality of care in nursing homes with predominantly minority residents."
We will link to the next parts of the series as they become available.
Wednesday, January 28, 2015
LeadingAge, an senior housing and senior care organization that often takes a prominent advocacy role on behalf of nonprofit Continuing Care Retirement Communities, has a "NameStorm Survey" underway. The survey explores whether another name (and presumably an acronym other than CCRC) would better "resonate with consumers?" Everyone is invited to weigh-in, including current residents at CCRCs.
Here's the link to the reasons for the brainstorming of names, and here is a link to the on-line survey, that takes just a few minutes. The survey window closes on February 15, 2015.
Monday, January 26, 2015
In a major investigative report, The New York Times describes findings that nursing homes in counties throughout the state of New York are agressively seeking appointment of non-family members as guardians for residents of their facilities. The trigger? Unpaid nursing home fees.
Reporter Nina Bernstein uses the history of 90-year old Lillian Palermo to illustrate the practice, where a nursing home initiated a guardianship proceeding to displace her husband's authority as agent under a Power of Attorney, when disputes with her husband left unpaid bills, alleged to be "approaching $68,000."
NYT and researchers at Hunter College teamed to analyze the use of guardianships as a bill collection tool by nursing homes:
"Few people are aware that a nursing home can take such a step. Guardianship cases are difficult to gain access to and poorly tracked by New York State courts; cases are often closed from public view for confidentiality. But the Palermo case is no aberration,. Interviews with veterans of the system and a review of guardianship court data conducted by researchers at Hunter College at the request of The New York Times show the practice has become routine, underscoring the growing power nursing homes wield over residents and families amid changes in the financing of long-term care.
In a random, anonymized sample of 700 guardianship cases filed in Manhattan over a decade, Hunter College researchers found more than 12 percent were brought by nursing homes. Some of these may have been prompted by family feuds, suspected embezzlement or just the absence of relatives to help secure Medicaid coverage. But lawyers and others versed in the guardianship process agree that nursing homes primarily use such petitions as a means of bill collection -- a purpose never intended by the Legislature when it enacted the guardianships statute in 1993."
While, according to the NYT, at least one court has ruled such a "tactic by nursing homes is an abuse of the law," the increase of such suits highlights the payment dilemmas faced by facilities and families as Medicaid eligibility rules narrow and as the margin tightens for coverage of costs of care.
New York is not alone in seeing guardianship cases initiated by nursing homes. In Pennsylvania, attorneys retained by families or individuals have also sometimes challenged the practice, focusing on the use of facility-preferred guardians and the amount of fees added to the care bills in dispute.
National Senior Citizens Law Center, an important advocate for low income seniors in the U.S. since its inception in 1972, has announced a new identity, "Justice in Aging." But, don't worry, this change represents a deepening of their long-standing commitment (including a cherished role in training and education of senior advocates, including free webinars). As explained in news releases:
"The new name and accompanying 'look' will more accurately reflect the nature of our work, build on our legacy of impact, and open the door to engage more supporters and partners across the country. And it is a LOT easier to say and remember!
Our new name will be Justice in Aging. Our new tagline will be Fighting Senior Poverty Through Law.... Our new website will be www.justiceinaging.org. We will begin using the new name on March 2, 2015.... While our name is changing, our work will remain the same. As income inequality increases across the nation and the population ages, senior poverty is growing to unprecedented levels.... We still serve serve as a resource for advocates on important programs like Medicare, Medicaid, LTSS, Social Security and SSI."
We wish the hardworking staff of NSCLC -- or now JiA, perhaps? -- all the best as they roll out their new identity, and in their continuing commitment to advocating for seniors across the nation.
Tuesday, January 20, 2015
The National Senior Citizens Law Center (NSCLC) has sent out the latest news on pending (but delayed) implementation of new rules affecting payment of wages for many home care workers. Here is the helpful update from NSCLC:
"A U.S. federal district court has struck down new rules that would have applied Fair Labor Standards Act standards, like payment of minimum wage and overtime, to most Medicaid home care providers. Historically, many personal care providers and other in-home assistants have been exempted from federal labor laws under the 'companionship services' exemption.
The US Department of Labor is likely to appeal the decision to the D.C. appellate court, so a final decision on the validity of the expanded FLSA regulations will take some time. In the meantime, however, the new regulations, which were supposed to start on January 1, 2015, will not take effect. Unless a state chooses otherwise, home care providers’ wages and hours will stay the same. For more details about the court decisions or the rule, visit http://www.dol.gov/whd/homecare/ or contact Hannah Weinberger-Divack."
Those were the words of Ron Costen in speaking to friends, co-workers, legislators and policy-makers who have long been inspired by his passion to protect the elderly and who had gathered to honor Ron.
Temple Professor Ronald Costen, with multiple degrees in law and social work, has been working on behalf of vulnerable adults, including older persons, for more than thirty years. He is preparing for a "realignment" -- not a retirement -- as he leaves his full time job as founder and Director of Temple University's Institute on Protective Services in Harrisburg, Pennsylvania, where he advised Area Agencies on Aging, county task forces, coroners, prosecutors, social work students and the Department of Aging on best practices when seeking protection for adults faced with neglect or abuse.
The audience, including Pennsylvania Department of Aging Secretary Brian Duke (shown above, right, with Dr. Costen, left), celebrated Dr. Costen's career last week with warm and funny memories, helping him embark on a new combination of consulting work and studies at the Lutheran Theological Seminary of Gettysburg. The new director of the Institute is one of Ron's former social work students, Christopher Dubble, MSW.
Best wishes, Ron!
Thinking More Deeply About Treating Nonlawyers Who Offer Medicaid and Estate Planning as Engaging in UPL
Earlier this week, we reported on the Florida Supreme Court's recent Advisory Opinion regarding activities by nonlawyers in "Medicaid Planning" that will be treated as Unlicensed Practice of Law (UPL).
That piece triggered several discussions with colleagues, and thus we have more information to share.
Stanford Law Professor Deborah Rhode, working with Lucy Buford Ricca, the Executive Director of Stanford's Center on the Legal Profession, has a relatively new article in Fordham Law Review's annual colloquium issue that deepens Rhodes' long-standing concerns about the potential impact of treating certain "nonlawyer" conduct as sanctionable under state UPL rules. In "Protecting the Professor or the Public? Rethinking Unauthorized-Practice Enforcement," Professor Rhode begins with the history behind her earliest examination of the utility of "do it yourself kits" in areas of underserved legal needs, such as divorce. In her most recent Fordham piece, she also builds upon her 1981 survey of UPL enforcement procedures across the 50 states, by making a close examination of over 100 reported UPL decisions issued in the last decade. Rhode and Ricca conclude that UPL enforcement needs to be more consumer-oriented and less driven by narrow interests of lawyers in protection of specialized practice. They advocate that a "more consumer-oriented approach would also vest enforcement authority in a more disinterested body than the organized bar." Their article is a must read for any Bar group considering UPL issues, including those arising in the elder law or estate planning context.
Along that same line, the American Bar Association is hosting its second "UPL School" in Chicago on April 17-18. The purpose is to provide "a central forum for volunteer members of state and local bar UPL committees and commissions, and those charged with the prevention and prosecution of UPL violations to discuss current UPL challenges." (The first such "ABA UPL School" was held in 2013, focusing on several areas including immigration, "notario" fraud, and mortgage relief or loan modification vendors.)
Sunday, January 18, 2015
Following extensive hearings and related proceedings, including revision of an earlier proposed advisory opinion by the Florida Bar's Standing Committee, the Florida Supreme Court issued a per curiam opinion on January 15, 2015, addressing certain Medicaid planning activities, concluding that when performed by nonlawyers, they constitute the "unlicensed practice of law" (UPL), thereby leading to potential sanctions.
The ruling focuses on actions by nonlawyers who assist with one or more of the following activities leading up to an application for Medicaid: (1) drafting of personal service contracts, (2) preparation and execution of Qualified Income Trusts; or (3) rendering legal advice on implementation of Florida law to obtain Medicaid benefits. The Court expressly distinguished the "preparation of the application for Medicaid benefits" as being outside of its opinion, pointing to federal law as authorizing nonlawyer assistance in the application process.
The Elder Law Section of the Florida Bar was the petitioner seeking the advisory ruling.
In the detailed conclusion, the "harm and potential harm" from "unregulated" nonlawyers selling trust packages was outlined:
Wednesday, January 14, 2015
Directly from the White House:
The first White House Conference on Aging (WHCoA) was held in 1961, with subsequent conferences in 1971, 1981, 1995, and 2005. These conferences have been viewed as catalysts for development of aging policy over the past 50 years. The conferences generated ideas and momentum prompting the establishment of and/or key improvements in many of the programs that represent America’s commitment to older Americans including: Medicare, Medicaid, Social Security, and the Older Americans Act.
The 2015 White House Conference on Aging
2015 marks the 50th anniversary of Medicare, Medicaid, and the Older Americans Act, as well as the 80th anniversary of Social Security. The 2015 White House Conference on Aging is an opportunity to recognize the importance of these key programs as well as to look ahead to the issues that will help shape the landscape for older Americans for the next decade.
In the past, conference processes were determined by statute with the form and structure directed by Congress through legislation authorizing the Older Americans Act. To date, Congress has not reauthorized the Older Americans Act, and the pending bill does not include a statutory requirement or framework for the 2015 conference.
However, the White House is committed to hosting a White House Conference on Aging in 2015 and intends to seek broad public engagement and work closely with stakeholders in developing the conference. We also plan to use web tools and social media to encourage as many older Americans as possible to participate. We are engaging with stakeholders and members of the public about the issues and ideas most important to older individuals, their caregivers, and families. We also encourage people to submit their ideas directly through the Get Involved section on this website.
Tuesday, January 6, 2015
Elder Law attorney Morris Klein from Bethesda, Maryland shared with us "Why You Shouldn't Count on Your Family Members to Take Care of You When You're Old" from the Washington Post. It begins with contrasting perspectives:
"About 60 percent of adults between 40 and 65 years don't think they'll need long-term care services, according to a new Health Affairs study. That's much less than the 70 percent of people at least 65 years old who will need long-term care services at some point, either in their home or at a facility, according to a widely cited earlier study from the Georgetown University Long-Term Care Financing Project. That includes 20 percent who will need between two to five years of long-term care and 20 percent who'll need more than five years."
The article provides current cost ranges, citing the need for greater realism about the costs of any third-party care. Plus, the author warns that a "major reason people are too optimistic is that they think their families will take care of them.... However, about 37 percent of people will need at least some facility-based care and 42 percent will need some formal care at thome, the earlier Georgetown study found." And the article continues with more sobering statistics....
Thanks, Morris, for sharing this article!
Wednesday, December 31, 2014
On November 14, 2014, the Ohio Court of Appeals affirmed a lower court's decision in a deceptively simple contract dispute. The question was whether a son, who was his mother's agent under a power of attorney, could be held personally liable for $8,700 incurred by his mother in nursing home costs. The ruling in Andover Village Retirement Community v. Cole confirmed the son's contractual liability.
When I first read about the case, I thought I would find another example of the often confusing use of "responsible party" labels for agents in a nursing home admission agreement, a topic I've written about at length before. However, the Ohio case was a new spin on that troublesome topic. According to the opinion, Andover Village actually presented two separate documents to the son at the time of his mother's admission. One document was an admission agreement that the son signed, pledging:
“When Resident's Responsible Person signs this Agreement on behalf of Resident, Resident's Responsible Person is responsible for payment to [Andover] to the extent Resident's Responsible Person has access and control of Resident's income and/or resources. By signing this Agreement the Resident's Responsible Person does not incur personal financial liability.”
The second document, titled "Voluntary Assumption of Personal Responsibility," was also signed by the son, but this time it stated, “I, Richard Cole, voluntarily assume personal financial responsibility for the care of Resident in the preceding Agreement.”
The court viewed the second document as the son's personal guarantee, and it was this document that triggered the court to find the son personally liable for his "voluntary" assumption of the obligation to pay costs not covered by Medicare or Medicaid.
The Ohio court leaves me with another question, not directly addressed in the decision. Did the son really make a knowing and voluntary decision to assume personal liability for costs, especially costs that can break most individual's piggy banks? Or, did the son sign a stack of papers he was told were routine and necessary for his mother to be admitted? Admissions to nursing homes are often made when everyone, the resident and the family members, is under stress.
At a minimum, I would like to think that a family's consultation with an experienced elder law attorney at the time of admission would have made a difference.
For facilities that are Medicare or Medicaid eligible -- and that is most nursing homes -- key federal laws, set forth at 42 U.S.C. §§ 1395i-3(c)(5)(A)(ii), 1396r(c)(5)(A)(ii) provide: “With respect to admissions practices, a skilled nursing facility must . . . not require a third party guarantee of payment to the facility as a condition of admission (or expedited admission) to, or continued stay in, the facility.”
I expect that an experienced elder law attorney would be familiar with this restriction on "mandatory" guarantees and would help the son see that for the nursing home to be compliant with federal law, any guarantee must be truly voluntary. Advice from an experienced elder law attorney would help to guard against the not-so-voluntary signing of a stack of papers that are presented as "necessary" to admit the resident. Perhaps a facility would refuse to admit the mother unless the son signs the "voluntary" agreement, but if that happens, it would be clear that the facility is violating the intention of federal law to protect individuals -- and families -- from waiving certain rights as a condition of admission or continued residence.
With that experienced lawyer's advice, a son could make a knowing and intentional decision to serve as his mother's contractual guarantor, and thus would be alert in advance to the ways that even small gaps can occur that are not covered by Medicare, Medicaid or private insurance. (Those small gaps can add up!) Alternatively, if the son is not willing or able to serve as his parent's guarantor, another facility might be the better choice.
In law school classes about elder law, we do teach Medicaid planning approaches, but frankly, that is usually a small part of any course. The majority of our time is spent on the abundant ways that individuals and families can be helped by an attorney who understands the full panoply of rights and obligations that attend growing older in the U.S. and beyond.
Hat tips to Pennsylvania attorney Jeffrey Marshall and Florida attorney Joseph Karp for alerts to the Ohio case.