Tuesday, August 18, 2015
An interesting dispute is moving forward in federal court in California, involving interpretation of coverage under a long-term care insurance (LTCI) policy. The case is Gutowitz v. Transamerica Life Insurance Company, (Case No. 2:14-cv-06656-MMM) in the Central District of California. UPDATE: link to Order dated August 14, 2015.
In 1991, plaintiff Erwin Gutowitz purchased a long-term care insurance policy, allegedly requesting the "highest level of long-term care coverage available," and presumably paying the annual premiums for more than 20 years. Eventually, following a 2013 diagnosis of Alzheimer's, Erwin Gutowitz needed assistance, moving into an apartment at Aegis Living of Ventura, which was licensed in California as a "Residential Care Facility for the Elderly" (an RCFE). With the help of his son as his designated health care agent, he then made a claim for long-term care benefits under his policy. The claim was denied by Transamerica on the ground that the location was not a "nursing home" as defined in the LTCI policy.
Insurers understandably prefer not to pay claims if they can avoid doing so. In this case the insurer attempted to avoid the claim on the grounds that only certain types of facilities (or a higher level of care) were covered under this policy's "Daily Nursing Home Benefit."
On August 14, 2015, United States District Judge Margaret Morrow issued a comprehensive (34 page) order, copy linked above, denying key arguments made by Transamerica in its summary judgment motions.
August 18, 2015 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, August 11, 2015
Avenging angels or unholy alliance? A lawsuit filed by the New Mexico Attorney General in December 2014 against Preferred Care Partners Management Group, a large, privately held management company operating nursing homes in New Mexico and nationally, raises interesting questions about whether AGs should be teaming with private lawyers to pursue cases of alleged malpractice, abuse or fraud affecting consumers. The Plano, Texas-based defendant asserts that "lobbying" of state attorney generals by private firms to pursue questionable claims is improper, pointing to campaign contributions paid by law firms or individual lawyers, as well as contingent fee arrangements that defendants argue reduce the States' accountability.
Current Attorney General Hector Balderas blasted back at the company through a spokesman. “Bilking taxpayers for inadequate care and denying helpless and vulnerable residents basic services will not be tolerated,” he said. “Our office will continue to aggressively protect New Mexico’s taxpayers and our most vulnerable populations.”
Currently, the New Mexico case is in federal court, following the defendant's removal from the original filing in state court. The law suit -- and the issue of private/public partnerships in pursuing claims on behalf of consumers and/or taxpayers -- is generating a lot of attention in the business world. Recent coverage includes linked news stories by the New York Times, the Albuquerque Journal, and McKnight's LTC News.
August 11, 2015 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink
Friday, July 17, 2015
On July 7, 2015, in U.S. ex rel Hartpence v. Kinetic Concepts, Inc., the Ninth Circuit, sitting en banc, created an easier path for whistleblowers to recovery under the False Claims Act for disclosure of fraudulent claims for Medicare reimbursement. From its introduction to the ruling in consolidated civil qui tam suits:
If a whistleblower informs the government that it has been bilked by a provider of goods and services, and that scheme is unmasked to the public, under what conditions can that same whistleblower recover part of what the guilty provider is forced to reimburse the government? We hold today that there are two, and only two, requirements in order for a whistleblower to be an “original source” who may recover under the False Claims Act: (1) Before filing his action, the whistleblower must voluntarily inform the government of the facts which underlie the allegations of his complaint; and (2) he must have direct and independent knowledge of the allegations underlying his complaint. Abrogating our earlier precedent, we conclude that it does not matter whether he also played a role in the public disclosure of the allegations that are part of his suit. We also hold that the district court erred in its application of the rule that a whistleblower must be the first to file an action seeking reimbursement on behalf of the government based on the fraudulent scheme.
According to one lawyer interviewed here, the impact of the decision to reverse 25-year old case precedent, though important, may be limited to older cases, "since 2010 amendments to the False Claims Act have further clarified the 'original source' requirements.
Additional history -- and predicting clarifications -- about the public disclosure provisions of the False Claims Act comes from Albany Law Emeritus Professor Beverly Cohen, in an article from Mercer Law Review, titled "Trouble at the Source: The Debates Over the Public Disclosure Provisions of the False Claims Act's Original Source Rule." For more, see Professor Cohen's interesting article (in my own law school's law review, I was happy to discover!), "Kaboom! The Explosion of Qui Tam False Claims Under the Health Reform Law."
Thursday, July 16, 2015
Probably the best bang for your CLE buck in Pennsylvania comes from the two-day Elder Law Institute hosted each summer by the Pennsylvania Bar Institute. This year the 18th annual event is on July 23 & 24 in Harrisburg.
- "The Year in Review" with attorneys Marielle Hazen and Robert Clofine sharing duties to report on key legislative, regulatory and judicial developments from the last 12 months;
- How to "maximize" eligibility for home and community based services (Steve Feldman and Pam Walz);
- Cross disciplinary discussions of end-of-life care with medical professionals and hospice providers;
- LTC "provider" perspectives (Kimber Latsha and Jacqueline Shafer);
- Latest on proposals to change Veterans' Pension Benefits (Dennis Pappas);
- Implementation of the Pa Supreme Court's Elder Law Task Force Recommendations (Judges Lois Murphy, Paula Ott, Sheila Woods-Skipper & Christin Hamel);
- A closing session opportunity, "Let's Ask the Department of Human Services Counsel" (with Addie Abelson, Mike Newell & Lesley Oakes)
There is still time to registration (you can attend one or both days; lunches are included and there is a reception the first evening).
I think this is the first year I have missed this key opportunity for networking and updates; but I'm sending my research assistant!
July 16, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (0)
Wednesday, July 8, 2015
Two of my favorite bright lawyers (with great hearts, too) are Kate Lang from Justice in Aging in Washington D.C. and John Whitelaw from Community Legal Services of Philadelphia. Kate and John are the speakers at an upcoming ABA hosted webinar on Supplemental Security Income (SSI): What Every Attorney Needs to Know.
Time: 1 to 2:30 p.m. (Eastern Time)
Date: Wednesday, July 15, 2015
Here are other details about registration and cost.
Friday, June 26, 2015
Relying on the 14th Amendment, in a 5-4 ruling, the U.S. Supreme Court ruled that states must license marriages -- and recognize them as valid marriages -- for same sex couples. Justice Kennedy wrote the opinion for the majority; Chief Justice Roberts authored a dissent.
UPDATE: in watching the evening news tonight, I was struck by the numbers of couples with grey hair celebrating the Supreme Court's decision. For the moving story of Jim Obergefell, the lead plaintiff, see this People profile. For commentary on how the most recent Supreme Court ruling, on top of the Windsor case, affects "older" same sex couples, see this blog entry from Justice in Aging.
Thursday, June 25, 2015
Recognizing that "tax credits" were a key component of health care reform enacted by Congress, six justices of the Supreme Court, led by Chief Justice Roberts, upheld application of the credits to federal exchanges, despite the statute's moments of "inartful drafting." Here is the final paragraph of the majority's surprisingly decisive opinion, issued on June 25, 2015:
Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.
Here is the link to the Supreme Court's full opinion, including Justice Scalia's wrathful dissent.
Tuesday, June 16, 2015
Last fall, I blogged about In re Skinner, a case in which one son was trying to prevent a brother from obtaining a discharge in bankruptcy court of a "filial support" judgment to a long-term care facility. Both brothers had been sued, but one brother, Thomas, had defaulted on the suit, resulting in a default judgment as to his liability. The bankruptcy court concluded that Brother William lacked standing" to prevent Brother Thomas' discharge of debt to an assisted living facility for care of their mother.
In May, 2015 the United States District Court for the Eastern District of Pennsylvania affirmed the bankruptcy court's dismissal of the adversary proceeding, concluding that "William Skinner has not adequately alleged that he is a bankruptcy creditor of Thomas Skinner. He therefore lacks standing to bring an action challenging the dischargeability of Thomas Skinner's debts."
The additional allegations described in the District Court opinion -- which are reminiscent of the allegations of misuse of Powers of Attorney in Presbyterian Medical Center v. Budd (Pa. Super. 2013) -- demonstrate the complicated nature of filial support suits for family members. This is especially true in Pennsylvania where courts seem to be treating claims of statutory liability as "joint and several" in nature, and not proportional based on fault. For the latest see In re Skinner, 2015 WL 3400943, (E.D. Pa. May 27, 2015).
UPDATE October 2015: On June 30 2015, William Skinner filed an appeal to the Third Circuit. As of early October, briefing is underway.
June 16, 2015 in Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Health Care/Long Term Care, Medicaid, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Saturday, June 13, 2015
The New York Times' "On this Day" squib reminded us today:
"On June 13, 1966, the Supreme Court issued its landmark Miranda vs. Arizona decision, ruling that criminal suspects must be informed of their constitutional rights prior to questioning by police."
That triggered memories, as the day the landmark decision first became known in Arizona, the father of one of my friends offered everyone in the neighborhood a glass of champagne, even us kids. At the time I did not fully appreciate the reason. It was only years later that I put it together that the celebrant was John P. Flynn, the lawyer who successfully argued the Miranda case before the U.S. Supreme Court.
Even more years later, in the 2000 Supreme Court decision of Dickerson v. U.S., another man from that same Phoenix, Arizona neighborhood would confirm the importance of "Miranda warnings" as an accepted mainstay of protection for individuals suspected of crimes. Chief Justice William H. Rehnquist did not share the legal or political philosophies that generated the original ruling, but he could be persuaded to respect the role of stare decisis. I have often been bemused by the fact that John Flynn, a bold advocate and life-long Democrat, had once celebrated his biggest victory with the children of the neighborhood, including the children of a future Supreme Court Justice, well known for his conservatism. Phoenix, especially the legal community, was a very small town in those days.
My trip down memory lane took me to a colorful account of John P. Flynn's life. It is the story of a creative and talented lawyer, from an era much more tolerant of personal flaws. Read "Remembering John Flynn" by his one-time law partner Tom Galbraith.
Monday, June 8, 2015
In Eades v. Kennedy PC Law Offices, decided June 4, 2015, the Second Circuit ruled that a federal court in New York has personal jurisdiction to address alleged unfair debt collection practices of a Pennsylvania law firm in seeking to collect unpaid nursing home fees totaling $8,000. The plaintiffs, New York residents -- the husband and adult daughter of a woman in a Pennsylvania nursing home -- challenged statements in correspondence and phone communications allegedly made by the Pennsylvania law firm. The claims against the daughter were based on Pennsylvania's filial support law.
As reported on this Blog in December 2013, the United States District Court for the Western District of New York dismissed the suit, finding no personal jurisdiction and further rejecting application of the federal Fair Debt Collection Practices Act (FDCPA). The Second Circuit's ruling concludes, however, that the law firm's "three purposeful contacts with New York," of mailing a debt collection notice to the New York family members, engaging in a debt collection phone call with the daughter, and mailing a summons and complaint to both the daughter and the nursing home resident's husband, are enough to establish personal jurisdiction under New York's long-arm statute. Further, the defendant law firm had not shown that exercise of such jurisdiction was unreasonable.
On the questions raised by the FDCPA claims, the Second Circuit rejected several key arguments by the plaintiffs, concluding that Pennsylvania's filial support law is not preempted by the Nursing Home Reform Act's prohibition on nursing homes requiring third party guarantees of payment:
June 8, 2015 in Consumer Information, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Legal Practice/Practice Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, June 3, 2015
On March 17, 2015, Missouri executed "convicted cop killer Cecil Clayton." Clayton's prosecution was a matter of much legal commentary from the very outset of his arrest and prosecution in the 1990s, because of the documented history of removal of 1/5 of the frontal lobe of his brain following a sawmill accident in the 1970s.
However, as his prosecution, appeals, and post-conviction challenges wended their way through state and federal courts on issues of effective assistance of counsel, insanity and mental defect, an additional cognitive impairment was underway. By the time of his execution Clayton was reported to be Missouri's "oldest death row prisoner" at age 74 and at least five years before his last day, he had been diagnosed with progressive, neurological deterioration, consistent with "dementia."
The last court to consider the Clayton's last (and last minute) challenges to the death penalty, the United States District Court for the Western District of Missouri, wrote on the same day as his execution:
Should the Atkins [v. Virginia, 536 U.S. 304 (2002)] reasoning be applied, by analogy, to cases involving persons with physical brain damage and progressive deterioration, and an Atkins-like evaluation performed to determine whether the death penalty may be properly imposed? It seems fair to analogize the diminished capacity of the mentally retarded that lessens personal culpability and prohibits execution of the mentally retarded...to those whose physical brain damage and progressive deterioration have, for example, lessened their capacity to meaningfully participate in legal proceedings. Using a different analogy, it would be difficult to imagine, for example, that a civilized society would execute a person who was not mentally retarded at the time of the commission of a capital crime, but who subsequently developed advanced Alzheimer's disease by the time of the execution.
Ultimately, the court ruled that no relief was available to Clayton on the record before it, but the court clearly was concerned about the potential for evidence of post-conviction dementia to establish independent grounds for a valid 8th Amendment challenge. The court concluded:
Again, at this very late date, the question of whether the death penalty can be imposed against a person such as Clayton with physical brain damage—a hole in his frontal lobe—associated with progressive deterioration over time, has not been litigated here, and it may be too late. In the time available, the Court cannot conclude under the deferential AEDPA standard that the Missouri Supreme Court's decision should be disturbed.
For more on the litigation history of Clayton's mental impairment(s), see Clayton v. Al Luebbers, 2015 WL 1208786 (W.D. Mo., May 17, 2015).
Friday, May 15, 2015
On May 12, the U.S. Department of Justice announced resolution of a disabilities discrimination complaint initiated by residents of a Continuing Care Retirement Community (CCRC) in Virginia.
The resolution includes filing of a complaint and consent order that resolves allegations that Fort Norfolk Retirement Community Inc. (Fort Norfolk) violated the Fair Housing Act by instituting policies that discriminated against residents with disabilities at Harbor’s Edge, a CCRC in Norfolk, Virginia:
The consent order, which still needs to be approved by the court . . . along with a complaint, in the U.S. District Court of the Eastern District of Virginia. The complaint alleges that beginning in May 2011, Fort Norfolk instituted a series of policies that prohibited, and then limited, residents in the assisted living, nursing and memory support units at Harbor’s Edge from dining in dining rooms or attending community events with independent living residents. The complaint also alleges that when residents and family members complained about these policies, Fort Norfolk retaliated against them. In addition, the complaint alleges that Fort Norfolk had polices that discriminated against residents who used motorized wheelchairs by requiring those residents to pay a non-refundable fee, obtain liability insurance and obtain Fort Norfolk’s permission.
Under the consent order, Fort Norfolk will pay $350,000 into a settlement fund to compensate residents and family members who were harmed by these policies. Fort Norfolk will also pay a $40,000 civil penalty to the United States. In addition, Fort Norfolk will appoint a Fair Housing Act compliance officer and will implement a new dining and events policy, a new reasonable accommodation policy and a new motorized wheelchair policy.
There is a history of similar issues arising in other CCRCs. For example, in 2008, in California, CCRC resident Lillian Hyatt initiated, and eventually resolved to her satisfaction, a discrimination claim based on a ban on "walkers" in the dining rooms of her community.
As the average age of residents in CCRCs has increased in recent years, the "appearance" issues are sometimes raised as a marketing or image concern, contrasting sharply with the expectations of individual residents as they age and seek continued access to the full range of services in their community.
Our thanks to Karen Miller, Esq., of Florida, for bringing the recent Virginia case to our attention.
Tuesday, May 12, 2015
We've written on this blog several times about successful prosecutions connected to so-called "off label" drug use, including the use of antipsychotics for agitation in dementia patients. See here and here, for example. Now, courtesy of a New York Times article, there is news of a pharmaceutical company's lawsuit to preempt such prosecutions, raising First Amendment free speech rights as grounds for off-label advocacy:
On Thursday, Amarin Pharma took the unusual step of suing the Food and Drug Administration, arguing that it has a constitutional right to share certain information about its product with doctors, even though the agency did not permit the company to do so. Lawyers for the company said that they believed their case was the first time a manufacturer had pre-emptively sued the agency over the free-speech issue, before it had been accused of any wrongdoing. Other companies have sued the agency only after they have gotten into trouble....
Lawyers for Amarin say the company is not proposing to market Vascepa to a wider population of patients, merely to share with doctors the results of a 2011 company-sponsored clinical trial that showed the drug lowered triglycerides in patients with “persistently high” levels....
More details about the suit available here.
Tuesday, April 28, 2015
According to the Atlanta Journal-Constitution, the "long-time head of [Georgia's] powerful nursing home lobby has resigned after months of internal differences." The resignation appears to be about more than just internal politics, perhaps implicating state ethics. AJC explains:
"The resignation of Jon Howell, first reported by Georgia Health News, came only a few months after he told lawmakers that the industry didn’t need all of the money Gov. Nathan Deal recommended as part of a rate hike for select nursing homes. Several of those nursing homes are owned by one of Deal’s top contributors. But one state official said the 'civil war' within the organization began before this year’s General Assembly session.
The nursing home association is a major player at the statehouse, and owners have a big stake in what happens at the Capitol. The state pays more than $1 billion a year to nursing homes to care for Georgians. Owners have long been politically active, donating big money to state leaders and lawmakers who fund reimbursements. Earlier this year, Deal recommended that select nursing homes get a $27 million a year rate increase, a bump stalled by the Department of Community Health board last year...."
Separate articles in the AJC indicate that federal CMS authorities are now seeking millions of dollars of reimbursement for Medicaid payments made to 34 specific nursing facilities, although whether this claim correlates with the governor's recommended rate increase is not clear from the articles. State officials are reported as disagreeing with the federal CMS ruling that triggers the reimbursement claim.
Recent rate increases recommended by the Georgia governor were rejected by Georgia's General Assembly. Additional coverage on the Georgia nursing home industry's organization is provided by McKnight's Long-Term Care News.
I suspect the Georgia stories are part of a bigger picture. Compare, for example, Al Jazeera's America Tonight report from April 2014 on The Whopping Political Power of the Florida Nursing Home Lobby, describing the nursing homes advocating for placement of children into facility-based care.
Monday, April 20, 2015
Whenever I look at national programs on "hot topics" in healthcare law, I'm seriously impressed by the number of offerings on regulatory compliance issues connected to Medicare and Medicaid payments. There are abundant reasons for this emphasis. Each year the Department of Justice touts its statistics on "recoveries" for False Claim Act cases. For the fiscal year ending September 30, 2014, the DOJ enthusiastically reported its "first annual recovery to exceed $5 billion" in a single year. No wonder health care law is a hot field. And remember, much of the money is connected to senior care in all of its guises.
A recent $1.3 million settlement on a Medicare-related False Claims Act case might seem like small potatoes at first glance. But, I was struck by the fact that it was a DOJ settlement with a (non-profit) Continuing Care Retirement Community. I don't usually think of CCRCs as being a major target of False Claim Act allegations. Details are a bit sparse, but the size of the payment seemed pretty hefty when you consider that Asbury Health Center near Pittsburgh, PA actually "self-disclosed" its violation of Medicare regulations. The DOJ press release on April 15 explains:
"For post-hospital skilled nursing care, Medicare regulations require that a facility obtain a physician certification at the time of admission or as soon thereafter as reasonable and practical. The facility must also obtain a physician recertification within 14 days of admission and every 30 days thereafter. Based on information provided by Asbury, the United States alleged that it had civil claims against Asbury resulting from Medicare payments for post-hospital skilled nursing services that were not supported by physician certifications and recertifications."
Friday, April 10, 2015
ElderLawGuy Jeff Marshall alerted us to this week's ruling by the Third Circuit Court of Appeals, affirming the conviction of Eugene Goldman, M.D. for several counts of taking "kickbacks" for referral of Medicare and Medicaid patients for hospice services. Dr. Goldman's sentence of 51 months, followed by three years of supervised release during which he is barred from practicing medicine, was affirmed. The facts, as set forth in the opinion, are interesting:
"Goldman had a geriatric medicine practice in Northeast Philadelphia. In December 2000, he secured the position of Medical Director of Home Care Hospice ('HCH'). Alex Pugman served as Director of HCH, and his wife, Svetlana Ganetsky, was the Development Executive, responsible for marketing HCH to doctors and other healthcare professionals. According to his contract, Goldman was responsible for quality assurance, consultations, and the occasional meeting. In reality, his job was to refer patients to HCH.
Goldman was paid for the number of patients he referred to HCH and the length of their stay. Early in his relationship with HCH, Goldman was paid $200 per referral. By 2011, he received $400 per referral, with an additional $150 for each patient who stayed longer than a month. Ganetsky paid Goldman each month by check. Between 2002 and 2012, Goldman referred more than 400 Medicare patients to HCH and received approximately $310,000 in return.
In 2006 the FBI and Department of Health & Human Services began investigating HCH for Medicare fraud. The FBI followed up in 2008 by obtaining a search warrant and seizing over 500 boxes of documents and information from HCH’s servers. Shortly after the raid, Ganetsky and Pugman approached the FBI and agreed to cooperate in the investigation. Ganetsky then recorded several meetings at which she paid Goldman for his referrals. Ganetsky made these payments with funds drawn from an account opened by the FBI for the investigation."
Tuesday, April 7, 2015
St. Louis University's Journal of Health Law and Policy has recently released a theme issue, focused on "Health Care Reform, Transition and Transformation in Long-Term Care." A great line-up of articles and authors, including:
- Home & Community-Based Long-Term Services and Supports: Health Reform's Most Enduring Legacy? by Marshall B. Kapp
- Care Coordination for Dually Eligible Beneficiaries, by Katie M. Dean and David C. Grabowski
- The Challenge of Financing Long-Term Care, by Judy Feder
- Rationalizing Home and Community-Based Services Under Medicaid, by Laura D. Hermer
- The Broken Promise of OBRA '87: The Failure to Validate Survey Protocol, by Malcolm J. Harkins III
In addition, there are two relevant Notes written by SLU students:
- Short-Stay, Under Observation. or Inpatient Admission? How CMS' Two Midnight Rule Creates More Confusion and Concern, by Rachel A. Polzin
- Disclosure for Closure? Why the Self-Referral Disclosure Protecol Process Paired with the 60-Day Overpayment Rule Creates More Headaches than Solutions, by Peter J. Eggers
April 7, 2015 in Discrimination, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Social Security, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (1) | TrackBack (0)
Tuesday, March 31, 2015
In DeCambre v. Brookline Housing Authority, decided by a federal district court in Massachusetts on March 25, the issue was whether a disabled adult living in Section 8 housing becomes ineligible for the housing subsidy because of disbursements to her from a special needs trust, funded as the result of a personal injury settlement.
Although the court affirmed the Bureau of Hearings and Appeal ruling on her income and expenses, thus disqualifying her for public housing benefits, the court also called for clearer federal guidelines to permit better planning for needy beneficiaries:
"[This case demonstrates the serious problem that beneficiaries of irrevocable trusts face; in particular, those that seek to pour lump-sum settlement funds into irrevocable trusts. But until the rules and regulations are clarified, public housing authorities should provide clear guidance and instruction for potential tenants with regard to their financial planning and spending. A more thorough and thoughtful analysis is required by public housing authorities when determining Section 8 eligibility, until further guidance is provided by the HUD."
Tuesday, March 10, 2015
In Draper v. Colvin, petitioner sought judicial review of SSA's denial of her application for SSI benefits. Her claim was sympathetic, as "[e]ighteen-year-old Stephany Draper suffered a traumatic brain injury in a car accident in June 2006."
In an admittedly "hard line" ruling on March 3, the 8th Circuit rejected her argument that her parents' intent to establish a valid third-party-settled special needs trust, using proceeds from a settlement of a personal injury suit on her behalf, should permit her to claim SSI.
The ruling means that over $400,000 will be treated as "available resources," thus requiring spend down before she would be eligible for benefits. The court explained (minus citations):
Admittedly, some evidence in the record supports Draper's claim that her parents intended to act in their individual capacities. Draper's parents identified themselves individually as settlors and trustees, and the trust document explicitly states that it was established “pursuant to 42 U.S.C. § 1396p(d)(4)(A)," a provision which notes that a third party, such as a parent, must create the special needs trust for the benefit of the disabled person. Nevertheless, as discussed [earlier in the opinion], other facts provide substantial evidence to support the conclusion that Draper's parents acted using the power of attorney when establishing the trust.
The Court continued on to its tough bottom line:
March 10, 2015 in Cognitive Impairment, Estates and Trusts, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Property Management, Social Security, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Monday, March 9, 2015
On Sunday I had the interesting opportunity to be in the audience for the third performance of a new play, The Originalist, at Arena Stage in Washington D.C. Playwright John Strand has given Justice Antonin Scalia center stage and the spotlight for close to two hours, in a play filled with opera, literary references, plenty of legal humor, a few card games, and lots of verbal boxing between the justice and his young, liberal "contra" clerk.
The play makes deft use of Scalia's own words, drawn from opinions and public presentations, and actor Edward Gero wears the robes -- and wields Scalia's weapons -- with authority. Kerry Warren, holds her ground well, both as actress and antagonist in the role of the law clerk. The play concludes in the recent past, as Justice Scalia debates with the clerk the words he will announce from the bench for his dissent on the Defense of Marriage Act (DOMA) case, United States v. Windsor.
The play succeeds especially well in an important goal of the playwright, as identified in a lively post-production Q & A session with the audience. The play encourages serious discussion of what it means to "interpret" the Constitution. Through the voice of the clerk, it also asks whether there is any room for true solutions to emerge in the polarized world of left-right politics.
The Originalist also proved to be surprisingly relevant to themes in this Blog. Scalia is depicted as the aging lion in winter, given to occasional moments of introspection and an intriguing episode of pique (hint: what career aspiration may he have pondered?). At one point he is seen as attempting to justify his intransigence with the observation that he's growing old, a condition for which there is "no cure."
The play -- set in the intimate black box space of the Arlene and Robert Kogod Cradle -- is scheduled to run until April 26.