Tuesday, May 3, 2016
The New York Times ran a story on May 2, 2016 that South Dakota is under investigation by the federal government for improperly placing many residents with disabilities in nursing homes instead of providing care in the community. South Dakota Wrongly Puts Thousands in Nursing Homes, Government Says reports that "the Justice Department said ... that thousands of patients were being held unnecessarily in sterile, highly restrictive group homes. That is discrimination, it said, making South Dakota the latest target of a federal effort to protect the civil rights of people with disabilities and mental illnesses, outlined in a Supreme Court decision 17 years ago."
As the story notes, many individuals need the level of care provided by a nursing home, but others do not. "But for untold numbers of others — with mental illnesses, developmental disabilities or chronic diseases — the confines of a nursing home can be unnecessarily isolating. Yet when patients seek help paying for long-term care, states often steer them toward nursing homes, even though it may not be needed." The article discusses the Olmstead decision and the government's strategies in these cases to challenge the placement.
South Dakota responded that they have made progress but the federal government sees it as not enough, especially since this is not a recent situation. "In-home health aides can be less expensive than nursing homes because they do not provide unnecessary services. States, though, face a chicken-or-egg conundrum. Does money go to nursing homes because beds are often more readily available than in-home services? Or are there fewer in-home services because less Medicaid money is spent on them? And nursing homes have little financial incentive to encourage patients to seek in-home care...."
This article can be a great starting point for an interesting discussion with students.
Friday, April 29, 2016
It seems nursing home operators are calling upon some of the same "trade practice" laws they are sometimes accused of violating, in an effort to thwart what the operators see as misleading advertising by personal injury attorneys.
One of the latest suits has reached the Georgia Supreme court, where the Mississippi-based law firm of McHugh Fuller Group is seeking to overturn a lower court's injunction preventing it from running a statewide ad campaign, including full-page color ads, seeking potential clients who "suspect that a loved one was NEGLECTED or ABUSED" by a nursing home run by PruittHealth, Inc. From an April 27, 2016 Georgia Courts' summary of parties' arguments before the high court:
PruittHealth sued the law firm under the Georgia Deceptive Trade Practices Act, which authorizes a court to issue an injunction (a court order requiring a certain action be halted) against anyone who uses someone’s trade name without permission if there is even a “likelihood” that the use will injure the business reputation of the owner or dilute its trade name or mark. The trial court entered a temporary restraining order against the law group, scheduled a hearing and notified the parties that it intended to consider PruittHealth’s request for a permanent injunction. The trial court issued another order on June 1, 2015, permanently stopping the law group from running ads that used PruittHealth’s trade names, service marks, or other trade styles. The law group filed a motion for reconsideration, which the trial court denied. The law firm is now appealing to the Georgia Supreme Court....
The law group argues, among other things, that the court erred in determining the ads violated Georgia Code section 10-1-451(b), which is called Georgia’s “antidilution statute.” That statute says dilution occurs “where the use of the trademark by the subsequent user will lessen the uniqueness of the prior user’s mark with the possible future result that a strong mark may become a weak mark.” The law firm argues that it is not eroding the strength of PruittHealth’s mark, but is only identifying specific nursing homes against which it is accepting cases, and that PruittHealth failed to demonstrate that actual injury occurred as a result of the ads.
This isn't the first time that the McHugh Fuller Law Group has been on the receiving end of a lawsuit by a nursing home company. In February 2015, Heartland of Portsmouth in Ohio and McHugh Fuller Law Group were in federal court arguing about diversity jurisdiction over Heartland's claim the law firm was using "false and misleading advertising in order to encourage tort litigation" against the nursing home's operations in Ohio. Similar litigation, seeking injunctive relief, was underway by Genesis Healthcare Corporation against the McHugh Fuller firm in West Virginia in 2007, although it is unclear from my research whether either of those cases reached a final resolutions.
My thanks to Professor Laurel Terry, Dickinson Law, for pointing me to this ABA Journal post that encouraged my search for more about these cases.
Monday, April 25, 2016
Last week 12 lawyers who are deaf or hard of hearing were sworn into the Supreme Court Bar. That in and of itself is very special. It was made more so by the actions of Chief Justice Roberts. Chief Justice Roberts learned some sign language for the occasion; "[a]fter they were presented to the court for admission, Roberts signed in American Sign Language: 'Your motion is granted.'” Well done Chief Justice.
Friday, April 15, 2016
Lately, I've been hearing and seeing the phrase "living wills" in mainstream news sources such as the New York Times, but at first the context was confusing to me because the media were speaking and writing about Big Banks, not humans. So, how did it come about that following the 2008 financial crisis, regulators started requiring large financial institutions to have "living wills?"
The Wall Street Journal explains in What You Need to Know About Living Wills [in the context of Big Banks]:
A living will is a document from a financial firm that describes how it would go through bankruptcy without causing a broader economic panic or needing a bailout from taxpayers. The largest U.S. banks have filed several versions of them since the 2010 Dodd-Frank law, which required living wills from financial firms that were judged to pose a potential risk to the broader economy. The documents are also known as resolution plans. “Resolution” is regulatory parlance for dealing with a failing financial firm. Living wills are separate from other regulatory requirements, such as annual “stress tests” that measure whether could banks survive a severe recession.
I've not yet determined who first came up with "living wills" to describe what Dodd-Frank, at 12 U.S.C. Section 5361(d), refers to as "resolution plans." Without accurate, full disclosure, addressing all aspects of the financial institution's operations, such plans -- by any name -- seem unlikely to achieve the goal of greater market stability. As another WSJ writer points out, the utility of Big Banks' living wills comes if not just regulators, but the Bank executives, are paying attention:
The point of the living wills, like the stress tests, is to sit banks down and make them comb through their businesses in excruciating detail, with a focus on grim aspects like liquidity crunches and operational risks in bankruptcy. A useful result of the living wills is that, if they're done correctly, they give regulators a good overall picture of how a bank works, how money flows between its parts, what its pressure points are, and how it responds to crisis. But a much more important result is that, if they're done correctly, they give bankers themselves that same overall picture: They force a bank's executives and directors to understand the workings of the bank in a detailed and comprehensive way. And if they're done incorrectly, that's useful too: They let the regulators and bankers know what they don't know.
The full article on this point is titled, with nice irony, Living Wills Make Banks Think About Death. There, a least, is one similarity in living wills for humans and banks.
Monday, April 11, 2016
I think it is safe to say that in recent years, juries have not been shy about awarding substantial damages in trials involving claims of negligent care, even -- or perhaps especially -- when the resident is very old. Lately, several of our Elder Law Prof Blog posts have focused on nursing home providers' efforts to avoid jury trials through the use of pre-dispute, binding arbitration clauses in admission agreements. See e.g. here and here. However, there's another way in which litigation of nursing home care claims have triggered collateral legal disputes, and this time it is for the judicial system itself.
In March 2016, former Arkansas state court judge Mike Maggio, age 54, was hit with a maximum prison sentence of 10 years, following his plea of guilty to federal charges for taking a bribe to reduce a verdict in a nursing home negligence case. Maggio was alleged to have reduced a jury verdict in a nursing home case from $5.2 million to $1 million, after the owner of the facility reportedly made multiple campaign contributions to "PACs that were to funnel the money to Maggio for a planned race" for the state's Court of Appeals.
In issuing the sentence, United State District Judge Brian Miller emphasized that while he had earlier rejected the prosecution's argument that any sentence should be guided by the multi-million dollar size of the remittitur, the maximum sentence was still warranted because "corruption in the judicial system especially erodes public trust in the system," noting "a judge is the system." Details of the investigation -- as well as on-going litigation -- are provided in the Arkansas Times' Arkansas Blog.
By comparison, in West Virginia, news media questioned a business transaction and contributions to a judge's re-election campaign, asking whether they affected the decision of the State Supreme court justice when she wrote the lead opinion in an appellate decision that reduced a 2011 jury verdict in nursing home negligence case from $90.5 million to $36.6 million. The justice denied any improper influence or relationship with defense-side parties; following an investigation, the West Virginia Judicial Investigation Commission concluded the justice had no knowledge of the transactions in question, and it dismissed the ethics complaint in June 2015.
The potential for campaign contributions to influence judicial election campaigns has long been one source of criticism of elections for judges.
Friday, March 25, 2016
The 2012 decision of Health Care & Retirement Corp of Am. v. Pittas from Pennsylvania's Superior Court continues to intrigue law students in its application of a filial support law to compel children to pay the care expenses of their mother.
The latest example is a 2015 article by Hamline University School of Law student Katie Sisaket, who analyzes the topic from a Minnesota perspective in "We Wouldn't Be Here If It Weren't For Them: Encouraging Family Caregiving of Indigent Parents Through Filial Responsibility Laws." She concludes:
The advancement of technology has allowed people to live longer than before, but with more health problems. With the government’s programs not anticipating this growth in elder population, the lack of funds will limit an elder person access to the necessary basic care. Filial statutes compelling adult children to provide support to an indigent parent have been around for thousands of years. With proper drafting of a well-defined statute, a filial responsibility law will appeal to family caregivers and further its purpose of encouraging stronger family ties. Therefore, Minnesota should consider adopting its own filial responsibility laws to relieve elder persons with the worry of not being able to access the necessary medical and basic care required. Only by splitting the government’s burden by imposing some duty on adult children will this be possible.
In the meantime, a Pennsylvania-based bankruptcy court case we reported on earlier, In re Skinner, that concluded one brother lacks standing to challenge another brother's discharge in bankruptcy for liability to pay their mother's assisted living fees, was recently affirmed by the Third Circuit.
In the March 4 decision, the Third Circuit notes that Pennsylvania's filial "support law" does not provide a right of contribution or indemnification," and therefore the only relief is to compel the trial court to "apportion liability amongst the various children."
The Third Circuit further rejected arguments that the bankrupt son's alleged fraud, in failing to use the mother's resources to pay her debts, was not a claim the brother could make under the Uniform Fraudulent Transfer Act or under a theory of unjust enrichment. "Because William is not a creditor of Dorothy [the mother], the UFTA does not give him a valid claim. UFTA Section 5107(a). Thus, because William does not have a valid claim against Thomas, he lacks standing to challenge the dischargeability of Thomas' debts."
Tuesday, March 8, 2016
The Justice Department in the Southern District of Illinois issued a press release on March 3, 2016 announcing a perpetrator in the midst of trial changed his plea to guilty. Nigerian Scammer Convicted Of On-Line Romance Fraud notes that the perpetrator, the ringleader, pleaded guilty to all charges. He was arrested in London in 2014 and at trial, "'the evidence established that [the perpetrator], a citizen of the Federal Republic of Nigeria, was the ringleader of a criminal organization operating within South Africa that targeted and stole from hundreds of women across the United States, including dozens in the St. Louis metropolitan area." noted Acting United states Attorney Porter. "Our office will continue to pursue justice for these victims in [the perpetrator's] prison sentence and in our never-ending efforts to get restitution."'
Sentencing is set for early in the summer, and "[b]y statute, [the perpetrator] faces a maximum prison sentence of 127 years, a fine of $250,000 on each of the eight counts of the indictment, and as much as five years of supervised release. He will also be required to pay restitution to the victims of his crimes."
Tuesday, March 1, 2016
Previously I wrote about a story in Kaiser Health News about nursing home residents stuck in hospital "limbo" and the ensuing litigation. NPR also did a story about this. Nursing Home Evictions Strand The Disabled In Costly Hospitals was released on February 25 and features an audio of the story as well as the print version. Although the suit is filed in California, this is not a California-specific issue. As the story notes
This is not just a California issue. Nationwide, between 8,000 and 9,000 people complain to the government about nursing home evictions every year. It's the leading category of all nursing home complaints, according to the federal Administration for Community Living.
Robyn Grant thinks the problem is even larger than reported. Grant would know: She's the public policy director for the nonprofit National Consumer Voice for Quality Long-Term Care, so she hears about many nursing home evictions around the country like the ones in California.
Sunday, February 28, 2016
Kaiser Health News (KHN) ran a story titled The Agonizing Limbo Of Abandoned Nursing Home Residents. The story focuses on the refusal of some California nursing homes to readmit residents after a hospital stay. The story opens with a story of one resident who "had been living[in a nursing home] for four years... [and] the home refused to readmit him, even after being ordered to do so by the state. Nearly nine months later, [the resident] is still in the hospital." It seems that these residents are trapped in a sort of limbo.
Nursing home residents are entitled to hearings under federal law to determine whether they should be readmitted after hospitalization. The state Department of Health Care Services holds the administrative hearings, but has said it is not responsible for enforcing the rulings.
But the state Department of Public Health, which oversees nursing homes, neglects to enforce the rulings and sometimes disagrees with them, according to advocates and court documents.
That leaves residents .... [even those] who won ... [the] hearing .... with little recourse — and not many places to go. And since many nursing home residents have publicly-funded insurance, it means taxpayers are on the hook for hospital stays long after the patients are ready for discharge.
California Advocates for Nursing Home Reform (CANHR) in November, 2015 filed suit against California Health & Human Services on behalf of some of these residents with an upcoming hearing in March of 2016. The suit seeks "to require California to establish a hearing process that complies with federal law and to enforce the rulings." The defendant has filed a motion to dismiss.
Monday, February 1, 2016
Over the last 20 years, I've definitely noticed a change when, during a meeting with a new person, I'm asked "what do you teach?" For many years, I would get a blank stare or, perhaps, "what exactly is elder law?" Now, more frequently the response is "do you have time for a quick question?" (Unfortunately, quick questions rarely have quick answers, even when I begin "Let me suggest you see an experienced attorney in your area....")
I'm hearing more questions about home care workers. One frequent question is about overtime pay, and the type of employment definitely matters. The U.S. Department of Labor (DOL) website has helpful materials, and the site reports on the effect of recent litigation affecting home care workers.
Recently someone asked me if it was "safe" to assume they don't have to keep track of "overtime" hours, because the individual they have hired has irregular, mutually adjustable hours and is permitted to sleep when they stay overnight. Family members will tell me "we just want someone there in case something happens." That scenario is definitely affected by whether or not the employee's duties are correctly described as "companionship" services. There is a limited exemption from minimum wage and overtime pay requirement for "companionship" employees.
In late 2014, the DOL issued a detailed "Home Care Final Rule" that became effective only after litigation in the federal Court of Appeals rejected a challenge by third-party employers (home care agencies) to implementation. See Home Care Association of America v. Weil. Thus, as of January 1, 2016, the Department of Labor takes the position the Home Care Final Rule is now fully enforceable.
As the DOL explains, its Final Rule defines "companionship services" as the provision of "fellowship and protection." "Companionship services" may also include the provision of care if the care is attendant to and in conjunction with fellowship and protection services, so long as the "care" does not exceed 20 percent of the total hours worked per person and per workweek. Driving "usually" constitutes assistance with instrumental activities of daily living (IADLs) and if the employee is working for less than 24 hours per shift, any permitted sleep time must still be compensated. (State rules may also have tighter rules affecting payments.)
DOL provides this example:
Sue, a direct care worker employed solely by Ms. Jones, regularly works 35 hours per week in Ms. Jones' home. Sue primarily provides fellowship and protection to Ms. Jones. If she also spends no more than 7 hours per week (20% of her work time for Ms. Jones) providing assistance to Ms. Jones with ADLs and IADLs, she is providing care within the scope of the definition of companionship services, and Ms. Jones is not required to pay her minimum wage and overtime compensation.
For more, see FAQs about Home Care on the DOL website -- or, better yet, talk to an experienced attorney in your city!
Wednesday, January 20, 2016
Are you teaching an elder law this semester? If so, and your students are interested in sample papers to help them think about approach, scope, organization and how to provide support for their thesis statements, I've found this batch of articles helpful, even though they are now almost 10 years "old."
The nine short articles by law students (including two former students from my own law school) were published in a student journal following a competition sponsored by the National Academy of Elder Law Attorney (NAELA) and are nicely introduced by my Blogging collaborator, Becky Morgan. They demonstrate an array of topics and writing styles, and thus are useful to discuss in a writing and research class. I'm sorry that the NAELA competition is no longer available to students, as was a very nice way for students to get further mileage from their classroom research on elder law topics, and helped encourage them to revise and polish drafts!
January 20, 2016 in Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, International, Medicaid, Medicare, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, January 6, 2016
When researching laws that purport to serve the interests of a target population, such as the elderly, I look to see whether there is an effective enforcement mechanism attached to the law. Without enforcement, the laws may serve merely as "scarecrows" to deter bad guys (who presumably are reading the laws… right?) or, perhaps, as a means by which legislators can proudly wear their "white hats," to show they are the good guys. One possible example could be Colorado's civil penalties for violation of the state's consumer protection laws where the victim is "elderly." C.R.S.A. Section 6-1-112 provides that:
"Any person who violates or causes another to violate any provision of this article [on consumer protections], where such violation was committed against an elderly person, shall forfeit and pay to the general fund of the state a civil penalty of not more than ten thousand dollars for each such violation. For purposes of this paragraph (c), a violation of any provision of this article shall constitute a separate violation with respect to each elderly person involved."
In a recent pro se Colorado case, Donna v. Countrywide Mortgage, the federal district court dismissed all counts of the complaint filed by the borrower, including the count alleging a violation of “Colorado elder law,” concluding that such a private claim must fail because only the attorney general and district attorneys are authorized to seek civil penalties under that law.
Of course, there could be other sources of effective, private rights of action for elder abuse in Colorado law.
Thursday, December 17, 2015
Following the Third Circuit's ruling in the Zahner case in September 2015, Pennsylvania's Department of Human Services recently issued an Operations Memo providing guidance on how the state will evaluate the effect on Medicaid eligibility of so-called "non-qualified" annuities purchased during the look-back period. The Ops Memo #15-11--01, issued November 16, 2015, provides in part:
Prior to the Zahner decision, in order to be actuarially sound, an annuity had to have a payment term that was equal to the individual's life expectancy. If the annuity was either shorter or longer than the annuity owner's life expectancy found on the Life Expectancy Tables in LTC Handbook Chapter 440 Appendix D, then the purchase price of the annuity was used to determine an ineligibility period for payment of LTC [long term care] services.
Effective immediately, due to the Zahner decision, the definition of "actuarially sound" has changed. Annuities will now be considered actuarially sound if the annuity payment term is either short than, or equal to, the owner's life expectancy.
It will be interesting to see "what happens next" in the world of Medicaid planning. My thanks to Pennsylvania Elder Law attorney and all-round research guru Rob Clofine for sharing the link.
Thursday, December 10, 2015
Court Rules Charter School Founder "Incompetent to Stand Trial" on Fraud Because of Alzheimer's/Dementia
In an extraordinarily detailed consideration of expert reports and testimony, the United States District Court for the Eastern District of Pennsylvania ruled on November 23, 2015 that a high-profile criminal defendant, Dorothy June Brown, was unable to stand for retrial on fraud charges, following her diagnosis of dementia of an Alzheimer's type. See United States v. Brown, 2015 WL 748490 (E.D. Pa. 2016).
Ms. Brown, age 78 at the time of the ruling, was accused in 2013 of multiple counts of federal wire fraud, conspiracy to obstruct justice, obstruction of justice and witness tampering, arising from her role in founding and operating two charter schools, with the alleged fraud totaling more than $6 million from federal funding sources. The charges were big news, with coverage often depicting Brown, a "career educator," as blond and fashionably dressed, and noting that she was married to a prominent attorney.
Wednesday, October 14, 2015
The Department of Justice announced a $255,000 settlement vs. a CCRC. United States Obtains $255,000 Settlement of Disability Discrimination Lawsuit Against Continuing Care Retirement Community in Lincolnshire, Illinois explains a proposed settlement (the settlement has to be approved by the court). The press release explains that this settlement resolves "allegations that the owners and managers of a continuing care retirement community known as Sedgebrook violated the Fair Housing Act by instituting policies and maintaining practices that discriminated against residents with disabilities at the facility, which is located in Lincolnshire, Illinois..."
The complaint alleges that since 2011, Sedgebrook has instituted a series of policies that prohibited, and then limited, residents’ ability to dine in the communal dining rooms of the independent living wing of the facility if they required assistance eating due to a disability. Additionally, the complaint alleges that Sedgebrook maintained a policy prohibiting residents of the independent living wing from hiring live-in caregivers and refused to grant reasonable accommodations to that policy that would have allowed Sedgebrook residents with disabilities to use and enjoy their apartments.
As part of the settlement, the CCRC "will appoint a Fair Housing Act compliance officer and will implement a new dining and events policy, a new policy applicable to residents’ private employment of caregivers, and a new reasonable accommodation policy. Additionally ... the company that manages Sedgebrook and is a named defendant in the lawsuit, will take steps to implement similar policies at the over 100 independent living and continuing care retirement communities it owns or manages across the country."
The complaint and consent order are available for download here.
Monday, October 5, 2015
Sorry for the short notice, but on Tuesday, October 6, 2015 from noon to 1 p.m. (Eastern time), the Pennsylvania Bar Institute is hosting a very timely (and cleverly titled) webinar, focusing on the impact of the Third Circuit's recent decision in Zahner on Medicaid planning generally and specifically on the sue of annuities.
Here is a link to PBI's details on "The A to Zahner on Medicaid Annuities," including how to register.
Thursday, September 3, 2015
Third Circuit Rules Medicaid Applicants' Short-Term Annuities Are Not "Resources" Preventing Eligibility
In a long awaited decision on two consolidated cases analyzing coverage for nursing home care, the Third Circuit ruled that "short-term annuities" purchased by the applicants cannot be treated by the state as "available resources" that would delay or prevent Medicaid eligibility. The 2 to 1 decision by the court in Zahner v. Secretary Pennsylvania Department of Human Services was published September 2, 2015, reversing the decision (linked here) of the Western District of Pennsylvania in January 2014.
The opinion arises out of (1) an almost $85k annuity payable in equal monthly installments of $6,100 for 14 months, that would be used to pay Donna Claypoole's nursing home care "during the period of Medicaid ineligibility that resulted from her large gifts to family members"; and (2) a $53k annuity purchased by Connie Sanner, that would pay $4,499 per month for 12 months, again to cover an ineligibility period created by a large gift to her children.
The Pennsylvania Department of Human Services (DHS) argued that the transactions were "shams" intended "only to shield resources from the calculation of Medicaid eligibility." However, the majority of the Third Circuit analyzed the transactions under federal law's "four-part test for determining whether an annuity is included within the safe harbor and thus not counted as a resource," concluding:
Clearly, if Congress intended to limit the safe harbor to annuities lasing two or more years, it would have been the height of simplicity to say so. We will not judicially amend Transmittal 64 by adding that requirement to the requirements Congress established for safe harbor treatment. Therefore, Claypoole's and Sanner's 14-and 12-month contracts with ELCO are for a term of years as is required by Transmittal 64.
Further, on the issue of "actuarial soundness," the court ruled:
[W]e conclude that any attempt to fashion a rule that would create some minimum ratio between duration of annuity and life expectancy would constitute an improper judicial amendment of the applicable statutes and regulations. It would be an additional requirement to those that Congress has already prescribed and result in very practical difficulties that can best be addressed by policy choices made by elected representatives and their appointees.
The her short dissent, Judge Marjorie Rendell explained she would have affirmed the lower court's ruling in favor of DHS on the "grounds that the annuities ... were not purchased for an investment purpose, but, rather, were purchased in order to qualify for benefits." In addition, she accepted DHS' argument the annuities were not actuarially sound.
September 3, 2015 in Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Statutes/Regulations | Permalink | Comments (0)
Friday, August 28, 2015
Medicaid Eligibility: Ohio Supreme Court Addresses Effect of Post-Admission, Pre-Eligibility Transfer of Home
One year and six days after hearing oral argument in Estate of Atkinson v. Ohio Department of Job & Family Services, a divided Ohio Supreme Court ruled in favor of the State in a Medicaid eligibility case involving transfer of the community home. The majority, in a 4-3 vote, ruled that "federal and state Medicaid law do not permit unlimited transfers of assets from an institutional spouse to a community spouse after the CSRA (Community Spouse Resource Allowance) has been set." However, the court also remanded the case to the lower court for recalculation of the penalty period under narrow, specific provisions of state and federal law.
Attorneys representing families in "Medicaid planning" scenarios will be disappointed in the ruling, because it rejected "exempt asset" and "timing" arguments that would have permitted some greater sheltering of assets after the ill spouse's admission to the nursing home.
At the same time, the complex reasoning and specific facts (involving transfer of the family home out of the married couple's "revocable trust" to the community spouse), will likely create additional business for elder law specialists, especially as the majority distinguished the 2013 federal appellate court ruling in Hughes v. McCarthy, that permitted use of spousal transfers using "annuities."
The dissent was strongly worded:
It is clear that the law treats the marital home very carefully to prevent spousal impoverishment at the end of life. And that is the public policy we should be embracing. Based on the plain language of the federal statutes and the Ohio Administrative Code, as well as the holding of the United States Court of Appeals for the Sixth Circuit in Hughes v. McCarthy, 734 F.3d 473, I would hold that the transfer of the home between spouses prior to Medicaid eligibility being established is not an improper transfer and is not subject to the CSRA cap.
To view the oral argument of the case before the Ohio Supreme Court, see here.
Wednesday, August 26, 2015
Traditional estate practice attorneys are facing ever-increasing competition from commercial sites offering document preparation for set fees, usually through use of on-line templates for wills and similar estate planning documents. LegalZoom, Inc., the brainchild of attorneys, including Brian Lee and Robert Shapiro (of O.J. Simpson trial fame) and begun in 2001, is one of the biggest commercial document companies.
Traditional lawyers point out that they provide not just "documents" but core counseling and advice about the larger issues that may be involved in proper estate planning. Recently, however, I've noticed LegalZoom is also touting availability of "legal help" through its television commercials, with the tagline "Real Attorneys. Real Advice." Here's a link to one recent example.
The small print at the bottom of the page at the end includes full names and locations of the several attorneys who say "hi" during the television commercial, plus the following:
"This is an advertisement of a prepaid legal services plan, not for an individual attorney. This is not an attorney recommendation or legal advice. No comparative qualitative statements intended.... For the attorneys' full addresses, a list of non-appearing attorneys and more information, please visit legalzoom.com."
Earlier this year, LegalZoom filed an antitrust lawsuit against the North Carolina Bar, asserting that the organization was "unreasonable barring" the company from offering a prepaid legal services plan in its state. The suit cites the February 2015 decision by the U.S. Supreme Court in North Carolina State Board of Dental Examiners v. Federal Trade Commission. LegalZoom filed an amicus brief in that case outlining its theory that misuse of state bar regulatory authority to restrict access to legal advice harms consumers.
August 26, 2015 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Legal Practice/Practice Management, Property Management, State Statutes/Regulations | Permalink | Comments (0)
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)