Tuesday, April 8, 2014
Last September we noted the kick-off of the Stanford Center on Longevity's world-wide Design Challenge that encouraged teams to tackle the need for "solutions that help keep people with cognitive impairments independent as long as possible." In March, PBS News Hour had a nice piece on the partnership that launched the competition.
The latest news is that 7 teams are finalists from among 52 entries from 15 countries. The final phase of the competition will take place on April 10. As explained by Stanford's news release:
"They are coming to Stanford to make their final pitches for a $10,000 first prize and connections to industry leaders and investors. There will be talks by a number of distinguished speakers, a panel of Silicon Valley investors, and the announcement of next years’ challenge. Join us for what should be a great day of learning and networking."
Monday, April 7, 2014
Causation Proof Needed for Breach of Contract Claims Against "Responsible Parties" in Nursing Home Cases
We have another interesting appellate decision from Connecticut on the question of personal liability of an individual who signed an agreement as a "responsible party" when admitting his parent to a nursing home. The opinion is in Meadowbrook Center, Inc. v. Buchman, issued by the Connecticut Court of Appeals with a decision date of April 8, 2014.
The majority of the three judge panel concludes that the son who signed the agreement cannot be held liable, based on the evidence -- or rather lack of evidence -- in the record. Although the evidence establishes the son failed to provide all information requested by the state Medicaid department following his mother's application for Medicaid, and therefore breached duties he assumed as a "responsible party" under Section IV of the nursing home agreement, the majority concludes he cannot be held liable because there "is no evidence in the record...indicating that, had the defendant [son] complied with his obligations under the agreement, [the nursing home] would have received any Medicaid payments."
In other words, the nursing home proved breach, but not causation of damages, even though "the parties stipulated...that if the department granted Medicaid benefits to the defendant's mother, the department would have paid the facility $47,561.18." The ruling focuses on that "if," noting:
"The testimonial evidence submitted to the court demonstrated, on the one hand, that submitting the proper information to the department merely triggered a review of the resident's eligibility and, on the other hand, the submission of such information was not a guarantee of approval to receive such benefits.... [A]n eligibility services supervisor at the department...testified that the department could not determine whether an applicant qualified for Medicaid absent a review of the applicant's financial information, which was not furnished to the department in the present case. As the defendant notes in his appellate brief, the plaintiff did not ask Leveque 'if, based upon the defendant's testimony regarding the assets maintained by [his mother], he had an opinion regarding whether ... [she] would have qualified for [such] benefits.' In addition, the record before us does not indicate that the plaintiff was prevented from presenting the proper financial documentation, expert testimony, or other evidence that would have otherwise established the resident's likelihood of approval, nor has the plaintiff in this appeal directed our attention to any such evidence."
There is a complicated history to third-party liability issues in nursing home contracts, especially in Connecticut. As readers of our Blog may recall, last year the Connecticut Supreme Court declined to hold a signing family member liable for costs of the parent's care, where that individual did not have a Power of Attorney or other authority to apply for Medicaid. See "Nursing Home Contracts Revisited: The Nutmeg State Adds Spice," commenting on Aaron Manor, Inc. v. Irving, 57 A.3d 342 (Conn. 2013). Further, as we note in that post, Connecticut made significant changes to its Medicaid laws effective in October 2013, as a result of a series of nursing home cases involving third-parties. In certain circumstances, Connecticut now seeks to impose statutory liability on individuals who are either transferors or transferees, connected to the resident's ineligibility for Medicaid because of disqualifying transfers.
The Meadowbrook decision is also well worth reading for anyone interested in the related but separate concepts of contract law and promissory estoppel.
Further, in a separate concurring opinion, a third judge concludes that the nursing home agreement should not be construed as imposing liability unless the "responsible party" has been shown to have misappropriated the resident's resources, because without that personal fault, the responsible party agreement becomes a "guaranty," prohibited by federal Medicaid law. The majority, however, "strongly" rejects that analysis. We'll keep our eyes open to see if the Meadowbrook case goes to the Connecticut Supreme Court.
When I first began analyzing "responsible party" liability in nursing home contracts, I became convinced the contracts drafted by many facilities created a minefield of problems. In some instances, the providers seem to intentionally blur the lines of responsibility for third-parties. On the one hand, facilities "need" agents to sign for new residents who are often lacking capacity to contract. So the admissions office points to the "no personal liability" language in the agreement signed by the third-party. On the other hand, if something does go wrong with the Medicaid application, that same facility will often be quick to point out that it is the third-party signer's obligation to fix the problem, or face potential personal liability.
The nursing homes, of course, whether for profit 0r nonprofit, are not in the business of providing free care.
The last ten years of litigation have only increased the importance for individuals to understand the significance of nursing home agreements. Individuals may want legal advice from specialists in state Medicaid law before signing the agreement; further they may need to seek legal help again if there is any hiccup in the Medicaid application process. After the Meadowbrook case, I think it is safe to say care facilities will be better prepared to prove causation of damages.
Thursday, April 3, 2014
Here's an excerpt from a recent Blog posting at the Special Needs Alliance:
This is the first in a series of articles addressing scarce housing for people with disabilities.
The shortage in housing for individuals with disabilities has reached crisis proportions, with some special needs attorneys citing it as their clients’ number one issue.
“Pricing Out in 2012,” a joint study by CCD (Consortium for Citizens with Disabilities) and the Technical Assistance Collaborative (TAC), found that “as many as two million non-elderly people with disabilities reside in homeless shelters, public institutions, nursing homes, unsafe and overcrowded board and care homes, at home with aging parents or segregated group quarters-often due to lack of affordable housing in the community.”
The situation results from a perfect storm of demographic trends, failed promises and budget tradeoffs. Prior to the 1970s, most people with significant disabilities lived in public institutions or at home with family caregivers. The history of institutionalization predates the nation’s founding, with the 1773 establishment of the first Public Hospital for Persons of Insane and Disordered Mind in Williamsburg, Virginia.
Saturday, March 29, 2014
The Department of Labor recently posted a Final Rule that changes how the Fair Labor Standards Act is interpreted for domestic service. Of special interest is how the Rule impacts shared living programs under Medicaid.
The Department of Labor has also created guidance to assist stakeholders in determining whether an entity paying a direct care worker through a shared living arrangement is required to comply with the FLSA’s minimum wage and overtime requirements. The guidance also describes how certain FLSA principles apply to shared living arrangements.
These changes become effective January 1, 2015.
Friday, March 28, 2014
This semester I'm teaching Contracts, which always provides interesting opportunites to introduce "Elder Law" concerns in a traditional course.
This week I offered a not-so-hypothetical fact pattern, where Grandmother deeds house to Grandchild, in exchange for Grandchild's "promise to care for Grandma for the rest of her life." Whenever I use this hypo, I pick one of a number of reasons the agreement does not work out as planned, such as the individuals don't get along with each other, grandchild gets pregnant or ill, etc. This week's reason was "Grandma needs more specialized care" but cannot afford it because she's given away her primary resource. Grandchild doesn't want to sell the house, now that it is "hers," and she doesn't want to take out a mortgage.
I ask the students to brainstorm Grandmother's options. Almost always, someone suggests Medicaid, and we talk about whether Medicaid will provide adequate assistance and whether there are potential barriers to eligibility for public benefits, such as the five-year look back period.
Students sometimes suggest Grandmother is subject to "undue influence," which if proven would be grounds for potential rescission. Good job! Except that I am usually careful in my hypo not to make Grandchild overtly manipulative. And in truth, many of these arrangements begin more because of the desires of the aging individual, than because of any greed on the part of the younger person. We also explore "incapacity" and "duress" as possible grounds for rescission.
This week, students also suggested "failure of consideration" as grounds for rescission. There is an interesting line of cases, perhaps a hybrid of Property and Contract law, that treats "support deeds" as a specific analysis, potentially justifying relief. Examples include:
- Gilbert v. Rainey, 71 SW. 3d 66 (Ark. Ct. App. 2002), permitting mother to rescind deed for failure of consideration, and admitting mother's parol evidence to show daughter promised life care in exchange for the conveyance of the home, to show that conveyance was not a completed gift;
- Frasher v. Frasher, 249 S.E. 2d 513 (W.Va. 1978), granting cancellation of deed from grandparents to grandchildren, on the grounds that where discord arises between the parties to a "support deed" between an aged grantor and a younger family member, the property should be restored "if it can be done without injustice" to the younger family member.
After class was over, some of my students stopped by to chat, offering variations on the hypothetical, sometimes from examples within their own extended families. In both of the sample cases above, the court attaches special meaning to the concept of "support deeds" going from older to younger generation, but most of the cases along this line are fairly old. The fact that my students were offering modern variations on the fact pattern suggests there may be good reason to revisit this area of the law.
Perhaps any resurgence in this topic is another sign of our "aging" times. So, that leads to my question, does your state recognize failure of consideration, tied to "support deeds," as grounds for rescission of a conveyance?
Wednesday, March 26, 2014
Tough Question: Evidence Demonstrates Potential for Unsatisfactory Care in Nursing Homes, So Why Expect Better Care at Home?
Howard Gleckman at Forbes writes about the elephant in the room of home and community-based care. Will it really be better than the care in a nursing home?
Hat tip to ElderLawGuy Jeff Marshall for pointing the way to this thoughtful piece.
Perhaps more than most who teach Elder Law, I spend a fair amount of time on provider perspectives on long-term care, examining industry concerns. I've often been struck by a disconnect in communication between lawyers who represent providers and those who represent families and individuals. My impression is there are often important lessons to be learned from "the other side."
Along that line, here is a one minute video from Merit Senior Living, a company that offers administrative services such as management of human resources and payroll for staffing of various forms of senior living. Perhaps some of the lessons that can be learned here are unintentional?
Friday, March 21, 2014
Paula Span, writing for the New York Times' column, The New Old Age, offers several perspectives on the Vi of Palo Alto lawsuit filed by residents at this high-end, California continuing care retirement community (CCRC). In her firest piece, "CCRC Residents Ask, 'Where's the Money?'" she sets forth competing viewpoints of the parties:
Though their suit covers several matters, concern over eventual refunds is at heart of the battle. In their complaint, the plaintiffs call the transfer of money from the local provider to its Chicago parent company “upstreaming.”
Management calls it standard business practice. Entrance fee repayments come not from a reserve, but from the eventual resale of an apartment after a resident moves out or dies, said Paul Gordon, a lawyer for Vi. “Once I pay someone, I can’t tell them what to do with it afterwards,” he said. “It’s their money.”
“The payments are going to be made,” Mr. Gordon said. “The rest is eligible for distribution as a return on investment” — i.e., as profit.
That’s a different arrangement from what residents believe they signed up for. Because the Chicago company has not assumed the debt owed for eventual refunds, residents “lost all the security and peace of mind they had paid for,” Mr. McCarthy [the attorney for Vi plaintiffs] said.
In her second article released the next day, Ms. Span takes a broader view than the single lawsuit involving Vi of Palo Alto, noting that "In Many States, Few Legal Rights for CCRC Residents," citing some of my work with states where resident-inspired changes are under consideration, and noting the important work of the National Continuing Care Residents Association, also known as NaCCRA.
Sunday, March 16, 2014
Remember the first time you went to camp and your mother put labels on all of your clothes? At the other end of the timeline is the need to keep track of personal items, clothing and eye glasses in senior care facilities. One of the most common complaints in residential care is "missing" things ... like your dad's favorite red sweater.
Now there is new tool to help staff get items back in their proper place -- and the tool is useful whether the location is camp, college or a nursing home.
Check out identaMe labels -- waterproof, self-sticking, laundry-friendly and colorful. You can order pre-printed labels on-line, complete with your loved one's name and a "catchy" logo.
Saturday, March 15, 2014
To help prevent thousands of people with disabilities from experiencing homelessness or unnecessary institutionalization, the U.S. Department of Housing and Urban Development announced about $120 million in funding for state housing agencies to provide long-term rental assistance. Developed in partnership with HHS, applications for the Section 811 PRA are due May 5, 2014.
The program reinforces the guiding principles of the Americans with Disabilities Act and the landmark 1999 Supreme Court ruling in Olmstead v. L.C., which require state and local governments to provide services in the most integrated settings appropriate to meet the needs of individuals with disabilities. Read the News Release or Notice of Funding Availability for details.
Thursday, March 13, 2014
Via Disability Scoop:
Under a new bill proposed in the U.S. Senate, the amount of money that Supplemental Security Income recipients could save without losing access to their benefits would rise for the first time in over two decades. Currently, individuals who receive SSI can have no more than $2,000 in cash or liquid assets at any given time without forfeiting their eligibility for benefits. The legislation, introduced late last week, calls for that asset limit to increase to $10,000. The bill would also eliminate restrictions that currently disallow friends and family from providing financial, food and housing support to those receiving SSI and the measure would boost the amount of income beneficiaries could earn without losing out on benefits.
“SSI is a critical program that helps millions of our poorest and most vulnerable citizens keep their heads above water,” said U.S. Sen. Elizabeth Warren, D-Mass., who proposed the bill along with Sen. Sherrod Brown, D-Ohio. Warren said the legislation would “help strengthen SSI for families who rely on these essential benefits.” More than 8 million Americans — including many with disabilities — draw on SSI. Currently, the maximum federal benefit for an individual receiving SSI is $721 per month, though many states tack on additional funding for their residents meaning that actual payments can be somewhat higher. The last time the asset cap for SSI recipients was increased was in 1989, the senators said.
Read the legislation: Supplemental Security Income Restoration Act of 2014
Monday, March 10, 2014
National Study of Long-Term Care Providers Report
This report presents descriptive results from the first wave of the National Study of Long-Term Care Providers, (NSLTCP) which was conducted by CDC’s National Center for Health Statistics (NCHS). Data presented in this report are drawn from five sources: NCHS surveys of adult day services centers and residential care communities, and administrative records obtained from the Centers for Medicare & Medicaid Services on home health agencies, hospices, and nursing homes.
The report provides information on the supply, organizational characteristics, staffing, and services offered by providers of long-term care services; and the demographic, health, and functional composition of users of these services. Service users include residents of nursing homes and residential care communities, patients of home health agencies and hospices, and participants of adult day services centers. NSLTCP will be conducted every other year starting in 2012. Key
- In 2012, about 58,500 paid, regulated long-term care services providers served about 8 million people in the United States.
- Provider sectors differed in ownership, and average size and supply varied by region. Rates of use of long-term care services varied by sector and state.
- Users of long-term care services varied by sector in their demographic and health characteristics and functional status.
Friday, March 7, 2014
In MetLife Home Loans v. Vareen, decided in Kings County, New York on February 11, the mortgage company attempted to foreclose on a reverse mortgage, apparently because of unpaid water bills for the property. The case was "conferenced extensively with the defendant homeowner's family in the court's Foreclosure Settlement Conference Part," with no resolution of the dispute, but the homeowner did not file a formal answer in the lawsuit. Eventually the mortgage company sought an "ex parte" default ruling.
In denying the requested relief, the judge noted that the homeowner had a contractual obligation to stay current on all items which could become charges against the property. However, the mortgage company also had the contractual option to "make the payment for the mortgagor and charge the mortgagor's account. If a pattern of missed payments occurs, the [mortgage company] may establish procedures to pay the property charges from the mortgagor's funds as if the mortgagor elected to have the mortgagee pay the property charges under this section." It appears the homeowner was receiving monthly "reverse mortgage payments," rather than a single lump sum.
This history of the case is a reminder that reverse mortgages may not be the best solution for some older homeowners, especially if the cost to maintain the house is substantial, or if the elderly homeowner (or a volunteer in the family) is unable to handle payment of bills as they come due.
Here the court stepped in to prevent loss of the home, citing the lender's contract options. The court quoted the rosy language of a HUD-approved consumer guide, appearing to assure borrowers they can "continue to live at home as long as you want," and concluded:
"As such, plaintiff cannot foreclose on defendant's reverse mortgage because of her default in paying the NYC water bill. Furthermore, serving a senior citizen holding a reverse mortgage with a complaint that fails to specify what the default is can only be described as unconscionable."
Other court challenges to attempts to foreclose on reverse mortgages where there is a "surviving" spouse, but that individual is not an owner of record, are detailed here, with the potential class of plaintiffs represented by an AARP Foundation Litigation team. Thanks to ElderLawGuy Jeff Marshall for tweeting on AARP's efforts.
Tuesday, March 4, 2014
The official press release issued on February 20 confirmed big news in the senior care industry about the merger of Brookdale Senior Living, based in Tennessee, and Emeritus Senior Living, originally headquartered in Seattle. Here are some of the details, as reported in the Nashville Business Journal:
"The company's corporate headquarters will remain in Nashville, and members of Emeritus' senior management team are expected to stay on board at the combined company. The merger will expand Brookdale's unit capacity by two-thirds, pushing the company into 10 new states. In total, the combined company will have operating capacity of approximately 112,700 units in 1,161 communities in 46 states. Following the merger, a Brookdale community will be within 10 miles of 6.5 million seniors 80 years or older, according to the release."
Emeritus earlier attracted high-profile press when it became one of the subjects of a Frontline series on "Life and Death in Assisted Living," by Pro-Publica. According to the Nashville Business Journal, as reportedly confirmed after news of the merger, "federal investigators are investigating Emeritus' business dealings, including its Medicaid billing practices."
It would seem this merger will continue to generate news for some time to come, as suggested by this press release from securities lawyers Deans & Lyons.
Wednesday, February 26, 2014
Last week I blogged about tax questions facing some nonprofit senior living operations, especially nonprofit Continuing Care Retirement Communities (CCRCs). This week, we pass on news of a federal court suit filed by residents of a for-profit CCRC, challenging the company's accounting and allocation of fees, especially entrance fees, paid by the residents.
Residents of Vi of Palo Alto (formerly operating in Palo Alto as "Classic Residences by Hyatt") in California are challenging what could be described as "upstream" diversion of corporate assets to the parent company, CC-Palo Alto Inc. They contend the diversion includes money which should have been protected to fund local operations or to secure promised "refunds" of entrance fees. Further, the residents allege the diversion of money has triggered a higher tax burden on the local operation, a burden they allege has improperly increased the monthly maintenance fees also charged to residents. According to the February 10, 2014 complaint, Vi of Palo Alto is running a multi-million dollar deficit and the residents point to the existence of actuarial opinions that support their allegations. The complaint alleges breach of contract, common law theories of concealment, misrepresentation and breach of fiduciary duty, and statutory theories of misconduct, including alleged violation of California's Elder Abuse laws.
Representatives of the company deny the allegations, as reported in detail in Senior Housing News on February 23. A previous resident class action filed in state court against a Classic Residence of Hyatt CCRC, now called Vi of La Jolla, also in California, settled in 2008.
Tuesday, February 25, 2014
One of my frequent travel routes is to drive between Carlisle and Baltimore, in order to take direct flights from BWI to Phoenix, where my parents live. Usually these drives are in the middle of the night, as I try to avoid traffic by scheduling very early or late flights. One positive aspect of this travel is the time to discover interesting radio programs; there is something about listening to radio in the dark that allows one to hear more clearly. Last week, I lingered in the car after reaching the long-term airport parking, to listen to the end of an especially effective interview.
On Point with Tom Ashbrook, was hosting Kimberly Williams-Paisley who spoke movingly about her family as they coped with her mother's early onset of a form of dementia, diagnosed at age 61. For those of you who enjoy either movies or music, you might recognize Kimberly as an actress from Father of the Bride (she was the daughter driving Steve Martin to wit's end) and Nashville, or as the wife of country music star Brad Paisley. Also featured on the program was a clinical social worker, Darby Morhardt, who is an associate professor at the Cognitive Neurology and Alzheimer’s Disease Center at Northwestern University’s Feinberg School of Medicine.
The program was very thoughtful and emotional, but for me the most compelling words came from Kimberly's father, Gurney Williams.
This is a man deeply in love with his wife and also deeply affected by her condition. At first he tried to hide her diagnosis, but over time, this became more and more difficult. Mr. Williams describes how he finally came to terms with the need for help -- and the need for more than family help -- when his children staged a bit of an intervention. They asked him to recognize that his wife's condition, which in her case included confusion, mood swings, anger and -- at times -- violence, was more than they could cope with in the home. They were worried about their mother, but even more devastated by "losing" their father as he struggled to care for her. With the family's help, he finally made the difficult decision to place his wife in a formal care setting.
And it was during his description of the journey, that I heard the words I've also heard many times from friends, family, students and clients. "I promised my loved one I would never put her in one of those places." I have come to recognize this promise as completely well-intentioned, but also potentially dangerous for all involved.
Listening to Mr. Williams and Kimberly, you could tell formal care was the right decision and they were able to find the right kind of care facility for their loved one. And it was a decision that allowed all of them to find a new way to express their love and devotion to her, while also providing her with a supportive, safe environment. Kimberly talks about how she stopped talking about her mother in the past tense, rediscovered her and how they created a new, valuable relationship. Their story has a happy evolution, which, of course, is different than a happy ending.
One of the reasons I was so affected by listening to Mr. William's words, was that I was on my way to the airport to visit my father -- to see him for the first time -- after his transfer to a dementia-care community. All of my fears and hopes were bound up in my listening. On arriving in the airport I went directly to a shop and bought a copy of the March issue of Redbook Magazine, which carried the story by Kimberly Williams-Paisley that led to the invitation for her and her father to be guests on the On Point program. I read and re-read "How I Faced My Mother's Dementia" on the plane -- and shared her words with my mother when I arrived.
I suspect I might write more about my own evolution with my father. Right now it is easier for me to recommend the article, and to say the podcast of the On Point show is even better than the article.
Monday, February 24, 2014
"New construction is picking up in some markets after the near standstill caused by the recession, although developers seem more favorable to building needs-driven models of seniors housing—assisted living and memory care facilities—rather than independent living communities. Yet, there's also an interest in niche development—university partnerships, for example."
On a seemingly related note, Erickison Living announced earlier this month the start of construction of "Lantern Hill," a new CCRC community in Union County, New Jersey. The plan is to open in the second half of 2015, which would appear to be one of Erickson's first new starts since it emerged from bankruptcy court in 2010 with new owners.
The Levin Associates webinar is set for March 13 at 1 p.m. ET, with developers and architects, brokers and financers scheduled to speak, including individuals from Greystone, Perkins Eastman, and CBRE, Inc.
Friday, February 21, 2014
As introduced in an earlier post, Continuing Care Retirement Communities (CCRCs, also sometimes operating as Life Care Communities or LCCs) are frequently organized and operated as 501(c)(3) entities, exempt from federal income taxes. However, in several states, authorities have opposed exemption from state or local taxes, especially real estate taxes. The campuses of high-end CCRCs can be tempting targets for revenue-hungry local governing units.
Pennsylvania has been a hotbed of such challenges, with the latest ruling issued in Albright Care Services v. Union County Board of Assessment, decided by the Commonwealth Court, an intermediate court of appeals, on January 29, 2014. In Pennsylvania, the question of exemptions from real estate taxes depends on at least two sets of criteria, including (A) proof of operation as an "Institution of Purely Public Charity" or IPPC, and (B) "parcel reviews," to determine whether individual components of property are "actually and regularly used for the identified charitable purposes."
The irony is an operation can be sufficiently "charitable" in nature to qualify for exemption from federal income taxes (and thus usually state income taxes) but not so "charitable" as to qualify for state exemptions that demand more rigorous proof of allegiance to mission.
In Albright, the Commonwealth Court affirmed findings that the company, operating two CCRCs, qualified as an IPPC, thus distinguishing recent rulings that denied real estate exemptions for two other nonprofit continuing care operations, Dunwood Village (2012) and Menno Haven (2007). The Court credited testimony by Albright's accountant on the question of whether the company donated a substantial portion of its services to residents, rejecting the county's argument the CCRCs were reaping a Medicaid "windfall."
The Court also affirmed the finding that several of Albright's real estate parcels was used to support the charitable mission. It called the independent living facilities a "closer question," but ultimately concluded such units were operated as part of a "comprehensive care scheme" that advanced a unified charitable purpose, citing a 2007 Pennsylvania Supreme Court decision in Alliance Home of Carlisle v. Board of Assessment Appeals. It remanded for further findings on whether parcels containing a museum and flood plain properties were used to advance the CCRC's charitable purpose.
The Albright decision was released as an "unreported panel decision" that may be "cited for its persuasive value, but not as binding precedent." The Albright decision on CCRCs follows a series of Pennsylvania cases arguing state constitutional implications of exemptions for real property, affecting everything from summer camps to hospitals and universities, including the 4-3 ruling by the Pennsylvania Supreme Court in Mesivtah Eitz Chaim of Bobov v. Pike County Board of Assessments (2012). In some counties, nonprofits may feel under pressure to enter into "PILOTS," or negotiated agreements for "Payments in Lieu of Taxes," to avoid litigation over exemptions.
Thursday, February 13, 2014
The National Senior Citizens Law Center, with offices in California and D.C., has used its close observation of laws regulating "assisted living" across the U.S., to call for stronger rules in California, on the ground that "California lags far behind" in adopting moderns standards for quality of service and care.
NSCLC's latest report, "Best Practices in Assisted Living: Considering Potential Reforms for California, coauthored by Eric Carlson and Gwen Orlowski, is available on their website, along with the latest news on hearings before California legislative bodies on assisted living regulatory issues.
Sunday, February 9, 2014
Recently an individual contacted me with a fact pattern to present on our Blog, a variation on what we've written about in the past. Here are the basics. I've assigned some gender roles to make the fact pattern easier to follow:
The daughter of an older parent wants to know whether she has a legal "duty" to interfere with her brother's role in the life of their parent, where it appears the brother is failing to either apply for Medicaid or otherwise pay the parent's rehabilitation facility. The parent is not unhappy with the son's actions (or rather, inaction), and in fact declined to give power of attorney to the daughter, even when told of a likely "eviction" for nonpayment of the bill. The parent has mostly recovered from the medical crisis that triggered the need for care -- and just wants to go home. Parent has made it clear to daughter that her help is "unnecessary."
The complication is the size of the unpaid bill, more than $100,000. Apparently the care facility, approved to receive Medicare and Medicaid, is now demanding that the daughter pay the bill. Apparently no one applied for Medicaid and it is unclear whether Medicare ever paid. Daughter doesn't know much about her parent's income, but assumes it is limited and probably the only asset is a house, where the widowed parent lives when not in a hospital or in a care facility, and where the brother also resides.
The rehab facility is in Pennsylvania, home to "filial support" laws that have been enforced against adult children, with or without evidence of fault on the part of the child who is sued. Under Pennsylvania's law, those with statutory standing to pursue a support claim include a "person" who has provided care or maintenance, and that has been interpreted to include residential care facilities. We've discussed tough filial support decisions before on this Blog, including Health Care & Retirement Corp. of America, v. Pittas, (Pa. Super. Ct. 2012).
Thus, a lawyer is probably going to have to break the bad news to the daughter that the facility arguably has a potentially viable claim under 23 Pa.C.S.A. Section 4603. Daughter would appear to have some equitable defenses, including laches, but nothing that is expressly provided in the Pennsylvania statute. But who can afford to defend such a case? The facility appears to be using the child's potential liability under filial support laws to insist the daughter take action, either to obtain a guardianship or other order that would permit her (force her?) to apply for Medicaid -- and the threat may work. The longer she waits, the tougher it will be to get sufficient retroactive coverage. But in this instance, it is not clear whether the parent's capacity is impaired, or whether the parent is simply following a long pattern, even if unwise, of preferring one child's "help" over the other.
The moral question of "Am I my brother's keeper," becomes a Family Keeper's Dilemma, when you add in the third part of the triangle, a parent in need of care or protection, against their will. And the moral question becomes a legal liability question, when a filial support law that permits third-party suits is involved.
For another Family Keeper's Dilemma, see the Washington Court of Appeals' January 14 decision, "published in part," in the case of In re Knight, addressing the level of proof required for one son to obtain a Vulnerable Adult Protection Order, to prevent his brother, with a mental health history and a criminal record, from continuing to live with or near their 83-year-old mother. The mother opposed the protection order.