Friday, March 20, 2015
Have you seen the number of articles that have been released about ABLE accounts? Here's a chance to learn more: the ABLE National Resource Center has announced a free webinar on ABLE on March 26 from 2-3:30 edt. This is a collaboration between ARC, National Disability Institute, Autism Speaks, National Down Syndrome Society, and the College Plan Savings Network. According to the website, Understanding ABLE will cover the facets of ABLE, implementation updates and time for Q&A. To register, click here.
Monday, March 16, 2015
Proposal to Increase Anti-Impoverishment Protections for Community Spouses Introduced in Connecticut
One of the declared purposes of modern federal law setting threshold standards for eligibility for Medicaid for long-term care is "protection of the community spouse" from impoverishment. At least that's a declared objective of amendments to federal law, passed by Congress in 1988. As one of Dickinson Law's Elder Protection Clinic clients once observed, "slower" impoverishment isn't the same as protection. States have choices to make within federal guidelines about minimum and maximum sums, about how much money community spouses can keep when their loved ones apply for Medicaid for long-term care.
In Connecticut, there is new legislation proposed, aimed at increasing the level of protection of community spouses in that state. As described in a recent article from the Hartford Courant:
Allowing the spouse of a person in a nursing home to keep enough money to live on independently is, in many ways, a moral issue. But in a tight budget year in Connecticut, it's a fiscal issue.
A proposal that would increase the minimum assets that a spouse living in the community can keep - from $23,844 to $50,000 – in order for his or her partner to be eligible for Medicaid nursing home care is being backed by elder advocates, who say the increase would help seniors, especially women, remain able to live independently. But the move is being opposed by the Department of Social Services on the grounds it will shift millions in costs to the state-funded Medicaid program.
The proposal would affect couples with combined assets of between $23,844 and $100,000....
It will be interesting to see whether this bill has traction, and whether other states are also willing to step up to the financial plate.
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)
Thursday, March 5, 2015
Neither short nor sweet? Here is a link to the written Transcript of the oral argument before the United States Supreme Court on March 4, 2015 in King v. Burwell.
Friday, February 27, 2015
Texas attorney Renée C. Lovelace has literally written the book -- a guidebook -- on Pooled Trust Options. Renée was a recent guest speaker at Penn State's Dickinson Law, appearing before students in an advanced seminar on planning techniques. Indeed, our students had specifically asked to hear from experienced practitioners on special needs trusts, and with the help of the National Elder Law Foundation we were able to host a nationally known speaker to do just that.
Renée (third from the left, in blue) helped our students identify appropriate uses of pooled trusts, such as where the beneficiary's needs could be uniquely well-served by a trustee who is familiar with the challenges sometimes encountered in managing assets on behalf of persons with disabilities.
While the special needs beneficiary may be frustrated by a manager's handling of "his" (or "her") money, sometimes it is the family that has questions about application of the law. Recently I was reading a New Jersey case decision, where a family was challenging the state's attempt to seek reimbursement for medical and care expenses expended by the state, following the death of their disabled daughter. At the core of the dispute was what appeared to be a misunderstanding on the part of the family about the nature of their daughter's special needs trust, which they were describing as a pooled trust. The court pointed out, that in the absence of a nonprofit manager, the trust could not be deemed a (d)(4)(C) trust or "pooled" trust, that would have allowed assets remaining after the death of the daughter to stay in the trust for the benefit of other disabled persons, rather than be subject to the state's reimbursement claim.
Thus, the case is a reminder that pooled trusts, properly created and managed are usually drafted as special needs trusts (SNTs). However, not all SNTs are pooled trusts. Or as Renée explains so well in her thorough guidebook:
Tuesday, February 24, 2015
The National Consumer Law Center (NCLC) is offering a free webinar on "Medical Debt: Overview of New IRS Regulations and Industry Best Practices" on March 4, 2015 from 2 to 3 p.m. Eastern Time.
The hosts describe the webinar as follows:
This webinar will present an overview of the IRS final regulations governing financial assistance and collection policies of nonprofit hospitals. The regulations require nonprofit hospitals to have written financial assistance policies; regulate debt collection by nonprofit hospitals and third party
agencies; and prohibit the imposition of "chargemaster" rates to patients eligible for financial assistance.
Find out how to use the regulations to help clients who owe medical debts to nonprofit hospitals and protect them from lawsuits, liens, and credit reporting damage. The webinar will also review the voluntary best practices on medical account resolution issued by the Healthcare Financial Management Association.
Here is the link for REGISTRATION. Thanks to the National Senior Citizens Law Center (soon to be "officially" Justice in Aging) for sharing news of this educational opportunity of clear relevance to older persons and their families.
Sunday, February 22, 2015
The first White House Conference on Aging Regional Forum was held on February 19, 2015 in Tampa Florida. The morning featured comments by the WHCOA Executive Director Nora Super and remarks by Cecilia Munoz, Assistant to the President and Director, Domestic Policy Council. Two panels followed, with comments by panelists on the 4 topics of emphasis for the 2015 WHCOA, healthy aging, long term services and supports, retirement security and elder justice. In the afternoon, participants were divided into working groups for those 4 topics, where they discussed priorities, obstacles, and actions. Representatives from each working group presented the group's topic recommendations in a closing panel presentation moderated by Kathy Greenlee, Administrator for the Administration on Community Living and the Assistant Secretary for Aging. In person attendance was invitation only, but the event was live webcast through HHS. The next regional forum is set for Phoenix, Arizona on March 31st. Visit the WHCOA forums website a day or so before the event to register for the live webcast.
February 22, 2015 in Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Medicaid, Programs/CLEs, Retirement, Social Security | Permalink | Comments (0) | TrackBack (0)
Thursday, February 19, 2015
As the long-predicted aging tsunami hits, are there enough doctors to meet the need? Not in Montana, as demonstrated by a two-part story from NBC News:
"There is no part of life in McCone County, Montana, where the community's age has not begun to show. Farmers have gone gray. There were some dozen funerals last winter. Each year makes more widows. Nearly 25 percent of McCone County's 1,700 residents are already over 60, a bellwether for changes that will soon roll across Montana. State projections show a quarter of Montanans will be seniors by 2030, twenty years before the same demographic shift hits the nation as a whole.
Montana policymakers have watched that shift coming toward them, knowing it brings more older, potentially sicker patients to a largely rural medical system in which providers and specialists are already scarce. Seniors here often travel an hour or more for 'emergency' care, and nursing home beds are dwindling, particularly in the sparsest areas.
In the face of these changes, Charlie Rehbein, head of the Montana Office on Aging, asks, 'How do we provide services to them?'"
Wednesday, February 18, 2015
A long-running investigation of a doctor in Illinois for Medicaid and Medicare fraud is coming to a close. Michael Reinstein, "who for decades treated patients in Chicago nursing homes and mental health wards," has pleaded guilty to a felony charge for taking kickbacks from a pharmaceutical company. As detailed by the Chicago Tribune, on February 13, Reinstein admitted prescribing, and thus generating public payment for, various forms of the drug clozapine, widely described as a "risky drug of last resort."
The 71-year old doctor has been the target of the state and federal prosecutors for months, and he's also agreed to pay (which is, of course, different than actually paying) more than $3.7 million in penalties. He may still be able to reduce his prison time from 4 years to 18 months, if he "continues to assist investigators."
The investigation traces as far back as 2009, as detailed by a Chicago-Tribune/ProPublica series that revealed he had prescribed more of the antipsychotic drug in question to patients in "Medicaid's Illinois program in 2007 than all doctors in the Medicaid programs of Texas, Florida and North Carolina combined." Further, the Tribune/ProPublica series pointed to autopsy and court records that showed that, "by 2009, at least three patients under Reinstein's care had died of clozapine intoxication." Reinstein's, and one assumes, the pharmaceutical company's, defense was that the drug could have appropriate, therapeutic effects for patients, beyond the limited "on-label" realm.
Assuming that the government ever sees a dime in repayment, from either the doctor or the drug company, my next question is what happens to that money? At a minimum, shouldn't there be review of the effect of the drugs on these patients, some of whom may have been administered the drug for years? We keep reading that the drugs are "risky," but shouldn't there be evidence of real harm -- or perhaps even benefit -- from the documented "off-label" use? Certainly, prosecutions for off-label drugs are understandable attempts to claw-back, or at least reduce, public expenditures. But isn't more at stake, including the search for relief or workable solutions for patients who are in distress?
In March 2014, for example, Teva Pharmaceutical Industries Ltd., the maker of generic clozapine, reportedly agreed to pay more than $27.6 million to settle state and federal allegations that it induced Reinstein to prescribe the drug. Recovering misspent dollars is important. But I also would like to see evidence of the harm alleged by the government -- or the benefit asserted by the defendants -- from the administration of the drugs. Isn't objective study of the history of these real patients a very proper use of the penalties?
February 18, 2015 in Cognitive Impairment, Consumer Information, Crimes, Dementia/Alzheimer’s, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Cases | Permalink | Comments (0) | TrackBack (0)
Tuesday, February 10, 2015
As picked up by several news media sources, Pennsylvania's Office of Inspector General (OIG) released a statement on February 9, 2015 reporting that "from September 2014 through December 2014, [OIG] recovered more than $1.8 million in taxpayer funds from individuals who were ineligible to receive long term care benefits."
Further, OIG reported these actions resulting in "over $709,000 in cost savings for the same period. Cost savings represent future use of commonwealth funds that would have been expended for Long Term Care services on behalf of an ineligible individual."
The timing of this press release strikes me as interesting. I don't recall seeing a three-month report before, nor does the press release disclose any details about the number of "ineligible" individuals this report represents. The recent press release merely states:
"In some instances, individuals or their personal representatives fail to disclose to the commonwealth income and/or assets such as real estate, stocks, or pensions in order to qualify the individual for Medical Assistance benefits."
OIG makes an annual report on investigations and recoveries of all state funds, including long-term care. Pennsylvania's 2013-2014 Fiscal Year Annual OIG Report includes a statement that OIG "collected and cost avoided in excess of $9.9 million in long term care benefits." The conflating of recovery of "past" improper payments with "costs avoided" in the annual report makes it difficult to compare the more recent three-month report, covering the end of the calendar year, to determine whether it represents a significant change.
It is probably worth noting that the OIG head in 2014 was an appointee of outgoing Republican Governor Tom Corbett, while the new Pennsylvania Governor, with new appointments to make, is Democrat Tom Wolfe.
Wednesday, February 4, 2015
Part 2 of the provocative New America Media series on "Death of a Black Nursing Home," describes a pervasive, discriminatory impact by states in deciding how to use Medicaid funding for health and long-term care. In "Why Medicaid's Racism Drove Historically Black Nursing Home Bankrupt," Wallace Roberts writes:
"About 90 percent of Lemington’s residents were Medicaid recipients. The industry’s average, however, is 60 percent, so Lemington’s mission of providing care for low-income people from the area put it at a competitive disadvantage.
Lemington’s over-reliance on Medicaid was the principal reason its debt grew from a few hundred thousand dollars in 1984, to more than $10 million, including a $5.5 million mortgage on a new facility in 1984.
Pennsylvania’s Medicaid payments for nursing home reimbursement were too low to enable the home to hire enough trained staff. Lemington’s former human resources director, Kevin Jordan, noted that the home was “always scrambling to cover payroll” and spent lots of money on 'legal fees fighting the union.'”
The article details serious mistakes made by individuals in the operation of Leimington Home for the Aged, but also points to essential problems in Medicaid funding that doomed the facility to failure. The author calls for reforms, including a consistent, national approach to long-term care funding, to eliminate -- or at least reduce -- the potential for misallocation of money by states:
"Although the leadership of Lemington Home must bear the responsibility for those legal judgments and the fate of an important institution, the racist history imbedded in Medicaid’s rules for the past 80 years should share the brunt of the blame for bankruptcies at hundreds of long-term care homes largely serving black, latino and low-income elders.
One needed change would be to award nursing homes in African American, Hispanic and low-income neighborhoods serving large numbers of Medicaid recipients larger “disproportionate share payments.” Under the law, such homes receive additional reimbursements for serving a larger-than-usual proportion of very poverty-level residents. But the higher rate also doesn’t kick in unless a facilty has at least a 90 percent occupancy rate, which many homes like Lemington can’t easily reach. Rules relaxing that standard would bring badly needed revenue to vulnerable homes.
Congress could also require that all nursing homes accept a minimum number of Medicaid patients so as to spread the financial burden.
But to truly do the job, Medicaid should be federalized—taken out of the hands of state and local officials, many of whom use get-tough rhetoric in elections to stigmatize and punish often-deserving people...."
The full articles are interesting -- we will link to any future parts of this bold series.
February 4, 2015 in Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)
Tuesday, February 3, 2015
This Blog has followed the complicated recent history of bankrupt Lemington Home for the Aged, in Pittsburgh, with posts here and here. New America Media, a national association of over 3000 ethnic media organizations, has begun an important, multi-part series examining the "impoverished history of race" in long-term care for persons of color. The Lemington Home becomes a case study. The series is titled The Death of a Black Nursing Home.
"[W]hat happened to Lemington is not uncommon. Researchers at Brown University found that more than 600 other nursing homes in African American, Hispanic and low-income neighborhoods also went bankrupt during this period.
Their study examined the closings of more than 1,700 independent nursing homes between 1999-2009 and found that those located in largely ethnic and low-income communities were more likely to have been closed, mostly because of financial difficulties.
Specifically, nursing homes in the zip codes with the highest percentage of blacks and Latinos were more than one-third more likely to be closed, and the risk of closure in zip codes with the highest level of poverty was more than double that of those in zip codes with the lowest poverty rate."
Observing that "Medicaid homes can't compete" successfully, the article examines reimbursement rates under Medicare and Medicaid and the disproportionate effect of underfunding on minority communities.
"The principal authors of the study, Vincent Mor and Zhanlian Feng, both of Brown at the time (Feng is now at the Research Triangle Institute), noted 'closures were more likely to occur among facilities in states providing lower Medicaid nursing home reimbursement rates.' That left these homes without the resources they needed to compete successfully in an industry experiencing an oversupply of beds and intensified competition....
While Medicaid reimbursement rates vary by state, they are always below Medicare’s reimbursement levels or the fees charged to people who pay for their own care. The demise of Lemington and other nursing homes in minority and low-income neighborhoods is a direct result of this flawed payment scheme. However, large for-profit nursing home chains, some of which are owned by private equity companies and real estate investment trusts, can maximize profits by using expensive and aggressive marketing practices to cherry pick the wealthier residents in a given area while reducing the number of their own Medicaid clients.
Medicaid’s payment structure also has impacted the quality of care in nursing homes with predominantly minority residents."
We will link to the next parts of the series as they become available.
Saturday, January 31, 2015
It strikes me that a lot of my posts this week about long-term care have been "bad news," especially regarding nursing homes. It is a good time for me to share a much happier view from a daughter who first wrote to me about her fears as an adult daughter -- with health care concerns of her own -- living 3,000 miles away from her father, who at 90+ was in crisis and needed daily help, but was unable to afford it.
Her dad had a local person as an agent, a long-time friend's child who held "power of attorney." But that individual seemed overwhelmed. When the daughter wrote to me, I encouraged her to talk to her father, who still had capacity. Four months later, the daughter wrote back to give the results, including the very good news that her father was happier. She gave me permission to share details here:
"Since last September ... I was able to get my father completely on Medicaid and everything went through well with his application, etc. He got accepted the first time! I hear that can be rare. Additionally, my Dad met with his attorney and revised his POA, making me his agent and allowing me to do many things, even from afar.
Dad's very happy now and quite healthy (at age 91) in his new skilled nursing home environment in Pennsylvania. Even from 3,000 miles away, I am still very connected to him, as well as the wonderful staff at the nursing home. My Dad is now 3rd generation of his family to stay at that same nursing home. Additionally, he now has the company of his youngest sister, my Aunt, who has been at the home for the last 10 years. They are together and enjoying each other's company every day."
A short time later, the daughter wrote again:
"I have such peace of mind, and heart, knowing this is the right place for Dad, plus, he has so much more socialization now and is no long isolated and all alone in his apartment where he was before. (I no longer lay awake every night worried about him with knots in my stomach.) Plus, I forgot to mention the facility has a resident dog on site, a golden retriever named 'Magoo,' and, boy, does he brighten everyone's day."
This daughter's words are an important reminder that the "right" place, including the right nursing home, can make dramatic improvement in the lives of older persons, especially where frailty and isolation are the concerns. Thank you, Patti, for sharing your "happier" news.
Postscript: Patti allowed us to share a photo of her and her father, and the story of their relationship is written in their smiles.
Tuesday, January 27, 2015
Republican chairs of the House Committee on Energy and Commerce and the Senate Finance Committee recently wrote to the head of Center for Medicare and Medicaid Services (CMS), demanding explanation for why 22 states and D,C. are "failing" to implement federal laws about Medicaid eligibility and asset transfer rules for Long Term Services and Supports (LTSS) benefits. They write:
"We are troubled to learn that many states have not implemented all of the eligibility and asset transfer requirements enacted by OBRA and DRA. Information provided to us by the Department of Health and Human Services' Office of Inspector General (OIG) shows that, as of November 2013, only 28 states reported they implemented all of the relevant provisions from these two laws. Thus, although it has been over 20 years since enactment of OBRA and nearly 10 years since DRA, the remaining 22 states and the District of Columbia have yet to comply with federal law. California, which accounts for 12 percent of Medicaid LTSS spending, reported that it has not implemented the majority of the relevant provisions. As a result, federal Medicaid dollars may be paying for care for individuals who are not eligible for coverage under federal law, which puts a strain on resources for those individuals who are eligible and in need."
The Chairmen ask for answers to a list of questions (by February 27), focusing on what action CMS is taking or will take to bring states "into compliance." For example, they ask "How is CMS ensuring that federal Medicaid dollars are not being used to support coverage for individuals ineligible for LTSS under federal law?"
Here is the legislators' full letter, addressed to Marilyn Tavenner at CMS, dated January 23, 2015.
For another perspective on potential disparities among the states in administering Medicaid eligibility rules for LTSS, see AARP's Public Policy Institute Report on "Access to Long-Term Services and Supports: A 50-State Survey of Medicaid Financial Eligibility Standards" released in September 2010.
This letter presents an interesting juxtaposition with the Armstrong case now pending in the Supreme Court. On the one hand, federal and state governments are arguing in court that there is no private standing to challenge "underfunding" of federally mandated Medicaid programs; on the other hand Congress seems to be demanding that CMS stop any potential for overfunding Medicaid beneficiaries.
Monday, January 26, 2015
In a major investigative report, The New York Times describes findings that nursing homes in counties throughout the state of New York are agressively seeking appointment of non-family members as guardians for residents of their facilities. The trigger? Unpaid nursing home fees.
Reporter Nina Bernstein uses the history of 90-year old Lillian Palermo to illustrate the practice, where a nursing home initiated a guardianship proceeding to displace her husband's authority as agent under a Power of Attorney, when disputes with her husband left unpaid bills, alleged to be "approaching $68,000."
NYT and researchers at Hunter College teamed to analyze the use of guardianships as a bill collection tool by nursing homes:
"Few people are aware that a nursing home can take such a step. Guardianship cases are difficult to gain access to and poorly tracked by New York State courts; cases are often closed from public view for confidentiality. But the Palermo case is no aberration,. Interviews with veterans of the system and a review of guardianship court data conducted by researchers at Hunter College at the request of The New York Times show the practice has become routine, underscoring the growing power nursing homes wield over residents and families amid changes in the financing of long-term care.
In a random, anonymized sample of 700 guardianship cases filed in Manhattan over a decade, Hunter College researchers found more than 12 percent were brought by nursing homes. Some of these may have been prompted by family feuds, suspected embezzlement or just the absence of relatives to help secure Medicaid coverage. But lawyers and others versed in the guardianship process agree that nursing homes primarily use such petitions as a means of bill collection -- a purpose never intended by the Legislature when it enacted the guardianships statute in 1993."
While, according to the NYT, at least one court has ruled such a "tactic by nursing homes is an abuse of the law," the increase of such suits highlights the payment dilemmas faced by facilities and families as Medicaid eligibility rules narrow and as the margin tightens for coverage of costs of care.
New York is not alone in seeing guardianship cases initiated by nursing homes. In Pennsylvania, attorneys retained by families or individuals have also sometimes challenged the practice, focusing on the use of facility-preferred guardians and the amount of fees added to the care bills in dispute.
National Senior Citizens Law Center, an important advocate for low income seniors in the U.S. since its inception in 1972, has announced a new identity, "Justice in Aging." But, don't worry, this change represents a deepening of their long-standing commitment (including a cherished role in training and education of senior advocates, including free webinars). As explained in news releases:
"The new name and accompanying 'look' will more accurately reflect the nature of our work, build on our legacy of impact, and open the door to engage more supporters and partners across the country. And it is a LOT easier to say and remember!
Our new name will be Justice in Aging. Our new tagline will be Fighting Senior Poverty Through Law.... Our new website will be www.justiceinaging.org. We will begin using the new name on March 2, 2015.... While our name is changing, our work will remain the same. As income inequality increases across the nation and the population ages, senior poverty is growing to unprecedented levels.... We still serve serve as a resource for advocates on important programs like Medicare, Medicaid, LTSS, Social Security and SSI."
We wish the hardworking staff of NSCLC -- or now JiA, perhaps? -- all the best as they roll out their new identity, and in their continuing commitment to advocating for seniors across the nation.
Thursday, January 22, 2015
Can Private Parties Sue to Challenge Underfunding of Medicaid-Care? Supreme Court Hears Oral Argument
Oral argument on Armstrong v. Exceptional Child Care Center before the U.S. Supreme Court on January 20 highlighted important issues of private standing to challenge funding under state-federal Medicaid programs. "The case raises the issue of whether Medicaid providers can challenge a state law in federal court on the basis that it violates the federal Medicaid Act and therefore is preempted by the Supremacy Clause of the U.S. Constitution," as summarized and explored by the Kaiser Family Foundation.
Additional commentary on the oral arguments is provided on Volokh Conspiracy, via the Washington Post.
Tuesday, January 20, 2015
The National Senior Citizens Law Center (NSCLC) has sent out the latest news on pending (but delayed) implementation of new rules affecting payment of wages for many home care workers. Here is the helpful update from NSCLC:
"A U.S. federal district court has struck down new rules that would have applied Fair Labor Standards Act standards, like payment of minimum wage and overtime, to most Medicaid home care providers. Historically, many personal care providers and other in-home assistants have been exempted from federal labor laws under the 'companionship services' exemption.
The US Department of Labor is likely to appeal the decision to the D.C. appellate court, so a final decision on the validity of the expanded FLSA regulations will take some time. In the meantime, however, the new regulations, which were supposed to start on January 1, 2015, will not take effect. Unless a state chooses otherwise, home care providers’ wages and hours will stay the same. For more details about the court decisions or the rule, visit http://www.dol.gov/whd/homecare/ or contact Hannah Weinberger-Divack."
Sunday, January 18, 2015
Following extensive hearings and related proceedings, including revision of an earlier proposed advisory opinion by the Florida Bar's Standing Committee, the Florida Supreme Court issued a per curiam opinion on January 15, 2015, addressing certain Medicaid planning activities, concluding that when performed by nonlawyers, they constitute the "unlicensed practice of law" (UPL), thereby leading to potential sanctions.
The ruling focuses on actions by nonlawyers who assist with one or more of the following activities leading up to an application for Medicaid: (1) drafting of personal service contracts, (2) preparation and execution of Qualified Income Trusts; or (3) rendering legal advice on implementation of Florida law to obtain Medicaid benefits. The Court expressly distinguished the "preparation of the application for Medicaid benefits" as being outside of its opinion, pointing to federal law as authorizing nonlawyer assistance in the application process.
The Elder Law Section of the Florida Bar was the petitioner seeking the advisory ruling.
In the detailed conclusion, the "harm and potential harm" from "unregulated" nonlawyers selling trust packages was outlined:
Wednesday, December 31, 2014
On November 14, 2014, the Ohio Court of Appeals affirmed a lower court's decision in a deceptively simple contract dispute. The question was whether a son, who was his mother's agent under a power of attorney, could be held personally liable for $8,700 incurred by his mother in nursing home costs. The ruling in Andover Village Retirement Community v. Cole confirmed the son's contractual liability.
When I first read about the case, I thought I would find another example of the often confusing use of "responsible party" labels for agents in a nursing home admission agreement, a topic I've written about at length before. However, the Ohio case was a new spin on that troublesome topic. According to the opinion, Andover Village actually presented two separate documents to the son at the time of his mother's admission. One document was an admission agreement that the son signed, pledging:
“When Resident's Responsible Person signs this Agreement on behalf of Resident, Resident's Responsible Person is responsible for payment to [Andover] to the extent Resident's Responsible Person has access and control of Resident's income and/or resources. By signing this Agreement the Resident's Responsible Person does not incur personal financial liability.”
The second document, titled "Voluntary Assumption of Personal Responsibility," was also signed by the son, but this time it stated, “I, Richard Cole, voluntarily assume personal financial responsibility for the care of Resident in the preceding Agreement.”
The court viewed the second document as the son's personal guarantee, and it was this document that triggered the court to find the son personally liable for his "voluntary" assumption of the obligation to pay costs not covered by Medicare or Medicaid.
The Ohio court leaves me with another question, not directly addressed in the decision. Did the son really make a knowing and voluntary decision to assume personal liability for costs, especially costs that can break most individual's piggy banks? Or, did the son sign a stack of papers he was told were routine and necessary for his mother to be admitted? Admissions to nursing homes are often made when everyone, the resident and the family members, is under stress.
At a minimum, I would like to think that a family's consultation with an experienced elder law attorney at the time of admission would have made a difference.
For facilities that are Medicare or Medicaid eligible -- and that is most nursing homes -- key federal laws, set forth at 42 U.S.C. §§ 1395i-3(c)(5)(A)(ii), 1396r(c)(5)(A)(ii) provide: “With respect to admissions practices, a skilled nursing facility must . . . not require a third party guarantee of payment to the facility as a condition of admission (or expedited admission) to, or continued stay in, the facility.”
I expect that an experienced elder law attorney would be familiar with this restriction on "mandatory" guarantees and would help the son see that for the nursing home to be compliant with federal law, any guarantee must be truly voluntary. Advice from an experienced elder law attorney would help to guard against the not-so-voluntary signing of a stack of papers that are presented as "necessary" to admit the resident. Perhaps a facility would refuse to admit the mother unless the son signs the "voluntary" agreement, but if that happens, it would be clear that the facility is violating the intention of federal law to protect individuals -- and families -- from waiving certain rights as a condition of admission or continued residence.
With that experienced lawyer's advice, a son could make a knowing and intentional decision to serve as his mother's contractual guarantor, and thus would be alert in advance to the ways that even small gaps can occur that are not covered by Medicare, Medicaid or private insurance. (Those small gaps can add up!) Alternatively, if the son is not willing or able to serve as his parent's guarantor, another facility might be the better choice.
In law school classes about elder law, we do teach Medicaid planning approaches, but frankly, that is usually a small part of any course. The majority of our time is spent on the abundant ways that individuals and families can be helped by an attorney who understands the full panoply of rights and obligations that attend growing older in the U.S. and beyond.
Hat tips to Pennsylvania attorney Jeffrey Marshall and Florida attorney Joseph Karp for alerts to the Ohio case.