Monday, July 28, 2014
Recently a former law student who is considering a career change asked me about elder law, wanting to meet with me to discuss what is involved. I'm happy to chat any time with current and former students, especially about elder law, but this time my advice was simple: "Drop everything and go to Pennsylvania's 2014 Elder Law Institute." Indeed, this year saw some 400 individuals attend.
Important to my advice was the fact that ELI is organized well for both "newbies" and more experienced practitioners. After the first two-hour joint session, over the course of two days there are four sessions offered every hour. One entire track is devoted to "Just the Basics" and is perfect for the aspiring elder law attorney. Indeed, I usually sponsor two Penn State law students to attend. As in most specializations, in elder law there will is a steep learning curve just to understand the basic jargon, and the more exposure the better.
One of my favorite sessions is the first, "The Year in Review," a long tradition at ELI and currently presented by Marielle Hazen and Rob Clofine. Marielle reviews new legislation and regulations, both at the state and federal level, while Rob does a "Top Ten Cases" review. Both speakers focus not just on what happened in the last 12 months, but what could or should happen in the future. They frequently pose important policy perspectives, based on recent events.
Among the highlights from the year in review session:
- Analysis of the GAO Report on "Medicaid: Financial Characteristics of Approved Applicants and Methods Used to Reduce Assets to Qualify for Nursing Home Coverage" released in late June 2014. Data collection efforts focused on four states and reportedly included "under cover" individuals posing as potential applicants. The report summarizes techniques used to reduce countable resources, most occuring well within the rules and thus triggering no question of penalty periods. Whether Congress uses the report in any way to confirm or change existing rules remains to be seen.
- A GAO Report on Medicaid Managed Care programs, also released in June, concluding that additional oversight efforts are needed to ensure the integrity of programs in the states, which are already reporting higher increases in outgoing funds than fee-for-service programs.
- The need to keep an eye open for Pennsylvania's Long Term Care Comission report, expected by December 2014. Will it take issue with the Governor's rejection of the Affordable Care Act's funding for expansion of Medicaid?
- Report on a number of lower court decisions involving nursing home payment issues, including a report on a troubling case, Estate of Parker, 4 Pa. Fiduciary Reporter 3d 183 (Orphans' Court, Montgomery County, PA 2014), in which a court-appointed guardian of the estate of an elderly nursing home patient "agreed" to entry of a judgment, not just for nursing home charges, but also for pre- and post-judgment interest, plus attorneys' fees for the nursing home's lawyer of almost 20% of the stipulated judgment, in what was an uncontested guardianship.
In light of the number of nursing home payment cases in Rob's review, perhaps it wasn't a surprise that my co-presenter, Stanley Vasiliadis, and I had a full house for our session on "Why Am I Being Sued for My Parents' Nursing Home Bill?" We examined how adult children (and sometimes elderly parents of adult children in care) are finding themselves the target of collection efforts by nursing homes, including actions based on theories of breach of promise (contract, quatum meruit, and promissory estoppel), fault (common law fraud or statutory claims of "fraudulent transfers), or family status, such as statutory filial support.
The extensive course materials from all of the presenters, both in hard copy and electronic formats, are available for purchase directly from the Pennsylvania Bar Institute.
July 28, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Thursday, July 24, 2014
The CarTalk Guys on National Public Radio have a crazy tradition of breaking their one hour radio program into "three halves" (okay, they have a lot of crazy traditions -- I'm focusing on just one). In that tradition, I'd been thinking about how the practice of "elder law" might also have three halves, but then I realized that perhaps it really has five halves. See what you think.
- In the United States, private practitioners who call themselves "Elder Law Attorneys" usually focus on helping individuals or families plan for legal issues that tend to occur between retirement and death. Many of the longer-serving attorneys with expertise in this area started to specialize after confronting the needs of their own parents or aging family members. They learned -- sometimes the hard way -- about the need for special knowledge of Medicare, Medicaid, health insurance and the significance of frailty or incapacity for aging adults. They trained the next generations of Elder Law Attorneys, thereby reducing the need to learn exclusively from mistakes.
- Closely aligned with the private bar are Elder Law Attorneys who work for legal service organizations or other nonprofit law firms. They have critical skills and knowledge of health-related benefits under federal and state programs. They also have sophisticaed information about the availability of income-related benefits under Social Security. They often serve the most needy of elders. Their commitment to obtain solutions not just for one client, but often for a whole class of older clients, gives them a vital role to play.
- At the state and federal levels, core decisions are made about how to interpret laws affecting older adults. Key decisions are made by attorneys who are hired by a government agency. Their decisions impact real people -- and they keep a close eye on the financial consequences of permitting access to benefits, even if is often elected officials making the decisions about funding priorities. I would also put prosecutors in this same public servant "Elder Law" category, especially prosecutors who have taken on the challenge of responding to elder abuse.
- A whole host of companies, both for-profit and nonprofit, are in the business of providing care to older adults, including hospitals, rehabilitation centers, nursing homes, assisted living facilities, group homes, home-care agencies and so on -- and they too have attorneys with deep expertise in the provider-side of "Elder Law," including knowledge of contracts, insurance and public benefit programs that pay for such services.
- Last, but definitely not least, attorneys are involved at policy levels, looking not only to the present statutes and regulations affecting older adults, but to the future of what should be the legal framework for protection of rights, or imposition of obligations, on older adults and their families. My understanding and appreciation of this sector has increased greatly over the last few years, particularly as I have come to know human rights experts who specialize in the rights of older persons.
Of course, lawyers are not the only persons who work in "Elder Law" fields and it truly takes a village -- including paralegals, social workers, case workers, health care professionals, and law clerks -- to find ways to use the law effectively and wisely. Ironically, at times it can seem as if the different halves of "elder law" specialists are working in opposition to each other, rather than together.
My reason for trying to identify these "Five Halves" of Elder Law is that, as with most of us who teach courses on elder law or aging, I have come to realize I have former students working in all of these divisions, who began their appreciation for the legal needs of older adults while still in law school. Organizing these "halves" may also help in organizing course materials.
I strongly suspect I'm could be missing one or more sectors of those with special expertise in Elder Law. What am I forgetting?
Monday, July 21, 2014
Leslie Frances, Associate Dean for Faculty Research Development at University of Utah Law, has an interesting post on the Health Law Prof Blog about challenges to states that have failed to provided Medicaid coverage for needs of residents in "assisted living," as opposed to "skilled nursing" care settings. Here are two such cases she describes:
First, Idaho providers of supported living services brought suit in 2009 challenging the Idaho legislature’s failure to appropriate sufficient funds. The state’s rate-setting study had recommended a substantial increase in funds, but the legislature did not approve the increase. The district court granted summary judgment to the providers and the 9th Circuit affirmed in a very brief opinion in April 2014. The district court’s reasoning, upheld by the 9th Circuit, was that the Medicaid Act requires state rates to be “‘consistent with efficiency, economy, and quality of care and … sufficient to enlist enough providers’ to meet the need for care and services in the geographic area. 42 U.S.C. § 1396a(a)(30).” Exceptional Child Center v. Armstrong , 2014 WL 1328379 (April 14, unpublished). Purely budgetary reasons such as those cited by Idaho do not suffice to meet this standard. Last week, Idaho appealed the 9th Circuit decision to the Supreme Court.
Second, independent living centers in Southern California have brought suit challenging California’s method for enrolling dual eligibles into managed care programs. Such efforts, touted as improving care coordination, come under criticisms that they are instead merely methods of cost control that will result in the loss of essential services. The plaintiffs are Communities Actively Living Independent & Free, the Westside Center for Independent Living, and Southern California Rehabilitation Services, Inc.; they seek to enjoin what they contend is California’s confusing notice to dual eligible about their impending reenrollment and how to opt out of it. Westside Center for Independent Living vs. California Department of Health Care Services, Cal. Civil No. 34-2014-080001884 (filed July 2, 2014).
My own state of Pennsylvania is one of the states that has, in theory, obtained approval from HHS to use Medicaid in assisted living facilities, but even after several years, funding has not been implemented. Across the state line in New Jersey, low income/asset residents in assisted living are eligible to apply for Medicaid.
Sunday, July 20, 2014
The growing significance and scope of "elder law" is demonstrated by the program for the upcoming 2014 Elder Law Institute in Philadelphia, Pennsylvania, to be held on July 24-25. In addition to key updates on Medicare, Medicaid, Veterans and Social Security law, plus updates on the very recent changes to Pennsylvania law affecting powers of attorney, here are a few highlights from the multi-track sessions (48 in number!):
- Nationally recognized elder law practitioner, Nell Graham Sale (from one of my other "home" states, New Mexico!) will present on planning and tax implications of trusts, including special needs trusts;
- North Carolina elder law expert Bob Mason will offer limited enrollment sessions on drafting irrevocable trusts;
- We'll hear the latest on representing same-sex couples following Pennsylvania's recent court decision that struck down the state's ban on same-sex marriages;
- Julian Gray, Pittsburgh attorney and outgoing chair of the Pennsylvania Bar's Elder Law Section will present on "firearm laws and gun trusts." By coincidence, I've had two people this week ask me about what happens when you "inherit" guns.
Be there or be square! (Who said that first, anyway?)
July 20, 2014 in Advance Directives/End-of-Life, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Retirement, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Wednesday, July 16, 2014
From the New York Times on July 16, 2014, this news of a class action lawsuit challenging dramatic cuts in Medicaid funding for home care:
"A federal class action lawsuit filed late Tuesday accuses New York State health officials of denying or slashing Medicaid home care services to chronically ill and disabled people without proper notice, the chance to appeal or even an explanation, protections required by law.
The lawsuit, filed in United States District Court for the Southern District of New York, names three plaintiffs: an impaired 84-year-old woman living alone in Manhattan, a frail 18-year-old Brooklyn man with severe congenital disabilities, and a 65-year-old Manhattan man with diabetes and a schizoaffective disorder. But it was brought by the New York Legal Assistance Group on behalf of tens of thousands of disabled Medicaid beneficiaries who need home health care or help with daily tasks like bathing and eating."
For the full New York Times article, see Nina Bernstein on "Medicaid Home Care Cuts are Unjust, Lawsuit Says."
Monday, June 9, 2014
Last week, the Second Circuit Court of Appeals ruled that a district court's rejection of a proposed Securities and Exchange Commission (SEC) settlement for $285 million -- because of the absence of any admissions by defendant Citigroup -- was improper. In SEC v. Citigroup Global Markets, a case that arose from investigations into fraud following the financial industries meltdown, the Second Circuit observed that while the court has an obligation to review consent degrees to determine generally the "legality" of the terms and may consider whether the settlement is "fair and reasonable, to demand admissions as a condition of settlement goes too far.
The Second Circuit said, "It is an abuse of discretion to require, as the district court did here, that the S.E.C. establish the 'truth' of the allegations against a settling party as a condition for approving the consent decrees.... Trials are primarily about the truth. Consent decrees are primarily about pragmatism.... Consent decrees provide parties with a means to manage risk."
In cases where injunctive relief is part of the settlement, the Second Circuit said the trial court is permitted to analyze the enforceability of the terms, as a matter of "public interest."
The Wall Street Journal, in reporting on the June 4 decision, observed that the decision "eases pressure" on prosecutors and regulators "to exact admissions of wrongdoing in settlements with companies."
After reading the SEC-related decision, it would seem the same reasoning would govern settlements of federal Medicare and Medicaid fraud suits, including whistleblower cases, such as the multi-million dollar settlements in recent months involving nursing home care, pharmaceutical sales, and hospice, thus explaining how millions in de facto fines often involve no admissions of wrongdoing.
Or as I sometimes describe such agreements to settle, defendants must decide whether they can live with the financial effect of the monetary terms, and must promise merely to never do again what they say they never did before.
But I worry, will customers -- which in Medicare and Medicaid cases, usually means seniors and disabled persons -- be the ones who pay the downstream price of the settlement, especially without clear admissions of wrongdoing in the past?
Friday, June 6, 2014
Is Community Spouse's IRA Countable in Determining Medicaid Eligibility? Arkansas Supreme Court Says "Yes"
In Arkansas Department of Human Services v. Pierce, the Arkansas Supreme Court ruled on May 29 that individual retirement accounts owned by a wife were "countable" in determining her husband's eligibility for Medicaid as a resident in a nursing home in Arkansas. In so ruling, and treating the issue as a matter of first impression in Arkansas, the Court rejected the analysis of a Wisconsin court, and aligned itself with the analysis of a New Jersey Court in determining that the state's decision -- to include IRAs owned by either spouse in the "snapshot" of resources subject to spend-down -- did not violate federal law.
In this case, the community spouse may be significantly affected, depending on her own lifespan. Hoping that her husband of 46 years would improve and not need to stay in a nursing home, it appears she had already paid "privately" for nursing home care for 18 months. With the ruling, if her husband continues to need nursing care, she will be allowed to keep $109,560, and thereby will likely spend much of her IRA savings (totaling about $350,000) towards his care.
This fact pattern arguably explains one of the reasons why Elder Law professionals have turned to Medicaid-qualified annuities and other permitted planning tools, to convert countable "resources" into uncountable "income," thereby better assisting the community spouse in financing his or her own final years, particularly if the community spouse hopes to stay at home as long as possible. Will community spouses get timely, qualified assistance with such planning?
Thursday, June 5, 2014
Does a resident have a private right of action for violation of key provisions of the federal Nursing Home Reform Act?
For example, federal Medicare/Medicaid Law specifies residents have certain "Transfer and Discharge Rights." A certified nursing facility must permit each resident to "remain in the facility" and must "not transfer or discharge the resident" except for certain specified reasons, usually requiring 30 days advance notice. But what happens if a facility ignores the limitations on acceptable grounds for transfer or discharge, including the 30 day notice requirement?
In its decision on May 12, 2014 in Schwerdtfeger v. Alden Long Grove Rehabilitation and Health Care Center, the federal district court in the Northern District of Illinois ruled that a discharge improper under federal law does not trigger a private statutory remedy. As described in the clearly written decision, an abrupt transfer of the resident from the nursing home into a hospital followed the resident's "verbal dispute with a nurse" and another resident. While federal law permits transfers where there someone's safety or health is endangered, it does not appear from the decision that the nursing home claimed the verbal dispute created such a danger.
Nonetheless, the court dismissed the resident's federal claim, concluding that the statutory language regarding discharge and transfer rights in Medicare and Medicaid law "does not manifest a 'clear and unambiguous' Congressional intention to create private rights in favor of individual nursing facility residents.... The NHRA [Nursing Home Reform Act] provides an administrative process in the state courts rather than a private remedy in federal court."
In so ruling, the federal district court declined to follow the analysis of the Third Circuit in Grammer v. John J. Kane Regional Centers-Glen Hazel, 570 3d 520 (3d Cir. 2008), which as a "matter of first impression" ruled that the NHRA was sufficiently "rights creating" that it could trigger a cause of action regarding quality of care under Section 1983.
My question, reflecting my teaching interests no doubt, is whether the nursing home's discharge was a breach of contract? Most nursing home contracts I've reviewed either directly or indirectly "adopt" the protections of the NHRA as specific rights of their residents. (Indeed, I would be leery of any nursing home that did not do that.) So, even if not a violation of federal law, wouldn't such a discharge breach the contract? I suspect there is probably a court decision or law review article on this topic -- perhaps our readers have a citation?
Of course, in seeking a right to sue directly under the NHRA, the resident was probably also seeking a right to claim attorneys' fees under the civil rights law; breach of contract claims, even if successful, may not make a claimant "whole" because of the likelihood of small consequential damages and no contractual right to seek attorneys' fees. It is not clear from the Schwerdtfeger decision whether a breach of contract claim was alleged, although the federal court did "decline" to exercise supplemental jurisdiction over the plaintiff's "state law claims."
Wednesday, May 28, 2014
Led by Momotazur Rahman, Department of Health Services Policy and Practice at Brown University, researchers at Brown and Harvard have analyzed placements in nursing homes for Medicare-only and "dual-eligible" Medicare/Medicaid individuals. In their May 2014 study published (and linked here) in Medical Research and Review, they conclude that the low-income patients are more likely to be sent to lower quality (as measured by staffing radios) nursing homes. Their abstract outlines their call for reform for referral processes:
"Medicare and Medicaid dual-eligible beneficiaries use more medical care and experience worse health outcomes than Medicare-only beneficiaries. This article points to a possible inefficiency in the skilled nursing facility (SNF) admission process, specifically that patients and SNFs are partially matched based on dual-eligibility status, and investigates its influence on patients’ SNF length of stay. Using a set of fee-for-service beneficiaries newly admitted for Medicare-paid SNF care, we document two findings: (1) compared with Medicare-only patients, dual-eligibles are more likely to be discharged to SNFs with low nurse-to-patient ratios and (2) dual-eligibles are more likely to become long-stay nursing home residents than Medicare-only beneficiaries if treated in SNFs with low nurse-to-patient ratios. We conclude that changes in the current SNF care referral process have the potential to reduce excess SNF utilization by dual-eligible beneficiaries and could help reduce spending by both Medicare and Medicaid."
One would hope that a corollary to reforming referral processes to "save money" would be improvements in the quality of life and care for dual-eligibles. Additional analysis of the study is available at McKnights News.
Thursday, May 15, 2014
Maryland Elder Law and Disability Law specialist Ron Landsman provides a thoughtful analysis of use of trusts, especially "special needs trusts," to assist families in effective managment of assets. His most recent article, "When Worlds Collides: State Trust Law and Federal Welfare Programs," appears in the Spring 2014 issue of the National Academy of Elder Law Attorneys (NAELA) Journal. Minus the footnotes, his article begins:
"'Special needs trusts,' which enable people with assets to qualify for Supplemental Security Income (SSI) and Medicaid, are the intersection of two different worlds: poverty programs and the tools of wealth management. Introducing trusts into the world of public benefits has resulted in deep confusion for public benefit administrators. . . . The confusion arising from the merger of trust law with public benefits is sharply drawn in the agencies' [Social Security Administration (SSA) and Centers for Medicare and Medicaid Services (CMS)] attempts to define what it means for a trust to be for the sole benefit of the public benefits recipient. Public benefits administrators have focused on the distributions a trustee makes rather than the fiduciary standards that guide the trustee. The agencies have imposed detailed distribution rules that range from the picayune to the counterproductive and without regard, and sometimes contrary, to the best interests of the disabled beneficiary."
Drawing upon his experience in drafting trusts for disabled persons, Ron takes on the challenge of explaining how and where he sees the agencies' focus on "distribution" as misguided. He contends, for example:
"The [better] task for CMS and SSA [would be] to use their authority to develop standards and guidelines that utilize, rather than thwart, competent, responsible, properly trained trustees as their partners in making special needs trusts an effective tool in serving the needs of people with disabilities. If this were done properly, capable trustees would be the allies of the federal and state agencies in the efficient use of limited private resources. Beneficiaries would live better, more rewarding lives to the extent that resources can make a difference, at a lower cost to Medicaid, with a greater possibility of more funds recovered through payback."
Ron is detailed in his critique of agency guidelines and manuals, and he provides clear examples of his "better" sole benefit analysis.
May 15, 2014 in Estates and Trusts, Federal Cases, Health Care/Long Term Care, Housing, Medicaid, Property Management, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Wednesday, May 14, 2014
It occurs to me that what I'm about to write here is a mini-review of a mini-book. Slightly complicating this little task is the fact that I count both authors as friends and mentors.
The latest edition of Elder Law in a Nutshell by Professors Lawrence Frolik (University of Pittsburgh) and Richard Kaplan (University of Illinois) arrived on my desk earlier this month. (As Becky might remind us, both are definitely Elder Law's "rock stars.") And as with fine wine, this book, now its 6th edition, becomes more valuable with age. This is true even though achieving the right balance of simplicity and detail cannot be an easy task for authors in the intentionally brief "Nutshell" series. Presented in the book are introductions to the following core topics:
- Ethical Considerations in Dealing with Older Clients
- Health Care Decision Making
- Medicare and Medigap
- Long-Term Care Insurance
- Nursing Homes, Board and Care Homes, and Assisted Living Facilities
- Housing Alternatives & Options (including Reverse Mortgages)
- Alternatives to Guardianship (including Powers of Attorneys, Joint Accounts and Revocable Trusts)
- Social Security Benefits
- Supplemental Security Income
- Veterans' Benefits
- Pension Plans
- Age Discrimination in Employment
- Elder Abuse and Neglect
The authors describe their anticipated audience, including "lawyers and law students needing an overview of some particular subject, social workers, certain medical personnel, gerontologists, retirement planners and the like." Curiously, they don't mention potential clients, including family members of older persons. I suspect the book can and does assist prospective clients in thinking about when and why an "elder law specialist" would be an appropriate choice for consultation. This book is a very good starting place.
What's missing from the overview? Not a lot, although I find it interesting that despite solid coverage of the basics of Medicaid, and even though it is unrealistic to expect exhaustive coverage in a mini-book, the authors do not hint at the bread and butter of many elder law specialists, i.e., Medicaid Planning. Thus, there's little mention of some of the more cutting edge (and therefore potentially controversial) planning techniques used to create Medicaid eligibility for an individual's long-term care while also preserving assets that otherwise would have to be spent down.
Modern approaches, depending on the state, may range from the simple, such as permitted use of assets to purchase a better replacement auto, to more complex planning, as in states that permit purchase of spousal annuities or use of promissory notes, allow modest half-a-loaf gifting, or recognize spousal refusal. Even though the federal Deficit Reduction Act of 2005 succeeded in restricting assets transfers to non-spouse family members, families, especially if there is a community spouse, may still have viable options. Without appropriate planning the community spouse, particularly a younger spouse, may be in a tough spot if forced to spend down to the "maximum" permitted to be retained, currently less than $120,000 (in, for example, Pennsylvania). See, for example, a thoughtful discussion of planning options, written by Elder Law practitioners Julian Gray and Frank Petrich.
Perhaps the Nutshell omission is a reflection of the unease some who teach Elder Law may feel about the public impact of private Medicaid planning?
May 14, 2014 in Advance Directives/End-of-Life, Books, Cognitive Impairment, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Property Management, Social Security | Permalink | Comments (0) | TrackBack (0)
Thursday, May 8, 2014
The National Senior Citizens Law Center (NSCLC), drawing upon the nonprofit firm's experience in successful advocacy about access to benefits, is sharing its recommendations on how to help individuals obtain Medicaid funding for Home and Community Based Services (HCBS). The guide is titled "Just Like Home: An Advocate's Guide to Consumer Rights in Home and Communit Based Services." The authors, Eric Carlson, Hannah Weinberger-Divack and Fay Gordon, explain:
"New federal Medicaid rules, for the first time, set standards to ensure that Medicaid-funded HCBS are provided in settings that are non-institutional in nature. These standards, which took effect in March 2014, apply to residential settings such as houses, apartments, and residential care facilities like assisted living facilities. The standards also apply to non-residential settings such as adult day care programs.
This guide provides consumers, advocates and other stakeholders with information regarding multiple facets of the new standards, including consumer rights in HCBS, and the guidelines for determining which settings are disqualified from HCBS reimbursement. This guide is based on the federal rules and subsequently issued guidance, and will be updated as further information becomes available."
The twenty-page guide is free and downloadable -- more reasons to appreciate the hard-working folks at NSCLC. The NSCLC lawyers remind us that implimentation of HCBS is far from uniform from state to state. Knowing what is happening outside your own state will increase the odds of successfullly advocating for change, and securing threshold, quality care in your state.
Friday, May 2, 2014
Congressmen Earl Blumenauer (OR-03) and Chris Smith (NJ-04) introduced HR 4543, the PACE Pilot Act, a bipartisan and budget neutral bill that would allow The Program of All-Inclusive Care for the Elderly (PACE) programs greater flexibilities to expand their successful model to care for people under age 55 who have special health risks.
PACE integrates Medicare and Medicaid benefits for members of our society who have some of the most serious and costly health care problems. The program seeks to keep people living in the community rather than in long-term care institutions. Currently, PACE is only available to individuals age 55 or older and who are certified by their state as being eligible for a nursing home level of care. Expansion of these programs will offer younger individuals with disabilities this same integrated, community-based option that supports their independence and quality of life.
“PACE has been a huge success,” said Blumenauer. “What we have realized is that there is a group of people out there who currently don’t qualify for PACE because of the age requirement, but would otherwise greatly benefit from the program due to serious medical conditions. This bill allows us to see how we can bring them into the fold efficiently and affordably.”
“PACE continues to provide patient centric care to many of the frailest members in our society, while enabling them to live in their homes and stay in their communities,” said Smith. “We know that all PACE participants are eligible for nursing home care, yet 90 percent continue to live at home. By removing the nursing home level of care requirement, we can help ensure that people have greater access to preventative services and treatments, thereby helping them maintain their quality of life.”
Currently, a total of 103 PACE sites in 31 states serve about 56,000 enrollees nationwide. A number of research studies show that beneficiaries enrolled in PACE had fewer hospitalizations and nursing home admissions, and lower mortality than similar beneficiaries who were not enrolled in PACE.
Monday, April 28, 2014
National Senior Citizens Law Center's Executive Director Kevin Prindiville analyzes Paul Ryan's Congressional budget numbers for the Huffington Post, highlighting the effect of proposed deep cuts on federal aid programs, cuts that would dramatically impact the nation's poorest seniors. Kevin writes:
"The U.S. House of Representatives' recent approval of the Ryan budget resolution threatens programs that help poor seniors. In a disappointing vote, 219 House members gave their blessing to a budget that leaves country's older adults to struggle with less food, income, housing and care. The Ryan budget's path to poverty must not be allowed to happen. . . . By cutting essential programs that often make life manageable for those with limited means or resources, the Ryan budget will lead to poverty numbers among seniors the nation hasn't seen since the Depression."
Kevin then outlines specific terms of the House plan to cut $5 billion from SSI, $732 billion from Medicaid, as well as additional cuts to Meals on Wheels and food benefit programs.
The NSCLC, a nonprofit law firm with offices on both sides of the country, is a watchdog for the nation's low income elderly, succeeding with tough-to-win cases where the nation's most at-risk seniors are adversely affected by often-hidden changes or procedural traps in Social Security, Medicare and Medicaid programs. Additional information on NCSLC's advocacy is available on their website, along with a calendar of events including the April 29 free webinar on "Understanding and Impacting Implementation of New Medicaid Home and Community-Based Services Rules."
Tuesday, April 22, 2014
In some instances where a resident of a nursing home fails to qualify for Medicaid, the question may involve a transfer of a nonexempt asset by the resident or by someone (usually a family member) acting in place of the resident. If the nursing home is not then paid privately, a debt is incurred. Depending on the specific reasons for a ruling of ineligibility, the nursing home, as an unpaid creditor, may be motivated to challenge the transfer as "fraudulent." This in turn may trigger application of the Uniform Fraudulent Transfer Act (UFTA), as adopted in the specific state.
Along that line, there is a new article, "Reconsidering the Uniformity of Uniform Fraudulent Transfer Act," by Steven Boyajian, Esq., published this month in the American Bankruptcy Institute Journal. The article outlines proposed amendments to the UFTA currently under consideration:
"The UFTA has been adopted in 43 states, Washington D.C., and the U.S. Virgin Islands, and has not been specifically amended in the 30 years since it was drafted. Despite the UFTA's admonition that it 'shall be applied and construed to ... make uniform the law with respect to subject of [the UFTA] among states enacting it,' portions of the UFTA have been subject to conflicting interpretations by courts nationwide....
Amendments being considered by the Drafting Committee proposed to resolve the conflicting judicial interpretations of the following issues: (1) the effect of § 2's presumption of insolvency if a debtor was generally not paying its debts as they become due; (2) the standard of pleading and proof applicable to a claim that a transfer was made or obligation incurred 'with actual intent to hinder, delay, or defraud any creditor'; and (3) the allocation of burdens with respect to the elements of a claim to avoid a constructively fraudulent transfer or obligation."
In outlining the proposals, the author emphasizes the continuing nature of the discussions about UFTA proposals. One of the cases cited as part of the discussion is a nursing home collection case, Prairie Lakes Health Care System v. Wookey, 583 N.W. 2d 405 (S.D. 1998).
Pennsylvania also has a case involving intepretation of a UFTA claim in the context of a nursing home collection matter. In Presbyterian Medical Center v. Budd, 832 A.3d 1066 (Pa. Super. Ct. 2003), a nursing home plaintiff turned to Pennsylvania's filial support law as an alternative to a claim under UFTA, thereby permitting potential recovery against an adult child, without proof of fraud required.
Tuesday, April 15, 2014
The Social Security Administration announced on Monday that it is halting its practice of "Treasury Offsets" to recover debts reported to be 10 years or older. This decision comes just three days after the Washington Post's front page account of intercepts that targeted IRS income tax refunds going to children of alleged debtors. As reported in today's Washington Post:
“"I have directed an immediate halt to further referrals under the Treasury Offset Program to recover debts owed to the agency that are 10 years old and older pending a thorough review of our responsibility and discretion under the current law,' the acting Social Security commissioner, Carolyn Colvin, said in a statement.
Colvin said anyone who has received Social Security or Supplemental Security Income benefits and 'believes they have been incorrectly assessed with an overpayment' should contact the agency and 'seek options to resolve the overpayment.'”
The Washington Post reported that after its first article, "many hundreds of taxpayers whose refunds had been intercepted came forward and complained to members of Congress that they had been given no notice of the debts and that the government had not explained why they were being held responsible for debts that their deceased parents may have incurred."
Hmm. It seems that it is the intercept notice procedures that may be the focus of reexamination by the SSA, rather than giving up on the authority granted by Congress in 2008 to recover "stale" debts. Plus, it is unclear whether SSA will explain its theory for seeking recoveries against children of debtors.
Friday, April 11, 2014
It is Friday and time for a catch-up on recent law review articles. I posted last month on Memphis Professor Donna Harkness' article on filial support laws, but she is not the only one with recent publications analyzing the seemingly renewed interest in enforcement of such laws around the country and the world. Here are highlights from recent comments and articles (minus those pesky footnotes):
"The Parent Trap: Health Care & Retirement Corporation of America v. Pittas, How it Reinforced Filial Responsibility Laws and Whether Filial Responsibility Laws Can Really Make you Pay," Comment by Texas-Tech Law Student Mari Park for the Estate Planning & Community Property Law Journal (Summer 2013):
"Texas should join the other twenty-eight states that already have a filial responsibility statute. Placing the duty of support on able family members first is a centuries-old obligation that has managed to survive into the present day despite opposition. While filial responsibility may seem harsh, it is simply making families care for each other. With the number of indigent elderly quickly rising, long-term care costs are likely affecting many families. Instead of ignoring the issue and hoping the government will shoulder this burden, maybe it is time for families to step up and take responsibility."
"Filial Responsibility: Breaking the Backbone of Today's Modern Long Term Care System," Article by Elder Law Specialist Twyla Sketchley and Florida State Law Student Carter McMillan for the St. Thomas Law Review (Fall 2013):
"The costs of long term care are staggering and a solution must be found for this crisis. However, mandatory filial responsibility is not the answer. Enforcement of filial responsibility in the modern long term care system is unsustainable and ineffective. Filial responsibility has been recognized since the Great Depression as ineffective in providing for the needs of elders. Scholars have recognized that families provide care, not out of legal obligation, but personal moral obligation, and do so at great sacrifice. Enforcement of filial responsibility in today's long term care system burdens those who are the least able to shoulder the additional burden. Based on the value and the consistency of the care provided by informal caregivers, informal caregiving is the one piece of the long term care system that is working. Therefore, the solutions to the long term care financing system must encourage and support the informal caregiving system[,] not add additional, unsustainable burdens."
"Intestate Succession for Indigent Parents: A Modest Proposal for Reform," Comment by Toledo Law Student Matthew Boehringer for the University of Toledo Law Review (Fall 2013):
"Filial support statutes have already laid the groundwork and rationale behind adults supporting their dependents and should provide a convenient outlet for a government looking to reduce spending. Society will inevitably find more parents dependent on support from their children. Consequently, more of the elderly population will find that avenue of support estopped should that child die and without a means of familial support. A modest reform of intestacy laws will address this situation and smooth over inconsistencies between different applications of the same purpose. The burden on the estate should not be excessive because the decedent was already providing for the elderly parent before death. Moreover, probate courts will already know the facts of the case and, thus, are in the best position to provide an equitable treatment for all parties dependent on the decedent. This modest proposal offers little harm but much benefit for some of the weakest of society."
In addition to the above articles addressing obligations that may run from adult child to parent, an article on "Who Pays for the 'Boomerang Generation?' A Legal Perspective on Financial Support For Young Adults," by Rutgers-Camden Law Professor Sally Goldfarb for the Harvard Journal of Law and Gender, analyzes the practical obligations assumed by many single parents, often women, to support adult children who are not yet self-sustaining. Professor Goldfarb observes that a "financially struggling single mother who provides support for her adult child is at heightened risk of becoming an impoverished elderly woman." She proposes:
"Instead of urging mothers to 'just say no' to financially dependent adult children, a better approach would be to ensure that the burden of financial support for young adults is distributed more equitably.... Divorced, separated, and never-married mothers of financially dependent young adults are in a position of derivative dependency. If they cut their financial ties to their adult children, they jeopardize the children's financial security. If they don't cut those ties, they jeopardize their own. A solution that safeguards the well-being of both mothers and young adults is urgently needed. In the absence of widely available public programs to meet the needs of young adults, the most obvious solution is to divide the cost of supporting them fairly between both parents...[as she explains in greater detail]."
Don't hesitate to write and let me know if I have missed your recent article addressing filial support laws or related concepts.
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.
Monday, March 31, 2014
A few weeks ago, I posted the account of one family's struggle to find competent care for aging parents. Eventually they were referred to a team of two women who did provide good care, but who insisted on being paid in cash. I later learned that one person expected an additional "fee" for "managing" the arrangement. The family felt trapped, although the crisis was cut short when the parent died.
More recently, I read another family's story, where a non-family member provided proper senior care in exchange for "cash," and this time the arrangement lasted for several years. Eventually, however, the cared-for-individual's savings were exhausted, and her increasing health needs meant a nursing home was inevitable. But how to apply for Medicaid? Any review of bank records that accompanies a Medicaid application would show large, regular cash withdrawals from the elder's accounts, totaling more than two hundred thousand dollars. With no W-2s or other documentation of the use of that cash, would the state agency treat the transactions as gifts creating ineligibility for Medicaid? Would an affidavit or testimony by a family member be enough to satisfy the agency?
A group of experienced attorneys brainstormed the options in this fact pattern and raised a host of additional practical questions, including why the family had not sought help from an attorney or accountant at the outset of the arrangement. I suspect part of the answer was the family was operating in "survival" mode -- trying to solve a crisis with temporary help -- and failing to realize the potential for it to become long-term. In the meantime, their loved one bonded with the individual caregiver who either would not or could not be paid on the books. One lawyer observed that this fact pattern demonstrates why "Elder Law" needs better visibility and understanding by the public, as elder law attorneys can help prevent this legal nightmare from occurring.
During the brainstorming, someone provided a useful link to "Risks of Hiring Caregivers Under the Table: Why It Can Be Dangerous...." by Melanie Haiken from Caring.com.
For more detailed guidance, IRS Publication 926, the Household Employer's Tax Guide, is remarkably straight forward, if still probably intimidating for the average person.
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.