Home-Care Workers Win Right to Overtime Pay and Minimum Wage

Home-care workers won the right to overtime pay and the minimum wage after a U.S. court Friday upheld a Labor Department rule that was challenged by business groups.

The Obama administration said the decision by the U.S. Court of Appeals for the District of Columbia covers almost 2 million workers “whose demanding work merits these fundamental wage guarantees.”

The rule helps ensure a “stable and professional workforce” for recipients of the services, according to a statement Friday from the Labor Department.

“We are thrilled that this historic ruling will remedy an injustice millions of dedicated, hardworking caregivers have had to tolerate for far too long,” said Christine Owens, executive director of the National Employment Law Project.

A lower court had ruled that the Labor Department exceeded its authority in extending the wage protections. The rule was opposed by the Washington-based U.S. Chamber of Commerce, which has said it would make home-health care too expensive for some.

Congress extended benefits to domestic workers when it amended the Fair Labor Standards Act in 1974. The measure included a narrow exemption for babysitters and workers who provide “companionship” services that the Labor Department later interpreted to include direct-care workers.

Where Are Our Family Photos?!? Planning for a Digital Legacy

Attorneys Sasha A. Klein, and Mark R. Parthemer have written an excellent article, published in GPSolo, a publication of the American Bar Association,  explaining how current law does not provide adequate protection of digital assets upon death of an owner of these assets. After explaining the dificiencies and difficulties presented, they posited some sage advice for the planning necessary to protect these all-to-common and valuable assets: 

What can we do now? Plan! Fiduciaries face many obstacles with respect to digital assets that do not apply to traditional assets, including password protection and encryption. Therefore, proactive planning for these assets is necessary. Clients should take two critical steps.

First, identify and create an inventory of all digital assets, which should be updated regularly. Many applications exist to help clients plan for their digital assets. For clients who change their password frequently or use many different passwords, applications such as 1Password, LastPass, and Dashlane store all passwords with access to the list through only one main password. Several third-party digital asset storage providers also act as “electronic safe deposit boxes” that release information only on the user’s death or incapacity. These allow clients to easily update information during life and grant their executor or guardian immediate access on death or incapacity. Privacy concerns exist, however, because these storage providers are targets for identity theft. In addition, this is a relatively new industry, and there are no guarantees these companies will still be in business at a client’s passing.

Second, provide the fiduciary access to the digital assets. During life, a client may wish to grant an individual the ability to have immediate access by creating an account with multiple users or appointing an agent through a durable power of attorney. If using a durable power of attorney, a provision granting access to digital assets (which could be specific to certain types of digital assets or broadly apply to all digital assets) should be explicitly included. The power should also expressly provide consent to access such accounts. Currently no states have modified their power of attorney statutes to include digital assets. In addition, a review of the TOS agreement is essential because it may trump any lifetime planning. Your client also may wish to create backup files of his tangible media through DVDs, CDs, flash drives, external hard drives, or a cloud service.

After death, a last will and testament or revocable trust can give a fiduciary access to a decedent’s digital assets. The will or trust can specifically devise digital assets and appoint a fiduciary (such as a “digital executor” or “digital trustee”) to administer the digital assets. Another option is to draft a separate letter of instruction for digital assets and incorporate it by reference into a will or trust (to the extent allowed under state law). Consider including a definition of digital assets in the will or trust (you may want to use your state’s definition if one exists or the UFADAA’s definition). Your client’s will and trust should specifically provide which digital assets are under the fiduciary’s control and where and how to dispose of them after death. Explicit directions are more likely to convince the service providers to grant the fiduciary access.

Our clients have one additional tool to solve these problems: LegalVault.^®   LegalVault^® is an advanced document storage system which allows you to:

• access healthcare directives such as a living wills and healthcare powers of attorney at anytime and any location;

• provide critical information to caregivers such as emergency contacts, allergies, medications and primary care provider details;

• store other documents such as trusts, wills, deeds, contracts, oil and gas leases, installment contracts and the like;

• store digital asset information, such as pictures, movies, songs, a list of professional advisers, and site passwords. 

Go here for more information regarding LegalVault.^®

Go here to read the full article.


    

Ohio Guardian and Ex-Probate Judge Admits to Stealing from Wards

The Youngstown Vindicator, in reporting upon an on-going investigation into county corruption, discovered that  ex-county Probate Court Judge Mark Belinky, convicted last year of tampering with government records, admitted to "stealing money from people that he was a guardian over."   He also admitted to altering probate court documents to further such theft, by, for example, using a Mahoning County probate computer to create false probate court records. The admissions were gleaned from previously sealed affidavits in an ongoing case investigating political corruption. The now unsealed affidavits recount the financial fraud visited upon Mahoning County wards at the hands of the person appointed by the court to protect their interests.  

For more, go here.

Happy Birthday Social Security!

August 14 marked the 80th anniversary of the Social Security Act. Acting Commissioner Carolyn W. Colvin announced the launch of the agency's event-filled celebration, with many activities leading up to this date.

President Franklin D. Roosevelt signed the Social Security Act in 1935, providing economic security for workers when they retired. Today, Social Security provides benefits to more than 56 million retirees, disabled workers, and their families.

Read more: http://www.benzinga.com/pressreleases/15/08/p5767355/social-security-act-celebrates-80th-anniversary#ixzz3jmlVhY00

Recent Medicaid Changes Encourage and Support "Aging in Place" Philosophy

Medicaid is constantly reviewing and updating its policies, but many beneficiaries find that it is comparatively rare for Medicaid to update its policies in a way that is truly beneficial to them. Often, “updates” simply make things more complicated.  A few recent changes, however, empower beneficiaries to remain at home, or in the community, rather than acquiescing to institutional care.  In effect, these changes signal greater awareness of, and respect for, the "aging in place" philosophy.   

These regulations require, in many instances, state adoption and implementation to be meaningful.  Seniors, their families and caregivers should know, however, that even then, implementation and utilization of these benefits will require awareness, diligence, and persistence to realize.  Like Medicare benefits for home care, one could expect that health care providers and other professionals will for some time be generally unaware of the availability of these benefits, and specifically incapable of meaningfully implementing the expanded benefits.

Regardless, there are now additional weapons in the arsenal for those fighting to keep themselves or loved ones free from unnecessary long-term institutional care.

Only California, Maryland, Montana, Oregon, and Texas have approved Community First Choice Amendments to the State Plans.

Expansion of Home and Community Based Services Plan

Previously, the Home and Community-Based Services (HCBS) plan was only offered through waiver programs. The most recent updates to Medicaid, however, provide home and community-based services as part of the regular plan. This means that individuals who qualify for Medicaid can receive either in-home services that will make it possible for them to remain at home longer or community-based services that are much more comfortable than skilled nursing homes as part of their regular care routine.

Community First Choice (CFC) Plan

The "Community First Choice Option" (CFC) allows States to provide home and community-based attendant services and supports to eligible Medicaid enrollees under their State Plan. The CFC state plan gives enhanced federal funding to help provide support and services to individuals who would otherwise require institutional care. These services are designed to provide necessary support to individuals who, without it, would find themselves in high-care level institutions. Providing other elements of care in place of institutional settings is beneficial to both the patient and the program, as it allows them to maintain their quality of life longer and permits the provider to save money in the process.

Money Follows the Person (MFP)

The MFP program is designed to assist individuals who are no longer in need of the services provided within institutions. These funds help them to transition back to their community and independent living when institutional care is no longer required. In many cases, a lack of funding kept people in institutions long past the time when they could have returned home with the benefit of proper care, so this provision has truly been designed with the quality of patient care in mind. 

Community Based Long-term Services and Support (LTSS) Funding

Community-based LTSS care allows many individuals to maintain a higher quality of life and enjoy interaction with other individuals in their situation. The new provisions have increased funding for states that help increase access to these programs, encouraging a shift toward community-based services instead of institutional care in many states.

These provisions will be of great benefit to many aging individuals, particularly those with chronic health conditions who wish to remain in their homes for as long as possible. As their need for care increases, they’ll be able to access the services that they need instead of either accepting care that they don’t want in the form of an institutional setting or putting off care that they need because they can’t afford it. These changes to Medicaid policy will likely be the first of many as it becomes necessary to make changes in order to sustain the program.

Care Coordination and Case Management Benefits

The demands of a chronic condition can be overwhelming. For many elderly individuals, it’s impossible to simply list all of the medications they take, much less keep up with the tests and procedures that they’ve undergone. Care coordination and case management ensures that everyone who is treating a given patient is on the same page and that the patient is receiving quality care for all of their conditions, not just the one covered by a specific doctor at a specific moment.

While improvement in care coordination and case management is not specifically related to only home or community based care, the improvement reduces risks often associated with home based care heavily reliant upon the beneficiary or caregivers to coordinate and manage care, and therefore, only encourage home or community based care.   

NOTICE Act Requires Hospitals to Warn of Costly Medicare Loophole

President Obama has signed a new law intended to prevent Medicare beneficiaries from spending days in a hospital only to find that they hadn’t been admitted to the hospital at all – they were only under “observation.” This is important because Medicare covers nursing home stays entirely for the first 20 days, but only if the patient was first admitted to a hospital as an inpatient for at least three days.  Many beneficiaries are being transferred to nursing homes only to find that because they were hospital outpatients all along, they must pick up the tab for the subsequent nursing home stay -- Medicare will pay none of it. 

The new law, the Notice of Observation Treatment and Implication for Care Eligibility (NOTICE) Act, does not eliminate the practice of placing patients under “observation” for extended periods, but it does require hospitals to notify patients who are under observation for more than 24 hours of their outpatient status within 36 hours, or upon discharge if that occurs sooner.  The notification will have to explain to patients that because they are receiving outpatient, not inpatient, care, their hospital stay will not count toward the three-day inpatient stay requirement and that they will be subject to Medicare’s outpatient cost-sharing requirements.  The law does not make hospital observation stays count towards Medicare’s three-day requirement, as some lawmakers had proposed.

The NOTICE Act will take effect on August 6, 2016, one year from the date it was signed.  

For the text of the NOTICE Act, click here.

For more about Medicare, click here.

2016 Medicare Pemiums to Increase- Social Security Benefits Stay Flat

According to Mark Miller, writing for RetirerementRevised, "retirees are facing a double-whammy next year: no inflation adjustment in their Social Security benefits and a whopping 52 percent jump in certain Medicare premiums."

The article continues: 

Medicare premium hikes will hit only 30 percent of beneficiaries – those who are not protected from a “hold-harmless” provision in federal law that prohibits any premium hike that produces a net reduction in Social Security benefits. But the likely increases suggest strongly that the recent trend of moderate healthcare inflation is ending.

Let’s start with the Social Security news. Final figures for 2016 will not be available until the fall, but the recent annual report of Social Security’s trustees projects that there will not be any cost-of-living adjustment (COLA) next year. The COLA is determined by averaging together third-quarter inflation as measured by the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W). Inflation has been flat due to collapsing oil prices.

On the healthcare front, renewed cost pressures are pointing toward much higher Medicare premiums starting next year, according to the Medicare trustees’ annual report.

Consider the monthly premium for Part B (outpatient services), which has stayed at $104.90 for the past three years. The Medicare trustees projected that the premium will jump 52 percent, to $159.30 for beneficiaries who are not protected by the hold harmless provision.

That would include anyone enrolled in Medicare who is not yet taking Social Security benefits due to a decision to delay enrollment. It also would include new enrollees in Medicare next year. (The increase also would be applied to low-income beneficiaries whose premiums are paid by state Medicaid programs).

High-income retirees – another group that is not protected by the hold-harmless provision – also will be hit hard if the trustee projections hold.

Affluent seniors already pay more for Medicare Part B and also Part D for prescription-drug coverage. This year, for example, higher-income seniors pay between $146.90 and $335.70 monthly for Part B, depending on their income, rather than $104.90.

The Medicare trustees now project that to jump even more.

Go here to read the whole article.

Protecting Your Deceased Loved Ones From Identity Theft

We've all been warned about protecting ourselves from identity theft, but one group of victims can't take action to protect themselves—the dead. Identity thieves steal the identities of more than 2 million deceased Americans a year, according to fraud prevention firm ID Analytics. Fortunately, there are steps that you can take to discourage identity thieves from targeting a deceased loved one.

 

Part of the reason the deceased make prime targets for scam artists is that it can take up to six months for credit agencies to be notified about a death. As soon as possible, you should send copies of your loved one's death certificate through certified mail to the three major credit reporting agencies—Equifax, Experian, and TransUnion. Along with a certified copy of the death certificate, you should include papers certifying that you are the executor or person representing the deceased; the decedent's full name, date of birth, and Social Security number; the decedent's most recent address; and the date of death. You should also request that the credit bureaus put a "deceased -- do not issue credit" alert on the decedent's credit files.

In addition, you should send copies of the death certificate to any banks, insurers, credit card companies, or other financial institutions where the deceased had accounts. You should also cancel the decedent's driver's license by notifying the state motor vehicles department.

One way that identity thieves find victims is by looking through obituaries. When writing your loved one's obituary, try to avoid information that might be useful to identity thieves such as date of birth, mother's maiden name, or the decedent's address. Think about what information someone would need to open a bank account and avoid including that in the obituary.

Once the proper agencies and institutions have been notified, you should continue to monitor the decedent's credit report for a year to make sure there are no problems.  A free copy of the three credit agencies’ reports is available annually to executors or trustees.  Go to: www.annualcreditreport.com.

For more information from Bankrate about protecting a deceased relative from identity theft, click here.

The Trouble With Advance Directives

Where are your advance directives?  Are they up-to date?

A recent article in the New York Times highlights two major problems with advance directives: 1) the existence of these legal documents is often not known about by medical professionals or loved ones (and even if it is, the physical location of these might not be known) and 2) these documents can be rather ambiguous with vague or outdated language.

The author of the piece tells a troubling tale of an older gentleman suffering from dementia who had created an advance directive years earlier where he stated that while he wanted to remain comfortable, he did not want any “heroic” measures to save his life. Years after his advance directive was filed, the gentleman was hospitalized for a nosebleed and was later put on a ventilator and given a feeding tube for survival. These drastic measures seem to contradict the patient’s wishes, so why on earth were these treatments administered?

The answer is simple – his advance directive was buried away in his medical chart and none of his early doctors had noticed it, and his son who was calling the shots knew nothing of his fathers’ wishes.

This is an all too common scenario in emergency rooms where the goal of healthcare professionals is to keep patients alive and, without the proper paperwork, doctors are required by standing orders to take all necessary medical steps to sustain life.

As an attorney, I stress the value of advance directives.  But, I know all too well that they are only useful when they are accessible before medical treatment commences.  My firm is one of a growing number of firms that are providing an effective tool, LegalVault®, to help clients solve this problem.

LegalVault® is a great tool which allows you to securely store your advance directives and estate planning documents. Here’s how it works:

• The client executes an up-to-date General Power of Attorney for Health Care, and Advanced Directive/Living Will;
• Each document is electronically scanned, and an electronic image of each document is made (which is far superior to a copy);
• Each  client is given a secured LegalVault® account;
• Our firm uploads the image of the  documents to the client's LegalVault® account;
• LegalVault® sends out an Emergency Access Wallet Card which contains instructions for healthcare providers on accessing healthcare-related documents online or via a 24/7 fax back service;
• Once an account has been created, the LegalVault® physician notification system sends a notice to the primary care provider informing him or her of this invaluable service and the storage of advance directives, ensuring that these important planning documents never fall to the back of a medical chart where they go unnoticed for weeks; 
• Clients control what information is available to health care providers, and can quickly update the account with up-to-date documents or information (such as medications or allergies) from their home computer or smart phone;
• With the client's permission, images of other estate planning documents (Wills, Trusts, Powers of Attorney, etc.) are uploaded to the client's LegalVault® account; 
• Clients can log in to their accounts to share other non-healthcare-related documents with our firm, or even upload copies of family keepsakes (photos, home videos, letters to children, family trees) to ensure these are safely secured and passed down to younger generations;
• Clients can keep or maintain important legal and financial records such as insurance policies, annuities, savings bonds, stock certificates, leases, contracts, and other instruments, potentially lost, stolen, discarded, or destroyed by third parties at a time of death or disability;
•  Clients can alert authorities of significant needs or concerns, such as "disabled child at home," "pets at home," or the like;
• A separate vault, inaccessible to our firm, accessible only to the client, and an executor, successor trustee, or personal representative, can store passwords to online accounts;
• Upon renewal of the LegalVault® account (every 3,5, or 7 years) updated documents are executed, ensuring that the documents are never out-of-date.

There is no limit to the storage space available for estate planning documents, pictures, letters, financial documents, and the like.  The cost of such a service is probably less than you might imagine. Contact us if you want to add this valuable service to your estate and/or financial plan.