Senators Seek To Ban Arbitration Clauses in Nursing Home Admission Agreements

McKight's reports that a group of senators urged the Centers for Medicare & Medicaid Services (CMS) to ban arbitration clauses inserted into nursing home admission contracts, because they do not adequately protect residents' rights.

The letter, signed by 34 Democrats including lead signer Sen. Al Franken (D-MN), said recent efforts by CMS to improve resident awareness of arbitration clauses are “well-intentioned,” but ultimately complicate any future disputes and fail to improve safety. Language aimed at improving resident awareness of the clauses was included in July's proposed rule for long-term care facilities.

The senators recommended CMS prohibit the use of binding pre-dispute arbitration clauses in nursing home contracts in order to “ensure that residents and their families are not deprived of their rights.”

“All too often, only after a resident has suffered an injury or death, do families truly understand the impact of the arbitration agreement they have already signed,” the letter states.  

The letter stresses that nursing home residents and their families should only enter into arbitration agreements after an incident has occurred, allowing them to consider all of their legal rights.

Clif Porter, senior vice president of government affairs and public policy at the American Health Care Association, said his organization disagrees with the views expressed in the senators' letter.

“We believe this is a matter Congress has already addressed through the Federal Arbitration Act (FAA), and rulemaking on this issue is unnecessary,” Porter wrote in an email to Bloomberg BNA.

To read an excellent article from Oklahoma Watch, regarding these clauses, go here.  The article includes a copy of such an agreement with what some believe are onerous arbitration clauses.

To read an excellent position paper regarding arbitration clauses in nursing home admission agreements from the California Advocates for Nursing Home Reform (CANHR) which deconstructs the arguments supporting the clauses, go here. 

Habits Are Hard to Break: Nursing Homes Habitually Violate Federal Standards Year After Year

Coalition for Quality Care (CQC), along with Coalition member Voices for Quality Care, have conducted a new analysis of federal inspection records of nursing homes collected by the Center for Medicare and Medicaid Services (CMS).  Their analysis found that 44% of nursing homes were permitted to continue to take in new residents and receive public funds even after having repeat violations of the same quality of care standards three years in a row.  The analysis used historical inspection data to identify nursing homes that habitually violated the same minimum federal standards year after year.  Richard Mollot, President of CQC, said, "Unfortunately, this analysis confirms our collective experiences with nursing homes across the country.  Far too many people live in facilities where abuse and neglect continue year after year, with little or no effective intervention by regulators."

“We hope that state leaders, regulators and attorneys general, as well as CMS, will use these data to identify and address persistent failures to protect nursing home residents, said Mollot. “Problems should not be allowed to persist and fester.  The fact that so many nursing homes have the same quality of care deficiencies year after year should be a wake-up call to everyone concerned about the safety of nursing home residents, no matter the use of public funds on services that are worthless or harmful.”

For more information, including the data analyses for each state (listing nursing homes with three-year repeat deficiencies), go here.

To read CQC's press release, go here.

Man Can't Challenge Discharge of Brother's Debt for Mom's Care under Filial Responsibility Law

A U.S. district court has affirmed a bankruptcy court's decision that a man cannot prevent the discharge of his brother's debt owed to their mother's assisted living facility under Pennsylvania's filial responsibility law because the man was not a creditor of his brother. In re: Skinner (U.S. Dist. Ct., E.D. Pa., No. 14-6697, May 27, 2015).

Dorothy Skinner lived in an assisted living facility until she was evicted for non-payment. The facility sued Ms. Skinner's sons, Thomas and William, under Pennsylvania's filial responsibility law. The court entered a default judgment against Thomas for $32,224.56. Thomas filed for bankruptcy and sought to discharge the debt.

William filed a claim in the bankruptcy court, arguing that Thomas's debt was non-dischargeable because it resulted from fraud and embezzlement. William argued that Thomas used their mother's assets for his personal expenses, so if William was liable to the assisted living facility, he was entitled to be reimbursed by Thomas.  A U.S. bankruptcy court dismissed the claim, holding that William did not have standing because he was not a creditor of the debtor.

The U.S. District Court for the Eastern District of Pennsylvania affirmed the bankruptcy court's decision, holding that William is not a creditor of Thomas. According to the court, Pennsylvania's filial support law does not provide for contribution or reimbursement, so it does not give William a claim against Thomas.

For the full text of this decision, go here.

For a prior article about this case, go here.

To read more about filial responsibility, go here, here, here, here, and here.  

CDC Reports That SNF Workers Most Likely Among Health Care Workers to Forego Recommended Vaccinations

Another revelation supporting the wisdom of an Aging-in-Place philosophy: Healthcare personnel working in long-term care settings have the lowest rate of influenza vaccine coverage according to the Centers for Disease Control and Prevention (CDC).   An article in McKnights reports that the CDC estimates that only 64% of long-term care workers received a flu vaccine during the 2014-2015 flu season, despite its urging that all healthcare workers receive a vaccine. The CDC estimated that 77% of all healthcare personnel, including medical and nonmedical staff, reported receiving a vaccine. Hospital workers reported the highest amount of vaccine coverage at 90%.

The long-term care industry is facilitating lower than average vaccination rates; long-term care workers were also the least likely to report that their employer required vaccination, or made vaccinations available to employees on site.  Moreover, vaccination rates are lowest among the very workers most frequently in contact with residents and patients.  A high percentage of workers in long-term care facilities are assistants or aides (61 percent) and this occupational group has the lowest coverage rate regardless of where they are employed.

Each season, flu causes millions of illnesses, hundreds of thousands of hospitalizations and thousands or sometimes tens of thousands of deaths. The rate of flu-related hospitalizations for people over 65 last year was the highest it had ever been, officials said. During a National Foundation of Infectious Diseases press conference on Thursday, officials urged healthcare workers to get vaccinated, especially those working with older adults.

To read other articles regarding the risk of infections in long-term care or skilled nursing facilities, go here and here.

To read an article about a new rule impeding transfers of elderly patients to hospitals, go here.

No Good Deed Goes Unpunished? Caregiver Exemption Does Not Apply When Medicaid Recipient Is Receiving Home Care

When describing the anomalous decisions, rules, and results arising from Medicaid law, I often find myself explaining particular outcomes as another illustration of the "no good deed goes unpunished rule."  Of course, there is no such rule, and the characterization is an exaggeration.  Still, there are plenty of examples one can identify of the "rule," among them a new case arising from the State of New Jersey. 

The case has some pretty compelling facts.  G.B. was a senior recipient of 30 hours a week of in-home care through a Medicaid waiver program. G.B.'s daughter, M.B.-M. also lived with G.B. and helped to care for her.  Of course, there was care needed since the in-home care G.B. received from Medicaid constituted less than twenty percent of the weekly time for which care was necessary.  Ostensibly, the daughter M.B.-M. either personally provided or arranged and managed such care.  

G.B. sold her house to M.B.-M. and received a profit of $27,320.29.  Rather than simply gifting the entire home to the daughter, and the daughter receiving all of the proceeds, they entered into a more nuanced transaction benefiting both mother and daughter.  G.B. reduced the net proceeds of the sale she could have received by crediting M.B.-M. $42,000 in equity as a gift. One can assume that the transaction was recommended to free assets for G.B., and to immediately qualify her for Medicaid in the event that institutionalization became necessary.  Perhaps the motivation was, or included intent to compensate M.B-M. for her responsibility.  Regardless, they must have been comfortable in the legality of the transaction given that transfers of a home to a care giving child are specifically permitted by Medicaid.  By permitting transfer of a home to a child caregiver, the law  encourages a family to provide care that will keep a loved one out of a skilled nursing facility, and of course, off of the growing list of Medicaid recipients requiring long term institutional care. Despite the daughter's sacrifice for her mother, and it's benefit to the state, when Medicaid discovered the transfer, it deemed the transfer improper, and imposed an improper transfer penalty, meaning that G.B. was not eligible for benefits for a period of time.

G.B. appealed, arguing that the transfer of the home equity to M.B.-M should be exempt because it was a transfer to a caregiver child. After a hearing, the administrative law judge (ALJ) agreed.  The state, nonetheless, rejected the ALJ's conclusion, ruling that M.B.-M was not a caregiver child because in receiving 30 hours of care per week, G.B. was legally an institutionalized individual.  Yes, that's right; because she received a Medicaid waiver providing care in her home for a quantity of time that would be considered a part-time job, she was legally institutionalized!  Following G.B.’s death, M.B.-M, her executor,  appealed pro se (meaning without the benefit of counsel).

The New Jersey Superior Court, Appellate Division, Estate of G.B. ex rel. M.B.-M. v. Division of Medical Assistance and Health Services (N.J. Super. Ct., A.D., No. A-5086-12T1, Sept. 15, 2015). shockingly affirmed the state's decision, holding that the caregiver exemption does not apply. According to the court, the 30 hours of care a week that G.B. received was the functional equivalent of being an institutionalized individual. The court ruled that "although [M.B.-M] cared for her mother during the relevant time period, the key factor that permitted G.B. to remain in her home until 2009 was the Medicaid assistance she received through the services provided by the [state]."  

 So, an in-home Medicaid waiver recipient's gift of her house to her daughter does not fall under the caregiver exemption because the reason the mother was not in a nursing home was due to the in-home Medicaid benefits she received for care 30 hours a week, and not her daughter's care the other almost 170 hours a week (note, by the way that if she slept 10 hours a day, during which arguably there was no care need, that still left nearly 100 hours a week for which the daughter remained responsible).  No good deed goes unpunished?   At a minimum, the holding will cause families pause when relying upon the caregiver exemption; perhaps that is the intent of the state's position.  

There is a possible explanation for such a narrow reading and application of the caregiver exemption the State of New Jersey.  New Jersey is a  filial responsibility state.  See, e.g., NJ Rev Stat § 44:4-102 (2013).  Only time will tell whether the State is moving to enforce its filial responsibility law in order to force children to pay for the care costs of their indigent parents.  Looking at the case from a "filial responsibility" perspective, the daughter's care was her legal responsibility, meaning that it was only the state that did anything extraordinary by providing home care for thirty hours a week  Such a view would explain the court's dismissiveness of the daughter's care, and the elevation of the state's benefit. 

At any rate, with filial responsibility in play, the transfer of the proceeds from the sale of the house would have remained available to the state in resource recovery.  Collecting the proceeds by imposing an improper transfer penalty was simply a more efficient mechanism for the the state to minimize its cost and expenses. This supposition is, upon first consideration admittedly "far fetched," but we submit is no more "far fetched" than the state's keeping from a caregiving daughter some morsel from the sale of the home to which she would have seemed obviously entitled.  

For the full text of this decision, go here. 

Note: We have added a label for "No Good Deed Goes Unpunished."    

Columbus Dispatch Exposes Abuse and Exploitation of the Disabled

The Columbus Dispatch, in a series of articles culminating in last Sunday's article “Abused and Ignored,” detailed heartbreaking examples of young people being abused and prostituted by family members, and contained shocking statistics about the prevalence of abuse and crime among people with developmental disabilities. Among them:

• About 70 percent of developmentally disabled people report being physically and sexually assaulted, neglected or abused; about 90 percent of them reported multiple occurrences. Yet fewer than 40 percent of people reported this abuse to authorities, and those who did saw an arrest rate of less than 10 percent.

• Disabled people nationwide are three times as likely to be raped or sexually assaulted as the general population, with younger people and those with several cognitive disabilities at highest risk. An Ohio reporting system for the developmentally disabled received more than 2,000 reports of sexual abused from 2009 to 2014, but less than 1 in 4 of those cases was substantiated.

Fortunately, the paper discovered that Ohio has among the best reporting systems protecting the disabled, and prosecution success is common.

"Contrast these statistics to those in Summit County," the article reads. "Under Deputy Sheriff Joe Storad, the county tripled the number of police investigations involving disabled victims in the past two years. While the overall numbers are relatively small, it has achieved a 100 percent success rate for prosecutions: 31 out of 31 cases.  In neighboring Stark County, Deputy Sheriff Rocco Ross also pushes for vigorous prosecution of crimes against the disabled.  In just the past nine months, Ross says he has seen 560 potential criminal cases of this type, about half of which will be investigated for potential prosecution.  Ross told The Dispatch that it was a “very eye-opening experience” when he first became involved with investigating these cases. “I had no clue there were this many incidents against disabled individuals,” he said.

To read the Dispatch article, go here.

To read about a national reporting website for abuse against the disabled, go here. 

To read about the results of the reportage, go here.

First National Website Aims to Reduce Abuse of People with Disabilities

The Vera Institute of Justice has launched the first national website aimed at curbing abuse of people with disabilities.

The Vera Institute said people with disabilities are "victimized at alarming rates," and are three times more likely than the average population to experience sexual and violent assaults.

The website was developed by Vera’s Center on Victimization and Safety with funding from the U.S. Department of Justice’s Office of Violence Against Women. It offers an interactive map of people, programs, and projects nationwide.

“For many people with disabilities, their needs aren’t being met when they reach out for help, or their requests are met with skepticism, dismissed, or outright ignored,” said Reynoldsburg resident Nancy Smith, head of the victimization center. “Others may not understand what happened to them or be able to put a name to the pain and abuse they have survived. This website aims to ensure that survivors’ experiences are acknowledged and respected, and their needs are attended to.”

To read the Press Release accompanying the announcement, go here.  

Incorrect Denial of Medicaid Benefits Not a Defense to Nursing Home Claim on Contract

A recent case illustrates that seniors, their families, and caregivers should not rely upon institutions or the state to plan for their care; the results are often unpredictable and damaging. A New York trial court has held that the fact that Medicaid wrongly denied benefits to a nursing home resident is not a defense in a breach-of-contract claim against the resident, who died leaving an unpaid bill. East End Healthcare v. Gegenheimer (N.Y. Sup. Ct., Suffolk Cty., No. 12-21672, June 29, 2015).

Anna Amico entered a nursing home and signed an admission agreement guaranteeing payment for services.  She had a reverse mortgage, and little in the way of resources, so she applied for Medicaid.  Her niece, Joan Gegenheimer, withdrew money from Ms. Amico's reverse mortgage line of credit account shortly after Ms. Amico entered the nursing home.  The proceeds were placed in a joint bank account between Amico and her niece.  The niece withdrew some funds to pay for Ms. Amico's needs at the home.  Substantial funds were turned over to Ms. Amico, who, knowing she was terminal, paid off debts to families and friends.  When Ms. Amico applied for Medicaid benefits, the state assessed a penalty period because of the transfer. Ms. Amico died owing an amount to the nursing home, which, because of the penalty period, was equal to the amount withdrawn.

Ms. Amico died before the Medicaid determination was made, and therefore, no one filed an appeal of the denial.

The nursing home sued the niece, Ms. Gegenheimer in her capacity as executrix of Ms. Amico's estate, for breach of contract and fraudulent conveyance. Ms. Gegenheimer argued that she withdrew the money from Ms. Amico's reverse mortgage account for Ms. Amico and did not keep any of the money. According to Ms. Gegenheimer, Medicaid improperly denied coverage to Ms. Amico because it counted the money in the reverse mortgage line of credit as an available resource.  The nursing home moved for summary judgment.

The New York Supreme Court, Suffolk County, granted the nursing home summary judgment on the breach-of-contract claim, but denied summary judgment on the fraudulent conveyance claim. The court held that any mistake by the state in considering Ms. Amico's reverse mortgage line of credit funds as an asset that led to the denial of Medicaid benefits is not a defense, because Ms. Amico signed a contract expressly agreeing to make private payments. The court also ruled that because there was no evidence introduced that Ms. Gegenheimer kept the money that she withdrew from Ms. Amico's account, or that the nursing home sent Ms. Amico a bill for her services, there remains  triable issues of fact as to whether Ms. Gegenheimer or Ms. Amico believed that the use of funds would make Ms. Amico insolvent.  The case was remanded to trial court for further proceedings.  

For the full text of this decision, go here.

Read Ohio Dad's Tear-Jerking Letter to Newlywed Daughter With Down Syndrome

Just in case you missed it, please go here.  

Assisted Living Medicaid Waiver Recipients Entitled to Retroactive Benefits Even in Ohio

In another setback for the State of Ohio Department of Medicaid, a federal district court has ruled that  applicants for an assisted living Medicaid waiver program in Ohio are entitled to retroactive benefits. Price v. Medicaid Director, Office of Medical Assistance (U.S. Dist. Ct., S.D. Ohio, W.Div., No. 1:13-cv-74, Sept. 1, 2015).

Assisted living residents Betty Hilleger and Geraldine A. Saunders applied for a Medicaid assisted living waiver from the state of Ohio to pay for home health care. The state found them eligible for benefits, but it denied them retroactive benefits because the state provides only prospective coverage from the date the applicant is enrolled in the waiver program.

Ms. Hilleger and Ms. Saunders filed a class action lawsuit against the state, arguing that Ohio is violating federal law by providing only prospective assisted living waiver benefits. Federal law specifically requires that retroactive benefits be provided during the three months before the application if the applicant was eligible for benefits during that time. The state argued that eligibility for assisted living waiver benefits is prospective only, because it requires, among other things, a face-to-face assessment of the applicant.  Because these specific Ohio rules mean that an individual applicant cannot be eligible for benefits prior to the face-to-face assessment, individuals cannot be enrolled retroactively in the waiver program.

The United States District Court, Southern District of Ohio, agreed that Ohio is violating federal law and granted summary judgment to Ms. Hilleger and Ms. Saunders certifying the class action.  The Court held that the clear language of federal Medicaid law requires the state to provide retroactive benefits. According to the court, "there is nothing about a face-to-face assessment or the use of the assessment tool that prevents a retrospective determination of eligibility."  In other words,  state rules cannot be used in a manner to deny the applicant what federal law plainly permits. 

CDC Issues Antibiotic Guide To Nursing Homes

Scanning electron micrograph of
human neutrophil ingesting MRSA

The Centers for Disease Control (CDC) believes that skilled nursing facilities (SNFs) need to improve their relationships with antibiotic experts and find leaders within to lead stewardship efforts in the administration of antibiotics.  As a result, CDC released Core Elements of Antibiotic Stewardship for Nursing Homes to guide antibiotic prescribing practices and help reduce the harmful effects of antibiotic resistant infections such as C. difficile.  The guide builds on the CDC's recommendation last year that all acute care facilities design an antibiotic stewardship program.

According to an article in McKnight's:

"[t]he core elements described in the guide include gaining access to experts with experience in improving antibiotic use, tracking how antibiotics are used and identifying leaders within the facility who are responsible for overseeing antibiotic stewardship activities. The guide includes a checklist that providers can use to assess existing practices and review the progress of improvement activities."

"Superbugs that are hard to treat pose a health risk to all Americans, particularly the elderly whose bodies don't fight infection as well," said CDC Director Tom Frieden, M.D., M.P.H., in a press release. "One way to keep older Americans safe from these superbugs is to make sure antibiotics are used appropriately all the time and everywhere, particularly in nursing homes."

For a recent article regarding the risk of SNF infection risk, go here. 

Nearly 1 Million Veterans Have Pending Applications For Health Care At VA-- A Third May Already Be Dead

The continuing, enduring theme of this blog is that seniors, their families, and caregivers should plan their affairs, plan for for their care, and plan for the use and disposition of assets, consciously refusing to rely upon (or trust) the legal and government systems supposedly protecting them.  If the wisdom of planning privately and eschewing public support is lost upon anyone, s/he should read the Washington Post article, entitled, "Nearly 1 million veterans have pending applications for health care at VA — and a third may already be dead."  The only way one can read the first three paragraphs without wanting to scream, weep, or both, is to believe the government "get's it," and/or will soon "fix it."  Really?

The excellent article reads as follows (emphasis added):

"Despite promises for widespread reform, nearly 900,000 military veterans have pending applications to access health care from the Department of Veterans Affairs, the department’s inspector general said Wednesday in a scathing report which recommended a total overhaul of their record-keeping system that could take years.

One-third of those veterans are thought to be dead, but problems with the data makes it tough to know how many former troops were still struggling to get care, the report says. VA has said it has no way to purge the list of dead applicants.

Over half the applications listed as “pending,” as of last year do not even say when the applications were dated, and the Associated Press reported on Wednesday that investigators “could not reliably determine how many records were associated with actual applications for enrollment” in VA health care, the report said.

“Data limitations” [note: a  term selected because it suggests that programming engineers can't program a simple database, ignoring that no computer system could report information unavailable to the agency since the agency consciously refused to properly compile that information in order to protect performance incentives, and salaries, and political progress; in other words a term synonymous with "institutional corruption] prevent investigators from determining how many now-deceased veterans applied for health-care benefits or when.

Linda Halliday, the VA’s acting inspector general, told the AP that the agency’s Health Eligibility Center “has not effectively managed its business processes to ensure the consistent creation and maintenance of essential data.” [note: that's like an drunken alcoholic who intentionally climbs behind the wheel and drives through a school yard full of children claiming he did not "effectively manage" the automobile to ensure avoidance of the school zone].

The report also says VA workers incorrectly marked thousands of unprocessed health-care applications as completed. They may have deleted 10,000 or more electronic “transactions” over the past five years.

Whistleblowers have been warning that more than 200,000 veterans with pending applications for VA health care were likely deceased. The inspector general’s report substantiated those claims.

To read the entire article, go here.

To read a Summary of the Inspector General's Report, go here.

To read the Inspector General's Report, go here.

You Can Look Up Nursing Home Fines, ER Wait Times On Yelp!

Consumers have one more tool available to help in making informed health and long term care decisions. The website Yelp, which is perhaps best known for publishing crowd-sourced reviews about local businesses, is adding health-care data to its review pages for medical businesses to give consumers more access to government information on hospitals, nursing homes and dialysis clinics.

Consumers can now look up a hospital emergency room's average wait time, fines paid by a nursing home, or how often patients getting dialysis treatment are readmitted to a hospital because of treatment-related infections or other problems.

The review site is partnering with ProPublica, a nonprofit news organization based in New York. ProPublica compiled the information from its own research and the Centers for Medicare and Medicaid Services. The data is for 4,600 hospitals, 15,000 nursing homes, and 6,300 dialysis clinics in the United States, and it will be updated quarterly.

Much of the information about hospitals, for example, is available on Medicare's Hospital Compare Web page. Yelp executives say the information is sometimes difficult to find and more difficult for consumers to understand.  Yelp is therefore adding the information to it's website in a usable consumer friendly format.

Efforts to Change Will Without Legal Counsel Backfire

Making a will without the help of a qualified attorney can be dangerous.  Trying to change an existing will on your own can fail or have unintended consequences . A recent court decision in Minnesota serves as a cautionary reminder to anyone thinking about altering their estate plan without legal advice and counsel.

Esther Sullivan executed a will in 2006, that gave half of her property to her former employee, Tara Jean Johnson. Ms. Sullivan, left a small share of her estate to Joseph VanHale, her grandson. Two years later, in 2008, Ms. Sullivan allegedly attempted to change her 2006 will by marking up a photocopy of it and writing her initials next to each change and signing and dating the bottom of each page. She allegedly wrote on top of the 2008 photocopy, “[t]he Will dated January 19, 2006 is void and to be replace[d] with this and all written in changes.” Among the changes was that Mr. VanHale would replace Ms. Johnson as the beneficiary of half her estate. In 2010, Ms. Sullivan allegedly attempted to execute another will using a form she downloaded from the Internet. This document named Mr. VanHale as her only beneficiary.

After Ms. Sullivan’s death in 2013, the probate court had to decide which of the three wills should be followed. Mr. VanHale contended that the 2010 document was a valid will, while Ms. Johnson argued for the 2006 will. The probate court ruled that the 2008 photocopy and the 2010 downloaded document were invalid because they did not comply with the state’s requirements for a valid will, which include that the will must be signed by at least two witnesses. The court held that although Ms. Sullivan probably intended to revoke the 2006 will, she did not do so successfully. Mr. VanHale appealed, arguing that Ms. Sullivan clearly intended to revoke the 2006 will and that the 2010 document was valid.

On August 17, 2015, the Court of Appeals of Minnesota agreed with the lower court that the 2006 will should be the one admitted to probate. The court ruled that only an original will, not a photocopy, can be revoked. The court also agreed with the lower court that the 2010 document had not been validly executed.

If Ms. Sullivan did change her mind and decide that she wanted her grandson to inherit her estate, the fact that she didn’t do it properly meant that far from helping her grandson, she cost him a tidy sum in legal fees. People change their minds, and circumstances can change as well – marriage, divorce, the birth of children – and estate plans need to be revised along with these changes. If you want to alter your will or another element of your estate plan, contact your elder law attorney.

To read the court’s decision in the case, In re the Estate of Sullivan (Minn. Ct. App., No. A14– 2112, Aug. 17, 2015), click here.

170 Million Pages Why You Should Avoid Probate

"You can learn a lot about people from their wills.

You can see who was happily married and who was disappointed in their families. You can see who prized brevity and who parceled out every item as if handled by a loquacious auctioneer with lambskin gloves. 

Death may come for us all, but it doesn't necessarily still our voices." 

So begins an excellent article by Todd Leopold, writer for CNN, entitled, "Paul Revere, J.P Morgan wills among millions now online." 

The article continues:

"There's always emotion involved when someone's writing a will," said Jennifer Utley, senior manager of research at Ancestry, the genealogy company. "People make really interesting statements on how much they left people."

Ancestry has now made it much easier to research old wills, whether they're from your family or someone of historical import. The company's website, Ancestry.com, has more than 170 million pages of wills and probate records available, legal records that until recently had been accessible only offline.

Historically significant, no doubt.  These records, culled from probate courts and legal archives serve as an important object lesson; your Will is a public record.  Once filed with a probate court, it is available to anyone, and with the movement to online public records, will one day be online. If you value the privacy of your most intimate thoughts, desires, and emotions, plan your estate to avoid probate.

 

Even In Ohio, A Medicare Recipient's 'Family' Includes a Spouse

The State of Ohio Department of Medicaid has a unique arrogance interpreting federal law without regard to its meaning or intent. As a result, the Sixth Circuit Court of Appeals was recently forced to hold that a state's definition of family when determining whether a Medicare recipient is eligible for Medicaid benefits to assist with premiums must include the Medicare recipient's spouse. Wheaton v. McCarthy (6^th Cir., No. 14-4023, Sept. 1, 2015).  Yes, the State of Ohio actually refused to consider a spouse a member of an applicant's family in order to deny the applicant benefits.

Joe Turner is a married Medicare beneficiary whose monthly income is around $1,300. Mr. Turner applied for extra assistance from Medicaid to help pay his Medicare premiums. Under federal law, the state compares the beneficiary's income to the federal poverty line for a family of the size involved to determine whether a beneficiary is eligible for assistance. The larger the size of the "family involved," the greater the income a beneficiary can earn and still be eligible for assistance. The Ohio Department of Medicaid did not count Mr. Turner's spouse as part of his family and denied him benefits.

Mr. Turner sued the state, arguing the state should have included his spouse in the definition of family and that, if it had, he would have been eligible to receive Medicaid benefits. The district court rejected Mr. Turner's claim, holding that because federal Medicaid law did not define "family," the state was free to define the term as it wanted. Mr. Turner appealed.

The United States Court of Appeals for the Sixth Circuit reversed, holding that the state's definition of family should include the beneficiary's spouse. The court looked at the ordinary definition of family and noted that "to ask whether the ordinary meaning of 'family' includes a person’s resident spouse, one might say, is like asking whether our solar system includes the planet Venus."  Fortunately, the reliability and predictability of the science of astronomy doesn't rely upon the State of Ohio to interpret and implement.  The court concluded that federal law requires the state to use a family-need standard, not an individual-need standard, when considering the Mr. Turner's application for Medicaid benefits, as federal law, plainly reads and intends.

For the full text of this decision, go here.

New Controversial Sign-Off Rule Increases Burdens On Skilled Nursing Facilities- Threatens Transfer To Hospitals

Kerry Young, a reporter for Congressional Quarterly Roll Call, penned an article,"Hospital Transfer Review in CMS Nursing Home Rule Draws Flack, that exposes a controversial new rule with far reaching implications for those who hope to return seniors to health, and ultimately to their homes or non-institutional community care.  

The proposed rule, in effect, would prevent the transfer of a nursing home resident from the  nursing home to a hospital in all but emergency life threatening situations, despite the fact that the staff at the nursing home and/or  the resident's family believes transfer is in the best interest of the resident, unless and until a physician personally examines the resident and approves the transfer.  Although the industry is complaining about the burden and additional cost of the regulation, consumers should appreciate that new rule is a new roadblock to transferring a patient out of an institution.  The rule is little comfort to seniors and their families who complain that skilled nursing facilities all too often "feel" like prisons, with too few available alternatives for their beloved residents.  The government asks us to trust skilled nursing facilities with our loved ones, and then prohibits these same institutions from making decisions that they believe are in our loved ones' best interest.  The true villain in the institutional care and treatment of our elderly is revealed (hence the choice of thumbnail artwork for this article).  

To understand and appreciate the risks of institutional care, go here. You can find additional discussion of the risk of institutional care for residents suffering from COPD here, and of the risk of infections here.

 

Mr. Young writes: 

A plan to require a medical signoff before moving nursing home residents to hospitals for routine care has been heavily criticized, making it one of the most controversial items in a proposed sweeping overhaul of federal rules for long-term care organizations.

The Centers for Medicare and Medicaid Services (CMS) intends to mandate an in-person visit by doctors or other specified staff before people residing in nursing homes and similar centers are sent to hospitals, with emergency cases to be exempted from the requirement. Critics say medical evaluations would be costly and impractical.

Many executives and staff workers from nursing homes argue that they will not be able to find doctors and other qualified medical personnel to carry out the requirement due to staffing shortages. They also noted that the required review could prevent staff at nursing homes from honoring the wishes of residents and their families regarding hospital transfers. Veronnica Smith, executive director of a skilled-nursing facility in rural South Dakota, said the CMS plan was not realistic in her region.

"We do not have the luxury of a physician in our community 24/7, let alone physicians that would be willing to come to the facility to assess a resident before a transfer," Smith wrote. "Further, in the event of an emergent need, the time it would take a physician to get to the facility to approve the transfer would be too late."

Stephen Hamlin, a New York-based nursing home administrator, called the proposal "impracticable and likely counterproductive."

"I do not believe that it is appropriate for a resident experiencing an acute episode to have to wait for the arrival of a physician or physician extender before receiving emergency hospital care nor it is reasonable to expect a caregiver to determine whether a resident is at risk or not," he told CMS in a comment.

CMS is accepting public feedback on the long-term care regulation through Sept. 14. CMS has received dozens of comments addressing the mandate, with more than 30 of them referring specifically to the section of a proposed long-term care rule that would create the requirement. Dozens of other people raised objections without citing the provision specifically.

Unveiled in July, CMS' long-term care proposal marks the first attempt at a comprehensive update of the regulations since 1991, the agency said. Many organizations already have said that the expenses for carrying out the new regulations for long-term care would be burdensome. By CMS' estimate, the national cost for implementation of the proposal could be $729 million in the first year, or about $46,491 for each site providing long-term or specialized nursing care. In the second year, the estimated cost would drop to about $40,685.

CMS has worked for some time to prevent unnecessary transfers of residents of nursing homes, which can be "expensive, disruptive, and disorienting for seniors and people with disabilities," the agency says on its website. People transferred from nursing homes may be especially vulnerable to risks of hospital stays, including errors with medication and infections. [blogger's note: Of course, these same arguments by advocates against the transfer of seniors from "expensive" hospitals to "less expensive" skilled nursing facilities have not slowed the pace with which the government has required reliance upon skilled nursing facilities for  care and treatment of the elderly]. 

Current rules already require doctors to document the cause for a transfer when a nursing home or other long-term care center can't meet a person's needs, CMS said in the proposal. Requiring an evaluation by a doctor, physicians assistant, nurse practitioner, or nursing specialist before such a transfer may prevent some unneeded moves from occurring and give information to hospitals in cases when patients are moved, according to the agency.

"The idea is that this would be an opportunity to identify options that would allow the resident to be treated in house, if appropriate," said Sheila Blackstock, a CMS official who is helping create the new regulation, on an Aug. 11 call with nursing home officials. "There is an emergency exemption, and it is intended to prevent this provision from delaying a necessary transfer or putting the resident at increased risk."

For a legal guide regarding a lifetime planning trust used to implement a legal strategy for Aging-in-Place, and to help avoid institutionalization, go here. 

For a comprehensive side-by-side comparison of CMS Proposed and Current Federal Nursing Home Regulations courtesy of the National Consumer Voice for Quality Long Term Care go here.

 

Medicaid Applicant Bears Burden of Proof to Rebut Presumption that Joint Account Is Available Resource

Attorneys so often counsel clients not to maintain and hold joint accounts for convenience with persons other than a spouse.  In another object lesson why joint accounts can create legal problems, a Pennsylvania trial court has ruled that a Medicaid applicant has the burden of proving that money in a joint account was not an available resource. Toney v. Dept. of Human Services (Pa. Commw. Ct., No. 2343 C.D. 2014, June 19, 2015).

The applicant, Samuel Toney, had a joint bank account with his son with $41,510.18 in the account. Mr. Toney entered a nursing home and applied for Medicaid.  The state determined that half of the amount in the joint bank account belonged to Mr. Toney, and on that basis,  denied his application due to excess resources.

Mr. Toney appealed the decision, arguing that the amount in the account belonged to his son; the son claimed that the proceeds in the account came from the sale of the son's house ten years prior. The administrative law judge nonetheless denied the appeal, and Mr. Toney appealed to court.

The Pennsylvania Commonwealth Court affirmed the state's decision, holding that the burden of proof is on the applicant to prove to whom the assets in the account belong. According to the court, "no credible evidence was presented to rebut the presumption that Toney’s share is presumed available to him for purposes of determining the availability of resources for his partial or total support."

In one sense, the applicant's loss in this case might be considered a victory.  In support of the court's decision, the court cited the federal Medicaid regulations at 20 CFR Section 416.1208(c), which provides that "[i]f there is only one [applicant] account holder on a jointly held account, we presume that all of the funds in the account belong to that individual.  In other words, the state could have just as easily presumed that "all of the funds" in the joint account were a resource of the Medicaid applicant.  Hopefully, the object lesson learned, seniors will implement plans for their long-term care, asset management, and estate distribution, thereby avoiding the obvious risks associated with joint accounts for convenience.  

For the full text of this decision, click here.

Appellate Court Rule Approves Short Term Annuities Not Countable Resources For Medicaid

The Third Circuit Court of Appeals has ruled that a Medicaid applicants' short-term annuities are not resources even though the terms of the annuities were less than the annuitants' life expectancies. Zahner v. Secretary Pennsylvania Dept. of Human Services (3^rd Cir., Nos. 14-1328, 14-1406, Sept. 2, 2015).  

In three separate cases, Pennsylvania denied Medicaid applications on the grounds that annuity purchases were unlawful transfers.  Donna Claypoole's husband transferred money to their children and purchased a five-year annuity and a 14-month annuity before applying for Medicaid on Mrs. Claypoole's behalf. Medicaid applicant Connie Sanner also transferred money and purchased a 12-month annuity.  The original plaintiff Anabel Zahner deceased during the case, and was no longer a party  on appeal.

The three applicants filed a case in federal court, arguing that the annuities met the requirements of federal Medicaid law and should not have been considered transfers. All parties asked for summary judgment. The U.S. district court granted the plaintiffs summary judgment with regard to the five-year annuities, but denied summary judgment with regard to the shorter annuities, holding that the term of the annuity had to "bear a reasonable relatedness to the beneficiary's life-expectancy." The court also held that a Pennsylvania statute that purported to make all annuities assignable was preempted by the federal Medicaid law.

The U.S. Court of Appeals for the Third Circuit, affirmed the district court decision that federal law preempts Pennsylvania's law making all annuities assignable, but reversed the decision that the short-term annuities are resources. The court decided that "any attempt to fashion a rule that would create some minimum ratio between duration of an annuity and life expectancy would constitute an improper judicial amendment of the applicable statutes and regulations." The court further held that an annuitant's motive in purchasing an annuity is not dispositive of whether it is a resource.  

The decisions, which are expansive of consumer options in planning for Medicaid eligibility, will likely invite comparison and contrast with the recent Ohio Supreme Court decisions restricting consumer options.  

For the full text of this decision, click here.

Ohio High Court Rules That Transfer of Home Between Spouses Prior to Medicaid Eligibility Is Improper

A narrowly divided Ohio Supreme Court has ruled that the transfer of a home between spouses prior to Medicaid eligibility is an improper transfer and is subject to the community spouse resource allowance (CSRA) cap.  Estate of Atkinson v. Ohio Department of Job and Family Services (Ohio, No. 2013–1773, Aug. 26, 2015).  One year and six days after hearing oral argument in the case, the majority ruled that "federal and state Medicaid law do not permit unlimited transfers of assets from an institutional spouse to a community spouse after the CSRA (Community Spouse Resource Allowance) has been set."  The court distinguished, and did not overturn,  the 2013 federal appellate court ruling in Hughes v. McCarthy, that permitted use of spousal transfers using "annuities."

In 2000 Marcella Atkinson and her husband transferred their home into a revocable living trust. In April 2011, Mrs. Atkinson entered a nursing home and soon applied for Medicaid benefits. In August 2011, following Medicaid’s “snapshot” of the couple’s assets, the home was removed from the trust and placed in Mrs. Atkinson's name. The next day, Mrs. Atkinson transferred the house to her husband. The state determined an improper transfer had occurred and imposed a penalty period.  Mrs. Atkinson passed away, and her estate appealed to court, arguing that under federal and state statutes a spouse is not ineligible for Medicaid for transferring a home to the other spouse and that an institutionalized spouse may transfer unlimited assets to the community spouse between the date the spouse is institutionalized and the date that the spouse's Medicaid eligibility is determined. The estate lost at both the trial court and the Ohio Court of Appeals, and the estate appealed.  

In a 4-3 decision, the Supreme Court of Ohio rules that transfers between spouses are not unlimited after the snapshot date and before Medicaid eligibility and that such transfers are proper only up to the amount that fully funds the CSRA. The court rejected the estate’s reliance on the Sixth Circuit Court of Appeals’ holding in Hughes v. McCarthy (6th Cir., No. 12-3765, Oct. 25, 2013) that an annuity purchased by a community spouse before a Medicaid eligibility determination is not an improper transfer, finding that the purchase of annuities are subject to special rules and “not applicable under these facts.”  The court, however, remands the case for review of the penalty imposed because the Medicaid agency may have applied the wrong statute.  “Neither federal nor state law,” the court wrote, “supports the agency's confiscation, after the CSRA has been set, of the entire amount of transferred assets, some or all of which may have already been allocated to the community spouse on the snapshot date.”

A dissent joined by three justices states that “[w]hat this family did is and was permitted by state and federal law. . .  the home is explicitly excluded from the definition of 'resources' for purposes of establishing the CSRA.” (emphasis in original).  But, the majority rejected various "exempt asset" and "timing" arguments, in effect, interpreting state and federal law in the manner that would permit  sheltering the minimum possible assets after the ill spouse's admission to the nursing home.

For the full text of this decision, click here.