Nursing Home Worker Faces Homicide Charges in Violent Death of Resident

An alleged physical altercation between a New York nursing home aide and a resident has reportedly resulted in the resident's death.  Cherrylee Young, 41, now faces negligent homicide charges and is scheduled to appear before a grand jury.  According to authorities the physical altercation caused the resident to fall and fatally impale himself on part of a table. 

According to the New York Times, the fight broke at the 46-bed University Nursing Home in the Bronx on December 8th, allegedly after 77-year-old Frank Mercado repeatedly set off his bed alarm.  Workers reportedly found Young and Mercado on the floor, with Young repeatedly punching the resident.

The Medical Examiner determined that a table was knocked over during the altercation, and a rod attached to the table  tore the resident's rectum, causing fatal internal bleeding. According to the Daily News, Police claimed that it took hours for nursing home staff to notice Mercado's deteriorating health and send him to the hospital.

Young, arrested Dec. 9, appeared Monday in Bronx Criminal Court, claiming that Mercado attacked her and that she acted in self-defense. She agreed to testify before a grand jury, but said she will plead not guilty if indicted for negligent homicide. The charges could change depending on the grand jury's findings, according to Bronx Assistant District Attorney Nancy Borko.

University Nursing Home released a statement expressing “profound regret” over the incident, and offering condolences to the family of Mercado, a four-year resident.  "The University Nursing Home, which has a five-star rating from Medicare.gov and an exemplary healthcare history, is assisting the NYPD and the medical examiner in their investigation of this matter," the statement read. 

Advocates Seek Better Notification for Those Nearing Medicare Eligibility

Forty-four organizations, including the Medicare Rights Center, urged the Department of Health and Human Services, the Department of Labor and the Social Security Administration to implement a system for notifying individuals approaching Medicare eligibility to inform them of their rights and obligation as they near enrollment.

The organizations asked that the agencies to ensure that all individuals nearing Medicare eligibility receive timely and complete notice about Medicare enrollment. According to the letter, such a system will ensure that fewer people new to the Medicare program are saddled with higher health care costs or go without needed health care services due to gaps in coverage and late enrollment penalties resulting from missing enrollment windows.

In particular, the letter suggests the following:

• Provide notice about nearing Medicare eligibility to all individuals turning age 65;

• Ensure that notices include key messages about coordination of benefits and delaying enrollment;

• Carefully engage other messengers, including health plans, employers and states;

• Strengthen notice for those who are auto-enrolled into Medicare; and

• Develop notices and educational materials in additional languages and alternate formats.

The Medicare Rights Center is a national, nonprofit consumer service organization that works to ensure access to affordable health care for older adults and people with disabilities through counseling and advocacy, educational programs and public policy initiatives.  Click here to read the letter.

A Holiday Gift from an ABLE Congress!

Sara Wolff (center) calling on Congress to allow disabled
 Americans to save and still receive benefits like
 Social Security Disability Insurance payments and Medicaid

The following is a reprint from the blog of Michael Morris, the Executive Director of the National Disability Institute (NDI) in Washington:

Last night, the U.S. Senate overwhelmingly passed (76-16) the Achieving Better Life Experience (ABLE) Act. The bill now goes to President Obama for signing into law. Not since the passage of the Americans with Disabilities Act (ADA) in 1990 has Congress moved forward with a change in public policy as important and unprecedented as ABLE. The ABLE Act represents the first time there is clear recognition and sensitivity to the extra costs of living with a disability for children and adults with significant disabilities and their families. Every day, all across America, parents raising a child with a disability are confronted with costs not covered by insurance and various public assistance or benefits. The costs are as varied as modifying a home to be more accessible to using adaptive equipment and assistive technology that enhances learning, mobility, hearing and the ability to use a computer, all which improve quality of life experience. 

For adults with significant disabilities, extra costs can also include additional hours of personal assistance support to get out of bed, help with cooking and other daily living needs, as well as accessible transportation, housing and employment supports. 

The ABLE Act responds to these significant daily and weekly out-of-pocket expenses by creating, for the first time, a tax-advantaged savings account (an ABLE account). This account would cover the extra costs of living with a significant disability without adversely affecting continued eligibility for government benefits such as Supplemental Security Income (SSI) and Medicaid (health care). 

No piece of legislation before this Congress had more cosponsors – 380 House Members and 74 Senators – or received more bipartisan support across both the Democratic and Republican parties. ABLE is, above all, about fairness. Families raising children with significant disabilities do not want a handout and public assistance that comes with a life sentence in poverty. The disability community wants a hand up so they can be included in the economic mainstream as productive and valued members of inclusive workplaces and communities. ABLE offers, for some individuals and families (eligibility is limited to age of onset of disability by 26 years of age), an opportunity to plan for the future by setting aside up to $100,000 for expenses that may accrue over a lifetime, without the interest being taxed when the funds are removed. For some five million plus individuals and families who are likely to establish an ABLE account in the future, it is truly an early holiday present.

Thank you to Congress for passing the ABLE Act and improving the financial security of millions of Americans with significant disabilities and their families.

The National Disability Institute is a national not for profit corporation that is dedicated to "changing thinking and behavior that advance the financial stability and economic strength of persons with disabilities across the country.  Leveraging public and private resources, NDI is uniquely and singularly focused on promoting REAL ECONOMIC IMPACT for persons across the full spectrum of disabilities."  NDI's Real Economic Impact Blog is just one part of that mission.

Let us all join in the growing chorus of voices thanking Congress for this holiday gift.  You can read more about the ABLE Act here.  This blog will later carry a final description of the law as signed by the President.

Hasbro Creates Online Program for Children With Disabilities

Hasbro, Inc.,  creator of Mr. Potato Head, Play-Doh, Monopoly, and Connect 4, is releasing a series of online videos and other tools to help children with disabilities effectively engage with both toys  and other children.

The project, “ToyBox Tools”, “is designed to help kids learn what each toy is all about, how to put the item together and presents children with alternative ways to engage independently or with peers,” according to an article on DisabilityScoop.com. According to the Hasbro website:

"Hasbro’s fundamental mission is to bring joy and play to children and their families around the world. But for some children play can be challenging. For children with a developmental disability, play isn’t always accessible out of the box, relegating countless toys to the back of the closet or the donation bin. More importantly, the joy and benefits that play can bring, the connection between peers, siblings and other generations may be lost.” 

The initiative, “emerged from employees at Hasbro concerned that kids with developmental disabilities were losing out on valuable opportunities to connect with others through play, the company said.” “Believing that we could do more, a passionate group of Hasbro employees from across the Company, came together to team up with Autism Project – a long term philanthropic partner of the Hasbro Children’s Fund, to figure out a way to help,” said Hasbro’s site. The team, Hasbro said, “learned that many classic Hasbro toys were being widely used by teachers and occupational therapists working in the field and that they were creating their own supportive play tools which provided structure that is critical to the way certain children manipulate concepts to help them understand play.” The program is available online for free, and “Hasbro officials described the effort as a pilot program and said they will continue to refine the tools.” 

See more here. 

Nearly Forty Percent of Elderly Suffer At Least One Disability

Download Percentage of  County Population Age 65
 and Over with a Disability: 2008-2012

Nearly 40 percent of people age 65 and older had at least one disability, according to a U.S. Census Bureau report that covered the period 2008 to 2012. Of those 15.7 million people, two-thirds of them say they had difficulty in walking or climbing.

Difficulty with independent living, such as visiting a doctor’s office or shopping, was the second-most cited disability, followed by serious difficulty in hearing, cognitive difficulty, difficulty bathing or dressing, and serious difficulty seeing.

While populous states such as California, Florida, New York and Texas had the largest number of older people with a disability, high disability rates were seen in Southern counties, especially in central Appalachia and the Mississippi Delta.

Older Americans With a Disability: 2008-2012, a report based on data collected during the American Community Survey, examines disability status by age, sex and selected socio-economic characteristics, such as marital status, living arrangement, educational attainment and poverty status.

“The statistics provided in this report can help anticipate future disability prevalence in the older population,” said Wan He, a demographer from the Census Bureau’s Population Division. “The figures can be used to help the older population with a disability, their families, and society at-large plan strategies and prepare for daily life tasks and old-age care.”

The following are some of the statistical highlights gleaned from the report:

• More than half (54.4 percent) of the older population who had not graduated from high school had a disability, twice the rate of those with a bachelor’s degree or higher (26.0 percent). This inverse relationship between educational attainment and likelihood of having a disability was found across age, sex, race and Hispanic origin.

• More than one-third of those 85 and older with a disability lived alone, compared with one-fourth of those age 65 to 74.

• About 13 percent of the older household population with a disability lived in poverty; in contrast, 7 percent of those without a disability were in poverty.

• The older population with a disability was disproportionately concentrated among those 85 and older. This group represented 13.6 percent of the total older population but accounted for 25.4 percent of the older population with a disability.

• Women 65 and older were more likely than men 65 and older to have five of the six types of disability included in the American Community Survey, especially ambulatory difficulty. Older women’s higher rates for disability are, in part, because women live longer.

• Older men’s higher likelihood for having a hearing disability may reflect the lifelong occupational differentials between men and women, where men may be more likely to have worked in industries that cause noise-induced hearing loss.

• Disability rates were lower for married older people than for those widowed or in other categories of marital status.

Most long term care insurance policies and benefits require that the insured be unable to perform without assistance two Activities of Daily Living (ADL's), such as transferring, toileting, bathing, continence, dressing and eating. If you have such a policy you should retain a copy of the actual policy in order to see for yourself how the benefit "triggers" and what ADL limitation is described.  A single disability may or may not impair more than one ADL.

The Division of Behavioral and Social Research at the National Institute on Aging of the National Institutes of Health commissioned this report and also supports other Census Bureau reports on aging research.

Long Term Care Facilities Must Recognize and Respect Same Sex Marriages Under Proposed Rule

Long-term care facilities are required to recognize certain same-sex marriages in order to participate in Medicare and Medicaid under a recently proposed rule.

The rule would also apply to hospices and other types of providers and suppliers. The 26-page rule and policy statement was drafted in response to the 2013 United States v. Windsor Supreme Court ruling, which struck down portions of the Defense of Marriage Act and paved the way for gay married couples to be recognized under federal law.

Among the conditions of participation related to long-term care is a section on resident rights, including rights to communicate with and have access to people “inside and outside a facility.” A proposed addition to this section would specify that a same-sex spouse has the same rights as opposite-gender spouses, if the same-sex marriage was valid in the jurisdiction where it took place.

A proposed revision for hospices would ensure that a same-sex spouse can make the decision to terminate care for an incapacitated person.

“Our goal is to provide equal treatment to spouses, regardless of their sex, whenever the marriage was valid in the jurisdiction in which it was entered into, without regard to whether the marriage is also recognized in the state of residence or the jurisdiction in which the healthcare provider or supplier is located,” the Centers for Medicare & Medicaid Services writes in the proposed rule.

The proposed rule is available here. It is scheduled for publication in the Federal Register. Comments can be submitted through Feb. 10.

Questions to Ask Before Serving as Trustee

Being asked to serve as the trustee of the trust of a family member is a great honor. It means that the family member trusts your judgment and is willing to put the welfare of the beneficiary or beneficiaries in your hands. 

But being a trustee is also a great responsibility. You need to accept your responsibility fully informed and with your eyes wide open. Here are six questions to ask before saying "yes":

• May I read the trust? The trust document is your instruction manual. It tells you what you should do with the funds or other property you will be entrusted to manage. Make sure you read it and understand it. Ask the drafting attorney any questions you may have.

• What are the goals of the grantor (the person creating the trust)? Unfortunately, many trusts say little or nothing about their purpose. They give the trustee considerable discretion about how to spend trust funds with little or no guidance. Often the trusts say that the trustee may distribute principal for the benefit of the surviving spouse or children for their "health, education, maintenance and support." Is this a limitation, meaning you can't pay for a yacht (despite arguments from the son that he needs it for his mental health)? Or is it a mandate that you pay to support the surviving spouse even if he could work and it means depleting the funds before they pass to the next generation? How are you to balance the needs of current and future beneficiaries? It is important that you ask the grantor while you can. It may even be useful if the trust’s creator can put her intentions in writing in the form of a letter or memorandum addressed to you.

• How much help will I receive? As trustee, will you be on your own or working with a co-trustee? If working with one or more co-trustees, how will you divide up the duties? If the co-trustee is a professional or an institution, such as a bank or trust company, will it take responsibility for investments, accounting and tax issues, and simply consult with you on questions about distributions? If you do not have a professional co-trustee, can you hire attorneys, accountants and investment advisors as needed to make sure you operate the trust properly?

• How long will my responsibilities last? Are you being asked to take this duty on until the youngest minor child reaches age 25, in other words for a clearly limited amount of time, or for an indefinite period that could last the rest of your life? In either case, under what terms can you resign? Do you name your successor, does the trust  or does someone else?

• What is my liability? Generally trustees are relieved of liability in the trust document unless they are grossly negligent or intentionally violate their responsibilities. In addition, professional trustees are generally held to a higher standard than family members or friends. What this means is that you won't be held liable if for instance you get professional help with the trust investments and the investments happen to drop in value. However, if you use your neighbor who is a financial planner as your adviser without checking to see if he has run afoul of the applicable licensing agencies, and he pockets the trust funds, you may be held liable. A well-respected Massachusetts attorney who served as trustee on many trusts used a friend as an investment adviser who put the trust funds in risky investments just before the 2008-2009 stock market crash. The attorney was held personally liable and suspended from the practice of law. So, be careful and read what the trust says in terms of relieving you of personal liability.

• Will I be compensated? Often family members and friends choose to serve as trustees without compensation. If the duties are especially demanding, however, it is appropriate for trustees to be paid for service. The question, then, is how much. Professionals generally charge an annual fee of 1 to 2 percent of assets in the trust. So, the annual fee for a trust holding $1 million would be $10,000. Institutions and professionals generally charge a higher percentage for  smaller trusts and a lower percentage for larger trusts. If you are performing all of the work for a trust, including investments, distributions and accounting, it would be inappropriate to charge a similar fee. If, however, you are paying others to perform these functions or are acting as co-trustee with a professional trustee, charging this much may be seen as inappropriate. A typical fee in such a case is a quarter of what the professional trustee charges, or .25 percent (often referred to by financial professionals as 25 basis points). In any case, it's important for you to read what the trust says about trustee compensation and discuss the issue with the grantor.

If after getting answers to all these questions you feel comfortable serving as trustee, you should accept the role. It is an honor to be asked and you will provide a great service to the grantor and beneficiaries.

For a list of things to do after being appointed a trustee, click here.

For more on the different kinds of trusts, click here.

COPD Patients Discharged to a Skilled Nursing Have Two Times the Risk of Death Within Year Compared to Those Who Go Home

According to a study recently reported in McNight's, patients who go to a skilled nursing facility after being hospitalized for chronic obstructive pulmonary disease (COPD) are about twice as likely to die within a year: 

"The probability of death within 180 days was nearly 34% for COPD patients discharged to a SNF, versus roughly 16% for those who were sent home, the investigators determined. These numbers were 46.5% and 24%, respectively, at a year after hospital discharge. These statistics are for patients hospitalized with a diagnosis-related group (DRG) code of 190, but DRGs of 191 and 192 had similarly high rates."

Patients who go to a SNF likely have more severe COPD, multiple chronic conditions and poorer overall physical functioning, the study authors acknowledged. Still, the authors suggest, based upon the findings, that more robust interventions might improve the mortality of this group. Further research could determine which patients are likely to benefit from more intensive management and which might be candidates for hospice and palliative care.

The investigators analyzed Centers for Medicare & Medicaid Services data for about 500,000 patients in Ohio during 2008 and 2009. They are affiliated with not-for-profit hospital group OhioHealth, and presented their findings last week.

You can read more about the study here. 

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

A bankruptcy court has ruled that a man does not have standing to prevent the discharge of his brother's debt owed to their mother's assisted living facility under the state's filial responsibility law. In re: Skinner (Bankr. E. D. Pa., No. 13-13318-MDC, Oct. 8, 2014).

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 is 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 is liable to the assisted living facility, he is entitled to be reimbursed by Thomas.

The U.S. Bankruptcy Court, Eastern District of Pennsylvania, dismissed the claim, holding that William does not have standing because he is not a creditor of the debtor. According to the court, even if Thomas's actions injured Mrs. Skinner, that conduct was directed at Mrs. Skinner and her property, not at William. The court rules that William "may not invoke a cause of action that belongs to his [m]other to remedy the [Thomas's] liability for the Support Claim."  

Of course, underlying this case of one sibling fighting another is the liability created by filial responsibility; the siblings are jointly and severally liable.  Joint and several liability means that the creditor, in this case the assisted living facility, can enforce and collect the debt from the siblings jointly, or any one or more of the siblings severally.  If one sibling is unable to pay, the full debt falls to the other(s).  The assisted living facility can collect the full debt from any one of the siblings who is most likely to pay quickly.  Hence, one sibling seeks to stop a bankruptcy court from exonerating the other, leaving the sibling that does not file for bankruptcy solely responsible for the debt.  

Filial responsibility will only create more instances of familial discord and conflict as circumstances cast these obligations to fall inequitably among family members. Moreover, the court suggested that the Pennsylvania law does not allow for an action for contribution or reimbursement; if one family member is held responsible and another is not, the responsible family member may not be able to do anything about it.  Bottom line: parents' efforts to treat children equally or equitably will likely be sacrificed on the altar of Medicaid resource recovery in a filial responsible world. 

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

Hapatitis Infection Risk in Nursing Homes Up 50%; Infection Risk Across the Board Increases

The rate of nursing home infections increased during a recent five-year period, with especially dramatic surges in multi-drug resistant organisms and viral hepatitis, according to recently published findings from Columbia University School of Nursing and the RAND Corporation, and reported in McNight's.

The prevalence of viral hepatitis in nursing homes increased 48% between 2006 and 2010, the investigators determined.  Outbreaks of Hepatitis C are common, including a recent outbreak in North Dakota involving ManorCare.  MDRO (multi-drug resistant organisms) prevalence increased by 18% and pneumonia by 11% during the same period. The rates of urinary tract infections, septicemia and wound infections also rose.

“Infections are a leading cause of deaths and complications for nursing home residents, and with the exception of tuberculosis we found a significant increase in infection rates across the board,” said lead study author Carolyn Herzig, MS, project director of the Prevention of Nosocomial Infections & Cost Effectiveness in Nursing Homes study at Columbia School of Nursing in New York City.

According to the authors, further research is needed to determine the cause of this troubling trend. They emphasized that potential residents and their families should look for facilities with strong infection control practices, including protocols to limit catheterization, easy access to hand sanitizers and isolation rooms for infected residents.

The results came from an analysis of data that nursing homes self-reported to the Centers for Medicare & Medicaid Services, and the study was supported by the National Institute of Nursing Research. 

Infection control has emerged as a top priority both for providers and the government. The White House recently launched a nationwide effort to reign in MDROs related to antibiotic prescribing practices.