Filial Responsibility- Resident’s Son Not Liable for Breach of Contract Because He Did Not Cause His Mother to Be Ineligible for Medicaid

The efforts of nursing homes to create and enforce filial responsibility, even where state legislators have not enacted such legislation, is a frequent topic of articles on this blog.  See, for example, the following: 

• Judge Can Not Impose an ‘Unusual’ Condition on a Reversal of a Default Judgment in a Nursing Home Breach of Contract Lawsuit;
• Tortious Interference With Contractual Relationship Claim Most Recent Possible Remedy Nursing Homes can Employ Against Children of Nursing Home Residents;
• Conservator Owes Duty to Nursing Home to Timely Apply for Medicaid;
• Agent Under Power of Attorney Liable for Damages to Nursing Home for Breach of Contract;
• Conveyance to Son Was Fraudulent, But His Siblings May Also Be Liable Under Filial Support Law;
• Nursing Home May Sue Resident's Daughter for Breach of Contract.

A recent case demonstrates just how aggressive a nursing home can be when protecting its interests.  A New York appeals court ruled, though, that the nursing home resident’s son, who signed an admission agreement agreeing to take all necessary steps to provide documentation for his mother’s Medicaid application, is entitled to summary judgment in a breach of contract claim by the nursing home, because there was no evidence his actions caused her to be ineligible for Medicaid. Wedgewood Care Center, Inc. v. Kravitz (N.Y. Sup. Ct., App. Div., 2nd Dept., No. 2017-12681, Aug. 18, 2021).

Eric Kravitz admitted his mother, Beatrice Kravitz, to a nursing home and signed an admission agreement. The admission agreement stated that Mr. Kravitz would be personally liable if he failed to take all necessary steps to provide requested documentation to Medicaid or if his actions contributed to non-payment of fees. The nursing home applied for Medicaid on Ms. Kravitz’s behalf, but the state determined she had excess resources. Ms. Kravitz died owing the nursing home almost $50,000.

The nursing home sued Mr. Kravitz for breach of contract, claiming that he failed to provide documentation to assist with Ms. Kravitz’s Medicaid application and that he had control over some of Ms. Kravitz’s assets. The nursing home argued that Mr. Kravitz was contractually obligated to have Ms. Kravitz sign a release of her financial records and obtain documentation from other entities. Mr. Kravitz filed a motion for summary judgment, arguing that the state did not deny Medicaid coverage because of his actions. The trial court granted the nursing home summary judgment. Mr. Kravitz appealed.

The Supreme Court of New York, Appellate Division, 2nd Department, reversed and granted summary judgment to Mr. Kravitz on the breach of contract claim relating to his failure to cooperate with the Medicaid application. The court ruled that the “admission agreement did not require the defendant to provide documents or information that were not within his possession or control” and that Mr. Kravitz’s actions did not cause Ms. Kravitz to be ineligible for Medicaid. According to the court, “the admission agreement expressly limited the scope of the [Mr. Kravitz’s] liability to circumstances where his own breach of the agreement constituted a proximate cause of the [nursing home’s] damages.” 

The court also ruled that although Mr. Kravitz had control over some of Ms. Kravitz’s assets, the nursing home did not demonstrate that those assets were available to pay for her care. The court remanded the case for further proceedings to consider Mr. Kravitz's duty to use his mother's assets to pay the nursing home.

The case is not over.  The son lost in the trial court, but won on appeal, sending the case back to the trial court for further consideration.  The son may or may not prevail before the trial court upon reconsideration, but one thing is clear- the son has expended and lost what is probably an extraordinary amount in legal expense and time, simply because he was the person responsible for his mom, and that placed him between the nursing home and money.   

Medicare Advantage Plans and Staffing Shortages Slowing Hospitals Discharges to Nursing Homes

Skilled nursing admissions are being slowed by both staffing shortages and Medicare Advantage restrictions.  According to a recent article in Mcknight's Long-term Care News, the delays  are threatening log jams in "hospitals desperate to discharge patients to post-acute care and free up needed beds."  The problem is especially pronounced in states with high COVID-19 case rates. 

Hospital executives and healthcare leaders have complained that the prior authorizations needed to send no-longer acute patients on to post-acute care have always come slowly in states like Florida, Louisiana and Oregon. But the problem is limiting access to care for would-be hospital admits during the ongoing delta surge.

Many Medicare Advantage plans have suspended their restrictions during this stage of the pandemic, but their replacement requirements and expiration dates vary. Humana’s waiver for Louisiana lasts until Sept. 17, while Florida Blue’s is open-ended. 

Some want uniformity directed by state or federal regulation.  “The challenge when it is not being directed by a state or federal agency is you have significant variation from one plan to the next as to how they are providing the flexibility, which creates more confusion at a time when we need to minimize as much confusion as possible,” Mary Mayhew, CEO of the Florida Hospital Association, told Modern Healthcare.

In places where waivers exist, they can be highly effective. AdventHealth in Altamonte Springs, FL, estimated waivers issued by some Medicare Advantage plans cut transitions into post-acute care down to about 24 hours.

“If the waiver goes away, we are concerned hospitals could return to seeing delayed transfers contribute to challenging capacity constraints,” said Lisa Musgrave, vice president of home care administration and post-acute services.

The American Hospital Association has been working with the Centers for Medicare & Medicaid Services (CMS) and Medicare Advantage organizations to “encourage adoption of these waivers.”  For its part, CMS issued a memo that “strongly encouraged” plans to relax prior authorizations “to facilitate the movement of patients from general acute-care hospitals to post-acute care and other clinically-appropriate settings, including skilled nursing facilities.”

Whether skilled nursing facilities could accept patients more quickly if prior authorizations are lifted remains to be seen. Kristen Knapp, spokeswoman for the Florida Health Care Association, said the larger issue “is all about staffing.”

A survey of FHCA members in early August found half had had to reduce admissions in the previous month due to worker shortages.

“The workforce crisis is real, and while we want to be good community partners during the surge, nursing centers right now are doing everything they can to maintain and recruit more staff to support the patients they are currently caring for,” Knapp told McKnight’s Long-Term Care News.

Guardianship Risk: Rick Black from CEAR Addresses the Guardianship Improvement Task Force

Rick Black, addresses the Guardianship Improvement Task Force on August 19, 2021.   Rick is a director of the Center for Estate Administration Reform (CEAR).  CEAR is a not-for-profit advocate with a mission to educate and seek justice for Americans when they are threatened by the growing problem of abusive probate, trust and guardianship fraud.

CEAR’s objective is to become the front line defense against the betrayal of our most vulnerable citizens, and a powerful force that investigates those who pervert the courts and exploit the law for their own gain.

CEAR's website poses the challenge succinctly:

Though many attorneys are honest and work with integrity, in reality, the legal system does not demand honesty, and is uniquely positioned to intercept estate funds either through independent actions or through the probate court system [emphasis added]. The probate system nationwide is fully aware of the system’s shortcomings, and yet it refuses to admit how easily it can be compromised to benefit the predatory legal community — at the expense of the vulnerable public it claims to protect.

The appointment of an unscrupulous guardian can happen to anyone. The practice is fully endorsed by some in the legal community who can mitigate liability or receivables risks by medical institutions, or illegally assume control of an estate. It is a problem in every state, the question being only to the degree by which it occurs.

Effective aging in place planning demands that a senior, the seniors family, and the senior's advisors understand and implement strategies to avoid and prevent abusive guardianship and abusive guardians through comprehensive planning.  Only by confronting the systemic risk of avoidable and unnecessary institutionalization, can a senior hope to control where s/he ages.   

 

IRS Publishes "Dirty Dozen" Tax Scams Targeting Taxpayers

Each year, the Internal Revenue Service (IRS) puts out their “dirty dozen” list. This is a list of scams that are so prevalent that the IRS wants everyone to watch out for. The scams fall into four main categories: pandemic-related scams; scams relating to personal information; schemes focusing on certain victims; and scams that persuade taxpayers into taking crooked actions.  Of course, readers of this blog are aware that Alzheimer's cure scams are currently targeting the elderly and their families. 

Pandemic Scams

Due to the pandemic, the government passed legislation that provided financial help to individuals and businesses. A scam can focus on stealing these payments. The IRS alerts taxpayers to watch out for mailbox theft of stimulus checks. The IRS reiterates that an IRS employee will not initiate contact via phone, email, or text asking for your social security number or other information in order to process stimulus checks.  These scams often target a person's sense of community, need for unity, and commitment to good public health.

Scammers have also stolen identities and filed unemployment claims, the IRS says. These scammers have benefited from the bolstered unemployment benefits but the legitimate taxpayer is the one who may receive a Form 1099-G to report on their income tax return. If you received this form and you didn’t actually receive unemployment benefits, you should contact the appropriate state agency for a corrected form.

Scams Related to Personal Information

Personal information (PI) is information that is used to identify you and thus could lead to a scammer impersonating you. PI includes your social security number, driver’s license number, banking information, passwords, and more.

The first scam related to PI that the IRS warns against is phishing. This involves the scammer sending you a communication that looks like it is from a legitimate source, like a government agency. You think you are dealing with the IRS but you are instead dealing with a ne’er-do-well. The scammer collects your PI and then is able to perpetrate fraud on your accounts. Or the scammer has a virus embedded in the communication that compromises the security of your computer or phone.

Schemes Focusing on Certain Victims

There are also scams related to social media. The scammer may open a social media account and pretend to be friend or family member in order to extract PI from you. Or the con artist could ask you for money due to an “emergency” or for a fake charity contribution.

With the pandemic, fraudsters have set up fake charities or disaster relief companies. Or they create bogus stories on social media about a fake family that has had it particularly rough due to COVID-19. These stories or charities pull at your heart strings. Before you give to a cause, do your research to make sure it is legitimate, and your funds will be used as you intend. Be wary of a charity asking for a donation via gift card or money wire.  Even legitimate news organizations have been bitten by scammers, and have unwittingly facilitated relief scams. 

Scams that Persuade Taxpayers into Taking Crooked Actions

Immigrants are the targets of some scammers. The con artist will impersonate a government employee and threaten deportation or jail if a sum is not paid. The IRS states that a legitimate IRS agent will not make these threats. Similarly, those with limited English-speaking capability are susceptible to phone scams. The Schedule LEP let’s a taxpayer request a change in their language preference so that they can more easily understand official IRS communications.

Scammers may offer big discounts for a “settlement” with the IRS, or say that they will file for certain relief programs, such as an Offer in Compromise. While relief programs do exist with the IRS and can prove very helpful for some taxpayers with IRS debt, you need to make sure you are dealing with a reputable company who will actually do legitimate work on your behalf. Look out for misleading advertising or deals that seem too good to be trust. It might be worth contacting the IRS yourself first to see what options you have. There are many resources on the IRS’ website, including a questionnaire to see if you qualify for an Offer in Compromise. And, of course, the IRS offers its forms online.

Scammers are out there waiting to prey on the vulnerable and unsuspecting. The IRS warns to look out for any scam that requests payment via gift cards. Also, be aware that in most circumstances, the IRS will first communicate with you via mail. If the first contact is a phone call, be cautious. And the IRS will almost never send out communications to you via email.

One tactic that may reduce the damage resulting from a variety of scams is a security freeze and increased alert protection on the use of your identity.  There is a free service provided through the federal government.  For more information, read the blog article here. 

The Department of Justice maintains a National Elder Fraud Hotline, which will provide services to seniors who may be victims of financial fraud.  The Hotline is staffed by experienced case managers who can provide personalized support to callers.  Case managers assist callers with reporting the suspected fraud to relevant agencies and by providing resources and referrals to other appropriate services as needed.  When applicable, case managers will complete a complaint form with the Federal Bureau of Investigation Internet Crime Complaint Center (IC3) for Internet-facilitated crimes and submit a consumer complaint to the Federal Trade Commission on behalf of the caller.  The Hotline’s toll free number is 833-FRAUD-11 (833-372-8311).

Additional Protection to Help Protect Taxpayers

    IRS makes IP PINs available to all taxpayers – adding additional security

To help taxpayers avoid identity theft, the IRS this year made its Identity Protection PIN (IP PIN) program available to all taxpayers. Previously it was available only to victims of ID theft or taxpayers in certain states. The IP PIN is a six-digit code known only to the taxpayer and to the IRS. It helps prevent identity thieves from filing fraudulent tax returns using a taxpayer's personally identifiable information.

Using an IP PIN is, in essence, a way to lock a tax account. The IP PIN serves as the key to opening that account. Electronic returns that do not contain the correct IP PIN will be rejected and paper returns will go through additional scrutiny for fraud.

        Reducing fraud

The IRS and its Security Summit partners in the states and the private-sector tax community have made changes to help reduce identity theft-related refund fraud that are noticeable to the average person filing a return:

• Tax software providers agreed to strengthen password protocols. This is the first line of defense for these companies to make sure their products are secure.
• State tax agencies began asking for taxpayers' driver's license numbers as another way for people to prove their identities.
• The IRS limited the number of tax refunds going to financial accounts or addresses.
• The IRS masked personal information from tax transcripts.

    Multi-factor authentication can help

It is important for taxpayers filing in 2021 to know that online tax software products available to both taxpayers and tax professionals will contain options for multi-factor authentication. Multi-factor authentication allows users to better protect online accounts. One way this is accomplished is by requiring a security code sent to a mobile phone in addition to the username and password used to access the account.

The IRS and its Security Summit partners have formed an information sharing center that allows them to quickly identify emerging scams and react to protect taxpayers. The Identity Theft Tax Refund Fraud Information Sharing and Analysis Center PDF is now operational.

Also, check out our recent A Closer Look column for more on how to be vigilant about tax scams. Visit Identity Theft Central and Tax Fraud Alerts for more information on how to protect against or report identity theft or fraud.

If someone contacts you claiming to be from the IRS, you should call the IRS at 800-829-1040 to see what the facts are before proceeding.

Outbreak of Untreatable, Drug-Resistant Super-Fungus Unnerves Experts in Two Major US Cities

Image Source: Photo 197980721 / Contagion

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As the delta variant of Covid-19 races through populations and consumes government and media resources, the Centers for Disease Control and Prevention (CDC) announced discovery of multiple instances of Candida Auris that appear to be resistant to all medicines in two health institutions in Texas and a long-term care facility in Washington, D.C.  According to researchers, the deadly, difficult-to-treat fungal infection spreading through nursing homes and hospitals across the United States is becoming even more dangerous. For the first time, the fungus, Candida Auris, has proven to be "utterly impervious" to all existing medication in several cases.

C. Auris, is a hardy yeast infection first found in Japan in 2009, and it is spreading rapidly throughout the globe.  During the coronavirus pandemic, federal health officials believe the disease spread more quickly and even farther, with overburdened hospitals and nursing homes unable to keep up with the surveillance and control procedures needed to manage local outbreaks.

According to the CDC's recent study, at least five out of over 120 cases of C. Auris were resistant to therapy.  The CDC did not name the facilities where the novel infections occurred. Still, health officials said there was no apparent link between the outbreaks in Texas at a hospital and a long-term care facility that shared patients and in Washington, D.C. at a single long-term care center. Between January and April, epidemics occurred.

According to the C.D.C., about a third of infected patients died within 30 days, although officials said it was unclear if their deaths were caused by the fungus because they were already "critically ill."

The CDC has discovered more than 2,000 Americans colonized with C. Auris - meaning the fungus was found on their skin - during the last eight years, with most cases centered in New York, New Jersey, Illinois, and California. Approximately 5% to 10% of individuals infected with the virus develop more severe bloodstream infections.

The fungus is difficult to eradicate from healthcare institutions once it has established itself, sticking to cleaning carts, IV poles, and other medical equipment. While the yeast infection is usually innocuous to individuals in good health, it can be fatal to critically ill hospital patients, long-term care facility residents, and others with weaker immune systems.

Dr. Cornelius J. Clancy, an infectious diseases specialist at the V.A. Pittsburgh Health Care System, told NatureWorldNews, "If you wanted to conjure up a nightmare scenario for a drug-resistant virus, this would be it." "Immunocompromised patients, transplant recipients, and critically sick patients in the I.C.U. would all be at risk from an untreatable fungal infection."

While C. Auris has a reputation for being difficult to treat, researchers discovered five individuals in Texas and Washington, D.C., who had infections that did not respond to any of the three primary antifungal classes. In addition, Panresistance had previously been reported in three C. Auris patients in New York.

Still, health officials said the newly registered panresistant infections occurred in patients who had never received antifungal drugs,  Dr. Meghan Lyman, a medical officer at the CDC specializing in fungal diseases, told the New York Times.

"What's alarming is that the individuals at risk aren't just a tiny group of folks who have infections and are already taking these medications," she added.

The discovery of a panresistant C. Auris is a sobering reminder of the risks presented by antimicrobial resistance, from superbugs like MRSA to antibiotic-resistant salmonella. According to the CDC, such diseases sicken 2.8 million Americans each year and kill 35,000.

Transport Risk Includes Assault, Abandonment, and Identity Theft!

Two senior living caregivers are charged with abuse and exploitation for allegedly stealing a resident’s identity and debit card and then abandoning the resident on the side of the road on a “particularly hot day” in 2019.  Tavetta Lavetta Jones and Tekera Levine, employees of Whispering Pines Assisted Living in Pensacola, FL, were supposed to transfer the resident to sign bond paperwork. 

Florida Attorney General Ashley Moody announced the arrests and charges  following an investigation by the state Medicaid Fraud Control Unit. Reporting suggests that the assisted living facility at which the resident lived was wholly unaware of the fraud, or that the resident had been abandoned:

Kevin Wheatley, owner of Whispering Pines, said he is in “scramble mode” to keep his facility “running safely and smoothly,” adding that he only learned about the incident recently from the local news.  “There is a certain amount of trust you have to put in your staff,” Wheatley told McKnight’s Senior Living. "If that trust is broken, it’s obviously heartbreaking.”

Wheatley reportedly told McKnight's Senior Living that Jones is no longer employed by the community and Levine, “who has a stellar reputation in the caretaking community,” is on administrative leave “until we can figure out what happened.” He said Levine maintains that she was not involved in the incident. 

Jones is charged with exploitation of an elderly person or disabled adult and criminal use of personal identification information. She faces up to 35 years in prison. Levine, a Whispering Pines manager, faces a charge of accessory after the fact and up to five years in prison. Both were arrested last weekend by the Escambia County Sheriff’s Office and released on a $5,000 bond each.  Both are entitled to a presumption of innocence.

According to the attorney general, the resident identified Jones and Levine as the employees who orchestrated the scheme. The resident also identified a black Volkswagen as the vehicle that Jones was driving the day the resident was abandoned on the side of the road.

Levine “gave varying accounts” about the incident and Jones’ involvement. Phone records placed both employees in the county where the resident was abandoned near the time that law enforcement responded to a 911 call from people who found the older adult on the side of the road. Phone records also placed Jones in the vicinity of ATMs where the victim’s debit card and personal identification number were used to access a bank account in August and September 2019.

Court Rejects State Effort to Exploit Power of Appointment in Irrevocable Trust for Medicaid

As a result of a recent holding, the State of Massachusetts was ultimately unsuccessful in its effort to exploit a somewhat common term in irrevocable trusts designed for Medicaid and governments benefits planning, and for broader asset protection planning, in order to make trust assets available for Medicaid.

Emily Misiaszek created an irrevocable trust, placed her house in the trust, and named her daughter, Patricia Fournier, as the trustee. The trust stated that its purpose was to manage Ms. Misiaszek’s assets to allow her to age in place, specifically to live in the community as long as possible. The Trust stated that the principal of the trust "should" be held until the termination of the trust, but it gave Ms. Misiaszek a limited lifetime power of appointment to appoint all or any portion of the trust principal to a nonprofit or charitable organization provided that she had no controlling interest in the charity. 

Ms. Misiaszek entered a nursing home and applied for Medicaid (called MassHealth in Massachusetts). The state denied her benefits, claiming that the assets in the trust were available because the trust permitted Ms. Misiaszek to appoint the trust principal to a charity.  Massachusetts argued that "charity," could include a nonprofit nursing home to pay for her care.  Because federal law  provides "if there are any circumstances under which payment from the trust could be made to or for the benefit of the individual, the portion of the corpus from which, or the income on the corpus from which, payment to the individual could be made shall be considered resources available to the individual," Massachusetts considered the power of appointment a circumstance, thus making the trust assets countable.  See, 42 U.S.C. § 1396p(d)(3)(B)(i).  State law provides that "[t]he effect of the ['any circumstances'] test is that if the trustee is afforded even a 'peppercorn of discretion' to make payment of principal to the applicant, or if the trust allows such payment based on certain conditions, then the entire amount that the applicant could receive under 'any state of affairs' is the amount counted for Medicaid eligibility."

Ms. Misiaszek appealed, arguing that the assets in the trust were not countable. The state affirmed the denial, and Ms. Misiaszek appealed to court. The trial court reversed the state’s decision. The state appealed, arguing again that because the trust did not contain language expressly preventing transfers of principal to benefit Ms. Misiaszek, she could use her limited power of appointment to pay for her care.

The Massachusetts Supreme Judicial Court held that the trust is not an available asset, affirming the lower state court's decision.  Fournier v. Secretary of the Executive Office of Health and Human Services (Mass., No. SJC-13059, July 23, 2021). According to the Court, the trust did not contain any language allowing Ms. Misiaszek to benefit personally from any distribution of trust principal; rather, the trust reflected Ms. Misiaszek’s intent to preserve the principal for her children. The court ruled “that under the terms of her trust, [Ms.] Misiaszek's limited power of appointment does not allow her, in any circumstance, to appoint the trust principal for her benefit, and thus the trust principal is not ‘countable’ for purposes of determining her eligibility for MassHealth benefits.” Fournier, at p. 25.  

The Court noted that:

"'properly structured, [irrevocable] trusts may be used to place assets beyond the settlor's reach and without adverse effect on the settlor's Medicaid eligibility'). In short, for trust principal to be considered countable under the 'any circumstances' test, the terms of the trust must give the applicant a direct path to reach or benefit from the trust principal" [citations omitted].

Fournier, at p. 7.  

A power of appointment such as the one provided in Ms. Misiaszek's trust is often included in order to qualify the trust as a "Grantor Trust," under the Internal Revenue Code.  Why?  A Grantor Trust does not require a separate Taxpayer Identification Number, and is not required to file a separate tax return.  A power of appointment permits the use of an irrevocable trust to obtain an objective, such as shielding assets from creditors or protecting assets from spend down in the event of long term care need, without suffering some of the tax and administrative disadvantages of an irrevocable trust.  Typically,  exercise of the power of appointment is usually considered unlikely and unnecessary; it serves only to make the trust a more acceptable planning vehicle. 

 

Home Health Care Staff Shortages Threaten Health- Frustrates Aging in Place

This Blog has reported the threat staffing shortages pose to the long-term institutional care industry, its residents, and its patients.  Staffing shortages in the home health care industry present similar threats, both to the industry and to actual and prospective customers.  

There is a legal maxim that "Justice Delayed is Justice Denied."  In the long-term care and the health care industry there is no simple maxim that  warns that "freedom delayed is freedom denied," but there should be.  A shortage of home health care workers means that some seniors may be unable to safely return to their homes, and may, instead, be forced into institutional care alternatives otherwise avoidable.  This may seem an anomalous result, but it is real.  Seniors are transferred to institutions that are woefully understaffed every day.  

There is no compromise possible, however, for a family seeking return of their mother or father to a home when they cannot demonstrate adequate and sufficient support services.  The systemic choice is clear; it is unacceptable for a senior to be at risk in their own home, but acceptable if that risk is institutional.  The Trump Administration learned, for example, that there were nursing homes opened and operating, without a nurse.  Medicare did not, and to this day, does not prohibit the transfer of a patient from a hospital to a poorly staffed nursing home or assisted living facility!     

Aging in Place Planning is specifically designed to reduce the risk of unnecessary and avoidable institutional care.  Unfortunately, many seniors may need home health care workers for short periods of time following acute needs or hospitalizations in order to rehabilitate safely at home.  "Freedom," may be denied these seniors if there is no choice but institutional care.   

Kaiser Health News, published a story about the on-going shortage, entitled, "Desperate for Home Care, Seniors Often Wait Months With Workers in Short Supply."  Using Maine as an example, the article explains:

"The Maine home-based care program, which helps....more than 800 in the state, has a waitlist 925 people long; those applicants sometimes lack help for months or years, according to officials in Maine, which has the country’s oldest population. This leaves many people at an increased risk of falls or not getting medical care and other dangers.  The problem is simple: Here and in much of the rest of the country there are too few workers. Yet, the solution is anything but easy."

Katie Smith Sloan , CEO of Leading Age, which represents nonprofit aging services providers, told Kaiser that the workforce shortage is a nationwide dilemma:

 “Millions of older adults are unable to access the affordable care and services that they so desperately need,” she said at a recent press event. State and federal reimbursement rates to elder care agencies are inadequate to cover the cost of quality care and services or to pay a living wage to caregivers."

This shortage was not unexpected.  Kaiser reported that "[f]or at least 20 years, national experts have warned about the dire consequences of a shortage of nursing assistants and home aides as tens of millions of baby boomers hit their senior years." President Biden even included funding for home and community-based care in the infrastructure bill ("human infrastructure").

And here we are. 

Picture Credit: Photo 19608638 / Help Wanted © Martinmark | Dreamstime.com

Filial Responsibility Rule Means Son, Not Father, Must Pay Legal Bill for Negotiating Medicaid Penalty Reduction

 

A Pennsylvania trial court has ruled that the son of a Medicaid applicant must pay an elder law firm’s requested fee for successfully negotiating a penalty period reduction because the son would otherwise be responsible for paying the nursing home under the state’s filial responsibility doctrine.   Coates, et al., v. Salmon (Pa. C.P., Mont. Cty., No. 2018-16878, June 23, 2021).

William Salmon, Jr., a lawyer, engaged the services of elder law attorney Andrew A. Coates and his law firm to pursue an appeal of an $86,786 Medicaid penalty that the Pennsylvania Department of Human Services’ County Assistance Office had assessed against Mr. Salmon's father when he applied for Medicaid nursing home benefits. During their initial meeting, Mr. Coates explained to Mr. Salmon that if the penalty were upheld, Mr. Salmon could be held personally liable to the nursing home for the shortfall in payment pursuant to Pennsylvania’s legal doctrine of filial responsibility. As his father’s agent under a power of attorney, Mr. Salmon authorized Mr. Coates to proceed.  Mr. Coates failed to provide Mr. Salmon a written statement of the fees he would charge.

Mr. Coates ultimately reached a settlement with the County Assistance Office to reduce the penalty from $86,786 to $18,380, a savings of $68,406.  Mr. Coates sent Mr. Salmon a bill for $6,465.89, reflecting an hourly rate of $325 and applying a 15 percent “professional courtesy” discount.  Mr. Salmon refused to pay and requested “something much more reasonable.”

On January 14, 2021, the Court of Common Pleas of Pennsylvania, Montgomery County, ruled that because there had been no written fee agreement, recovery must be by an action in quantum meruit.  Quantum meruit is a Latin phrase meaning "what one has earned." In the context of contract law, it means  "reasonable value of services performed."  

Mr. Salmon contended that any claim in quantum meruit could be asserted only against his father, and not against Mr. Salmon personally.  Mr. Coates and his firm countered that under Pennsylvania’s doctrine of filial responsibility, Mr. Salmon would have been personally liable for payment of his father's nursing home fees, making Mr. Salmon the beneficiary of Mr. Coates’ legal services and liable for payment. The court ruled in favor of Mr. Coates and his firm for $7,606.64, the amount Mr. Salmon would have owed without the professional courtesy discount. Mr. Salmon has appealed to the Superior Court and in the course of that appeal he filed a Statement of Errors with the Court of Common Pleas. 

The reason this case is interesting because it utilized the law of filial responsibility to reach what was, in the court's determination, an equitable result.  Ostensibly, the father's estate would have been unable to pay the obligation, since the father qualified for Medicaid.  Although the services were performed for the father, contracted for by the father through his agent under a power of attorney, the court used the law of filial responsibility to assign the responsibility for the obligation to the son.  The court even noted that the son understood that he would ultimately be responsible for the father's nursing home bill, and equating that to understanding that he would ultimately be responsible for the attorney's fee. 

The case is also instructive for another reason, and that is that legal contests have costs and sometimes reach unexpected results.  Mr. Salmon probably assumed that the most he could stand to lose was the amount of the bill submitted to him; that assumption would have been incorrect. The Court actually awarded a sum greater than the total bill submitted by the attorney.  Although the attorney extended a courtesy discount on the total sum, the Court, in its judgment, removed the courtesy discount entering judgment for the full fee.  Ouch! 

Pandemic Pets, Pet Companionship, and Estate Planning Considerations

Pet companionship took on new meaning and importance during the pandemic as lock-downs, quarantines, social distancing, and social isolation impacted nearly everyone. For many, life trapped in a home would be unbearable and unthinkable without pet companions.  This blog has previously discussed how important pets are to some, and how important it is to consider pets in estate planning. 

An unanticipated effect of the pandemic has been a surge in interest for fostering and adopting abandoned pets. Although unanticipated, this effect is not surprising given the lack of social human interaction during stay-at-home orders, and subsequent social distancing. Regardless, the renewed focus on pets and pet companionship is welcome and important. 

There are at least seven quantifiable benefits to pet owners, including aging owners and owners with special needs:

1. Reducing Isolation and Loneliness; 
2. Lowering Stress and Anxiety; 
3. Improving Fitness; 
4. Increasing Social Interaction and Connection to the Community;
5. Improving Cardiovascular Health; 
6. Reducing Depression Risk, and;
7. Providing Routine and a Sense of Purpose.

Isolation

Isolation and loneliness are among the considerations for those planning to age in place. Seniors and persons with disabilities may experience feelings of isolation and loneliness if they spend a lot of time at home, sometimes because they lack mobility, security, or just comfort leaving home.  Isolation and loneliness are major risk factors for depression and increase the risk of heart disease, arthritis, diabetes, and dementia. 

Experts at the Centers for Disease Control and Prevention (CDC) agree; pet companionship eases loneliness and isolation. 

Stress and Anxiety

Relieving feelings of loneliness and isolation are not the only emotional and mental health benefits of pet ownership.  Research has shown that simply petting a dog lowers the stress hormone cortisol , while the social interaction between people and their pets actually increases levels of the feel-good hormones oxytocin and serotonin.  Oxytocin is the same hormone that bonds mothers to babies.   A University of Utah study found that even spending time near a pet can reduce stress levels and nervousness. 

The companionship of a pet can be particularly beneficial for reducing anxiety for a persons with disabilities or impairments.  In fact, an astonishing 84 percent of post-traumatic stress disorder patients paired with a service dog reported a significant reduction in symptoms, and 40 percent were able to decrease their medications, according to a recent survey.

Fitness

A pet increases opportunities for exercise. A daily exercise routine and physical activity can improve mobility the ability to perform activities of daily living.  Shelter dogs have been used for animal-assisted therapies to encourage physical activity for residents of nursing homes and assisted living facilities. A study published in Clinical Nursing Research found that people who walked with shelter dogs were more likely to go for a walk than those who walked with a human companion and even walked faster and for longer distances! 

Community

Programs that allow residents of assisted living facilities to spend time with a pet encourage interaction among the residents and give them something to look forward to.  

Pet care offers opportunities for  interaction with others, such as vets, groomers, pet care retail staff, and other pet owners.  Most folks that serve in the pet care industry are, themselves, pet lovers, which creates a community that is naturally sharing, caring, and helpful.  Pet walkers often follow a regime which affords them  insight into the routine of other owners.  A pet owner may notice that another pet owner is suddenly absent, or might observe another owner struggling physically and offer help.  

Pets can help persons with autism improve social skills by facilitating social connections with others, inspiring the person to work harder on communication skills and teaching compassion.

Cardiovascular Health

According to the American Heart Association, pet ownership is associated with lower blood pressure and lower heart rate during mental stress. A University of Utah study found that just the presence of a companion dog is associated with lower cardiovascular responses during stress. The CDC lists decreased blood pressure and reduced cholesterol levels as two benefits of pet ownership. 

Depression

The Research Center for Human/Animal Interaction has found that dog owners are less likely to suffer  depression. Animal-assisted activities and therapy have been used successfully with patients struggling with depression, loneliness, and mental illness and can reduce the symptoms of depression. The effects are particularly apparent with seniors.

Purpose

Pet care invites structure and scheduling, establishing a beneficial routine, and lots of older adults who own a pet say that their pets provide a sense of purpose and help them enjoy life.

For more information how to incorporate pet care into your estate plan, consider the following article:  Ohio Pet Trusts.

Source: Rebecca H. Miller, Pandemic Pets and Pet Companionship: Seven Benefits/Considerations for Care Coordination and Estate Planning, Chambliss Law, May 5, 2021.