Conservator Owes Duty to Nursing Home to Timely Apply for Medicaid

A Connecticut appeals court has held that a nursing home resident's conservator owes a duty of care to the nursing home to timely apply for Medicaid on behalf of the resident. Bloomfield Health Care Center of Connecticut, LLC v. Doyon (Conn. App. Ct., No. AC 40281, Oct. 9, 2018).

A nursing home petitioned the court to appoint a conservator for one of its residents, Samuel Johnson, to assist him with his Medicaid application. The court appointed Jason Doyon as conservator in April 2014. Mr. Doyon waited nine months to file a Medicaid application on Mr. Johnson's behalf. The state denied Mr. Johnson's first Medicaid application due to lack of information. Mr. Doyon filed a second application, which the state approved, but Mr. Johnson did not receive any Medicaid benefits before May 2015.

The nursing home sued Mr. Doyon for negligence in failing to apply for and obtain Medicaid benefits on behalf of Mr. Johnson in a timely manner. Mr. Doyon asked for summary judgment, arguing that he did not owe a duty of care to the nursing home. The trial court granted Mr. Doyon summary, holding that the conservator owed no duty to the nursing home.  The nursing home appealed the lower court's judgment.

The Connecticut Court of Appeals reversed.  The court held that Mr. Doyon owed the nursing home a duty of care. The court rules that it was "readily foreseeable that, if [Mr. Doyon] failed to timely obtain Medicaid benefits for [Mr.] Johnson, the [nursing home] would suffer harm as a result because it would not be reimbursed for the cost of [Mr.] Johnson’s care." The court also concludes that "the benefits of encouraging conservators to carry out their duties with care and preventing financial harm outweigh any corresponding minimal increase in litigation."

The decision continues a trend of decisions favoring nursing homes when eligibility applications for Medicaid are not timely or properly prosecuted.  The decision should also concern family caregivers; the trend might foreshadow greater success on the part of nursing homes in disputes with family members who act as fiduciaries without court appointment.  Family often acts in court-appointed roles, or more informal roles without careful consideration of the liabilities of service. The bottom line is that Medicaid applications should be taken seriously, and the applications completed and submitted as quickly as possible.   

Wealthy Nursing Home Residents Would Prefer to Age in Place- Would Pay Family For Care

A new survey of wealthy seniors suggests that many of nursing homes’ potential residents would prefer to receive long-term care at home, and would be willing to pay their own family members for it.

That’s according to responses of more than 1,000 U.S. adults, age 50 or older, with an annual household income of $150,000 or more. The Harris Poll, conducted on behalf of the Nationwide Retirement Institute, found that about 71% of seniors would prefer to rely on a family member for long-term care. And 70% of those surveyed would not expect that help, unless they were able to pay relatives.

About 56% of respondents said that they “would rather die” than live in a nursing home, and 47% said they’re worried about becoming a burden to their families.

“Affluent adults fear nursing homes but are concerned their care needs will challenge their family if they require caregivers,” Nationwide VP Holly Snyder said in a press release.

About 77% of respondents said, if needed, they’d most prefer to receive long-term care at home. That’s compared to 1% preferring to receive skilled care in a nursing home. Reasons for those worries included loss of control of their lives (68%), detachment from the community (32%) and seeing family less often (30%).

More details from the seventh annual survey can be found on Nationwide’s website here.

A Military App for Military Moms and Dads - Babies on the Homefront App is Military Parent Approved

[The following article is penned by Jennifer Novak, Senior Writer and Training Specialist for Military Family Projects and reprinted with permission of USAA] 

Babies on the Homefront is so much more than messaging—it’s designed to strengthen the bond separated service members have with their families. And it works! 

As the wife of a service member, I can tell you that separations are hard. But they were even harder for my children. Every separation and transition caused an enormous amount of pain for our little ones. With a background in early childhood, I know that these moments of stress, worry, and feelings of loss can have a profound impact on children’s development and well-being--including how fast their brain grows! As a mother, I knew it was important to provide my children with a sense of security and to help maintain the connection they felt with their father while he was away.  

My husband’s time as an active duty service member was full days, weeks, and months of separation due to deployment, training, work-ups, changes in work schedules--not to mention all the moving from one duty station to another! Babies on the Homefront is designed to keep up with the many transitions military families go through and to maximize the relationship that can be maintained long distance. Through secure messaging, creative baby games, sharing updates, and finding answers to all your parenting questions, this app has been a great tool for keeping my husband in the know.   

Never Miss a Beat 

“When do you think we will get to talk to Daddy again?” is a question that came up all too frequently in my military family. Depending on the type of separation, the ability to talk to their father could change dramatically. A week-long training out of town might still mean daily video calls, but a work-up at sea? They may not see him or hear his voice the entire time he was gone. It’s important for babies and toddlers to stay connected with the active duty parent as much as possible during deployment. A young child needs to know that his parent remains an important part of the family and that he is held in his parent’s heart and mind. 

Through the app, you can make the parent away part of a daily or weekly routine. Gather around the app to look at shared photos and videos. Even if the parent is unable to call home as planned, record a video message that can be watched later instead. The parent at home can share memories of the deployed parent, including times that the parent spent with the young child. These stories can paint a vivid and loving picture of the deployed parent and the special role that parent played, and continues to play, in the child’s life. 

Capturing Milestone Moments 

The shared media gallery is more than a space to upload photos – it’s an opportunity to build a shared visual story of both photo and video content that can help keep the parent in the mind of the child and the child in the mind of the parent. While sharing moments is easier than ever with email and social media, there are still drawbacks – the military email system is often unreliable and isn’t a baby-friendly way of communicating. Staying connected through social media means forgoing privacy for the sake of staying in touch. This app has a safe and secure way to capture, upload, and share photos with service members away from home. Each photo and video is saved and collected in a timeline so that they can be replayed again and again. 

The Right Answers at the Right Time 

No matter how well I thought we had prepared our children – by being honest about what to expect, by talking to them about what was happening, by telling them about what daddy was doing when he was away – every separation and transition came with challenging behaviors and parenting challenges. I’ve looked for answers in parenting books, websites, apps, forums, and newsletters. Babies on the Homefront gives you access to parenting resources right in the app. The extensive in-app library provides quick resources and age-based tips for parents to learn more about child development, milestones, self-care, and resources for how to prepare for separations and reunifications.   

Play Together, Stay Together 

As your one-stop parenting app, Babies on the Homefront is filled with interactive game ideas and playful activities for babies and toddlers. Play simple touch screen games together designed to help young children learn or watch video clips demonstrating new activities and play ideas. Playing together is one of the best ways to encourage learning, to stimulate growth and development, and to help your child feel safe, loved, and special. There is no shortage of ideas to keep you and your young ones moving and learning at any age.   

This app is the perfect solution for military families to stay connected. The needs of the military will always require family separations, but with Babies on the Homefront, you have the power to make this a little easier on our little ones and to strengthen the relationships parents have with their children and each other. This isn’t just good for children – it also empowers our fighting force through the security of knowing they can maintain their relationships with their children, even when they are away.  

You can learn more about the app, and/or download the app here. 

Veterans to Receive "Combat-Injured Veterans Tax Fairness Act" Letters

In 2016, Congress passed a law known as the Combat-Injured Veterans Tax Fairness Act. The law entitles more than 133,000 injured veterans to tax refunds as far back as 1991. The objective of the law is to ensure that veterans who suffer service-ending combat-related injuries aren’t taxed on the severance payment they receive from Department of Defense (DOD).

The DOD is just beginning to send letters to the eligible veterans with information explaining how to claim the tax refunds. The letters will provide an explanation of a simplified method for claiming the refund, and explain the time limits for making the claims.

The amount of time for claiming the tax refunds is limited.  Veterans who have claims for refunds can amend their tax returns claiming the refund in the normal limitations period for filing amended tax returns, or three years.  Obviously, some of these amended returns are already time barred.  The law gives veterans an alternative time frame, or one year from the date of the letter from DOD. In other words, veterans can make a claim for the refund for one year from the date of their letter from the DOD, or within three years of the original filing deadline for the return, whichever expires later.

There are a couple of ways a veteran can claim the refund.  A veteran can either send in a claim based on the actual amount of the disability severance payment received by filling out Form 1040X, but a veteran must carefully follow the instructions for making the claim.  Alternately, a veteran can opt for a simplified method. The veteran can simply choose to claim a standard refund amount based on the calendar year in which the veteran received the severance payment. The veteran then writes “Disability Severance Payment” on line 15 of Form 1040X and enters on lines 15 and 22 the standard refund amount listed below that applies:

• $1,750 for tax years 1991 – 2005
• $2,400 for tax years 2006 – 2010
• $3,200 for tax years 2011 – 2016

For more information talk with your tax attorney or go here. 

Ohio Guardian's Sale of Medicaid Recipient's House Approved as being In Her Best Interest

A guardian can sell a Medicaid recipient's house even though the mortgage loan was in default, because the mortgage company had not foreclosed on the property and it was in the recipient's best interest to sell the property and retain her Medicaid benefits.  That is the decision of an Ohio Court of Appeals in the case of  Gasper v. Adkins (Ohio Ct. App., 10thDist., No. 17AP-294, Sept. 27, 2018).

Christopher Gasper was appointed guardian of Diantha Adkins, who was in a nursing home and receiving Medicaid benefits. Mr. Gasper petitioned the court to sell Ms. Adkins' house. The company that held the mortgage objected to the sale, claiming the mortgage loan was in default.  The company holding the mortgage argued that the guardian could not sell the property, but the guardian could only sell the ward's right to redeem the property from foreclosure.  The company that held the mortgage had not filed for foreclosure, though, so the company's argument would mean that the ward would have to continue to hold ownership of the property, which the guardian argued threatened the ward's Medicaid benefits. 

The court rejected the mortgage company's argument, found that the sale of the property was in the best interest of Ms. Adkins and authorized Mr. Gasper to execute a deed in lieu of foreclosure. The mortgage company appealed, arguing that the court couldn't authorize the sale of the property free and clear of the mortgage lien without the mortgage company's consent.

The Ohio Court of Appeals, 10th District, affirmed, ruling that the guardian was entitled to sell the property. According to the court, because the mortgage company had not foreclosed on the property, Ms. Adkins was not "divested of legal ownership" at the time Mr. Gasper sought the authority to sell her real estate. The court also held that it was in Ms. Gasper's best interest to sell the property in order to not jeopardize her Medicaid benefits.