Nurse Aid Fired for Slapping Dementia Patient's Support Doll

It is tragic that humans find more and unique ways to harm each other.  From an article published in McKnight's Long Term Care News, we learn that an Illinois continuing care retirement community (CCRC) fired a certified nursing assistant for slapping a resident’s baby doll.

The incident at the St. Vincent’s Home, in Quincy, Illinois, first occurred in June, but reached the public eye only recently after the Illinois Department of Public Health released its quarterly violations report. State officials hit the home with a $2,200 penalty, after the CNA slapped a resident’s doll, reportedly to get her “riled up.” 

According to the Herald-Whig, the resident had been diagnosed with dementia, anxiety and depression, and suffered from confusion and short- and long-term memory impairment.  

Brian Inman, assistant administrator at the home, agreed the incident constituted mental abuse.  St. Vincent’s suspended the CNA pending investigation, later deciding to terminate the CNA. Prior to the incident, the CNA had undergone special training for dementia treatment.

While the incident might seem minor to some, it meant a lot to the resident, who views the three dolls as her children, a family member said in an interview with state officials.  Those baby dolls are her everything,” the family member said. “I know this [slapping the baby doll] would have really disturbed her. She thinks those baby dolls are her babies.”

The CNA reportedly told coworkers, who did not immediately report the incident, as required by the state, that slapping those dolls was good way to “keep from being bored during a shift,” later telling state investigators, “[i]t’s kind of cute but probably not to the resident.”

Hopefully the CNA will find another line of work.

Medicare Advantage Plans Receive Additional Enhancements

The Trump Administration announced a broad array of changes to Medicare Advantage plans last week in hopes the changes will further pressure providers to improve senior care.

Centers for Medicare & Medicaid Services (CMS) officials said the “innovations” will include everything from customizing plans based on beneficiaries’ chronic conditions and socioeconomic status to increasing access to telehealth services. CMS also wants to improve incentives for individual plans improve the health of seniors.

CMS Administrator Seema Verma said in a statement that Medicare Advantage was launched over 13 years ago, and was due for a facelift. "The American healthcare system is very different today than it was thirteen years ago when the Medicare Advantage and Part D programs were launched in their current forms, but due to the slow pace of change in government, these programs have not been fully updated to reflect today’s realities,” said Verma. The new CMS Center for Medicare and Medicaid Innovation (CMMI) will ideally spur greater competition among plans, while also “creating pressure to improve quality and lower costs in order to attract beneficiaries.” 

“Today’s announcements are prime examples of how CMMI can test policies to modernize CMS programs and ensure that our seniors can access the latest benefits,” Verma said.

The changes will be tested out as part of the Value Based Insurance Design model for 2020. Eligible plans in all 50 states will be able to apply for the innovations, according to a CMS fact sheets available here and here. Starting in 2021, they’ll also start testing the inclusion of hospice benefits as part of Medicare Advantage. CMS said it is also planning to extend the performance period of its VBID model another three years, to 2024, to sufficiently evaluate the impact of these changes. 

These new innovations supplement prior changes which, among other things, embrace Aging-in-Place:

2019 Medicare Advantage Plans Incorporate Long Term Care, Aging in Place Benefits 

Trump Administration Embraces Aging In Place- 2019 Advantage Plans Permitted to Incorporate Long Term Care

New Ohio Law Gives Probate Courts New Tools to Protect Wards Under Guardianship

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A new law in Ohio is designed, in part, to protect people under court-appointed guardians.  

House Bill 595, signed into law Dec. 21 by outgoing Gov. John Kasich, among other things, allows county probate courts to establish adult guardianship services boards and funds to provide for the oversight of services and care for those under guardianship.  Several probate courts have implemented similar voluntary programs, but the new law enables every probate court to implement what many contend is much-needed oversight over court-appointed guardians. 

When an adult becomes incapable of managing personal decisions or property, a probate court may appoint a guardian to make decisions on behalf of that adult. These decisions can be related to property, medical care, living arrangements, and financial issues. Guardianship cases for adults can be expensive, time consuming and complex. Guardianship, however, can be an indispensable tool in protecting an adult, and the adult's estate.  Guardians can even help prevent elder abuse and financial exploitation.

Guardianship, unfortunately, can itself be abusive, and a guardian with extensive authority, can be a threat to the adult's estate.  This blog contains numerous articles (several listed below) detailing the risk of guardianship abuse, ranging from guardianship appointments that are not well-founded or justified, to financial and physical abuse of adults by their court-appointed guardians.      

The lack of quality court monitoring in guardianship is one factor that can lead to  abusive situations, and sometimes a court will lose track of a ward and the ward's condition, the ward's money, or even the guardian. State courts are responsible for monitoring guardians' performance and ensuring that individuals under guardianship are protected and treated appropriately.  AARP has found that follow-up with reporting requirements and accounting required by guardians is lacking in many states across the country, in part, due to the sheer overload of cases in the system.  

“Cutting red tape for county courts to work together to provide services to individuals under guardianship could save time, money for the individual, their families/caregivers, and the state,” AARP State Director Barbara A. Sykes said in a statement. “Additionally, when state courts work together on such cases, they could not only be more efficient and effective, but they could also potentially detect signs of abuse and exploitation earlier in the legal process.”

Of course, effective planning, especially "Aging-in-Place" planning, does not rely upon the legal or financial system for success.  Reform should always be applauded, because, so often, real change takes time.  Whether and when these changes will reduce the incidence or effect of abusive guardianship remains to be seen.  Regardless, the wise plan for the worst, and with an effective estate, financial, and health care plan in place, hope for the best.       

The new law, is known as the Probate Omnibus Bill, and thus is not limited to just guardianship reform; the law amends several state statutes including those concerning probate, trusts and estates, and elderlaw.  Future articles will discuss other areas impacted by the new law.  

Previous articles include the following:

• Guardianship Reform Helps, but Planning Shouldn't Wait;
• Astronaut Buzz Aldrin Subject of Guardianship Dispute;
• Health Care Ageism And Senior Profiling;
• Contesting Guardianship or Challenging Guardians Is Problematic;
• Estate Plans Should Consider and Attempt to Resolve Guardianship;
• Illinois Permits Guardian Authority to Petition for Termination of a Ward's Marriage;
• GAO reports on Guardianship Abuse;
• National Groups Acknowledge Need for Guardianship Reform;
• Report on Abuse by Guardians and the Guardianship Process Released;
• Another Reason for Guardianship Planning: Guardian Convicted of Homicide in Death of Ward

Guardianship Reform Helps, but Planning Shouldn't Wait

Pennsylvania has implemented a Guardianship Tracking System (GTS), a new web-based system for guardians, court staff, Orphans’ Court clerks and judges to file, manage, track and submit reports. The system integrates statewide guardian information, thereby helping to protect Pennsylvania’s most vulnerable citizens while streamlining and improving the guardianship filing process.  Every little bit helps. One of the unstated benefits of making guardianship reporting easier, is that ease encourages filial and social caregivers to act as guardians. 

Of course, a better plan is to adopt an estate plan incorporating "Aging in Place" strategies, appointing and empowering trusted caregivers (not corporate trustees -banks, financial advisers, or attorneys) and preventing court-appointed guardian control of assets. In addition to making it even easier for filial and social caregivers to act on your behalf, such planning makes court-appointed guardianship more difficult and less lucrative for those who might be interested primarily in financial gain. The National Association to Stop Guardianship Abuse (NASGA) says it best; abusive guardianships have a distinctive pattern: Isolate- Medicate- Liquidate- Drain the Estate.

Guardianship reform helps, and should be encouraged and applauded. Planning, however, shouldn't wait. 

Click here to read the original Facebook post.

Click here to proceed directly to the National Association to Stop Guardianship Abuse Blog article.  

Medicaid Applicant Receives Penalty Period Based on Wife's Transfer on Death

A Missouri court of appeals has ruled that a Medicaid applicant is subject to a penalty period based on his wife's transfer on death of his interest in property to a revocable trust. Hallam v. Missouri Department of Social Services (Mo. Ct. App., No. WD81466, Oct. 9, 2018).  The case demonstrates the complexity of estate planning for farmers, and provides an object lesson in the significance of unintended consequences.

Evelyn and Joe Bell were farmers, and their homestead constituted their farm. They  entered into a postnuptial agreement which provided that each spouse had "the power to dispose of their share of the marital assets at their death free of any statutory or other claims of their spouse."  The Bells thereafter each created a limited liability company (LLC),  in which each served as the sole member. On the same date, the couple transferred into each LLC a one-half interest in the real estate and adjoining farmland that had served as their homestead. 

The Operating Agreement for Mrs. Bell's LLC provided that on her death, her member interest in her LLC would be transferred to the trustee of Mrs. Bell's revocable trust. Mr. Bell was neither the trustee of Mrs. Bell's trust, nor was he a beneficiary.  The foregoing events all took place in 2011.  In 2013, Mr. Bell transferred his LLC to Mrs. Bell, who in turn who transferred the LLC to the trust effective upon Mrs. Bell's death.  The Court agreed that the transfer from Mr. Bell to Mrs. Bell is permitted by state and federal law:

"Relevant to this case, [federal law] provides that: An individual shall not be ineligible for medical assistance...to the extent that -- (A) the assets transferred were a home and title to the home was transferred to -- (i) the spouse of such individual[.]"

Mrs. Bell died in January, 2014, her trust was administered and the assets distributed to the beneficiaries, Mrs. Bell's children.  In December, 2014, Mr. Bell entered a nursing home and applied for Medicaid. The state imposed a penalty period, finding Mr. Bell transferred property for less than market value.

Mr. Bell appealed, arguing that Mrs. Bell's transfer on death of the couple's property was not a voluntary disposal of assets by a spouse that would disqualify Mr. Bell from benefits. After all, Mr. Bell could not control his wife's disposition of her property, and Mrs. Bell did not voluntarily transfer the assets to her children, but were transferred as a consequence of her death. The state upheld the penalty period, nonetheless, and Mr. Bell appealed to court.

The Missouri Court of Appeals affirmed the penalty period, holding that Mrs. Bell's transfer on death was a disposition of assets that subjected Mr. Bell to a penalty period. The court concludes that there "can be no meaningful dispute that the instruments executed by Mrs. Bell 'gave away' her assets, albeit in a delayed manner that first required the condition of her death." According to the court, federal Medicaid law requires that the assets in Mrs. Bell's trust that previously belonged to Mr. Bell were to be treated as assets disposed of by Mr. Bell.  Thus, although Mr. Bell was not in control of his wife's disposition, he and his estate, nonetheless, suffered the consequences.