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We are pleased to bring you the February issue of The Elder Law Update, a monthly e-newsletter full of the latest legal developments and other trends of vital interest to seniors and their advocates.
 Millions of American families are caring for a loved one with Alzheimer's. The Alzheimer's Association, the world leader in Alzheimer's research, care and support, is dedicated to finding prevention methods, treatments and an eventual cure for the disease.
We are gearing up for the Alzheimer's Association Southeast Florida Chapter Memory Walk on March 8th in West Palm Beach. We welcome your support! Please click here to visit our team web page and help in our efforts to support this worthy cause by joining our team to walk or making a donation.
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Medicare's Limited Nursing Home Coverage
 Many people believe that Medicare covers nursing home stays. In fact Medicare's coverage of nursing home care is quite limited. Medicare covers up to 100 days of "skilled nursing care" per illness, but there are a number of requirements that must be met before the nursing home stay will be covered. The result of these requirements is that Medicare recipients are often discharged from a nursing home before they are ready.
In order for a nursing home stay to be covered by Medicare, you must enter a Medicare-approved "skilled nursing facility" or nursing home within 30 days of a hospital stay that lasted at least three days. The care in the nursing home must be for the same condition as the hospital stay. In addition, you must need "skilled care." This means a physician must order the treatment and the treatment must be provided daily by a registered nurse, physical therapist, or licensed practical nurse. Finally, Medicare only covers "acute" care as opposed to custodial care. This means it covers care only for people who are likely to recover from their conditions, not care for people who need ongoing help with performing everyday activities, such as bathing or dressing.
Note that if you need skilled nursing care to maintain your status (or to slow deterioration), then the care should be provided and is covered by Medicare. In addition, patients often receive an array of treatments that don't need to be carried out by a skilled nurse but which may, in combination, require skilled supervision. For example, the potential for adverse interactions among multiple treatments may require that a skilled nurse monitor the patient's care and status. In such cases, Medicare should continue to provide coverage.
Once you are in a facility, Medicare will cover the cost of a semi-private room, meals, skilled nursing and rehabilitative services, and medically necessary supplies. Medicare covers 100 percent of the costs for the first 20 days. Beginning on day 21 of the nursing home stay, there is a significant co-payment ($128 a day in 2008). This copayment may be covered by a Medigap policy. After 100 days are up, you are responsible for all costs.
If you are in a nursing home and the nursing home believes that Medicare will no longer cover you, it must give you a written notice of non-coverage. The nursing home cannot discharge you until the day after the notice is given. The notice should explain how to file an expedited appeal to a Quality Improvement Organization (QIO). A QIO is a group of doctors and other professionals who monitor the quality of care delivered to Medicare beneficiaries. You should appeal right away. You will not be charged while waiting for the decision, but if the QIO denies coverage, you will be responsible for the cost. If the QIO denies coverage, you can appeal the decision to an Administrative Law Judge (ALJ). It is recommended that a patient hire a lawyer to pursue an appeal.
For an article from the Center for Medicare Advocacy titled "Facing Discontinuation of Skilled Nursing Facility Care? Know Your Appeal Rights for Traditional Medicare," click here.
For a related article on how Medicare beneficiaries can fight a hospital discharge, click here.
For more information on Medicare, click here. |
Lack of Power of Attorney Stops Daughter's Nursing Home Suit
 A decision by Mississippi's highest court illustrates the importance of having a power of attorney. One of the most important estate planning documents, a power of attorney allows a person you appoint -- your "attorney-in-fact" -- to make financial decisions for you should you be unable to make decisions yourself because of incapacity.
Bernadette Goodlett admitted her mother, Sarah, to a nursing home. During her stay at the nursing home, Mrs. Goodlett developed two decubitus ulcers (bed sores), which required surgery. Bernadette informed the nursing home that she was planning to sue it for negligence and sent the nursing home a medical authorization giving it permission to release Mrs. Goodlett's medical records. Due to complications from a stroke, Mrs. Goodlett was unable to sign her own name to the medical authorization. The nursing home refused to release the medical records, claiming that because Bernadette did not have a power of attorney over her mother, only Mrs. Goodlett could authorize the release of the medical records.
Bernadette sued the nursing home on behalf of her mother for negligence. The nursing home argued the lawsuit should be dismissed because Bernadette did not file a form required by state law. Bernadette argued she did not need to file the form because she had not received her mother's medical records. The trial court found that Bernadette had substantially complied with the law, and allowed the lawsuit to continue.
The Mississippi Supreme Court reversed, holding that because Bernadette did not have power of attorney for her mother, she was not entitled to her mother's medical records. Therefore, Bernadette could not file suit without including the required form.
Had Mrs. Goodlett given Bernadette a power of attorney before Bernadette requested the medical records, the lawsuit would have been able to proceed. It is not difficult to put a power of attorney in place, and it can make things much easier for your family if you are incapacitated.
To read the full text in the decision, click here. (If you do not have the free PDF reader installed on your computer, download it here.)
For more information about a power of attorney, click here. | |
Book Review: Coping with Your Difficult Older Parent.
 Grace Lebow and Barbara Kane. Coping with Your Difficult Older Parent. HarperCollins, New York, NY. 1999. 203 pages.
$10.36 from Amazon (click on book to order).
Do you have a parent who manipulates with guilt or flattery, is insensitive to the needs of others, or becomes ill when confronted with separation? These are some of the behaviors of a "difficult" parent according to authors Grace Lebow and Barbara Kane. Many books deal with the physical ailments of aging, but few address the challenges for adult children of coping with emotionally draining parents.
Lebow and Kane, clinical social workers and case managers, as well as cofounders of Aging Network Services (www.agingnets.com), have written a valuable guide for children stressed out from dealing with parents whose own emotional reserves may be stretched thin by the aging process. According to the authors, the first step to improving relations is understanding that something from the parent's past is causing his or her behavior. A difficult parent often feels worse than the child, so showing empathy for the parent may be the key to successful communication.
This practical book is divided into chapters based on categories of problem behaviors: dependency, negativity, self-centeredness, overly controlling, self-destructiveness, and fearfulness. Stressing the need to not argue with a difficult parent, in each chapter the authors present stories and examples of how to deal with a parent whose behavior is problematic, including sample dialogues and letters. There is also a chapter on dealing with loss, grief, and mourning. If managing your parent is a contentious process, following the tips in this worthwhile book may help eliminate some of the stress. |
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Medicaid Proposed Allowing Recipients to Direct Own Home Care
 Medicaid beneficiaries who need help living at home could soon choose to receive a cash allowance to hire their own home care workers or even pay a family member to deliver their care. Currently Medicaid beneficiaries who need help with activities of daily living like bathing and dressing must work with personnel employed by a home-care agency. But beneficiaries often have limited choices about how and when their care is provided, especially since agencies generally do not provide care on weekends or outside normal business hours.
Now, the Centers for Medicare & Medicaid Services (CMS) has proposed a new rule that would give beneficiaries a cash allowance to hire, direct, train or fire their own personal care workers to help with things like preparing meals, household chores and other related services that help a person to live independently. Beneficiaries could even hire qualified family members who may already be familiar with the individual's needs to perform personal assistance (although not medical) services.
In addition, the allowance could be used for assistive technologies or home modifications that could reduce dependency on human assistance, such as a wheelchair ramp or microwave oven. The beneficiaries also have the option to have their cash benefit allotment managed for them.
"This proposal would give Medicaid beneficiaries significant new freedom to determine how their personal assistance services are delivered and by whom," said Kerry Weems, CMS acting administrator. "As health care is not simply an economic transaction, this proposal represents a fundamental shift that restores a person's ability to improve their overall health by taking greater control of his or her own decisions."
ElderLawAnswers reported in 2003 that the innovation, called Cash and Counseling, was being field tested in three states -- Arkansas, Florida and New Jersey. A study done at that time found that disabled Medicaid recipients living at home who were allowed to direct their own care were more satisfied with their care and spent less money on nursing homes than those using Medicaid's traditional agency-provided services. (See "Consumer-Directed Medicaid Home Care Shows Promise".)
The proposal would put into place a provision of the Deficit Reduction Act of 2005 that allows states to elect a state plan option to provide care in ways that previously required "waivers" of Medicaid laws. States must apply for approval of this state plan option in order to be able to provide these self-directed services. Enrollment in the new state plan option is voluntary and the state must also provide traditional agency-delivered services if the beneficiary wishes to discontinue self-directed care.
States choosing the option must have necessary quality assurances and other safeguards in place to assure the health and welfare of participants. States must also train potential participants in ways to manage their budgets and assess their personal care needs.
The notice of proposed rulemaking was published in the January 18, 2008, issue of the Federal Register. There is a 30-day comment period. Comments are due February 19, 2008.
To read the notice of the proposed rule in the Federal Register, click here. |
Lawsuits Claim Elderly Should be Protected From Their Bad Decisions
 Should the elderly not bear full responsibility for their poor choices simply because they are old?
In the last few years, according to a front-page article in the New York Times, thousands of older Americans have filed lawsuits arguing that broadly-worded elder abuse statutes create special protections that shield them from their unwise decisions, even though those decisions were freely made.
The article focuses on the plight of Robert J. Pyle, who eight years ago had more than $1 million in assets and was looking forward to a comfortable retirement. Today, at age 81, Mr. Pyle has lost everything and is living in a small room in his stepdaughter's house.
Mr. Pyle, a retired aerospace engineer, willingly gave away hundreds of thousands of dollars to a woman whom he believed would eventually pay him back. Then, in increasingly desperate attempts to right himself financially, he took out a series of loans on his home that he could ill-afford, finally selling the house for much less than its market value.
Mr. Pyle is now suing, contending that mortgage brokers and banks defrauded him by helping him take out loans they knew he could not repay, and that the buyer of his home deceived him by paying far less than it was worth. Mr. Pyle, does not claim that he should be compensated because he was not in his right mind at the time he made these decisions, but simply because he is old.
"These lawsuits raise controversial questions," the article states. "In the eyes of the law, should the elderly be treated like adolescents, who are not entirely responsible for their poor decisions, but are also barred from making certain choices on their own? Or should they have autonomy, and therefore be accountable for their blunders?"
The article quotes A. Kimberley Dayton of the Center for Elder Justice and Policy at the William Mitchell College of Law in St. Paul, Minnesota. "We know that, statistically, seniors are at enormous risk for fraud," says Prof. Dayton. "It's foolish to ignore that. But there's also a huge dilemma in determining when someone is just being eccentric, versus someone who is a victim of undue influence."
To read the full New York Times article, published Dec. 24, 2007, click here. (Free registration required and article is available free of charge for only one week.) |
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Elder Law Associates PA is a boutique elder law firm that practices exclusively in Medicaid and long term care planning including long term care insurance, Medicaid applications, home and community-based Medicaid waiver services, diversion program benefits, nursing home benefits, spousal refusal applications, and Medicaid fair hearings and appeals; nursing home and assisted living facility residents' rights litigation; asset preservation planning with a special focus on planning in light of the Deficit Reduction Act of 2005, including personal service agreements, the purchase of life estates, income producing real estate and spenddown planning; disability planning, including special needs trusts and guardianship; estate planning, including wills and trusts and advance directives; and probate, which encompasses estate and trust administration as well as specialized litigation.
We assist clients in planning for the possibility of disability, incapacity, home health care, assisted living and/or nursing home placement. Our firm enables clients to avoid impoverishment caused by the escalating cost of long term care, to maintain their right to make health care decisions and to avoid unnecessary medical treatment.
We hope you have enjoyed The Elder Law Update. If you have questions about something you read, elder law matters or issues concerning persons with disabilities, we would be delighted to hear from you. We serve as an elder law resource to many professionals and organizations and want to become your elder law resource as well. You can reach us at Info@ElderLawAssociates.com.
Warm regards,
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Ellen S. Morris, Esq. & Howard S. Krooks, Esq., CELA
Elder Law Associates PA
phone: (561) 750-3850 / (800) 353-3752
fax: (561) 750-4069
This publication is intended for general information purposes only. It is not intended to constitute individual legal advice to any specific client. |
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