|
|
We provide The Elder Law Update to our clients and our colleagues who make up a wide range of service providers for seniors and people with disabilities to facilitate the dissemination of helpful and accurate information. We thank you for letting us share our knowledge with you. We continue to welcome your comments and questions. You may send them to Info@ElderLawAssociates.com.
We are planning our 1st Elder Law Forum: The Challenges of Home, Hospital and Facility-Based Care
This will be a forum for diverse professionals with a common interest and will feature a unique array of presenters from health care, insurance, government, law and consumer advocates who will address critical questions facing seniors and people with disabilities living in Florida. We will focus on home and community based care initiatives to provide a vision of the future that includes rapid changes in health care and responses to budget cuts. Stay tuned for details.
Please help us congratulate partner Ellen S. Morris for being named The Florida Bar Elder Law Section Member of the Year. This award was presented to Ms. Morris at the 2008 Annual Elder Law Section Retreat in Clearwater Beach, Florida earlier in July.
Also, partner Howard S. Krooks presented a Deficit Reduction Act seminar to the attorneys at the Retreat. |
|
Coming Soon: Five-Star Rating System for Nursing Homes
 You can eat at a five-star restaurant or stay at a five-star hotel. By year's end, you'll also be able to select a five-star nursing home.
The Centers for Medicare & Medicaid Services (CMS) has announced plans to implement a one- to five-star rating system for nursing homes to help consumers evaluate a nursing home's quality when selecting a facility. The ratings would appear on the agency's Nursing Home Compare web site.
CMS will base the ratings on government inspection results, as well as staffing data and quality measures. Yet to be determined is whether the ratings will include other information, such as whether nursing homes treat patients with dementia or those on ventilators.
"We know the public is hungry for information," said acting CMS Administrator Kerry Weems. He said lower ratings "will likely put" nursing homes "on the path to improvement . . . I don't think we're going to see many people who are very anxious to put a loved one in a one-star home."
But the new rating system was criticized both by consumer advocates and the nursing home industry, for different reasons.
Toby Edelman, senior policy attorney with the Center for Medicare Advocacy, said that two of three criteria CMS plans to use for the ratings -- staffing data and quality measures -- are "self-reported by nursing facilities and are inaccurate." Edelman said, "Relying on nursing homes to describe accurately how well they are doing . . . just doesn't make sense."
Meanwhile, Bruce Yarwood, president of the American Health Care Association, a long-term care industry trade group, criticized CMS's use of government inspection results as criteria for the ratings and said CMS should consider consumer and staff satisfaction. Yarwood said, "We do not believe that an index which relies on a broken survey system is an accurate way to measure quality."
For a Detroit News article on the new rating system, click here. |
How to Fight a Nursing Home Discharge
 Once a resident is settled in a nursing home, being told to leave can be very traumatic. Nursing homes are required to follow certain procedures before discharging a resident, but a facility may occasionally attempt to "dump" an undesirable resident by transferring the resident to a hospital and then refusing to let him or her back in. However, residents can fight back and challenge such discharges.
According to federal law, a nursing home can discharge a resident only for the following reasons:
- The resident's health has improved
- The resident's needs cannot be met by the facility
- The health and safety of other residents are endangered
- The resident has not paid after receiving notice
- The facility stops operating
Unfortunately, sometimes nursing homes want to get rid of a resident for another reason--perhaps the resident is difficult, the resident's family is difficult, or the resident is a Medicaid recipient. In such cases, the nursing home may not follow the proper procedure or it may attempt to "dump" the resident.
If the nursing home transfers a resident to a hospital, state law may require that the nursing home hold the resident's bed for a certain number of days (usually about a week). Before transferring a resident, the facility must inform the resident about its bed-hold policy. If the resident pays privately, he or she may have to pay to hold the bed, but if the resident receives Medicaid, Medicaid will pay for the bed hold. In addition, if the resident is a Medicaid recipient the nursing home has to readmit the resident to the first available bed if the bed-hold period has passed.
In addition, a nursing home cannot discharge a resident without proper notice and planning. In general, the nursing home must provide written notice 30 days before discharge, though shorter notice is allowed in emergency situations. Even if a patient is sent to a hospital, the nursing home may still have to do proper discharge planning if it plans on not readmitting the resident. A discharge plan must ensure the resident has a safe place to go, preferably near family, and outline the care the resident will receive after discharge.
If the nursing home refuses to readmit a patient or insists on discharging a resident, residents can appeal or file a complaint with the state. The resident should appeal as soon as possible after receiving a discharge notice or after being refused readmittance to the nursing home.
For an article on a recent case of "dumping," click here.
For more information on nursing homes, click here. | |
|
Planning for Disability
 No one likes to think about the possibility of their own disability or the disability of a loved one. However, as we'll see below, the statistics are clear that we should all plan for at least a temporary disability. This article examines the eye-opening statistics surrounding disability and some of the common disability planning options.
Most Americans Will Face At Least a Temporary Disability Study after study confirms that nearly everyone will face at least a temporary disability sometime during their lifetime. More specifically, one in three Americans will face at least a 90-day disability before reaching age 65 and, as the following graph depicts, depending upon their ages, up to 44% of Americans will face a disability of 2.4 to 4.7 years. On the whole, Americans are up to 3.5 times more likely to become disabled than die in any given year.
Many Americans Will Face a Long-Term Disability
Unfortunately, for many of us the disability will not be short-lived. According to the 2000 National Home and Hospice Care Survey, conducted by the Centers for Disease Control's National Center for Health Statistics, over 1.3 million Americans received long-term home health care services during 2000 (the most recent year this information is available). Three-fourths of these patients received skilled care, the highest level of in-home care, and 51% percent needed help with at least one "activity of daily living" (such as eating, bathing, getting dressed, or the kind of care needed for a severe cognitive impairment like Alzheimer's disease).
The average length of service was 312 days, and 70% of in-home patients were 65 years of age or older. Patient age is particularly important as more Americans live past age 65. The U.S. Department of Health and Human Services Administration on Aging tells us that Americans over 65 are increasing at an impressive rate:
Nursing home statistics are equally alarming. According to the 1999 National Nursing Home Survey, the national average length of stay for nursing home residents is 892 days, with over 50% of nursing home residents staying at least one year. Significantly, only 18% are discharged in less than three months.
While a relatively small number (1.56 million) and percentage (4.5%) of the 65+ population lived in nursing homes in 2000, the percentage increased dramatically with age, ranging from 1.1% for persons 65-74 years to 4.7% for persons 75-84 years and 18.2% for persons 85+.
Planning Tip: Many Americans will require significant in-home care lasting, on average, close to a year. For those requiring nursing home care, that care lasts, on average, nearly 2 1/2 years! Not surprisingly, the older we get, the more likely we will need long-term care - which is significant given that Americans are living much longer.
Long-Term Care Costs Can be Staggering
Not only will many of us face prolonged long-term care, in-home care and nursing home costs continue to rise. According to the 2006 Study of the MetLife Mature Market Institute, national averages for long-term care costs are as follows:
- Hourly rate for home health aides is $19, higher than in 2004.
- Hourly rate for homemakers/companions is $17, higher than in 2004.
- Daily rate for a private room in a nursing home is $206, or $75,190 annually, a 1.5% increase over the 2005 rate.
- Daily rate for a semi-private room in a nursing home is $183, or $66,795 annually, a 3.9% increase over the 2005 rate.
These costs vary significantly by region, and thus it is critical that we know the costs where the patient will receive care. For example, the average cost for a private room in a nursing home is much higher in the Northeast ($346 per day, or $126,290 annually, in New York City) than in the Midwest (only $143 per day, or $52,195 annually, in Chicago) or the West ($199 per day, or $72,635 annually, in Los Angeles).
Planning Tip: Nursing home costs will consume many Americans' assets. A recent Harvard University study indicates that 69% of single people and 34% of married couples would exhaust their assets after 13 weeks (i.e., 91 days) in a nursing home!
Consider Long-Term Care Insurance to Cover these Costs
As the Harvard University study demonstrates, if you or a family member needs long-term care, the cost could easily deplete and/or extinguish your family's hard-earned assets. Alternatively, you (or your family) can pay for long-term care completely or in part through long-term care insurance.
Most long-term care insurance plans let you choose the amount of the coverage you want, as well as how and where you can use your benefits. A comprehensive plan includes benefits for all levels of care, custodial to skilled, and you can receive care in a variety of settings, including your home, assisted living facilities, adult day care centers or hospice facilities.
Planning Tip: Absent financial insolvency, government benefits for long-term costs are extremely limited - typically only for skilled care and only for a short duration. Given the costs of long-term care, discuss with your financial advisor how a long-term care insurance policy can meet your unique planning objectives.
Planning Tip: While long-term care insurance will cover in-home or nursing home costs, it will not replace the income lost due to the inability to work. Therefore, income earners should also discuss with their financial advisor how a disability insurance policy can replace lost income if you become disabled.
Your Estate Planning Should Thoroughly Address Disability
When a person becomes disabled, he or she is often unable to make personal and/or financial decisions. If you cannot make these decisions, someone must have the legal authority to do so for you. Otherwise, your family must apply to the court for appointment of a guardian for either your person or your property, or both. If you remember the public guardianship proceedings for Groucho Marx, you likely recognize the need to avoid a guardianship proceeding if at all possible.
At a minimum, you need broad powers of attorney that will allow agents to handle all of your property if you become disabled, as well as the appointment of a decision-maker for health care decisions. Alternatively, a fully funded revocable trust can ensure that you and your property will be cared for as you desire, pursuant to the highest duty under the law - that of a trustee.
Planning Tip: Your estate planning should include properly drafted and well thought-out estate planning documents that address both your property and your person in the event you become disabled. Be sure to discuss this aspect of your planning with your estate planning attorney.
Planning Tip: An estate plan that utilizes a revocable trust as its foundation not only helps ensure that you will be cared for as you desire, but it can ensure consistent asset management through the continued use of your existing financial advisors.
Consider Adding HIPAA Language and Authorizations
Under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), absent a written authorization from the patient, a health care provider or health care clearinghouse cannot disclose medical information to anyone other than the patient or the person appointed under state law to make health care decisions for the patient. The penalty for failure to comply with these rules is severe: civil penalties plus a criminal fine of $50,000 and up to one year of imprisonment per occurrence, and worse if the disclosure involves the intent to use the information for commercial advantage, personal gain, or malicious harm.
Since the HIPAA rules became effective, doctors, hospitals and other health care providers must refuse to release any information absent a release from the patient. For example, hospital staff will go so far as to refuse to disclose whether one's spouse or parent has been admitted to the hospital. The inability to receive information about a loved one could become very troubling when the information concerns treatment as part of long-term care.
Planning Tip: Your "personal representative" for health care decisions has the same rights to receive information as you do. While it is arguably unnecessary, the safest approach to ensure release of information to a personal representative is to modify the document appointing him or her so that it expressly authorizes the release of HIPAA-protected information on your behalf.
The Regulations promulgated under HIPAA specifically authorize a HIPAA Authorization for release of this information to persons other than you or your personal representative. Thus, you should consider creating such an Authorization so that loved ones and others can access this information in addition to your personal representative.
Planning Tip: Consider preparing a HIPAA Authorization for loved ones and others who potentially need access to your medical information if you become disabled. Your estate planning attorney can create such a HIPAA Authorization for you.
Conclusion
The above discussion outlines the minimum planning you should consider in preparation for a possible disability. As the Planning Tips demonstrate, it is imperative that work with your team of professional advisors to ensure that, in light of your unique goals and objectives, your planning fully addresses all aspects of a potential disability. |
|
Book Review: Nobody's Home: Candid Reflections of a Nursing Home Aide
 Thomas Edward Gass. Nobody's Home: Candid Reflections of a Nursing Home Aide. Cornell University Press, Ithaca, NY. 2004. 189 Pages.
$14.36 from Amazon (click on book to order).
Ever wonder what happens inside a nursing home? In Nobody's Home, a nursing home aide shares his unique perspective on life in a long-term care facility.
The author, Thomas Gass, has worked in a nursing home for three and a half years, first as a nursing aide and then as director of social services. Not a typical nursing home aide, Gass has a psychology degree and became an aide after caring for his ill mother and deciding he wanted more meaningful work. He offers one person's experience on life in a privately owned, for-profit facility.
In a book filled with stories, Gass provides portraits of each of his patients, allowing us to get to know them and their individual quirks. He explains how feeding and bathing is done and describes the interactions between residents. His stories give a well-rounded picture of what life is like inside the nursing home for both residents and workers, and his affection for the residents is apparent.
While Gass does not draw any conclusions or offer any solutions, he does have criticisms of the current system. He believes that nursing home regulations are not always applied rationally and can lead to overwork. Instead of focusing on forcing residents to eat, for example, Gass believes workers should concentrate on developing meaningful connections with the residents. Nobody's Home is a fascinating read for anyone with a loved one in a nursing home.
|
Retired Couples Will Need Average of $85,000 for Long-Term Care Insurance Premiums
 A 65-year-old couple today will need $85,000 of assets on average, to generate sufficient income to cover annual premiums for long-term care insurance, according to a new study by the financial services firm Fidelity Investments.
To come up with the estimate, Fidelity surveyed insurers offering long-term care policies, which cover visits by caregivers or stays in a nursing home. The study supplements a survey the company completed in March 2008 estimating a couple retiring this year would need $225,000 in savings to cover total medical costs in retirement. The costs for long-term care insurance are in addition to the $225,000.
About 5 million Americans have long-term care insurance, a number that has not increased much over the last decade, said Joan Bloom, senior vice president for Fidelity's life insurance group, which distributes long-term care insurance issued by an unaffiliated firm, Genworth Financial.
Bloom said people should consider buying long-term care insurance in their 50s because policies generally cost less the earlier they are purchased.
For an Associated Press article on Fidelity's study, click here. |
 The Greatest Compliment ...
We always appreciate referrals from our satisfied clients and business partners to friends, family members or business contacts. We welcome the opportunity to serve the people you care about. Click on the blue Forward Email at the bottom of the page to send this newsletter to someone who will benefit from our insights. | |
|
|
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 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,
|
|
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.
To comply with the U.S. Treasury regulations, we must inform you that (i) any U.S. federal tax advice contained in this newsletter was not intended or written to be used, and cannot be used, by any person for the purpose of avoiding U.S. federal tax penalties that may be imposed on such person and (ii) each taxpayer should seek advice from their tax advisor based on the taxpayer's particular circumstances.
|
|
|
