The Legal Checkup Blog
Sara and Ralph, a couple in their late 70’s, were perusing the newspaper one Sunday when they saw an advertisement about nursing homes and long-term care costs that grabbed their attention. The ad, which was placed by a lawyer, claimed that their home could be sold at auction and that they could be left homeless and penniless if they did not take action. The ad caused Sara and Ralph to fear losing their home and savings. It used scare tactics and preyed on their emotions and potential vulnerabilities.
While it is true that good estate planning techniques can protect assets, including the home, from the cost of long-term care, ads like the one that frightened Sara and Ralph violate the Aspirational Standards of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA).
MassNAELA is an organization of Massachusetts elder law attorneys working to assist elders, as well as elder law attorneys, as they navigate the maze of long-term care options. We encourage seniors and their family members to be leery of such ads using worst-case scenarios and scare tactics regarding the costs of long-term care. MassNAELA’s Aspirational Standards regarding marketing and advertising urge all elder law attorneys to do the following in advertising and marketing:
• Consider the potential for marketing to educate the public and to promote the profession of elder law;
• Prepare or disseminate only marketing communications that are truthful and do not include statements that are false or misleading in any material respect;
• Take into consideration the intended audience for any marketing communication and, in particular, the potential vulnerability of that audience to undue influence;
• Ensure that no materially false or misleading information is communicated in connection with a seminar, presentation, or similar activity; and
• Accurately describe legal concepts, procedures, programs or techniques in all marketing communications.
MassNAELA encourages high standards of technical expertise and ethical awareness among its members and all attorneys who practice elder law in Massachusetts, but we cannot “police” long-term care advertising. We can only inform and educate. The consumer has the power to choose whether to respond to such advertising.
Choices involving long-term care and planning are difficult and there are no “one size fits all” answers. It is important for seniors to consult with a reputable elder law attorney who can provide honest and complete advice on nursing home costs and planning options available in a particular situation, and to realize that if an ad uses scare tactics that cause anxiety, they should not take the bait. Responsible attorneys will not make you feel rushed, bullied, or unnecessarily fearful.
PLEASE help us to educate the public about unethical advertising. Share this message with everyone you know – especially those who are the intended target of such advertising.
The cost of nursing home care, which is approximately $10,000 - $12,000 per month in this area, can quickly wipe out one's life savings. In 1988, Congress enacted provisions to prevent what is known as "spousal impoverishment," or leaving the spouse who remains in the community with little or no income or resources. The provisions helped to prevent spousal impoverishment and provided some level of security for community spouses.
Under the MassHealth regulations incorporating the spousal impoverishment provisions, a range of assets is allowed to be retained by the community spouse, and depending on factors such as income and living expenses of the community spouse. There are additional provisions which provide for some of the institutional spouse's monthly income to be paid to the community spouse each month, or for excess assets beyond the maximum allowed to be retained to generate the needed income, in certain circumstances.
The Centers for Medicare and Medicaid Services (CMS) have announced these and other spousal impoverishment standards for 2014, which you can see here:
I have seen it reported that consumers spent $59.1 BILLION last year on Black Friday. $59.1 BILLION!
This number is staggering to me, and even more so when I consider the significant portion of these sales that likely represents well-intentioned, but useless, gifts. So many items will be returned because they are the wrong size, the wrong style, or just not something the recipient wants or needs.
Even worse, how many of you have received something that you would never wear or use, but you did not return it because you did not want to hurt the giver's feelings? Perhaps you re-gifted the item the next year, but let's face it - there is a great deal of waste around the holidays, and the true meaning behind the gifting has been stampeded in a rush to get the best prices.
What concerns me even more is that many people take out loans or make these purchases on credit cards, digging themselves deeper into debt in the process. This is not what the holidays are supposed to be about. Thanksgiving is a perfect time to reflect as a family, and to take steps to put the meaning back in the holidays.
You may want to consider setting a dollar limit, or having a grab to reduce the number of gifts each person needs to buy. You might consider implementing a new charitable tradition that the entire family can feel good about, such as making or purchasing items for nursing home residents who may not have family of their own, or for homeless families. You could conduct a food drive to replenish the food pantries that are always in need, or send items to our troops who are in harm's way to protect our country. The possibilities are endless, and these gifts are always the perfect fit.
Let me offer another suggestion. Before you and your family spend hundreds of dollars on things you probably don't need, consider putting the money towards something you should all have in place. If every member of your family age 18 and older does not have a basic estate plan in place, consider spending on that instead. At the very least, you should each have a Durable Power of Attorney and a Health Care Proxy with a HIPAA Release, appointing one or more agents to make health and financial decisions for you if you become unable to do so.
You can get additional information on my website about estate planning, long-term care planning, and other services.
Whether you will be part of the Black Friday stampede or collecting items for others, I wish you all a wonderful Thanksgiving!
Tags: long-term care, asset protection, elder law, Legal Check Up, Legal Documents, Durable Power of Attorney, Living Wills, Health Care Proxy, Last Will & Testament, disability planning, Community Care, family, loved ones, Estate Planning, long-term care planning
From the NAELA E-Bulletin:
AMTRAK FAILS TO COMPLY WITH ADA STANDARDS FOR OVER 23 YEARS
The National Disability Rights Network (NDRN) has written a report that demonstrates how Amtrak has failed to comply with the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA). These laws require public and private entities to make transportation services accessible to people with disabilities. The report examines the barriers that people with disabilities face at a variety of Amtrak stations around the country. NDRN has reported the violations to the Department of Justice.
Read the report here: http://dadsupport.ndrn.org/pub/NDRN_Amtrak_Report.pdf
SEMINARS AND WORKSHOPS
Next LEGAL CHECK UP Boot Camp to be held
Wednesday, November 6, 2013
10 am - 12 pm
SPACE IS LIMITED - PRE-REGISTRATION IS REQUIRED
Attendees of this free comprehensive workshop will learn the important considerations for a successful Estate and Long-Term Care Plan. Part of the workshop will be interactive to allow attendees to discuss general problems, concerns and situations.
This workshop will cover:
*what estate planning documents you need in order to achieve your goals and objectives;
* how to properly select Agents, Personal Representatives, and Trustees;
* whether you need a Will, a Trust, or both;
* long-term care costs and payment options (Medicare, VA benefits, Long-Term Care Insurance, Private Pay and Medicaid)
* how to protect your home and other assets;
Each attendee will receive a workbook and will "graduate" from the Boot Camp with a detailed, comprehensive plan of action.
For more details and to sign up go to:
Tags: PACE, home care, long-term care, asset protection, elder law, Legal Check Up, Legal Documents, Durable Power of Attorney, Estate Planning, Health Care Proxy, Last Will & Testament, disability planning, Medicare, Community Care, nursing home, Program of All-Inclusive Care for the Elderly (PAC, Medicaid, Veterans Benefits, Medicaid Home Care, long-term care planning
Many of you are aware that I am very involved with the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA), and I am currently serving as the Chapter's President-Elect. MassNAELA has approximately 500 members in the Commonwealth - attorneys who practice in the areas of Elder Law and/or Special Needs Planning. In addition to the dedicated members of the Board of Directors, MassNAELA has several Committees comprised of member volunteers who focus on various areas of advocacy and education to protect the rights of seniors and people with special needs in the Commonwealth.
One of our most important efforts relates to litigation of wrongful denials of MassHealth and Medicare coverage, and several years ago we developed a Litigation Initiative to develop a cohesive approach to defend against the systemic abuses in the application process for public benefits. One of our leaders and mentors in this effort has been Attorney John Ford and his colleagues at Neighborhood Legal Services. John was one of the original members of MassNAELA and is a former President of the Chapter, and he has devoted his entire career to legal aid services - over 45 years! John has brought his decades of experience in litigating issues affecting elders to provide guidance and mentorship to other MassNAELA members whose clients have been faced with wrongful Denials and a lack of Due Process.
However, John and his colleagues at Neighborhood Legal Services, like all Legal Services agencies, have been hit by hard times. Budgets have been slashed, staff cut, and remaining staff forced to take time off without pay at times to save other positions.
Whether you realize it or not, you or your loved ones in Massachusetts have likely benefitted from the commitment and dedication of John Ford and all of the other attorneys and staff at Neighborhood Legal Services. And, their advocacy and guidance has been invaluable to MassNAELA's public policy and litigation efforts, helping us to ensure that the rights of seniors and people with special needs are upheld. Neighborhood Legal Services has been there for people in need, and now they need us to be there for them.
PLEASE join me in making a donation - any amount you can afford - to Neighborhood Legal Services. They recently moved to a new location in order to cut their rent expense in half, but they had to take out a loan to pay for the up-front costs. They need our help to pay back the loan so they can focus on what they do best - providing legal services to the poor and advocating for seniors through their Elder Law Project.
Check out their website at www.neighborhoodlaw.org, and please visit their fundraising campaign website at http://igg.me/at/Help-NLS-Move-Office/x/4646373 to make a donation. Every little bit will help. Thank you!
Once again I have encountered the infuriating problem of "Observation Status." A client's loved one was admitted to a Boston hospital as a result of a crisis. I instructed my client to confirm that his father had been formally "admitted" to the hospital, and his response was a bit incredulous. "Of course he was admitted -- he has been in the hospital for four nights!" His response was completely logical, of course, but my concern was realized when my client confirmed that the hospital still had his father listed on "Observation Status."
In general, Medicare will only provide coverage for skilled rehabilitation services at a nursing home if the patient had a minimum of a three-night stay and is transferred directly from the hospital to the nursing home. My client's father could not safely return home, and would need to be placed in a skilled nursing facility, so we advocated for his status to be changed (for him to be "admitted") and ensured that he had the required three-night stay before being transferred to the nursing home. (Just to be clear - staying at the hospital on "Observation Status" for three nights does NOT qualify as a three-night stay. One must be "admitted" before midnight for that night to qualify.)
Unfortunately, most people are not working with an attorney and do not find out about this problem until much later when they are charged for various prescriptions and services they received in the hospital or, worse, when they receive a huge bill from the nursing home. It is far more difficult to successfully appeal the "Observation Status" at that point, but an appeal should be pursued.
On November 3, 2011, the Center for Medicare Advocacy and the National Senior Citizens Law Center, filed a nationwide class action lawsuit to challenge this illegal practice on the basis that it violates the Medicare Act, the Freedom of Information Act, the Administrative Procedure Act, and the Due Process Clause of the Fifth Amendment to the United States Constitution. (Bagnall v. Sebelius, No. 3:11-cv-1703, D. Conn)
In the meantime, you need to know your rights and advocate for yourself. There are a number of self-help packets (and a wealth of information on this and other topics) on the Medicare Advocacy website at http://www.medicareadvocacy.org. Call me at 781-681-6638 if you need advocacy to protect your rights on this or a related issue, or you can find an elder law attorney in your area through the website of the Massachusetts Chapter of the National Academy of Elder Law Attorneys at www.massnaela.org.
Education is the best defense! Please share this information with your friends and family to prevent them from being the next unsuspecting victim of this illegal practice.
Rockland- Aging is BIG business. The key word here is "business."
With the demographics as they are, people living longer, boomers coming of age, new products and services are introduced each day for seniors and their caregivers. Many of these products and services are fantastic and live up to their promises. Others, however, rely on fancy web sites and literature, celebrity endorsements and microscopic disclaimers to make a sale. These tactics are successful because they play on the vulnerabilities of the target audience, often when they are most overwhelmed and desperate for help.
Perhaps you are caring for your spouse who is suffering from Alzheimer’s or some other chronic condition. Maybe you are looking for guidance because your parents are no longer safe in their home. Whatever your situation, you need to be an informed consumer. You’ve got to ask some important questions in order to properly assess whether a product or service is right for you or your loved one.
In this first of a three-part series, we’ll discuss some of the hidden issues and questions that seniors and their caregivers need to consider asking in order to make educated, informed decisions.
Let's start by dispelling the myth that anything in business is "free." Let’s face it - if something was truly free, the provider would be a charity rather than a business. Once you accept that businesses exist to make money, you will want to understand how companies are being paid in order to determine whether the product or service will benefit you. You need to ask questions and demand answers. Below are a few common examples.
Senior Living Referral Services. Each morning while I am having my coffee and watching the news, I see the commercial with Joan Lunden promoting a “free senior living referral source.” And, each morning, I want to yell at my TV, frustrated that the consumer is not being provided with the full story. Sure, there is likely a disclaimer in print so small that it is illegible, but let’s face it - nobody is reading the fine print, even if it is large enough to see. Viewers trust Joan Lunden because they watched her for years on morning TV. They trust her because she tells about her own struggle to find the right resources for her aging mother, and that is very compelling. I went to the web site for this company to research a bit further and found the following disclaimer – again, in print so tiny and a font so light I had trouble reading it: “Our service is offered at no charge to families as the communities and providers in our network pay (our) fee …” We do not own, operate, recommend, or endorse any of these communities or providers.”
So, if a senior living referral source such as this does not recommend or endorse any of the communities they refer you to, you need to ask some questions in order to determine if this service will benefit you. Consider asking them the following questions:
1) If you do not recommend or endorse any of the facilities you will refer me to, what are the criteria that you use? Is it solely that they pay a fee for the referral?
2) How much will you be paid by a facility if my loved one is placed there?
3) Are there other facilities in the area that you have not referred us to and, if so, why not? Is it solely that they have not agreed to pay a fee for the referral?
4) Will you put the criteria you are basing the referral on in writing?
Web-based senior planning resources. These sites are multiplying like rabbits on the web, each promising to be the hub of information and a central place to locate quality geriatric care managers, elder law attorneys, assisted living facilities, nursing homes and more. Some of these sites do provide valuable information to seniors and caregivers but, again, you must understand how they are getting paid. Ask the following questions:
1) Do the “experts” on your site pay to be designated as experts?
2) If not, what is the criteria one must meet to qualify as an “expert?”
3) Do providers (geriatric care managers, elder law attorneys, facilities, etc) pay to be listed on your site, or to be highlighted or listed first in search results?
4) How do you ensure that the information listed on your site is current and accurate?
5) Can you guarantee the security of any personal information I provide through the site? How?
6) Do you share my information with any other person or entity?
7) Do I have to register or sign up in order to use the site?
One site that I recently tested asked for far too much personal information. In order to request information from a specific elder law attorney, for example, site users are asked to provide the name of the person they are concerned about and the details of their condition. It is unclear who receives the inquiries submitted online or whether this personal information is protected. This particular site also offers a forum for family members to share information and communicate about their loved one – to list doctor appointments and medications, post estate planning documents, etc. This sounds great in theory, but there is no guarantee that the communications are private or secure. There are a number of other forums where family members can communicate without going through a web-based senior planning site such as this, and I caution you not to provide any personal information on such a site unless your questions are answered to your satisfaction, preferably in writing.
Personally, I believe the best way to contact a professional is directly, with no third-party intermediary. The best resource to find an elder law attorney is through the Massachusetts Chapter of the National Academy of Elder Law Attorneys, at www.massnaela.com (or www.naela.org in other states). A qualified geriatric care manager can be found through the National Association of Professional Geriatric Care Managers at www.caremangers.org. You can research assisted living facilities through www.massalfa.org (Mass Assisted Living Facilities Association), and nursing homes through www.medicare.gov/nursinghomecompare. Nursing Home Compare provides you with the most recent inspection results for all nursing homes in the state, including any deficiencies you should be aware of.
There is nothing wrong with companies trying to make a profit by providing products and services that address the needs of seniors and their caregivers. But, it is up to you to look beyond the celebrity endorsements and glitzy marketing. It is up to you to determine if “experts” earn their designation through knowledge and experience, or by paying a fee to be listed as such; whether a referral service will refer you only to facilities that pay a fee to be included. If the fancy marketing and celebrity endorsements give you one impression, but the fine print says something completely different, you need to ask questions and demand answers before proceeding. Remember, businesses are in business for one reason - to make money. You must understand how they are being paid in order to truly understand if the product or service offers value to you.
Note: In our next post, we will discuss financial services sales and MassHealth application prep services.
Tags: PACE, home care, long-term care, asset protection, Legal Check Up, Estate Planning, skilled services, Community Care, Elder Financial Abuse, loved ones, nursing home, Program of All-Inclusive Care for the Elderly (PAC, Veterans Benefits, long-term care planning