The Legal Checkup Blog
MassNAELA and elder law attorneys across the Commonwealth continue to advocate for a number of bills. In the meantime, the Conference Committee on the FY2015 Budget has been released and is in the process of being enacted and sent to the Governor for his review. Some of its provisions are of interest to elder law attorneys and those we serve:
1. The Mass Health Senior account (4000-0600) contains language preserving the Personal Needs Allowance (PNA) at $72.80. (This is the amount a nursing home resident may keep each month from their income if he or she has MassHealth coverage. It is used to pay for hair or barber services, toiletries, clothing, etc)
2. The Senior account also contains nursing home bed hold language requiring nursing homes to hold beds for medical leaves not less than 10 and up to 20 days. (Again, this applies to nursing home residents whose care is covered by MassHealth. This bed hold is critical for quality of life and dignitiy, allowing residents to return to the same bed and room they resided in when they were hospitalized. The nursing home is their home, just like your home or mine, and it can be devastating to one's mental and physical well-being if they lose their "home" due to a hospitalization. This would be more likely if the bed-hold provision was not retained.
3. The budget requires written informed consent of a nursing home resident or his guardian/health care proxy prior to the administration of psychotropic medication. This is an important protection for nursing home residents, and this written informed consent ensures that such drugs will not be administered just to make residents easier to deal with, or to avoid the cost of implementing other measures to deal with the symptoms for which these medications have been abused in the past.
4. The budget requires the Department of Public Health (DPH) to implement a public process for the granting of nursing home licenses and transfers of ownership.
PLEASE CALL THE GOVERNOR'S OFFICE TODAY - TELL HIM YOU WANT THESE PROVISIONS TO STAY AS IS (PNA OF $72.80, A 10-DAY MINIMUM BEDHOLD, PRIOR WRITTEN CONSENT TO ADMINISTER ANTI-PSYCHOTIC MEDICATIONS, AND A PUBLIC PROCESS FOR THE GRANTING OF NURSING HOME LICENSES AND TRANSFERS OF OWNERSHIP). His contact information is:
Office of the Governor
888.870.7770 (in state)
Thank you for your support!
I just received confirmation from a new client that the nursing home has rescinded its notice of Intent to Discharge her grandmother. While this is great news, and our advocacy has paid off, this case represents a disturbing trend.
This is the third case in the past six months in which I was hired to advocate against a wrongful notice of Intent to Discharge an elderly resident of a nursing home on the basis of non-payment. In all three cases, MassHealth coverage was in place, but there was an outstanding balance ranging from $6,500 - $13,000, for a period prior to the MassHealth approval. In all three cases, the amount owed represented the Patient Paid Amount (PPA) for a period prior to the time when the client received a notice from MassHealth informing them of their duty to pay a set amount each month.
Most people are aware that there is a duty to pay something each month under the Medicaid regulations based on their income less any allowed deductions (the PPA). Clients are certainly advised of this when working with an elder law attorney and most nursing homes will inform clients of this duty when they are assisting with the application. (As a side note, I advise against using the nursing home or a non-attorney service that they may refer you to, but that is a separate topic.) There are instances when the client is not informed in advance, however, through no fault of their own.
By the time the client receives a notice informing them that MassHealth benefits have been approved, and detailing the amount that must be paid each month RETROACTIVELY to the date of eligibility (which could be as much as four months prior to the date of application), the funds may not be there to pay the outstanding PPA. If a client is not informed that they must hold the funds or pay an estimated PPA each month while the application is pending, they may not have the funds available by the time they receive the notice from MassHealth.
In all three of these cases, the balance was owed not because funds were gifted and not due to misappropriation of funds. The clients were simply not informed that they would need to pay a PPA back to the date of requested eligibility. The nursing home assisted with the application in one case, and referred the clients to a Medicaid service in both other cases. Nobody told the client to pay an estimated PPA while the application was pending or to hold the monthly income pending the approval from MassHealth.
In the most recent case, when MassHealth ultimately issued an approval notice and indicated the resident's duty to pay a PPA each month going back a couple of months, the nursing home continued to bill for the outstanding balance. They sent a threatening letter to the resident's granddaughter, who managed the resident's checking account. She tried to explain the situation to the nursing home administrator, and showed the bank records documenting where the funds went - they were not gifted - they were used to purchase items her grandmother needed.
When the granddaughter explained that she had four children and worked full time and barely made ends meet, and simply did not have the funds to pay the nursing home the outstanding amount, the nursing home issued a Notice of Intent to Discharge the resident for non-payment. My client's grandmother is still mentally competent, so the law required that the nursing home staff serve the notice on her directly. Imagine the fright my client's 88 year old grandmother experienced when she was handed a notice informing her she was going to be discharged from the facility that had been her "home" for the past two years.
To make matters worse, the notice indicated that the facility planned to discharge the resident to her granddaughter's home 30 days later (the law requires 30 days notice). My client had informed the facility that she could not take care of her grandmother and, furthermore, that the setup and amount of stairs in her three-level condominium was an unsafe environment. Her grandmother would require two people to assist her with transfers in and out of bed or up and down the stairs to the bathroom. The facility knew that a discharge to my client's home would not be safe. They knew that my client worked two jobs to make ends meet. They knew that she did nothing wrong in this process, and that they had actually failed to inform my client that they were filing a conversion from community MassHealth to long-term care MassHealth on her grandmother's behalf, so she should either pay an estimated PPA from that point on or hold the funds pending the approval. While they are not solely to blame either, they are more responsible for the situation than my client, yet they issued this notice to try to bully my client to find a way to pay the outstanding balance. I find this tactic to be nothing short of elder abuse!
The time, energy, and expense the facility expended to pursue a wrongful discharge of this resident would have been better spent developing a better system to ensure that this problem does not happen again with another resident. I am not un-sympathetic to these facilities. I know that they suffer as a result of the delays and abuses in the MassHealth system. So do my clients. But, I suggest that we would all fare better if we communicated in a collaborative manner to address these recurring issues, rather than defensively on a case by case basis.
Today I begin my term as President of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA). I look forward to a productive year of advocacy ahead and hope you will help with one of our current goals, which is to educate the public about unethical ads that prey on the vulnerabilities of seniors and people with special needs. You've heard the ads on the radio, seen the flyers or newspaper ads.
The attorneys/companies who place these ads make false promises, create false impressions, and use scare tactics to instill fear in their intended audience.
* These ads make the nursing homes sound like money-grubbing thieves -- when the reality is that the caring staff of nursing homes provide 24/7 care to people who are unable to remain safely in the community. Should the nursing homes provide this care for free? You can bet that the attorneys who place such ads do not provide their services for free. In fact, if you consider the cost of some of these ads (many thousands of dollars), it suggests that these scare tactics are having the desired effect.
* These ads give the false impression that seniors can remain in full control of their assets AND protect those same assets from the cost of long-term care (not true!).
* The ads of a few elder law attorneys place all elder law attorneys in a bad light by emphasizing "protecting assets" above all else, when the reality is that protection of the client is the paramount concern for most elder law attorneys.
MassNAELA works hard to advocate for seniors and people with special needs, but this task is made much more difficult by offensive ads that encourage people to do whatever is necessary to make sure they won't "lose their assets to the nursing home" - in other words, let the state pay it all.
This emphasis hurts everybody because care providers, judges, and legislators have begun to see elder law attorneys as the enemy -- doing nothing more than "hiding" assets from the nursing homes. This could NOT be further from the truth, however. Most elder law attorneys focus on protecting the client, not the assets. Most elder law attorneys provide comprehensive guidance and advocacy to clients, and if asset protection is part of a comprehensive plan, it is only done with full understanding that any assets that are "protected" from the cost of nursing home care are NOT fully available to the client for their future needs. Any ads that suggest one can protect assets and retain full control of the assets are misleading at best.
We need your help to spread the word regarding ads that use false claims and scare tactics. Share this message with your loved ones. If you work with seniors and their families, you have the opportunity to share MassNAELA's message with them.
If you or someone you know has a concern about a particular ad, feel free to send it to me at firstname.lastname@example.org.
Planning is important, whether it is advance planning or crisis planning, it is important to seek professional guidance. Just be aware that if something seems too good to be true, it probably is. If something makes you feel rushed, anxious, or bullied, you should walk away. Get a second opinion. Feel free to call my office for guidance, or you can find a MassNAELA member in your area at www.massnaela.org.
Happy New Year to you all! Make 2014 the year you get your affairs in order.
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
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.
I've been following and periodically providing updates on a class action lawsuit known as "Jimmo v. Sebelius" (Kathleen Sebelius, Secretary of Health and Human Services), which was filed in The United States District Court for the District of Vermont. Plaintiffs include six individual Medicare beneficiaries and seven national organizations (including the National Committee to Preserve Social Security, Parkinson's Action Network, Paralyzed Veterans of America, American Academy of Physical Medicine and Rehabilitation, Alzheimer's Association, and United Cerebral Palsy).
Plaintiffs alleged that the Secretary has adopted an unlawful and clandestine standard to determine whether Medicare beneficiaries are entitled to coverage, resulting in the wrongful termination, reduction, and denial of Medicare coverage for beneficiearies with medical conditions that are not expected to improve.
Plaintiffs alleged that this unlawful standard is implemented at the lower levels of Medicare's administrative review process, and denies coverage where the beneficiary needs "maintenance services only," has "plateaued," or is "chronic," "medically stable," or not improving. This "rule of thumb" or clandestine policy is what plaintiffs refer to as the "Improvement Standard." If you or a loved one has ever been in a rehabilitation facility, you have probably received such a notice. This Improvement Standard is contrary to the Medicare Act and federal regulations and precludes coverage for beneficiaries with conditions that are not expected to improve or that have not improved over the course of treatment.
Plaintiffs allege that this standard has been implemented without proper rulemaking procedures against beneficiaries that have little or no understanding of its application and no ability or reasonable opportunity to confront it.
Well, we have GREAT NEWS to report!!
The Center for Medicare Advocacy and the Centers for Medicare and Medicaid Services (CMS) have agreed to settle the "Jimmo" case, also known as the “Improvement Standard” case, and have filed a proposed settlement agreement with the Court. If the judge approves the proposed agreement, a process that could take several months, the Medicare Benefit Policy Manual will be revised to correct any suggestion that continued coverage is dependent on the beneficiary improving. CMS will undertake an Educational Campaign to inform providers, contractors, and adjudicators that they can not base coverage on the potential for improvement, but on the need for skilled care.
Bravo to the attorneys from the Center for Medicare Advocacy and Vermont Legal Aid, who have undertaken this cause on behalf of the Plaintiffs. This unlawful "Improvement Standard" is an issue elder law attorneys and their clients face on a daily basis, so this is fantastic news! If you are interested in viewing the proposed settlement agreement, you may view it here.
Note: Rockland and Mansfield Boot Camps are fully booked! We are maintaining a wait list and an additional date will be added when filled.
IT'S BACK BY POPULAR DEMAND AND SURE TO "SELL OUT" QUICKLY ...
THE LEGAL CHECK UP BOOT CAMP (c)
Families come in all shapes and sizes. Whether you are young, a boomer or a senior, single, married (traditional or same-sex), divorced, have children or not, have a family member with special needs, want to leave your estate to your pets ... whatever your situation, you need a comprehensive assessment and and an Estate Plan that is just right for you. Depending on your goals and your situation, your plan might focus on probate avoidance, tax minimization, asset protection, or special needs planning.
"I don't have enough to worry about" you say?
Well, be aware that whether you are wealthy, barely getting by, or somewhere in the middle -- there are basic documents you need to have in place in the event you become temporarily or permanently unable to act for yourself due to a physical or mental incapacity.
You can't afford not to have these basic documents in place in the event of an emergency. If you don't have basic disability documents that appoint an agent to act on your behalf in such cases, your loved ones would need to petition the probate court for a guardianship and/or conservatorship to obtain the authority to act on your behalf. These court processes can cost thousands of dollars.
So, delay no more.
Come and learn how to protect yourself, your family, and your assets in the event of disability or death.
Not just another boring seminar ... in this free, comprehensive workshop you will learn every thing you need to know about Estate and Long-Term Care Planning. Part of the workshop will be interactive to allow attendees to discuss particular problems, concerns and situations.
This workshop will cover:
* what estate planning documents you need in the event of disability;
* 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;
* how to provide for your child with special needs in a way that improves his or her quality of life without disrupting eligibility for public benefits;
Each attendee will receive a workbook and will "graduate" from the Boot Camp with a detailed, comprehensive plan of action.
The Fall workshops will be offered during the day (from 12-3 pm) and in the evening (from 5-8 pm). Seating is limited to 12 in each session in order to provide individualized guidance to each attendee. Session dates will be posted soon, but preference will be given to those who pre-register at:
Tags: PACE, home care, long-term care, asset protection, elder law, Legal Check Up, Legal Documents, Estate Planning, Estate Planning, disability planning, Medicare, Community Care, Elder Financial Abuse, family, loved ones, Medicaid, Medicaid Home Care, improvement standard, undue influence, rights, Durable Power of Attorney, Living Wills, Health Care Proxy, Last Will & Testament, nursing home, Program of All-Inclusive Care for the Elderly (PAC, Veterans Benefits, long-term care planning
The Massachusetts Bar Association invites you to participate in Court Advocacy Day on Monday, March 19 at the Grand Staircase inside the State House. Beginning at 11 a.m., the event will help reiterate the need for adequate funding to sustain the critical needs of the Massachusetts Court System. The event will open with a brief speaking program, after which attendees will be encouraged to meet with their local legislators.
The event will include speaking remarks from:
•Supreme Judicial Court Chief Justice Roderick L. Ireland;
•Chief Justice for Administration and Management Robert A. Mulligan;
•MBA President Richard P. Campbell; and
•Boston Bar Association President Lisa Goodheart
The MBA would appreciate your signing up in advance at http://www.massbar.org/cle/cle-programs?p=2709