Appeals Court Upholds Class Certification of Nursing Home Residents Seeking Community-Based Alternatives

A U.S. Court of Appeals upholds a district court ruling that granted class certification to a group of disabled nursing home residents who complained of a lack of Medicaid-funded community-based alternatives.  In re District of Columbia, (D.C. Cir., No. 14-8001, June 26, 2015).
Embed from Getty Images

 

The plaintiffs, a group of disabled nursing home residents receiving Medicaid-funded long term care, sued the District of Columbia for allegedly violating its obligation, pursuant to the Americans with Disabilities Act, to provide services to the disabled in the most appropriate, integrated setting. The plaintiffs filed a motion seeking class certification, asserting that they were all similarly situated nursing home residents who wanted to live in the community but were forced to remain institutionalized against their will.

The U.S. District Court for the District of Columbia granted the motion for class certification, finding that alleged systemic deficiencies, such as the District’s failure to offer sufficient discharge planning or to provide residents with meaningful choices of community-based alternatives to nursing home care, were sufficient bases upon which to certify the class.

The District filed a petition for permission to file an interlocutory appeal of the district court’s ruling certifying the class.  The District argued that the lower court committed manifest error by failing to identify policies or practices that were common to all members of the class and that were amenable to class-wide resolution.

The U.S. Court of Appeals for the District of Columbia Circuit disagrees and upholds the class certification.  The court concludes that it was not manifest error for the lower court to find the allegations of systemic deficiencies in the program sufficient to establish a class of plaintiffs.

For the full text of this decision, click here.

ELDER ABUSE: FINANCIAL EXPLOITATION FOR $797,000

Another case handled by Brian A. Raphan, P.C. was on the Cover Page of the New York Law Journal last week.

I was appointed as Special Referee by the Supreme Court of the State of New York to perform a forensic review of Nassau County attorney Martha Brosius’ handling of a senior citizen’s financial affairs. Brian uncovered many undocumented and improper financial transactions and filed his detailed analysis to the Court.  As a result of my report, criminal actions were commenced against attorney Brosius, which ultimately led to a guilty plea. Brosius now faces 6-12 years behind bars.  Of course, she will lose her license to practice law.  Another win for the good guys!

The article is provided below.

*As appeared Front Page of the New York Law Journal 6/25/15, By Andrew Denney, The New York Law Journal ATTORNEY ADMITS TO TAKING $797,000 FROM CLIENTS A Long Island elder law attorney has admitted to embezzling more than $797,000 from her clients over a four-year period, the Queens District Attorney’s Office announced on Tuesday. Martha Brosius, 52, of Brosius & Associates of Great Neck, appeared Tuesday before Acting Supreme Court Justice Helene Gugerty and pleaded guilty to two counts of second-degree grand larceny and one count of scheme to defraud, according to a news release from Queens District Attorney Richard Brown’s Office. “The defendant has admitted to breaching her fiduciary duty and unjustly enriching herself at the expense of her client,” Brown said in the release. Brosius was indicted for the offenses in 2013. Her clients included a 77-year-old man who had been deemed mentally incapable and for whom Brosius served as legal guardian, as well as two brothers who retained Brosius to sell their deceased father’s estate and establish a special-needs trust for their disabled sister, who was the sole heir to the father’s estate. Brosius is scheduled to appear before Gugerty on Aug. 12 for sentencing. Gugerty has indicated that her prison sentence would range between four and 12 years. Brosius is a graduate of the St. John’s University School of Law and was admitted to the bar in 2003. According to the Office of Court Administration website, she has not been publicly disciplined. Her guilty plea will subject her to mandatory disbarment. Assistant District Attorneys James Liander and Yvonne Francis appeared for the Queens District Attorney’s Office. • • • “Improper use of an adult’s funds, property, or resources by another individual is elder abuse. This includes, but is not limited to, fraud, embezzlement, forgery, falsifying records, coerced property transfers, or denial of access to assets.”   TO REPORT FINANCIAL EXPLOITATION OF ELDERS IN NY STATE Click Here. Or Call 844-697-3505 FOR THE DISTRICT ATTORNEY’S PRESS RELEASE Click Here.

Surrogate Court Affirms Bequest To Same-Sex Ex-Partner

As Published in The New York Law Journal

Decedent’s Former Partner Can Inherit Estate, Judge Says

Andrew Keshner, New York Law Journal

New York Law Journal 6/23/15

A same-sex couple who held a commitment ceremony but broke up years before New York state legalized gay marriage never formally divorced in the eyes of the law, a judge has ruled.

And because the couple never divorced, Manhattan Surrogate Nora Anderson reasoned, the bequest one man made to his former partner in an estate with assets worth more than $1 million was not voided by state laws that disqualify inheritance to a divorced spouse.

In 2002—nine years before the 2011 enactment of the Marriage Equality Act—Mauricio Leyton and David Hunter gathered their friends and family at the Ritz-Carlton Hotel in lower Manhattan for what the invitation billed as a “Ceremony of Union and Commitment.” The officiant said the pair, who had been together for about 10 years, was entering a “state of companionship, compromise, creativity and commitment that the world recognizes as marriage.” She said “the state will not legally recognize this union. Fortunately, this is of no importance.”

A year before the ceremony, Leyton created a last will and testament, which named Hunter as the executor. He said Hunter was entitled to his personal property and one-half of the residuary estate. Leyton referred to Hunter in the will as “my partner David.” He and Hunter did not enter a civil union and broke up around 2008. When they separated, they signed a document in which Leyton expressed interest in buying out Hunter’s ownership in a cooperative apartment and lending Hunter $40,000 to buy another apartment. But up through the time of Leyton’s death, he and Hunter co-owned property in Long Island, held as joint tenants with rights of survivorship. They stayed on good terms after their separation.In 2013, with New York laws now recognizing same sex marriage, Hunter married another man. Leyton attended the ceremony, acting as the wedding’s sole official witness. Leyton died in December 203 of a heart attack, at age 52. He worked in the travel industry and was an actor, said Hunter’s attorney, Matthew Raphan, an associate at Brian A. Raphan, P.C. in Manhattan. Leyton’s will was admitted to probate in May 2014. According to court papers, assets are listed as worth more than $1 million. His mother and sister, beneficiaries living in Chile, moved to revoke Hunter’s executor status and nullify his status as a beneficiary. The mother, Fidelisa Eliana Latorre Figueroa, and sister, Ana Marie Leyton Latorre, pointed to law including New York’s Estates, Powers & Trusts Law 5-1.4. Under the provision, a divorce revokes a will’s distribution to a former spouse. The mother and sister said in their petition that the statute applied because of “the wrongful and unconstitutional deprivation of the right to marry and the concomitant right to divorce.” They said that “as a matter of right and equity,” the Estates, Powers & Trusts Law provision should govern.

Not applying the statute would create the “counterintuitive consequences contrary to decedent’s natural and expressed intentions, including giving David Hunter one-half of the proceeds from the sale of the New York apartment for which he had already been paid his one-half interest,” the women said. But Hunter’s opposition papers said it was a “legal impossibility” for the couple to be married in 2002 and the Marriage Equality Act of 2011 did not have retroactive effect. Hunter said he and Leyton were “under no illusion” that their 2002 ceremony was a recognizable equivalent to marriage in the state. Furthermore, there was no indication the will did not express Leyton’s last wishes, Hunter said.

“The decedent had ample time and opportunity to execute a subsequent will after the romantic relationship between the parties ended, but chose not to,” he said, noting their continuing joint ownership of property, bank accounts and credit cards up through Leyton’s death.

When denying the mother and sister’s petition for retroactive application of the Marriage Equality Act, Anderson said it was the Legislature’s role to decide matters relating to same sex marriage.”Given that the Legislature did not authorize same-sex marriage until 2011, this court cannot deem the commitment ceremony to have sanctified a marriage, so decedent and the executor cannot be deemed to be divorced,” she said in Matter of the Estate of Mauricio Leyton, 2013-4842.

In an interview, Raphan said he was pleased with the outcome, adding there was “simply no precedent” for retroactive application of the Marriage Equality Act.

There is “no precedent for the courts in the state of New York to assume the existence of marriages and dissolution thereof without any basis in law,” Raphan said.

Stanley Ackert III of Claverack, who represented the mother and sister, could not be reached for comment.

Related Decisions:

• Matter of Mauricio Leyton, Deceased 2013-4842/A/B

Read more: http://www.newyorklawjournal.com/id=1202730156372/Decedents-Former-Partner-Can-Inherit-Estate-Judge-Says#ixzz3e05nt6wc

To email Matthew S. Raphan, click here.

Careful…Gifting To Family Can Affect Medicaid Eligibility

By Matthew S. Raphan, Esq.  Attorney at The Law Offices of Brian A. Raphan, PC

View image | gettyimages.com

Every so often a client says to me, “I’ve been gifting money to my children and grandchildren so I can apply for Medicaid.” While gifting may offer benefits to you and your family, if you think you may someday apply for Medicaid benefits, you should be aware that giving away money or property can interfere with your eligibility.

Under federal law, if you transfer certain assets within five years prior to applying, you may be ineligible for Medicaid benefits for a period of time. This is called a transfer penalty, and the length of the penalty depends on the amount of money transferred. (This waiting period can also be costly as you may pay for your care out of your own pocket.) Even small transfers can affect eligibility. Although federal law currently allows individuals to gift up to $14,000 a year without having to pay a gift tax, Medicaid still treats that gift as a transfer.

Any transfer that you make, however nominal, may be scrutinized. For example, Medicaid does not have an exception for gifts to charities. If you make a charitable donation, it could affect your Medicaid eligibility down the road. Similarly, gifts for holidays, weddings, birthdays, and graduations can all trigger a transfer penalty. If you buy something for a friend or relative, this could also result in a transfer penalty.

Some people have the notion that they can also go on a spending spree for themselves or family. Not so fast. Spending a large sum of cash at once or over time may prompt the state to request documentation showing how the money was spent. If you don’t have receipts showing that you received fair market value in return for a transferred asset, you could be subject to a transfer penalty.

While most transfers are penalized, certain transfers are exempt from this penalty. For example, even after entering a nursing home, you may transfer any asset to the following individuals without having to wait out a period of Medicaid ineligibility:

• your spouse;
• your child who is blind or permanently disabled;
• a trust for the sole benefit of anyone under age 65 who is permanently disabled.

In addition, you may transfer your home to the following individuals (as well as to those listed above):

• your child who is under age 21;
• your child who has lived in your home for at least two years prior to your moving to a nursing home and who provided you with care that allowed you to stay at home during that time;
• your sibling who already has an equity interest in the home and who lived there for at least one year before you moved to a nursing home.

Before transferring assets or property, check with us or your elder law attorney to ensure that it won’t affect your Medicaid eligibility.

For more information on Medicaid’s transfer rules, click here.

Related Articles:

TOP 8 MEDICAID PLANNING MISTAKES

If you have a question you can send us a message here.

Careful…Gifting To Family Can Affect Medicaid Eligibility

By Matthew S. Raphan, Esq.  Attorney at The Law Offices of Brian A. Raphan, PC

View image | gettyimages.com

Every so often a client says to me, “I’ve been gifting money to my children and grandchildren so I can apply for Medicaid.” While gifting may offer benefits to you and your family, if you think you may someday apply for Medicaid benefits, you should be aware that giving away money or property can interfere with your eligibility.

Under federal law, if you transfer certain assets within five years prior to applying, you may be ineligible for Medicaid benefits for a period of time. This is called a transfer penalty, and the length of the penalty depends on the amount of money transferred. (This waiting period can also be costly as you may pay for your care out of your own pocket.) Even small transfers can affect eligibility. Although federal law currently allows individuals to gift up to $14,000 a year without having to pay a gift tax, Medicaid still treats that gift as a transfer.

Any transfer that you make, however nominal, may be scrutinized. For example, Medicaid does not have an exception for gifts to charities. If you make a charitable donation, it could affect your Medicaid eligibility down the road. Similarly, gifts for holidays, weddings, birthdays, and graduations can all trigger a transfer penalty. If you buy something for a friend or relative, this could also result in a transfer penalty.

Some people have the notion that they can also go on a spending spree for themselves or family. Not so fast. Spending a large sum of cash at once or over time may prompt the state to request documentation showing how the money was spent. If you don’t have receipts showing that you received fair market value in return for a transferred asset, you could be subject to a transfer penalty.

While most transfers are penalized, certain transfers are exempt from this penalty. For example, even after entering a nursing home, you may transfer any asset to the following individuals without having to wait out a period of Medicaid ineligibility:

• your spouse;
• your child who is blind or permanently disabled;
• a trust for the sole benefit of anyone under age 65 who is permanently disabled.

In addition, you may transfer your home to the following individuals (as well as to those listed above):

• your child who is under age 21;
• your child who has lived in your home for at least two years prior to your moving to a nursing home and who provided you with care that allowed you to stay at home during that time;
• your sibling who already has an equity interest in the home and who lived there for at least one year before you moved to a nursing home.

Before transferring assets or property, check with us or your elder law attorney to ensure that it won’t affect your Medicaid eligibility.

For more information on Medicaid’s transfer rules, click here.

Related Articles:

TOP 8 MEDICAID PLANNING MISTAKES

If you have a question you can send us a message here.

Medicaid Recipient Cannot Bring Claim to Require State to Deduct Guardianship Fees

NEW YORK: The U.S. Court of Appeals for the Second Circuit holds that a Medicaid recipient who is under guardianship cannot bring a § 1983 claim to require the state to deduct guardianship fees from her available income. Backer v. Shah (U.S. Ct. App., 2nd Cir., No. 14-1367-cv, June 3, 2015).

New York resident Mindy Backer lived in a nursing home and received Medicaid benefits. Under state law, she had to contribute all of her monthly income, except for a $50 personal needs allowance, to the nursing home. The court appointed Ms. Backer’s sister as her guardian. The guardianship order stated that Ms. Backer’s income would be considered unavailable for the purposes of calculating her monthly available income. However, in a separate proceeding, the state determined that Ms. Backer could not deduct guardianship fees from her available income.

Ms. Backer sued under 42 U.S.C. § 1983, alleging that the state violated 42 U.S.C. § 1396a(a)(19), which requires the state to ensure eligibility is determined in the best interest of the recipient, and 42 U.S.C. § 1396a(q)(1)(A), which requires the state to deduct a personal needs allowance. The district court dismissed the claim for lack of standing because Ms. Backer’s injury was solely attributable to her own action in paying her guardian instead of the nursing home, and Ms. Backer appealed.

The U.S. Court of Appeals, Second Circuit, affirms, holding that while Ms. Backer had standing to bring the claim, she did not allege a violation of a federal right that could be enforced through § 1983. The court rules that the provision requiring the state to ensure eligibility is determined in the best interest of the recipient could not be enforced through § 1983 because it does not provide a “workable standard for judicial decision making.” In addition, according to the court, the personal needs allowance section does not require the state to allow the deduction of guardianship fees.

For the full text of this decision, go to: http://cases.justia.com/federal/appellate-courts/ca2/14-1367/14-1367-2015-06-03.pdf?ts=1433341806

Article link

To see the Top 8 Medicaid Planning Mistakes click here.

JASA PETS Project: Helping NYC Seniors and Their Animal Companions

There is a little-known program in New York City that’s helping to keep some senior citizens’ pets where they belong — in their loving homes, and out of animal shelters. It’s the JASA PETS Project, and it’s making a difference for many NYC seniors and their pets.

JASA PETS Project: Helping NYC Seniors and Their Animal Companions.

Following a heart bypass operation, Ms. B. — a former teacher who lives alone with Lady, her two-year-old Dachshund — was feeling isolated, depressed, and useless. Already involved with the JASA Pets and Elder Team Support (PETS) Project, a group of international students was recruited to help Ms. B. care for her dog. In return, she has begun to work with them to improve their English conversational skills. The connection with the students has restored Ms. B. into a vibrant, involved educator interacting with a group of students who, in turn, are helping her dog.

Ms. H. suffers with multiple sclerosis. Isolated and bedridden, she relied upon her two cats for companionship. Sadly, last year one of her beloved cats died and shortly thereafter, her other cat, Foxy, wandered outside her apartment building and disappeared. Distraught over the loss, Ms. H. contacted JASA PETS. The Project Coordinator immediately posted flyers throughout the neighborhood and dispatched a team of volunteers to search for the missing cat. After two days, Foxy found her own way home, and was discovered scratching at her door. Ms. H. was thrilled that her companion was safely home, but also profoundly appreciative for the support she received from the PETS Project team throughout the ordeal.

These are just two of the many heart-warming successes that have been created by JASA PETS. JASA, the Jewish Association for Services for the Aged, is a social service agency dedicated to enhancing the lives of elderly New Yorkers. It is committed to creating innovative programs to meet the evolving and expanding needs of the aging. JASA created the PETS Project in 1997 to address the needs of elderly pet owners whose capacity to care for their pets has been compromised by frailty, illness, and/or inadequate income.

In recognition of the critical role that pets play in the lives of older people — particularly those who are homebound — the program is designed to keep seniors and their pet companions together. Studies show senior citizens with pets suffer less from depression, require fewer doctors’ visits, and have lower blood pressure than those without animal companions.

Often, increasing age and declining health create obstacles to providing proper care for pets. Seniors afflicted with arthritis lose the ability to walk their dogs or groom long-haired cats; fixed incomes often cannot be stretched to cover routine veterinary bills; and pet owners with complex health problems may refuse hospitalization because they have no one to care for their animals in their absence.

How JASA PETS Can Help

The JASA PETS Project matches volunteers with elderly pet owners to provide assistance tailored to the needs of each client. By matching a volunteer with an elderly client, the program provides for the care and well-being of both the senior and the pet.

The client-volunteer teams are overseen by a full-time coordinator, a social worker with prior work experience in pet care, who conducts an initial in-home assessment and is fully involved in the service plan, including reviews of pet care routines. Volunteers help with dog walking, litter box cleaning, emergency feeding, shopping for pet food and supplies, transportation to veterinarians and groomers, training, and pet sitting.

In some instances, a skilled volunteer is able to assist with administering medication to sick pets. In addition, the program provides foster care during client hospitalization periods and participates in pet placement after the death of the human companion. A small relief fund has been established to assist clients who cannot afford to pay for needed pet services and/or their own expenses. The availability of this fund helps relieve financially strapped seniors from the need to make financial choices that compromise their health or the health of their pets.

The program also provides seniors with information about low-cost pet care and will help them make arrangements for their pets in their will. And it can assist in finding a good adopter for a pet if a client dies or can no longer keep a pet.

For some clients, the program helps them through one of the most difficult situations imaginable — the loss of a pet. Such was the recent case of Ms. M., an isolated, homebound client who agonized for several weeks over the difficult decision to put her terminally ill companion cat, Samantha, to sleep. The JASA PETS team visited Ms. M. regularly, coordinated efforts with two veterinarians, assisted in the planning for burial services, and called her daily to provide support. When Samantha died naturally on May 23, the PETS team was there within 30 minutes to console Ms. M. An informal but meaningful memorial service was held at her apartment, and the JASA team took Samantha’s body to the burial provider that had been designated by Ms. M. The team continued to provide bereavement support to help their client through the mourning period.

JASA PETS is making a difference in the lives of many seniors and their pets. The program has been praised by other organizations that serve the senior population. Mary Dodd, Director of the Homebound Unit of the Carter Burden Center for the Aging, says, “On behalf of the Burden Center, I would like to extend my gratitude to the Project. The Project provides unique and vital services to the most vulnerable and forgotten segment of our society. It is imperative that the program be celebrated and receive the continuing support needed to sustain its existence.”

Wendy Golub, Director of Programs at The Caring Community, says, “The PETS Project provides a unique service to the seniors in our community. We at The Caring Community have enjoyed and profited from working with them as they are not only responsible and reliable, but collegial and a pleasure to work with.”

The program is available to senior citizens — regardless of race or religious affiliation — who are sixty years of age or older and are unable to fully provide for the care of their pet companions. Currently, JASA offers this program to residents of Manhattan only. However, it is the aim of PETS eventually to expand the program to include the five boroughs.

To contact JASA PETS for services, simply call (212) 273-5217 to schedule a meeting at the client’s home. Once the client has provided information about the pet and any pet care concerns, the client will be matched with a volunteer to assist them in addressing those concerns.

If you are interested in volunteering for the JASA PETS Project or making a contribution, please contact Paul Domin, Project Coordinator, at pdomin@jasa.org or call (212) 273-5217.

The JASA PETS Project is funded by the Tuttle, Leibovitz, and Ahimsa Foundations.

– See more at: http://www.animalalliancenyc.org/media/ootc/2006-09/aao.htm#sthash.ZCRvYkuD.4t8krsYb.dpuf

SOL Prevents Family From Enforcing Promissory Note Against Mother’s Estate

Reversing a lower court, a Kansas appeals court rules that a Medicaid recipient’s family cannot enforce a promissory note against her estate in the name of equity because the statute of limitations for enforcing the note has passed. In re Estate of Area (Kan. Ct. App., No. 110,768, May 29, 2015).

Embed from Getty Images

Five of Blanche Area’s children lent her money to build a house. Ms. Area signed a promissory note, agreeing to repay the loan, which was due in full on July 1, 2005. Ms. Area never made any payments on the loan. In November 2010, she moved into assisted living and received services paid for by Medicaid benefits.

Ms. Area died intestate, and the state successfully petitioned to administer her estate in order to recoup the Medicaid benefits. Ms. Area’s children petitioned the estate for repayment of the promissory note. The estate denied the claim because the five-year statute of limitations had passed, and the children appealed. The trial court ruled that the note was valid under the principle of equity, and that the loan should be repaid. The estate appealed.

The Kansas Court of Appeals reverses, holding that because the statute of limitations for enforcing the note had passed, the note was no longer valid. The court rules that there was “no authority for the district court to rule that as a matter of public policy different rules apply to note and mortgage agreements involving familial relationships.”

For the full text of this decision, go to: http://www.kscourts.org/Cases-and-Opinions/opinions/CtApp/2015/20150529/110768.pdf

Top 8 Medicaid Planning Mistakes, go to: http://www.raphanlaw.com/#!medicaid-planning-mistakes/c46u