Son Must Pay for Mother’s Care Under Filial Responsibility

A Pennsylvania appeals court holds that a son is required to pay for his mother’s care under the state’s filial responsibility law even though the mother does not have outstanding medical bills and the son claims he had an abusive childhood. Eori v. Eori (Pa. Super. Ct., No. 1342 WDA 2014, Aug. 7, 2015).
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Joseph Eori is attorney-in-fact for his mother, Dolly Eori, who requires 24-hour care.  Ms. Eori lives with Mr. Eori, and her medical and caregiving expenses exceed her income.

Mr. Eori filed a complaint on behalf of his mother seeking filial support from his brother, Joshua Ryan. Mr. Ryan objected, arguing, among other things, that his mother was not indigent because she did not have outstanding medical bills and that he had an abusive childhood. Pennsylvania’s filial responsibility law negates the support obligation if the parent abandoned the child for a 10-year period. The trial court granted the petition for support, and Mr. Ryan appealed.

The Pennsylvania Superior Court affirms, holding that Mr. Ryan is required to provide support to his mother. The court agrees with the trial court’s decision that the filial responsibility law doesn’t require a showing of unpaid bills or liabilities to justify a claim. In addition, the court affirms the trial court’s ruling that while Mr. Ryan may not have had an ideal childhood, there was no evidence that his mother abandoned him.

For the full text of this decision, click here.

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Medicaid’s Gift to Children Who Help Parents Postpone Nursing Home Care:

In most states, transferring your house to your children (or someone else) may lead to a Medicaid penalty period, which would make you ineligible for Medicaid for a period of time. However, there are circumstances in which transferring a house will not result in a penalty period.

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One of those circumstances is if the Medicaid applicant transfers the house to a “caretaker child.”  This is defined as a child of the applicant who lived in the house for at least two years prior to the applicant’s entering a nursing home and who during that period provided care that allowed the applicant to avoid a nursing home stay.  In such cases, the Medicaid applicant may freely transfer a home to the child without triggering a transfer penalty.  Note that the exception applies only to a child, not a grandchild or other relative.

Each state Medicaid agency has its own rules for proof that the child has lived with the parent and provided the necessary level of care, making it doubly important to consult with your elder law attorney before making this (or any other) kind of transfer.

Others to whom a home may be transferred without Medicaid’s usual penalty are:

  • Your spouse
  • A child who is under age 21 or who is blind or disabled
  • Into a trust for the sole benefit of a disabled individual under age 65 (even if the trust is for the benefit of the Medicaid applicant, under certain circumstances)
  • A sibling who has lived in the home during the year preceding the applicant’s institutionalization and who already holds an equity interest in the home

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

Bed and/or Chair Rest + Neglect = Bedsores

Article by Brian A. Raphan. Published 3/17/15 in ‘THE DOCTOR WEIGHS IN’

When a patient develops pressure ulcers, it is often a sign of neglect and can even be the result of hospital malpractice, nurse malpractice or nursing home negligence.

Any time a patient is confined to a bed or chair for a period of time and not provided proper and adequate care, the risk of pressure ulcers increases.

The National Pressure Ulcer Advisory Panel (NPUAP) defines a pressure ulcer as a “localized injury to the skin and/or underlying tissue, usually over a bony prominence, as a result of pressure, or pressure in combination with shear.” Illustrations of the stages of pressure ulcers are shown below:

stages of bedsores

Sadly, pressure ulcers are the underlying cause of mortality and morbidity for several thousand patients across the country each year. Researchers analyzing the national Medicare Patient Safety Monitoring System (MPSMS) database found that the nationwide incidence rate for hospital-acquired pressure ulcers was 4.5 percent. The five states with the highest incidence rates are New York (5.2%), Missouri (5.3%), New Jersey (5.3%), Massachusetts (5.5%) and Pennsylvania (5.9%).

The federal government, in its first year of a federal initiative to improve patient safety, recently imposed penalties aimed at reducing preventable harm. Five states saw a significant percentage of hospitals being penalized: New York, where 26% of hospitals were penalized by having their Medicare reimbursements cut by 1%; Missouri, 25%; New Jersey, 37%; Massachusetts, 22%; and Pennsylvania, 25%.

In New York State, penalized hospitals included some well-known healthcare facilities, such as Beth Israel Medical Center and New York University Langone Medical Center.

All sedentary patients are vulnerable, but the elderly and patients whose skin condition has been compromised are especially at risk. Pressure ulcers are most common on bony prominences with little protective fat or muscle (such as heels, hips, shoulders, and tail bones), and they develop when patients stay in one position for too long without shifting their weight. The constant pressure against the skin reduces blood flow to contact areas. The skin begins to break down and the tissue dies, possibly in a matter of hours. Friction and shear caused by sliding down in the bed, or being moved improperly from a stretcher to a bed can exacerbate the problem. Pressure ulcers slow a patient’s recovery, can lead to other issues and infection and prolong hospital stays. The total annual cost for treating pressure ulcers in the U.S. is estimated at $11 billion. However, pressure ulcers (also known as bedsores and decubitis ulcers) are preventable.

To prevent pressure ulcers and damage to the skin, recent NPUAP recommendations can be summarized in seven steps:

prevent bedsores

Because these seven steps are so easy to follow, when a patient develops pressure ulcers, it is often a sign of neglect and can even be the result of hospital malpractice, nurse malpractice or nursing home negligence.

Upon admission to a hospital for another health concern the issues can go unnoticed, allowing further damage to take place in a relatively short time. This also creates liability on the part of the hospital.

In many lawsuits that we handle, the hospital is dealt a bad hand by receiving a patient from a nursing home where a skin breakdown or pressure ulcer has already begun. At times, due to dementia for example, a patient may not be able to express or know how to communicate pain upon entering the hospital. However, this is no excuse for not identifying a high-risk patient and making regular daily assessments.

To be clear, pressure ulcers are not the fault of the patient. The patient is a victim. Medical negligence by a hospital, doctor, nurse, aide or medical technician is unacceptable and may be the cause of pain and suffering, or even result in death. It is simply not acceptable for patients to develop bedsores or pressure ulcers while they are in the care of medical professionals and receiving medical care and treatment at a facility.

There is no doubt that hospitals and staff, from talented skilled doctors, nurses and medical professionals to support staff and administration, do their best to help and treat patients. However, protocols exist in every facility, and perhaps, it is just a matter of every individual being a bit more aware, and caring just a little more, when dealing with the elderly and at-risk patients.

By Brian A. Raphan (Principal Attorney, Law Offices of Brian A. Raphan, P.C.

Download a Free Bedsore Legal, Medical & Treatment Guide

Lack of Personal Care Agreement Makes Reimbursements to Relatives an Improper Transfer

Reversing a trial court, a Louisiana appeals court determines that a nursing home resident improperly transferred close to $50,000 to his caregiver nephew and the nephew’s wife because the payments were not made pursuant to a valid personal care agreement.  David v. State of Louisiana Department of Health and Hospitals (La. Ct. App., 1st, No. 2014 CA 0791, Dec. 23, 2014).

Brian Raphan, P.C.

Widley David entered a Louisiana nursing home in 2008.  Between 2008 and 2010, Mr. David wrote six checks to his nephew and his nephew’s wife totaling $49,195.  According to Mr. David, the checks were intended to repay his closest living relatives for the daily care that they provided him in the nursing home.  When Mr. David applied for Medicaid in December 2010, the Louisiana Department of Health and Hospitals (DHH) assessed a nearly 15-month penalty period due to the transfers.

Mr. David did not appeal the initial imposition of a penalty period, but in July 2011 he requested a change in status from private pay to full Medicaid pay.  DHH denied this request, stating that pursuant to the initial denial, Mr. David was ineligible for Medicaid until January 2012.  Mr. David appealed the denial of his change in status, arguing that the payments to his relatives were reimbursement for care provided and not to qualify for Medicaid.  DHH claimed that the payments would be valid only if made pursuant to a written personal care agreement, which Mr. David had never executed.  After a trial court found in favor of Mr. David, the state appealed.

The Louisiana First Circuit Court of Appeal reverses the trial court, finding that the lack of a personal care agreement made the transfers to the relatives improper.  The court states that a “payback arrangement or personal care agreement was necessary to validate this alleged arrangement; however, Mr. David did not offer any type of tangible or documentary evidence of an agreement, contract, or Personal Care Agreement to substantiate and validate his argument. The record is void of any evidence that complied with Medicaid eligibility requirements to validate the resource transfers.”

To read the full text of this decision, click here.

To learn more about Medicaid Planning click here.

Regards, Brian

A great way to enhance quality of life for elder New Yorkers

Activities for Life NY, LLC  offers an amazing service that has been helping enhance the quality of life for many of our clients.
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My law office has used their unique services of for over 10 years because we have found they offer excellent 1 to 1 therapeutic recreation, tailored to our clients who have lost their connection to recreation and/or are unable to get out and enjoy life like they once did. I have personally seen some of my clients ‘come back to life’ under the tutelage of Marni Rose, President of Activities for Life.
The goal of therapeutic recreation is to help stimulate a person mentally and/or physically through fun, engaging, and creative activities, regardless of age or illness. One of the most important aspects of working with Marni and her team is that they really ‘get’ how to communicate to all the involved parties of someone under geriatric care.
Activities For Life’s relationships with personal care aides, care givers and managers, family members, and us lawyers allows her a 360 degree ability to coordinate the pieces with grace. I know that when my clients are contracting the services of Activities for Life, they will simply get the best that New York has to give in therapeutic geriatric services and live their best life possible.
-Brian
 To see the benefits of Marni’s service see links below.

5 Tips for Arranging and Paying for a Home Health Aide:

-By Emily Garnett, Associate Attorney at Brian A. Raphan, P.C.

Finding oneself or a family member in need of home care can be a tough pill to swallow. It is often difficult to accept that you or a loved one is no longer able to safely do many of the activities of daily living that you once could. At that point, it may be time to bring in a home health aide for assistance with a wide variety of activities of daily living.

1. How to Arrange Help and Payment: Many people choose to privately pay for home health aides. If you choose to go this route, you can utilize a long-term home health care program (LTHHCP). These are agencies accredited by the state that provide home health aides. They manage the staffing and payroll. However, you can also choose to select aides that are privately paid, and work outside of an LTHHCP agency. For these aides, you would have to manage staffing and payroll issues yourself, or utilize the expertise of an elder law attorney or geriatric care manager to manage these details.

Medicaid Planning

2. Using Medicaid to Pay: If you are unable to privately pay for home care, you have the option of applying for Medicaid to obtain coverage for long-term home care. It is advised that you work with an elder law attorney or other professional to facilitate this process, as it can be complicated, and the regulations are frequently changing. In order to qualify for Medicaid, the applicant must meet certain requirements for income and assets. The current Medicaid asset limit is $14,550.00, and the monthly income limit is $809.00. Unlike nursing home Medicaid, there is no look-back period for community Medicaid, meaning that Medicaid is not going to investigate past money transfers like they would for an application for nursing home coverage. There are several ways to address the income and asset limits required for Medicaid acceptance, the most common being the use of pooled trusts to shelter those funds. Pooled trusts are frequently used to meet the Medicaid spend-down, which is the requirement that an applicant reduce his or her available income so that it remains under the Medicaid limit.

3. Shelter your Income: Once an individual applies for Medicaid coverage, he or she can join a third party pooled trust to shelter the excess income and meet the spend-down. These trusts allow the individual to use the funds sheltered in the trust for personal needs outside of the Medicaid coverage, including expenses like rent, utilities, and phone bills. If this arrangement is not made, the applicant runs the risk of rejection by Medicaid or having to privately pay for some part of his or her home care each month.

4. Enrollment for Managed Long Term Care: Once you have applied for and been approved for Medicaid, you will work with your elder law attorney or specialist to enroll in a managed long-term care program (MLTC), which will provide home care services. The first step in this process is assessment by a new program, the Conflict-Free Eligibility and Enrollment Center (CFEEC), sometimes also referred to as “Maximus”. This assessment takes about two hours and provides a determination to Medicaid that the consumer is eligible for home care services. At that point, the consumer selects a managed long term care plan to enroll in. The MLTC plan then schedules a second assessment, also lasting about two hours, in which the specific care needs of the consumer are assessed. At the conclusion of this assessment, the nurse performing the assessment will submit the information to Medicaid, who will ultimately determine the number of hours of home care needed each day by the consumer. This process is very time-sensitive, so work closely with your Medicaid attorney assisting with the application process, to avoid costly and unnecessary delays.

5. Keeping Your Ongoing Benefits: Once the application process is complete, your home care will likely start on or around the first of the following month. At that point, your obligations as a consumer are to maintain the income and asset limits, including utilization of a pooled trust if needed. You will be required to annually re-certify with Medicaid that you have maintained these levels. Should you have questions at that point, please don’t hesitate to reach out to your Medicaid planning attorney, rather than risk losing your Medicaid benefits. It is worth noting, however, that occasionally delays arise in various points of the application process through no fault of the attorney or applicant. Should you find yourself in such a position, understand that these issues do arise, and make sure to cooperate with your attorney or specialist’s advocacy efforts towards resolution.

Emily Garnett, Esq.

The Law Offices of Brian A. Raphan, P.C. 7 Penn Plaza, Suite 810 New York, NY 10001 T: (212) 268-8200

“Helping Senior New Yorkers for over 25 Years”

New Federal Regulations May Increase Pay for Home Care Workers, But Could Harm Seniors and People with Disabilities…

A federal regulation scheduled to go into effect on January 1, 2015, could force employers to pay previously exempt caregivers the federal minimum wage and time-and-a-half for overtime.  While this may seem like a good deal for the caregivers, it could result in cutbacks to services for seniors and people with disabilities if states limit caregiver hours in response to the new regulations.

medicaid planning, appeal

Congress initially passed the Fair Labor Standards Act (FLSA) in 1938 to give most workers a guaranteed minimum wage and overtime protection.  The original FLSA did not apply to many domestic workers hired directly by households, so in 1974 Congress amended the FLSA to cover many people who work in private households.  However, the 1974 amendment did not apply to “companionship” workers who assist elderly patients or people with disabilities, and it also stated that live-in domestic workers were not entitled to overtime pay.

In 2013, the Department of Labor issued a final regulation altering these rules for the first time since 1974.  The new regulation, which goes into effect on January 1st, narrows the definition of “companionship” services and requires third-party employers like home health care agencies to meet all minimum wage and overtime laws for all employees.

Under the new rules, an employee qualifies as a “companionship” worker only if he spends less than 20 percent of his work time assisting a senior or person with disabilities with activities of daily living or instrumental activities of daily living.  In addition, if the worker provides any medically necessary services, then he is not engaged in “companionship” work.  In all cases, if the employee is not considered a companion, then he must be paid the minimum age and must receive overtime pay.  These rules apply only to workers employed by the senior, person with disabilities or her household.  If the worker is employed by a third party, or in many cases if the worker is employed by both the person with disabilities and a third party (like a state agency), then he will always be subject to minimum wage and overtime rules, even if he is a live-in employee who would typically not be subject to overtime rules.

Although the new regulations could mean more money for caregivers who may not currently receive minimum wage or overtime protection, there could also be some negative consequences for consumers and caregivers.  Since many state agencies are now going to be considered third-party employers, they may implement their own regulations limiting the number of hours that caregivers can work in order to avoid being out of compliance with these new federal rules.  This could lead to reduced services for people who need them and fewer hours for caregivers.

According to an advocacy fact sheet from the National Senior Citizens Law Center, only California has addressed these concerns in its 2014-2015 budget, which leaves most seniors and people with disabilities in limbo as the January 1st implementation deadline approaches.

For more on this complicated problem, you can view an assortment of materials on the Department of Labor’s website here and download the National Resource Center for Participant-Directed Services’ toolkit here.

Regards, Brian