A Medicaid Applicant’s Purchase of Life Insurance Policy Is Transfer for Less Than Market Value

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An Illinois appeals court rules that a Medicaid applicant’s purchase of a life insurance policy was a transfer for less than fair market value because the applicant did not receive any benefit from the policy. Moore v. State of Illinois (Ill. App. Ct., 4th Dist., No. 4-16-0414, April 11, 2017).

Nursing home resident Elda Buckley applied for Medicaid. On the same day, she purchased a whole life insurance policy for $15,000 that named Christine Moore as the beneficiary. The state approved Ms. Buckley’s Medicaid application, but it determined that the purchase of the life insurance policy was a transfer for less than fair market value and imposed a penalty period.

Ms. Buckley appealed, arguing that she purchased the life insurance policy for fair market value, so the transfer should not be subject to a penalty period. The state and the trial court affirmed the penalty period. Ms. Buckley appealed.

The Illinois Court of Appeal, 4th District, affirms, holding that the purchase of the life insurance policy was a transfer for less than fair market value because Ms. Buckley did not receive the benefit of the policy. According to the court, the “apparent purpose of [Ms.] Buckley’s purchase of the insurance policy, of which she would receive none of the proceeds, was to shelter assets from Medicaid while ensuring [Ms.] Moore received the benefits of her assets.”

For the full text of this decision, go to: http://www.illinoiscourts.gov/Opinions/AppellateCourt/2017/4thDistrict/4160414.pdf

 

READ THE TOP 8 MEDICAID PLANNING MISTAKES HERE>

A Brothers’ Dispute Over Mother’s Nursing Home Placement Is Not Domestic Violence

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A New Jersey appeals court rules that an ugly dispute between two brothers over their mother’s placement in a nursing home did not amount to domestic violence. R.G. v. R.G.(N.J. Super. Ct., App. Div., No. A-0945-15T3, March 14, 2017).

R.G was the attorney-in-fact and primary caregiver for his parents. After R.G.’s mother fell ill, R.G. wanted to place his mother in a nursing home. R.G’s brother objected to this plan, but R.G. went ahead and had his mother admitted to a nursing home without his brother’s consent. R.G.’s brother sent angry and threatening texts and emails to R.G. as well as emails expressing his desire to find a way to care for their parents in their home. Eventually the men got into a physical altercation in which R.G.’s brother shoved R.G.

R.G. filed for a restraining order against his brother under the Prevention of Domestic Violence Act. The trial judge ruled that R.G. was harassed and assaulted and issued the restraining order. R.G.’s brother appealed, arguing that R.G. did not meet the definition of a victim of domestic violence.

The New Jersey Superior Court, Appellate Division, reverses, holding that R.G.’s brother’s actions did not amount to domestic violence. The court finds that there was insufficient evidence that R.G.’s brother purposely acted to harass R.G., ruling that “a mere expression of anger between persons in a requisite relationship is not an act of harassment.”

For the full text of this decision, go to: http://www.judiciary.state.nj.us/opinions/a0945-15.pdf

 

“My mom is in a nursing home and I noticed some bruises and sores. I think they are bedsores—what should I do?”

Bedsores are often a sign of neglect and sometimes a sign of abuse. The first thing you should do is speak to a nurse on duty and begin to remedy the situation. Be aware that the nurse may not have a full understanding of these injuries and you will likely need the attention of a wound care specialist and medical doctor. If you have a cell phone take some pictures of the wound for documentation. Bedsores and Pressure Sores, also known as Decubitus Ulcers can progress quickly and can be deadly. They occur when someone is immobile and there is not adequate blood flow. Then the affected tissue dies and an ulcerated sore develops. In a nursing home, hospital or other care facility it is their responsibility to check and turn the patient regularly. There are laws in place that protect patients and you should know that these injuries are not the fault of the patient. The patient is the victim. If a loved one you know is suffering they may have a significant, financially rewarding lawsuit. Read more about this on our website, http://www.RaphanLaw.com.

As an Elder Law firm we see these cases often. Whether malpractice, abuse or neglect it is simply unjust for it to happen to an innocent victim. Do not put off addressing the issue. Call me for a free consultation (212-268-8200, 800-278-2960) or even to just guide you through the process of getting the proper medical and legal attention.

Visual Stages of Bedsores:

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Read our Frequently Asked Bedsore Lawsuit Questions here>

By Brian A. Raphan, Esq.

Nursing Home Cannot Sue Resident’s Daughter Who Signed Admission Agreement

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A North Carolina appeals court dismisses a breach of contract lawsuit against a nursing home resident’s daughter even though the daughter signed the admission agreement because the resident was named as representative in the agreement. Wrightsville Health Holdings, LLC v. Buckner (N.C. Ct. App., No. COA16-726, Feb. 21, 2017).

When Sharon Buckner entered a nursing home, her daughter, Melissa, signed the admission agreement on her behalf. The agreement stated that Sharon was the “resident” and the “representative,” but Melissa signed the agreement and initialed the portion stating that the representative agreed to personally guarantee payment in the event the resident’s Medicaid application was denied. The nursing home demanded that Melissa pay Sharon’s unpaid bill.

After Melissa refused to pay, the nursing home sued her for breach of contract. Melissa filed a motion to dismiss, and the trial court granted the motion. The nursing home appealed.

The North Carolina Court of Appeals affirms, holding that Melissa was not liable for breach of contract. The court rules that because Sharon is named as resident and representative under the admission agreement, Melissa’s signature at the bottom of the document “must be read as” Melissa signing on behalf of Sharon and “her signature and initials on the document merely obligated her mother to comply with the terms of the Admission Agreement.”

For the full text of this decision, go to: https://appellate.nccourts.org/opinions/?c=2&pdf=34960

For more about Nursing Home legal issues, click here.

Jury awards family $1 million in lawsuit against Beachwood nursing home

Mandatory sentencing laws keep U.S. judges' hands tied
The family of a former resident of Beachwood Pointe Care Center has won a $1 million lawsuit against the nursing home. (Eli Saslow, Washington Post)
By Bob Sandrick, special to cleveland.com 

BEACHWOOD, Ohio — A jury has awarded the family of a former Beachwood nursing home resident $1 million in a lawsuit filed more than two and a half years ago.

The resident, 71-year-old Mary L. Stevens, died in May 2012 at Beachwood Pointe Care Center on Chagrin Boulevard. She suffered infected pressure wounds, or bedsores, caused by “negligence and recklessness” of the nursing home staff, according to the lawsuit, filed in March 2013 by The Dickson Firm LLC in Beachwood.

The verdict came Wednesday in Cuyahoga County Common Pleas Court. The jury awarded David P. Lang, on behalf of Stevens, $560,000 in punitive damages and $440,000 in compensatory damages, according to the electronic court docket.

In addition to suffering from bedsores , Stevens also sustained “severe” and “fatal” injuries while at Beachwood Pointe, according to the lawsuit. Nursing home staff allowed her to become “very ill” and her condition deteriorated.

Beachwood Pointe did not tell Stevens’ family about her condition. Decisions about her medical care were made by non-medical staff, the lawsuit says, adding that the nursing home’s staffing levels and supervision were inadequate, and it failed to give Stevens palatable food.

Officials from Beachwood Pointe did not return calls Tuesday. Its attorney could not be reached about whether the nursing home would appeal the verdict.

More FAQs on Bedsore Lawsuits>

How To Look Out for a Relative in a Nursing Home

The best ways to make sure your loved one gets the care that was promised.

Screen Shot 2015-12-16 at 9.31.06 PMvia U.S.News  Kurtis Hiatt

Finally, after ticking off the last item on a lengthy list of must-haves, you think you’ve found the best nursing home for your mom. The staff seems caring and professional. It’s comfortable, homey, and Mom is OK with it. She might even come to like her new life.

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But your work isn’t over. You want to make sure Mom gets the care you were told she’d receive—and the care she deserves. “The resident’s needs should be met by the facility, rather than having the patient meet the facility’s needs,” says Barbara Messinger-Rapport, director of the Cleveland Clinic‘s Center for Geriatric Medicine.

How do you make that happen?

What to ask
Start with your loved one. Isn’t Dad going to be your best source of information on his own care? “Ask the questions you would want to be asked if the roles were reversed,” says Cornelia Poer, a social worker in the Geriatric Evaluation and Treatment Clinic at Duke University Medical Center in Durham, N.C. Questions such as:

  • Are you comfortable?
  • Is anything worrying you?
  • Do you feel safe?
  • Do you feel respected?
  • If you need help and you push the call button, how long before somebody comes?
  • Have you gotten to know any of the other residents?
  •  Do you like the staff—and any staff member in particular?

That last point may seem small, but whether your loved one clicks with a specific caregiver is important, says David A. Nace, chief of medical affairs for UPMC Senior Communities, a long-term care network in western Pennsylvania that is part of UPMC-University of Pittsburgh Medical Center. It shows he’s making connections, growing in new social relationships. The trust that develops may also mean Dad takes his medication more reliably, or if behavioral issues stemming from dementia are a concern, it may be easier for one nurse than for another to manage them, says Nace.

Show interest and concern and identify major problems, but don’t go overboard. “Inquiries are important, but try to avoid turning every visit into an interrogation,” Poer says. “You will be able to determine if there are areas of concern in normal, everyday conversation.”

[Read: 9 Warning Signs of Bad Care.]

Some questions will be better directed at staff members, particularly if your loved one has a cognition problem such as dementia or Alzheimer’s disease. In the first days and weeks, the focus should be on the initial adjustment. Do Mom’s nurses see any signs of depression? Does she appear to be making the transition smoothly? If not, what, specifically, is being done to help her?

Then drill down to her day-to-day routine:

  • When is she up?
  • Are her meals appropriately prepared—soft or pureed food if she has trouble chewing, low in fat and salt if she has a heart condition?
  • Is she taking her medications when and as often as she should? (The timing of each medication should be documented.) If there’s been a consistent problem, how is that being addressed?
  • Is there a reason to change any of her medications?
  • Is she exercising or participating in other physical activities?
  • Is she social?

“I like to see if the patients are usually in their rooms,” says Susan Leonard, a geriatrician at Ronald Reagan UCLA Medical Center. “Not being in their rooms means they are participating in activities, dining, or in the hallway socializing with others, which may suggest a better social environment for residents.” But you’ll want to see for yourself whether empty rooms might only mean residents are parked on sofas and in wheelchairs elsewhere in front of TVs.

Don’t be afraid to broach more sensitive topics. If you were recently alerted of a behavioral issue or medical emergency, talk to both Mom and the staff to figure out whether it was handled properly. You want to know what the staff did and what changes in care they’ve made.

It’s helpful to have a main point of contact during the day’s various shifts. You should feel like you can call at any time, but Nace observes that it’s good to know up front what the best times are for getting general updates. And don’t settle for less than you need to know. If you don’t get an answer, head up the chain of command to a unit supervisor, assistant director, or director.

What to inspect
Getting a feel on your own for the overall environment goes a long way, says Audrey Chun, associate professor of geriatrics and palliative medicine at Mount Sinai Medical Center in New York. Are common areas, rooms, and residents’ clothes clean? What about lighting and temperature? These are especially important to older adults, says Poer. Does the room feel homelike? If you send cards, are they hanging on a bulletin board in the room?  If cards and drawings are up and Mom couldn’t put them up herself, that’s a great sign. “It means the staff took the time to do it for the resident,” Nace says. “The staff cared enough to do this.”

Look around. Do you see any safety hazards—a hanging TV that isn’t strapped down or blocked exits? What about bruises, such as on the upper arms where staff may have handled Dad too roughly? Watch the staff—are they affectionate, genuine, and helpful?

Use your nose. Are there odors in the hallways and rooms? “Yes, bowel movements happen—this is a long-established fact of life—but it should not be the thing that greets you every time you are in the hall,” says Nace.

Listen. Do you hear birds, music, laughter? Or do you hear creaky floors and clanging pipes? Constant small annoyances can affect a person’s mood and eventually her day-to-day demeanor.

How often to check in—and what to do if you can’t
Some homes have a “care conference” shortly after admission and then quarterly to give you and your loved one a regular time to talk with staff, says Nace. But stopping by on various days and at various times is smart. You can ensure Mom or Dad isn’t “overmedicated or spending time sitting in front of the TV,” says Messinger-Rapport. When you do check in, swing by the nurses’ station to signal to the staff that you’re actively involved in Dad’s care.  If distance keeps you apart, staff might be able to send you photos or videos of Dad or set up a videoconference with Dad and his caregivers. If you’re abroad, staff might be able to print out an email for Mom if she doesn’t have a computer, Nace says.

Better still, says Poer, “having someone on the ground to be your eyes and ears can be very useful.” Enlist a local family member or close friend. Or consider a case manager or ombudsperson to advocate for you and Mom.

What the staff needs from you
Make sure the home’s staff has a number where they can receive a prompt response if necessary. And while staff has a professional responsibility, your appreciation—particularly if someone worked with you to resolve a concern, and even if it meant you had to compromise—will go far. “Be respectful of the staff and their time; their job is very demanding,” Poer says.  Let the nurses and other caregivers into your and your loved one’s lives by sharing personality quirks, interests, preferences. But above all, stay optimistic about Dad’s future and his ability to accept and adjust to his new life. Flycasting for bass on the Susquehanna River, Nace’s dad’s longtime passion, faded into a treasured memory after he moved into a nursing home, traded in for newfound pastimes: baking and painting.

[See our other posts on legal issues and nursing homes]

Regards,

Brian

http://www.RaphanLaw.com

Seeking long-term care? How your local Ombudsman can help…

    • OMBUDSMAN: What is the Program/Service   Via www.aging.ny.gov

      Educating, empowering and advocating for long-term care residents. The Ombudsman Program is an effective advocate and resource for older adults and persons with disabilities, who live in nursing homes, assisted living and other licensed adult care homes. Ombudsmen help residents understand and exercise their rights to good care in an environment that promotes and protects their dignity and quality of life.
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      The Ombudsman Program advocates for residents by investigating and resolving complaints made by or on behalf of residents; promoting the development of resident and family councils; and informing government agencies, providers and the general public about issues and concerns impacting residents of long-term care facilities.

      Mandated by the federal Older Americans Act, in New York the Ombudsman Program is administratively housed at the State Office for the Aging (NYSOFA), and provides advocacy services through a network of 36 local programs. Each local Ombudsman Program is lead by a designated ombudsman coordinator who recruits, trains and supervises a corps of volunteers, currently more than 1000 statewide. These certified volunteers provide a regular presence in nursing homes and adult care facilities are available to help residents with questions and concerns about their care and living conditions.

      Conversations with the ombudsman are confidential and residents or other persons can register a complaint anonymously. Ombudsmen handle a wide variety of complaints involving quality of care, residents’ rights, discharge, medications, lost or stolen items, dietary issues, and quality of life concerns. Ombudsmen can also provide information and consultation about how to choose a facility and how to pay for long-term care.

    • Who is Eligible?

      While the program serves all residents of licensed long-term care facilities regardless of age.

    • Is There a Cost?

      Ombudsman services are provided free of charge.

READ ABOUT PROTECTING YOUR ASSETS FOR YOUR FAMILY WHILE GETTING THE CARE YOU NEED

To Collect Debts, Nursing Homes Are Seizing Control Over Patients

The need to protect your assets is always at hand. Planning for long-term care with an elder law attorney can help protect your assets for the in home spouse and heirs. Medicaid Planning or Life Care Planning helps to ensure that you or your loved one get the best possible long-term care and the highest possible quality of life, whether at home, in an assisted living facility, or in a nursing home. The following article brings this issue to light.

Article via The New York Times: 

Photo credit: Piotr Redlinski for The New York Times

To Collect Debts, Nursing Homes Are Seizing Control Over Patients.

Lillian Palermo tried to prepare for the worst possibilities of aging. An insurance executive with a Ph.D. in psychology and a love of ballroom dancing, she arranged for her power of attorney and health care proxy to go to her husband, Dino, eight years her junior, if she became incapacitated. And in her 80s, she did.

Mr. Palermo, who was the lead singer in a Midtown nightclub in the 1960s when her elegant tango first caught his eye, now regularly rolls his wife’s wheelchair to the piano at the Catholic nursing home in Manhattan where she ended up in 2010 as dementia, falls and surgical complications took their toll. He sings her favorite songs, feeds her home-cooked Italian food, and pays a private aide to be there when he cannot.

What Happens to a Medicaid Recipient If the Spouse at Home Dies First?

Senior Couple Square

When one spouse is in a nursing home and applying for Medicaid, planning has to take into account the possibility that the spouse who is not in the nursing home (called the “community spouse”) may pass away first. This is because the community spouse’s death may make the spouse in the nursing home ineligible for Medicaid.

In order to qualify for Medicaid, a nursing home resident can have only a limited number of assets. Careful planning can allow the resident’s spouse to maintain some assets. However, if that community spouse passes away first and leaves those assets to the nursing home resident, the resident suddenly would be over Medicaid’s asset limit.

While the community spouse can write a will that disinherits the Medicaid resident, most states have laws that allow spouses to claim a portion of their deceased spouse’s estate regardless of what the will says. This is called the elective or statutory share. The amount the spouse can claim varies from state to state.

A spouse can disclaim his or her elective share, but if a Medicaid recipient disclaims the inheritance, it is considered an uncompensated transfer of assets and the recipient may receive a period of Medicaid ineligibility. To avoid this, the community spouse will most likely need a will that addresses this issue. One option is for the community spouse to create a will that leaves the nursing home spouse exactly the amount of the elective share. Another option may be to create a special trust that contains the elective share. You should talk to your elder law attorney to determine the best course of action for you and your spouse.

For more information about Medicaid, including a FREE GUIDE to Medicaid’s Asset Transfer Rulesclick here.

This month we are offering AARP members discounted rates and free initial phone consultation to help determine if you can benefit from medicaid planning. Email: medicaid@RaphanLaw.com

Regards, Brian

You may be signing away your right to sue the nursing home

By Michelle Andrews, Kaiser Health News

When Paul Ormond signed John Mitchell into a nursing home in Dennis, Mass., in June, he was handed a few dozen pages of admission papers. Ormond, Mitchell’s legal guardian and an old friend, signed wherever the director of admissions told him to.

He didn’t realize that one of those documents was an agreement that required Mitchell and his family to take disputes to a professional arbitrator rather than to court.

bedsore lawyer

Mitchell had been institutionalized since suffering a stroke in 1999. During a hospital stay early this summer, Mitchell, then 69, had received a tracheotomy and needed to switch to a nursing home that could accommodate him.

A few weeks after Mitchell arrived at the new nursing home, staff members dropped him while using a lift device to move him from his bed to his chair. Later that night Ormond, 63, got a call from the nursing home that Mitchell was unresponsive. Mitchell was rushed to the hospital, and doctors found that the fall had caused extensive bleeding on his brain. He died a few days later.

Mitchell’s sons hired a lawyer to look into the circumstances surrounding their father’s death. That was when Ormond learned that amid all the admissions papers he had signed was an arbitration agreement.

“I thought it was deceptive, and I was pretty angry that I’d been tricked into signing something that I didn’t know what it was,” says Ormond.

A mandatory arbitration agreement is an often overlooked document in the package of admissions papers at many nursing homes these days. It can have an outsize impact if something goes wrong. But anxious seniors or their caregivers often sign every document that’s put in front of them, perhaps only glancing at the content.

Signing an arbitration agreement means that in the event of a problem that is not amicably resolved — Mom slips on a wet floor and breaks her hip, say, or Dad wanders off the premises and gets hit by a car — you agree to bring the dispute before a professional arbitrator rather than file a lawsuit for negligence or wrongful death, for example.

Agreeing to arbitrate is generally not in families’ best interests, say consumer advocates. For one thing, it can be pricey. In addition to hiring a lawyer, the patient or family generally has to pay its share of the arbitrator’s fee, which may come to hundreds of dollars an hour, says Paul Bland, a senior attorney at Public Justice, a public interest law firm based in Washington.

“In court, you don’t have to pay the judge,” he says. “Our taxes pay for that.”

Court proceedings are also conducted in a public courtroom and leave a detailed public record that can inform industry practice and help develop case law, say experts. Not so with arbitration hearings, which are conducted in private and whose proceedings and materials are often protected by confidentiality rules.

The amount awarded — if any — may also be less if an arbitrator hears the case than it would be if a case went to trial, say experts.

Aon Global Risk Consulting analyzed 1,449 closed claims involving long-term-care providers between 2003 and 2011 and found that there was no money awarded in 30 percent of claims where a valid arbitration agreement was in place, compared with 19 percent of claims in which there was no arbitration agreement or the agreement was determined to be unenforceable.

Likewise, nearly 12 percent of claims without arbitration agreements resulted in awards of $250,000 or more, compared with 8.5 percent of claims with arbitration agreements.

The study was conducted with the American Health Care Association, which represents 11,000 long-term-care facilities. According to the report, “loss rates” — reflecting the dollar value of liability claims paid — are increasing 4 percent annually.

“Liability costs for providing care have grown and escalated” in recent years, says Greg Crist, a spokesman for the association. Arbitration agreements help keep a lid on those costs, he says.

That may explain why arbitration agreements have become much more common in nursing homes, experts say. The agreements are increasingly used in assisted living facilities as well.

Arbitration can also benefit patients and their families, Crist says. Claims are typically resolved more quickly than court cases, he says, so attorney costs are lower and patients can retain a larger portion of any financial settlement.

The Federal Arbitration Act, enacted in 1925, allows for two sides in a dispute to agree to binding arbitration to resolve their differences. If a dispute arises and an arbitration agreement is in place, the arbitrators are jointly selected by the patient and the nursing home.

Although consumers usually don’t realize it, there’s a simple way to avoid being forced into arbitration, say experts: Don’t sign the arbitration agreement.

What happens if you don’t sign? Nothing, Crist says. “It’s not a condition of admission to the facility,” he says. The American Health Care Association doesn’t support requiring people to sign an arbitration agreement as a condition of admission, he says, although practices may vary at individual nursing homes.

If you do sign and then wish you hadn’t, arbitration agreements typically have a 30-day “opt-out” provision that allows you to change your mind and retain your rights to sue.

The judge in John Mitchell’s wrongful death case threw out the agreement on the grounds that it was “unconscionable,”  a legal term used to describe contracts that are unfair or unjust.

“The judge agreed it was too much to expect me to digest all of this information at once, and that the arbitration clause hadn’t been explained thoroughly,” says Ormond. A trial date hasn’t yet been set.

Arguing that an agreement is unconscionable is one of the few ways people can extricate themselves from arbitration agreements once a dispute arises, says David Hoey, a North Reading, Mass., lawyer representing the Mitchell family. Another possibility is to prove that the person wasn’t competent to sign an agreement or that the family member who signed wasn’t legally qualified to do so.

Better yet, experts agree, is not to sign in the first place.

Related article: Should you sign that nursing home agreement: