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

Some Potential Problems With SSA’s New Trust Guide

Social Security News

As previously reported, the Social Security Administration (SSA) recently instituted a nationally uniform procedure for review of special needs trusts for Supplemental Security Income (SSI) eligibility, routing all applications that feature trusts through Regional Trust Reviewer Teams (RTRTs) staffed with specialists who will review the trusts for compliance with SSI regulations.

The SSA has also released its Trust Training Fact Guide, which will be used by the RTRTs and field offices when they evaluate special needs trusts.  In an article in the July/August 2014 issue of The ElderLaw Report, New Jersey attorney Thomas D. Begley, Jr., and Massachusetts attorney Neal A. Winston, both CELAs, discuss the 31-page guide in detail and caution that while it is a significant step forward in trust review consistency, it contains “a few notable omissions or terminology that might cause review problems.”  Following is the authors’ discussion of the problematic areas:

• Structured Settlements. The guide states that additions/augmentations to a trust at/after age 65 would violate the rule that requires assets to be transferred to the trust prior to the individual attaining age 65. It does not mention that the POMS specifically authorizes such payments after age 65, so long as the structure was in place prior to age 65. [POMS SI 01120.203.B.1.c].

• First-/Third-Party Trust Distinction. Throughout the guide, there are numerous references to first-party trust terms or lack of terms that would make the trust defective and thus countable. These references do not distinguish between the substantial differences in requirements for first-party and third-party trusts.

• Court-Established Trusts/Petitions. This issue is more a reflection of an absurd SSA policy that is reflected accurately as agency policy in the guide, rather than an error or omission in the guide itself. This section, F.1.E.3, is titled “Who can establish the trust?” The guide states that creation of the trust may be required by a court order. This is consistent with the POMS. It would appear from the POMS that the court should simply order the trust to be created based upon a petition from an interested party. The potential pitfall described by the guide highlights is who may or may not petition the court to create a trust for the beneficiary. It states that if an “appointed representative” petitions the court to create a trust for the beneficiary, the trust would be improperly created and, thus, countable. Since the representative would be considered as acting as an agent of the beneficiary, the beneficiary would have improperly established the trust himself.

In order for a court to properly create a trust according to the guide, the court should order creation of a trust totally on its own motion and without request or prompting by any party related to the beneficiary. If so, who else could petition the court for approval? The plaintiff’s personal injury attorney or trustee would be considered an “appointed representative.” Would a guardian ad litem meet the test under the guardian creation authority? How about the attorney for the defendant, or is there any other person? If an unrelated homeless person was offered $100 to petition the court, would that make the homeless person an “appointed representative” and render the trust invalid? The authors have requested clarification from the SSA and are awaiting a response.

Until this issue is resolved, it might be prudent to try to have self-settled special needs trusts established by a parent, grandparent, or guardian whenever possible.

• Medicaid Payback/Administrative Fees and Costs. Another area of omission involves Medicaid reimbursement. The guide states that “the only items that may be paid prior to the Medicaid repayment on the death of the beneficiary of the trust are taxes due from the trust at the time of death and court filing fees associated with the trust. The POMS, [POMS SI 01120.203.B.1.h. and 203B.3.a], specifically states that upon the death of the trust beneficiary, the trust may pay prior to Medicaid reimbursement taxes due from the trust to the state or federal government because of the death of the beneficiary and reasonable fees for administration of the trust estate such as an accounting of the trust to a court, completion and filing of documents, or other required actions associated with the termination and wrapping up of the trust.

While noting that the guide, in coordination with training, “is a marked improvement for program consistency for trust review,” Begley and Winston caution advocates that “the guide should be considered as a summarized desk reference and training manual and not a definitive statement of SSA policy if inconsistent with the POMS.”

Regards,

Brian A. Raphan, Esq.

The Law Offices of Brian A. Raphan, P.C.

www.RaphanLaw.com

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.

2015 Spousal Impoverishment and Home Equity Figures:

Brian Raphan

The Centers for Medicare and Medicaid Services has released its Spousal Impoverishment Standards for 2015.

The official spousal impoverishment allowances for 2015 are as follows (we include Medicaid’s home equity limits):

Minimum Community Spouse Resource Allowance: $23,844

Maximum Community Spouse Resource Allowance: $119,220

Maximum Monthly Maintenance Needs Allowance: $2,980.50

The minimum monthly maintenance needs allowance for the lower 48 states remains $1,966.25 ($2,457.50 for Alaska and $2,261.25 for Hawaii) until July 1, 2015.

Home Equity Limits:

Minimum:   $552,000

Maximum:  $828,000

For CMS’s complete chart of the 2015 SSI and Spousal Impoverishment Standards, click here.

For more information about protecting your assets click here.

Regards,

Brian A. Raphan, Esq.

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.
Activities for Life
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.

Medicaid Update: 2015 Medicaid Income and Resource Levels

The New York State Department of Health has released important information about the new Medicaid income and resource levels for 2015, which will take effect on January 1, 2015.

Medicaid 2015

The following lists the updated Medicaid income and resource levels for 2015:

  • Income level for one person: $825 for 2015 (Was $809 for 2014)
  • Income level for two people: $1,209 for 2015 (Was 1,192 for 2014)
  • Resource level for one person household: $14,850 for 2015 (Was $14,550 for 2014)
  • Resource level for household of two people: $21,750 for 2015 (Was $21,450 in 2014)
  • Minimum monthly maintenance needs (income) allowance: $2,980.50 for 2015 (Was $2,931 for 2014)
  • Maximum community spouse resource allowance: $119,220 for 2015 (Was $117,240 for 2014)

Remember, there is still a 5 year look back. For a free more info on how planning for Medicaid can protect your assets, feel free to contact us.

medicaid@raphanlaw.com or 212-268-8200

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”

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

New Lawsuits for Pharmaceutical side effects & Medical Devices

justice icon red small

Our firm has become aware of concerning pharmaceutical and medical device side effects that may have impacted you, a friend or family member. If you or a loved one has been affected by any of these drugs or devices, please feel free to contact us to learn more about your legal rights and a possible monetary settlement. After receiving calls for legal help from some of our clients we are now working with a national law firm who specializes in litigation against large manufacturers of these products in an effort to hold them accountable for failing to warn patients of dangerous side effects. Below is a list of drugs and devices:

Xarelto—this medication is a blood thinner that can lead to serious and uncontrollable internal bleeding.

Testosterone Supplements–can bring on a heart attack or stroke, or cause deep vein thrombosis, DVT, blood clots, pulmonary embolism.

Risperdal—is an anti-psychotic medication marketed for use in children with ADD and other behavior disorders and is known it cause breast growth in prepubescent males, a condition known as gynecomastia.

Bard Inferior Vena Cava Filters—these devices are intended to stop blood clots traveling from the lower body to the heart and/or lungs, however they can break off and migrate into the heart, lungs, and other vital organs resulting in serious injury or death.

Potiga—is a seizure epilepsy medication that can cause blindness and other eye problems in patients.

Benicar—prescribed to treat high blood pressure, this drug has been linked to a serious gastrointestinal condition known as sprue-like enteropathy; symptoms include excessive weight loss or chronic diarrhea.

We can help you and your loved ones with any legal matters arising from use of these dangerous drugs and medical devices. If you know of someone that has used these medications please forward the information and inform them of the dangers.

If you have any questions feel free to contact me. -Brian