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

Maybe it’s time for a geriatric care manager

Geriatric care

Why do we hear so much about geriatric care management these days? It’s because there are so many benefits they can provide to seniors and care givers. Let’s first clarify the term: A professional Geriatric Care Manager (GCM) is a health and human services specialist who helps families who are caring for older relatives. The GCM is trained and experienced in any of several fields related to care management, including nursing, gerontology, social work, psychology, and logistics of health care and often finances relating to the elderly. They are trained to assess, plan, coordinate, monitor and provide services for the elderly and their families. Although not lawyers, they are often aware of legal issues elders may be soon facing.

The benefits to you, the child or care giver of the elder range from saving time (vetting out various needs), saving money (knowing financial pitfalls of some decisions in advance), making better care decisions (with insight from someone who has seen it all) and most importantly –reducing stress.  The stress of being alone in the decision making process, relief of now being informed about your various options and what may be right for the specific needs of the elder, ranging from doctor decisions, how to provide care, assisted living, home care and nursing care options. Doing it alone takes an enormous amount of time, energy, resources and self reliance.

According to Gladys Harris Geriatric Care Manager of The Olive Group, you may need a Geriatric Care Manager if:

•    A person has limited or no family support available

•    Family has just become involved with helping the individual and needs direction regarding available senior services

•    A person has multiple medical or psychological issues

•    A person is unable to live safely in his / her current environment

•    Family is either “burned out” or confused about care solutions

•    Family has a limited time and / or expertise in dealing with loved one’s chronic care needs

•    Family is at odds regarding care decisions

•    Individual is not pleased with current care providers and requires advocacy

•    Individual is confused regarding his / her own financial and / or legal situation

•    Family needs education and / or direction in dealing with behaviors associated with dementia

Gladys is a recommended resource of ours and helps families and elders in New Jersey. They offer a unique combination of compassion, knowledge, a ‘can-do’ attitude and a wide range of services which also include:

Solution Focused Counseling: Life transitions are a common reason for counseling. We focus on empowering individuals to find solutions in their life by figuring out what a person’s goals are, and supporting them to find ways to achieve those goals.

Care Coordination: Our holistic assessment includes a physical, psychological and social functioning evaluation of the older adult, as well as a home safety inspection. Based on the assessment, we will develop a customized client care plan to identify private and public resources available to support the older adult. We coordinate the support systems needed to keep the older adult safe and happy at home.

Wellness Monitoring: Regular visits with the older adult to help ensure that they receive the best care available. During our visits we ensure older adults are receiving help with things that they want done, computer skills, organize photos, plan family events, etc.

Accessibility Issue Resolution: Aging-in-place often requires making changes to the home to help maintain independence.  This may be de-cluttering, home improvements, home safety inspection

Relocation Services: We support families during transitions from home to another location or facility.   These services include cleaning, de-cluttering, downsizing, and setting up in the older adult’s new home.

Cost savings is also a key component to good geriatric care management. You can learn more about it and find out more about the range of services by clicking here: www.TheOliveGroup.llc.com

Regards,

Brian

New: Visiting Lawyer Services for Elder New Yorkers

Visiting Lawyer Services

Why should the elderly that aren’t as mobile as they used to be, or live in an assisted living facility or are even at home wheelchair bound, not have easy access to the same professional legal care as others? Well, they should. And now they do.

Visiting Lawyer Services (VLS) is now available to New Yorkers that are homebound or unable to travel to a lawyer. With VLS our lawyers come to you. There’s no longer a need to coordinate aides, transfers or transportation as you won’t need it The same practice areas of elder law firm are the same available with VLS.  Most of the services that we handle in our office can be handled at your place. For example; signing of your Will, Living Will, Health Care Proxy, revising a Will, Estate Planning, Medicaid Planning or setting up a Trust. If witnesses are needed for signing documents we also arrange them to be with us as well. Other family members or loved ones may be present as well.

Visiting Lawyer Services

You remain in the comfort of your home, apartment or nursing facility and we’ll bring all the necessary documents. This has been very helpful for elder couples–as is often the case with elders, one spouse may be healthy and agile yet the other quite limited.

‘Not being burdened by travel time or hindered by physical ability also allows seniors to focus better on their legal needs. We’ve taken our hands-on approach, compassion and legal prowess to the next level’

For more information on how our Visiting Lawyer Services can help, feel free to call me at 212-268-8200. – Brian

http://www.VisitingLawyerServices.com

info@raphanlaw.com

Understanding the Differences Between a Will and a Trust

Brian Raphan

Everyone has heard the terms “will” and “trust,” but not everyone knows the differences between the two. Both are useful estate planning devices that serve different purposes, and both can work together to create a complete estate plan.

One main difference between a will and a trust is that a will goes into effect only after you die, while a trust takes effect as soon as you create it. A will is a document that directs who will receive your property at your death and it appoints a legal representative to carry out your wishes. By contrast, a trust can be used to begin distributing property before death, at death or afterwards. A trust is a legal arrangement through which one person (or an institution, such as a bank or law firm), called a “trustee,” holds legal title to property for another person, called a “beneficiary.” A trust usually has two types of beneficiaries — one set that receives income from the trust during their lives and another set that receives whatever is left over after the first set of beneficiaries dies.

A will covers any property that is only in your name when you die. It does not cover property held in joint tenancy or in a trust. A trust, on the other hand, covers only property that has been transferred to the trust. In order for property to be included in a trust, it must be put in the name of the trust.

Another difference between a will and a trust is that a will passes through probate. That means a court oversees the administration of the will and ensures the will is valid and the property gets distributed the way the deceased wanted. A trust passes outside of probate, so a court does not need to oversee the process, which can save time and money. Unlike a will, which becomes part of the public record, a trust can remain private.

Wills and trusts each have their advantages and disadvantages. For example, a will allows you to name a guardian for children and to specify funeral arrangements, while a trust does not. On the other hand, a trust can be used to plan for disability or to provide savings on taxes. As your elder law attorney I can tell you how best to use a will and a trust in your estate plan. Feel free to email me with any questions.

Regards, Brian A. Raphan, Esq.

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

7 Penn Plaza, New York, NY 10001

Free Download: 2014 Benefits Guide for Seniors: NYC

NYC Department of Aging, senior citizens, aarp
Free download. NYC Department of Aging resources. Free benefits guide for senior citizens.

 

 

 

 

 

 

 

 

For 2014, this guide from NYY.gov  is a helpful resource for benefits available to senior citizens of New York.

Table of contents include:

Social Security 1

Supplemental Security Income 2

Veterans Benefits 3

New York Prescription Saver Card 3

Public Assistance 4

Medicare 5

Medicare Savings Program 6

Medicare Part D 7

Affordable Care Act 7

Medicaid 8

Food Stamps (Supplemental Nutrition Assistance 9 Program SNAP)

Reduced Fare 10 Senior Citizen Rent Increase Exemption (SCRIE) 11

Senior Citizen Homeowners Exemption (SCHE) 12

Real Property Tax Credit (IT-214) 13

Home Energy Assistance Program (HEAP) 14

Heating Equipment Repair or Replacement 15

Elderly Pharmaceutical Insurance Coverage (EPIC) 15

New York State School Tax Relief Program (STAR) 16 

Regards, Brian

info@raphanlaw.com

 

Some FAQ’s about Health Care Proxys

As an Elder Law attorney  for over 25 years  I have recently been getting more and more questions about Health Care Proxys. Below are some answers as well as a link to a Free Sample Draft so my readers can see what it’s all about:

 Why you need a will
Living Will
 

What is a Health Care Proxy?

A Health Care Proxy is someone you appoint to make health related decisions for you, in the event you can not.

Who decides that I’m not able to make my own healthcare decisions?

Your attending physician will decide whether you lack the capacity to make health care decisions. The decision is made in writing. A second doctor also must be consulted in the case of decisions to withdraw or withhold life-sustaining treatment.  You will be given notice of these decisions if there is any indication that you can understand it. If you object to this decision or to a decision made by your agent, your objection or decision will prevail unless a court determines that you are unable to make health care decisions.

 

What if I recover the ability to make my own healthcare decisions?

Your doctor is required to decide whether you can make your own health care decisions and confirm it in writing each time your doctor plans on acting on your agent’s health care decisions. If you have recovered the ability to make your own decisions, your agent will not be able to make any more decision for your unless you again lose the abilities to make them. 

 

How do I complete a Healthcare Proxy?

In New York State, laws set forth the requirements for completing a health care proxy. You must be at least 18 years old and have the capacity to make your own decisions at the time you complete the proxy.

You must state your name and the name of the person you want to act as your agent, and state that your want the agent to have the authority to make health care decisions for you. You also must sign and date your health care proxy in the presence of two adult witnesses who are not names as your agent and have the witnesses sign the proxy. Please note that there are also special rules for the execution of a proxy by residents of psychiatric facilities.

Please note that you do not need to have a lawyer draft your health care proxy, however, you may wish to consult with a lawyer for advice about a health care proxy.

 

When will my Healthcare Proxy end?

You can create a proxy that lasts for a limited period of time by including in the document the dates you want the proxy to be valid. You can also revoke your proxy if you wish and you are competent to do so.

If you have appointed your husband or wife as your agent, and then you divorce or legally separate, the appointment will be revoked unless you specify that you do not wish to revoke it. You should review your proxy periodically to be sure that it continues to reflect your wishes. 

 

 Where should I keep my Proxy?

It’s best to give a copy of your proxy to your doctor as well as to the agent named in your proxy. If you revoke your proxy, be sure to notify whomever you gave a copy of the proxy. Upon entering a hospital you may give it to an administrator in charge, as your doctor, or attending physician may not be there when you arrive. Also, keep a copy with your other important documents such as a Power of Attorney and Will. All should be reviewed every couple of years.

What if I don’t want a Healthcare Proxy?

You can’t be required to execute a health care proxy as a condition of receiving health care services or insurance. Also, the lack of a health care proxy or other specific instructions does not crate any presumptions regarding your wishes about health care.

If you have any questions feel free to contact me! You can also visit this page on our website and download a FREE SAMPLE DRAFT of a health care proxy.

Regards, Brian

info@RaphanLaw.com

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

7 Penn Plaza, New York, NY 10001

Court Ruling: Transfers Made Years Before Needing Care Were Not Made in Order to Qualify for Medicaid

Doing Medicaid Planning for clients, I often get asked the question: “How does medicaid determine if my gifts were made to qualify for medicaid or not?” Saavy clients have a long history of gifting to show a pattern meant for gifting not medicaid spend down. This recent decision should be of interest.

medicaid planning, appeal
http://www.raphanlaw.com

A New York appeals court holds that a Medicaid applicant who transferred funds several years before needing long-term care and kept enough resources to care for herself rebutted the presumption that the transfers were made in order to qualify for Medicaid. Safran v. Shah (N.Y. Sup. Ct., App. Div., 2nd. Dept., 2013-04373, 20166/12, July 2, 2014).

While she was living independently and didn’t require long-term care, Louise Kornhaber transferred funds to her family as gifts. Several years later, Ms. Kornhaber entered a nursing home. Due to the unexpected theft of her remaining resources, Ms. Kornhaber applied for Medicaid. The state assessed a penalty period based on the uncompensated transfers.

Ms. Kornhaber appealed, arguing that the transfers were made for a reason other than to qualify for Medicaid. The state affirmed the penalty period, and Ms. Kornhaber appealed to court.

The New York Supreme Court, Appellate Division, orders the state to provide Ms. Kornhaber with Medicaid benefits, holding that the penalty period was not appropriate. The court rules that because Ms. Kornhaber still had enough resources to maintain herself for years after she made the transfers, she rebutted the presumption that the transfer was made in order to qualify for Medicaid.

Medicaid Planning takes the experience and legal expertise of a qualified attorney. The detailed process of medicaid planning needs to avoid errors and mistakes that can make you ineligible of cost you possibly tens of thousands of dollars in delays or penalties. Click here to read: 8  Medicaid Mistakes to Avoid,

For the full text of this decision, go to: https://www.nycourts.gov/reporter/3dseries/2014/2014_04943.htm

Any questions? Send me an email: info@raphanlaw.com or call 212-268-8200 during the day for a free consultation.

Regards, Brian

Can You Appeal If Medicare Refuses to Cover Care You Received?

Absolutely.  Sometimes Medicare will decide that a particular treatment or service is not covered and will deny a beneficiary’s claim. Many of these decisions are highly subjective and involve determining, for example, what is “medically and reasonably necessary” or what constitutes “custodial care.” If a beneficiary disagrees with a decision, there are reconsideration and appeals procedures within the Medicare program.

While the federal government makes the rules about Medicare, the day-to-day administration and operation of the Medicare program are handled by private insurance companies that have contracted with the government. In the case of Medicare Part A, these insurers are called “intermediaries,” and in the case of Medicare Part B they are referred to as “carriers.” In addition, the government contracts with committees of physicians — quality improvement organizations (QIOs) — to decide the appropriateness of care received by most Medicare beneficiaries who are inpatients in hospitals.

If an intermediary, carrier or QIO decides Medicare shouldn’t pay for care you received, you will learn this when you receive your Medicare Summary Notice (MSN). The Medicare Rights Center recommends first making sure that the coverage denial isn’t simply the result of a coding mistake.  You can ask your doctor to confirm that the correct medical code as used.  If the denial is not the result of a coding error, you can appeal the denial using Medicare’s review process. Click here for details on this process.

Once Medicare’s review process has been exhausted, the matter can be taken to court if the amount of money in dispute exceeds either $1,000 or $2,000, depending on the type of claim. Medicare beneficiaries can represent themselves during these appeal proceedings, or they can be represented by a personal representative or an attorney. The Medicare Rights Center estimates that only about 2 percent of Medicare beneficiaries appeal denials of care, but 80 percent of those who appeal Part A denials and 92 percent who appeal Part B denials win more care. 

Even if Medicare ultimately rejects a disputed claim, a beneficiary may not necessarily have to pay for the care he or she received. If a recipient did not know or could not have been expected to know that Medicare coverage would be denied for certain services, the recipient is granted a “waiver of liability” and the health care provider is the one who suffers the economic loss. In cases where this limited waiver of liability does not apply, however, the beneficiary is liable for any costs of care that Medicare does not cover. For example, a patient is financially responsible for any services normally provided under Medicare Part B if provided by a nonparticipating provider who did not “accept assignment” of the claim.

For more about Medicare, click here.

 Regards, Brian

http://www.RaphanLaw.com

How will the Affordable Care Act affect Seniors…

How will the Affordable Care Act affect Seniors…

How will the ACA (Obamacare) affect senior citizens

Hold on…Should you sign that Nursing Home Admissions Agreement??? Not so fast…

nursing home
“Read the agreement carefully before signing. Nursing Home Agreements can be complicated and confusing”

Admitting a loved one to a nursing home can be very stressful. In addition to dealing with a sick family member and managing all the details involved with the move, you must decide whether to sign all the papers the nursing home is giving you. Nursing home admission agreements can be complicated and confusing, so what do you do?

It is important not to rush, but rather to read. If possible, have your attorney review the agreement before signing it. Read the agreement carefully because it could contain illegal or misleading provisions. Try not to sign the agreement until after the resident has moved into the facility. Once a resident has moved in, you will have much more leverage. But even if you have to sign the agreement before the resident moves in, you should still request that the nursing home delete any illegal or unfair terms.

Two items commonly found in these agreements that you need to pay close attention to are a requirement that you be liable for the resident’s expenses and a binding arbitration agreement.

Responsible party
A nursing home may try to get you to sign the agreement as the “responsible party.” It is very important that you do not agree to this. Nursing homes are prohibited from requiring third parties to guarantee payment of nursing home bills, but many try to get family members to voluntarily agree to pay the bills.

If possible, the resident should sign the agreement him- or herself. If the resident is incapacitated, you may sign the agreement, but be clear you are signing as the resident’s agent. Signing the agreement as a responsible party may obligate you to pay the nursing home if the nursing resident is unable to. Look over the agreement for the term “responsible party,” “guarantor,” “financial agent,” or anything similar. Before signing, cross out any terms that indicate you will be responsible for payment and clearly indicate that you are only agreeing to use the resident’s income and resources to pay.

Arbitration provision
Many nursing home admission agreements contain a provision stating that all disputes regarding the resident’s care will be decided through arbitration. An arbitration provision is not illegal, but by signing it, you are giving up your right to go to court to resolve a dispute with the facility. The nursing home cannot require you to sign an arbitration provision, and you should cross out the arbitration language before signing.

Other provisions
The following are some other provisions to look out for in a nursing home admission agreement.

Private pay requirement. It is illegal for the nursing home to require a Medicare or Medicaid recipient to pay the private rate for a period of time. The nursing home also cannot require a resident to affirm that he or she is not eligible for Medicare or Medicaid.
Eviction procedures. It is illegal for the nursing home to authorize eviction for any reason other than the following: the nursing home cannot meet the resident’s needs, the resident’s heath has improved, the resident’s presence is endangering other residents, the resident has not paid, or the nursing home is ceasing operations.
Waiver of rights. Any provision that waives the nursing home’s liability for lost or stolen personal items is illegal. It is also illegal for the nursing home to waive liability for the resident’s health.

This article comes from my December Elder Law Answers Newsletter, you can get it free here: Free Elder Law Newsletter

For more information regarding this article feel free to contact me.

Regards, Brian
Brian A. Raphan, P.C.
7 Penn Plaza   |   7th Ave/31st Street   |   New York, NY 10001
212-268-8200
http://www.raphanlaw.com