Medicaid isn’t just for Nursing Homes: #Homecare

Traditionally, Medicaid has paid for long-term care in a nursing home, but because most individuals would rather be cared for at home and home care is cheaper, all 50 states now have Medicaid programs that offer at least some home care. In some states, even family members can get paid for providing care at home.

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Medicaid is a joint federal-state program that provides health insurance coverage to low-income children, seniors, and people with disabilities. In addition, it covers care in a nursing home for those who qualify. Medicaid home care services are typically provided through home- and community-based services “waiver” programs to individuals who need a high level of care, but who would like to remain at home.

Medicaid’s home care programs are state-run, and each state has different rules about how to qualify. Because Medicaid is available only to low-income individuals, each state sets its own asset and income limits. For example, in 2019, in New York an applicant must have income that is lower than $845 a month and fewer than $15,150 in assets to qualify. But Minnesota’s income limit is $2,250 and its asset limit is $3,000, while Connecticut’s income limit is also $2,250 but its asset limit is just $1,600.

States also vary widely in what services they provide. Some services that Medicaid may pay for include the following:

  • In-home health care
  • Personal care services, such as help bathing, eating, and moving
  • Home care services, including help with household chores like shopping or laundry
  • Caregiver support
  • Minor modifications to the home to make it accessible
  • Medical equipment

In most states it is possible for family members to get paid for providing care to a Medicaid recipient. The Medicaid applicant must apply for Medicaid and select a program that allows the recipient to choose his or her own caregiver, often called “consumer directed care.” Most states that allow paid family caregivers do not allow legal guardians and spouses to be paid by Medicaid, but a few states do. Some states will pay caregivers only if they do not live in the same house as the Medicaid recipient.

To find out your Medicaid home care options, feel free to email or give me a call.

Regards,

Brian

More about Medicaid Planning>

 

Questions? Contact us at Brian A. Raphan, P.C.

Brian A. Raphan, P.C.
7 Penn Plaza, 8th Floor | 7th Avenue between 30th and 31st Street | New York , NY 10001 http://www.raphanlaw.com
Phone: (212) 268-8200 (800) 278-2960

Worst States If You’re Caring For An Aging Parent

Via FA-Magazine  

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Some states make it harder for those caring for an aging parent, according to a new survey. 

Caring.com conducted a national survey to determine which states offer the best overall cost of living, and accessibility to senior support programs and resources for caregivers. 

While some states were praised for providing an affordable and helpful environment for caregivers, other states inevitable ended up at the bottom of the list.

“It hasn’t always been so expensive, but the cost of caring for our parents is so out of control now that it has the capacity to actually bankrupt families,” Jim Miller, a senior advocate and author of SavvySenior.org, said in the report. “I think that’s why it’s so important to consider these costs far in advance of needing to provide care so you’re prepared instead of panicked.”

These 10 states, in descending order, were deemed the most expensive for caregivers by Caring.com:

10. Maine

While the state is expensive for seniors, the availability of senior care support and services ranked 13th overall. The median cost for a home health aide was $4,500 more than the national average. Nursing home expenses were $24,00 more than the national average, according to caring.com.

 

9. New Hampshire

The state ranked 44th for cost of living. Costs for a nursing home stay for a year were over $100,000, well above the national average. The state did rank well for offering accessible senior programs and caregiver resources.

8. Delaware

For your aging parent to live in a nursing home in Delaware, expect to pay the median price of $127,750. The state ranked 28th in the survey for senior and caregiver programs and support.

 

7. New York

Earning a good rank for senior support and services, the state offers numerous resources for caregivers and seniors. While the costs for a home health aide and assisted living are competitive, the median for a nursing home is well above the national average by over $40,000.

Read More>

 

How to Talk About Moving to a Retirement Home: ‘It’s a Journey’

Having a conversation about moving — whether it’s with a relative,
even a spouse — brings up lots of anxiety. Here’s how to go about it.

Batter up! In the Bronx, Stadium Scents Take Fans Out to the Ballgame

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Gilbert Marcus, 80, smelled the scent of a hot dog, one of six familiar smells from baseball stadiums that are part of an olfactory exhibition at the Hebrew Home at Riverdale, a nursing home in the Bronx. Credit Jeenah Moon for The New York Times

Rochelle Youner, who lives at the Hebrew Home at Riverdale, a nursing home in the Bronx, walked up to a kiosk in a common area of the home’s first floor and pressed a button below a small icon depicting a baseball glove.

“That’s the real stuff — that’s a mitt, all right,” Ms. Youner, 80, said, smelling the leathery fragrance emitted from the kiosk, which attempts to bring the ballpark, or at least the smell of it, to the residents.

Many of the Hebrew Home’s residents were born and raised in the Bronx and are lifelong fans of the Yankees, with memories of visiting Yankee Stadium stretching back to the eras of Mantle and DiMaggio, and even earlier to Gehrig and Ruth.

But many of these older fans also suffer age-related memory loss. So the home, which often finds seasonal pegs for its reminiscence therapy programs, has timed its latest program to opening day at Yankee Stadium on Monday by erecting the kiosk with the therapeutic goal of recreating the distinctive smell of the ballpark.

“Too bad we can’t be there in person,” Ms. Youner said.

This is the point of the kiosk: to once again take these fans out to the ballgame.

For residents who followed the Dodgers, the scents recalled childhood days at Ebbets Field in Brooklyn, and for Giants baseball fans, they brought back afternoons at the Polo Grounds in Manhattan, in the days before both teams decamped for the West Coast.

The kiosk features six ballpark scents — hot dogs, popcorn, beer, grass, cola and the mitt — in separate push-button dispensers installed at a height accessible to residents in wheelchairs.

It was recently installed in the permanent “Yankees Dugout” exhibition of team memorabilia at the nursing home, which includes seats, a turnstile and a locker from the old Yankee Stadium.

The olfactory exhibit, called “Scents of the Game,” is meant to evoke long-forgotten memories from the home’s 785 residents, many of whom have Alzheimer’s disease or dementia.

Many have difficulty with short-term memories but with some prompting can summon long-term ones, such as detailed recollections of childhood visits to ballparks decades ago, said Mary Farkas, director of therapeutic arts and enrichment programs at the Hebrew Home, where baseball has also been used in art therapy and poetry workshops.

Prompting these ballpark memories helps connect many residents with the joy they felt at the time and also helps stimulate their cognition, Mrs. Farkas said.

Dr. Mark W. Albers, a neurologist at Massachusetts General Hospital in Boston, who studies the effect of scent on patients with neurodegenerative disease, said the Hebrew Home’s memory exhibit touches on fairly new territory in sensory therapy in trying to resurrect positive recollections in a small population of patients who share certain common memories.

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Joe Pepitone, a former player for the Yankees, spoke during the unveiling of the “Scents of the Game” exhibit at the Hebrew Home. CreditJeenah Moon for The New York Times

Memory loss in older patients can often cause “an erosion of familiarity” and be accompanied by feelings of disorientation, he said. Unearthing pleasant memories from earlier years through sensory stimulation may help patients feel more stable, Dr. Albers said.

Of course, he added, memories of Yankee Stadium might bring back very different emotions for fans like him, who root for the Boston Red Sox.

Continue reading the main story on NYT

For Renee Babenzien, 89, the hot dog aroma triggered recollections of vendors selling franks with mustard and sauerkraut.

“The way they smelled at the game,” she said, “you couldn’t help but stop the guy walking up the aisle selling hot dogs.”

Al Cappiello, 68, smelled the fragrances and recalled the sensory explosion he experienced the first time he walked into Yankee Stadium as a boy.

“I couldn’t believe the colors,” he recalled. “The green grass, the brown dirt of the infield — man, I was in heaven.”

Up until then, he said, watching the Yankees meant watching games on a black-and-white television set, with the action being called by Mel Allen, the Yankees broadcaster.

And so, during his first time at the stadium, Mr. Cappiello recalled, “I told my brother, ‘I don’t hear Mel Allen,’ and he said, ‘No, that’s only on TV.’

He did see Yogi Berra, tossing a ball with teammate Johnny Blanchard, and he managed to get Berra’s autograph.

Ms. Youner also recalled being surprised by how different the ballpark seemed in person.

“The first time I walked into the ballpark, I noticed that everything was bigger — even the basepaths were so much wider,” she said.

For Terry Gioffere, 90, who grew up in the Bronx, the smells evoked memories of watching her hero, Roger Maris — although in more recent decades she became a Derek Jeter disciple.

For Joan Jackson, 84, the smells took her back to her first trip to Yankee Stadium, at age 6, but also reminded her of the role that the stadium played in helping her raise five children in the Bronx after her husband died in 1973.

“I had to do something to lift the kids up, so I said, ‘Let’s do something fun and go to Yankee Stadium,’” she recalled. “The kids fell in love with baseball,” she said, and going to games helped hold the family together.

Even Joe Pepitone, a star for the Yankees in the 1960s who spoke at the kiosk’s recent unveiling, said the smells reminded him of playing in Yankee Stadium as a rookie first baseman in 1962.

He had anticipated that the stadium would smell like hot dogs and sauerkraut, he said, “and sure enough, there was that smell of the ballpark, and you could smell it all over.”

For Frances Freeman, who grew up in Brooklyn rooting for the Dodgers, the kiosk’s beer smell did provoke a reaction. The 103-year-old woman steered her wheelchair to the beverage table and grabbed a beer.

Since scent and memory are intimately linked, using the smells of the ballpark presented “a chance to reach the residents in a special way, as a tool to unlock doors in their memories,” said David V. Pomeranz, the Hebrew Home’s chief operating officer.

Mr. Pomeranz said the kiosk idea grew out of a discussion he had with Andreas Fibig, chief executive of International Flavors and Fragrances, a Manhattan-based company that creates scents for perfumes and other products, as well as flavors for food and beverages.

The company did not have to venture to any ballpark to capture the smells — its perfumers created them from the firm’s vast catalog of fragrances, said Matthias Tabert, the company’s senior manager for strategic insights.

Scents are especially powerful in stirring memories because they register with the brain in a more direct and primal way than other senses, Mr. Tabert said. “So when you smell something, it triggers memories almost instantaneously and serves almost like time travel, to bring you back to a seminal moment.”

Some ballpark staples did not make it into the array of scents, such as peanuts and Cracker Jack. Though both could be developed as fragrances with no traces of real peanuts, the home decided against it to avoid alarming people with peanut allergies, Mr. Pomeranz said.

For Al Schwartz, 91, the scent kiosk reminded him of first visiting Yankee Stadium in the late 1930s, when 60 cents could buy a seat in the bleachers and $1.10 a seat in the grandstand.

Mr. Schwartz said the smells reminded him of the joy of watching Joe DiMaggio snare a fly ball and the sadness of learning in 1979 that Yankees catcher Thurman Munson had died in an airplane crash.

Mr. Schwartz said he attended at least two monumental events at Yankee Stadium. His aunt took him on July 4, 1939, when Lou Gehrig announced his retirement because of a terminal disease and called himself “the luckiest man on the face of the earth.”

Mr. Schwartz also recalled a 1942 charity exhibition in which Babe Ruth made a post-retirement appearance and struggled to hit a home run against the great pitcher Walter Johnson in front of 70,000 fans.

“The crowd kept on him, and he finally hit it out of the park, to right field,” he recalled. “The best part was seeing him run around the bases, that way he used to.”

Bedsores Reference Guide: Lawsuit, Medical, and Treatment information

Have bedsores reached epidemic proportions yet? To many it seems so — especially in elders that are in hospitals and nursing homes — and they do not have to be incapacitated or totally immobile to be at risk.

Whether or not you or an elder in your family has unfortunately become a victim of a bedsore, pressure ulcer, or decubitus ulcer keep this handy reference guide available. Download it to you computer, cell phone or bookmark it. Because bedsores can happen extremely fast and catch you off guard. They can progress rapidly, even within hours if proper care and medical attention are not given.

Anyone with an elder family member entering a hospital, nursing home or even a skilled nursing facility for a short term stay should read and help prevent these potential life treating wounds from happening to a loved one. They can occur at even the best hospitals with the best doctors. You may not expect malpractice, but it happens. You may not expect neglect but it happens. It happens to tens of thousands of innocent patients.

Lawsuits can yield millions of dollars to the victim and their family.

Understaffing, inadequate training, changes in shifts, or simply a scenario where your loved one in a nursing home may need care but that care is given to others with a more acute immediate need. It’s at these times that the elder is at extreme risk.

You can read more about risk factors, treatment, and lawsuits to be compensated for pain, suffering or loss of life here. Reference Guide>

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Additional information on bedsores from Medical News Today>

More Facts About Your Legal Rights>

Pressure sores: Causes, treatment, and prevention

Informative medical information: 

Via MEDICAL NEWS TODAY, By Christian Nordqvist

Pressure sores can affect people who spend a long time in one position, for example, because of paralysis, illness, old age, or frailty.

Also known as pressure ulcers and bedsores, pressure sores can happen when there is friction or unrelieved pressure on one part of the body.

People who cannot make even small movements are at risk of pressure sores.

The sores can affect any part of the body, but the bony areas around the elbows, knees, heels, coccyx, and ankles are more susceptible.

Bedsores are treatable, but, if treatment comes too late, they can lead to fatal complications.

The prevalence of pressure sores in intensive care units in the United States (U.S.) is estimated to range from 16.6 percent to 20.7 percent.

Fast facts on pressure soresHere are some key points about pressure sores. More detail and supporting information is in the main article.

  • Pressure sores, pressure ulcers, or bedsores commonly affect people who cannot move easily.
  • They are more likely to affect the bony parts of the body.
  • The sores develop in stages. Identifying them in the early stage enables treatment and reduces the risk of complications.
  • Moving patients frequently is key to preventing pressure sores.

Symptoms

[Pressure sores]There are varying stages of severity of pressure sore.

Pressure ulcers can affect patients who are unable to move because of paralysis, illness, or old age.

Bed-bound patients are most at risk of developing bedsores on the bony parts of their body, such as the ankles, heels, shoulders, coccyx or tailbone, elbows, and the back of the head.

Patients who use a wheelchair have a higher risk of developing pressure sores on their:

  • buttocks and tailbone
  • spine
  • shoulder blades
  • back of arms or legs

Pressure sores develop in four stages.

  1. The skin will look red and feel warm to the touch. It may be itchy.
  2. There may be a painful open sore or a blister, with discolored skin around it.
  3. A crater-like appearance develops, due to tissue damage below the skin’s surface.
  4. Severe damage to skin and tissue, possibly with infection. Muscles, bones, and tendons may be visible.

An infected sore takes longer to heal, and the infection can spread elsewhere in the body.

Causes and risk factors

Anyone who stays in one place for a long time and who cannot change position without help is at risk of developing pressure sores. The ulcers can develop and progress rapidly, and they can be difficult to heal.

Sustained pressure can cut off circulation to vulnerable parts of the body. Without an adequate supply of blood, body tissues can die.

According to Johns Hopkins Medicine, a sore can develop if blood supply is cut off for more than 2 to 3 hours.

Pressure ulcers are usually caused by:

Continuous pressure: if there is pressure on the skin on one side, and bone on the other, the skin and underlying tissue may not receive an adequate blood supply.

Friction: For some patients, especially those with thin, frail skin and poor circulation, turning and moving may damage the skin, raising the risk of bedsores.

Shear: If the skin moves one way while the underlying bone moves in the opposite direction, there is a risk of shearing. Cell walls and minute blood vessels may stretch and tear.

This can happen if a patient slides down a bed or a chair, or if the top half of the bed is raised too high.

Injured tissue can develop an infection. This can spread, leading to serious illness.

Risk factors

[Pressure sores immobility]Pressure sores mainly affect those who are less mobile, or restricted to one position, such as older people or those with mobility impairments.

Pressure ulcers are more common among those who:

  • are immobilized because of injury, illness, or sedation
  • have long-term spinal cord injuries

Patients with long-term spinal cord injuries or neuropathic conditions, including diabetes, have reduced sensation.

They may not feel a bedsore developing, so they continue to lie on it, making it worse.

Patients who cannot move specific parts of their body unaided have a greater risk of developing pressure ulcers.

Factors that increase the risk include:

  • Older age as skin gets thinner and more vulnerable with age
  • Reduced pain perception, due, for example, to a spinal cord or other injury, as they may not notice the sore
  • Poor blood circulation, due to diabetes, vascular diseases, smoking, and compression
  • Poor diet, especially with a lack of protein, vitamin C, and zinc
  • Reduced mental awareness, due to a disease, injury, or medication, can reduce the patient’s ability to take preventive action
  • Incontinence of urine or feces can cause areas of permanently moist skin, increasing the risk of skin breakdown and damage

A low or high body mass index (BMI) increases the risk.

A person with a low body weight will have less padding around their bones, while those with obesity can develop sores in unusual places. Studies show that people with a BMI of 30 to 39.9 have a 1.5 times higher rate of developing pressure ulcers.

Diagnosis, treatment, and management

[Pressure sores relief]Placing a pillow under the affected area can help to alleviate pressure and symptoms.

A doctor will diagnose a pressure ulcer through a visual examination.

The physician will ask about recent medical history and they will check the size and shape of the sore, and if there is any oozing or weeping.

If the patient is not in residential care, a doctor may teach them how to carry out regular daily checks on themselves.

People should report any sign of a pressure sore to the doctor.

Treatment

Treating pressure ulcers is not easy.

An open wound is unlikely to heal rapidly. Even when healing does take place, it may be inconsistent, because of the damage to skin and other tissues.

Less severe pressure ulcers often heal within a few weeks with proper treatment, but serious wounds may need surgery.

The following steps should be taken:

  • Remove the pressure from the sore by moving the patient or using foam pads or pillows to prop up parts of the body.
  • Clean the wound: Minor wounds may be gently washed with water and a mild soap. Open sores need to be cleaned with a saline solution each time the dressing is changed.
  • Control incontinence as far as possible.
  • Remove dead tissue: A wound does not heal well if dead or infected tissue is present, so debridement is necessary.
  • Apply dressings: These protect the wound and accelerate healing. Some dressings help prevent infection by dissolving dead tissue.
  • Use oral antibiotics or antibiotic cream: These will can help treat an infection.

In the early stages, people may treat ulcers at home, but more severe ulcers will need dressing by a health care professional.

Negative pressure wound therapy

Also known as vacuum-assisted therapy, this procedure involves the attachment of a suction tube to the bedsore. The tube draws moisture from the ulcer, drastically improving the healing time and reducing the risk of infection.

Wounds heal within around 6 weeks at half the cost of surgery.

Surgery

Some bedsores may become so severe that surgical intervention is necessary.

Surgery aims to clean the sore, treat or prevent infection, reduce fluid loss, and lower the risk of further complications.

A pad of muscle, skin, or other tissue from the patient’s body is used to cover the wound and cushion the affected bone. This is known as flap reconstruction.

Prevention

Even with excellent medical and nursing care, bedsores can be hard to prevent, especially among vulnerable patients.

Preventing bedsores is easier than treating them, but this too can be challenging.

Tips to reduce the risk of a bed sore developing include:

  • moving the patient at least every 15 minutes for wheelchair users and at every 2 hours for people in bed
  • daily skin inspections
  • keeping the skin healthy and dry
  • maintaining good nutrition, to enhance overall health and wound healing
  • quitting smoking
  • exercises, even if they must be carried out in bed, with assistance, as they improve circulation.

Patients should mention any possible bed sores to their health care worker or doctor.

A physical therapist can advise on the most appropriate positions to avoid pressure sores.

Complications

[Pressure sores cellulitis]Cellulitis is a possible complication of bed sores.

Without treatment, bed sores can lead to serious complications.

Cellulitis is a potentially life-threatening bacterial infection of the skin, from the surface to the deepest layer of skin. Cellulitis can result in septicemia, or blood poisoning, and the infection can spread to other parts of the body.

Bone and joint infections can arise if a pressure ulcer spreads to the joints or bones. This can result in damage to cartilage and tissue, and a reduction in limb and joint function.

Sepsis, in which bacteria can enter through sores, especially advanced ones, and infect the bloodstream. This can lead to shock and organ failure, a life-threatening condition.

There is a higher risk of developing an aggressive Cancer in the skin’s squamous cells if the patient has bedsores.

Outlook

Stage 2 bedsores can heal within 1 to 6 weeks, but ulcers that reach stage 3 or 4 may take several months, or they may never heal, especially in people with ongoing health problems.

With the appropriate measures, patients and medical staff can significantly reduce the risk of developing pressure ulcers.

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Download: Bedsore Legal and Medical Facts Booklet>

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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

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

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

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