K. Gabriel Heiser, J.D., has focused exclusively on estate planning and Medicaid eligibility planning, including trusts, estates, gifts, and related tax issues, since graduating from Boston University School of Law in 1983.   Gabriel Heiser is an attorney with more than 25 years of experience in nursing home law, and believes that people should start planning now for long term care.

The fact is that in 2010, more than 7,000 people turned 65 years old or older every single day, a figure that is predicted to rise in 2011. Further, an AARP survey revealed that only 4 in 10 of those people feel they will be financially secure for their golden years.  For many, that lack of financial stability will transform from being a worry to becoming a crisis if they discover they’ll need any kind of assisted living.

 

 

“The average monthly cost of a nursing home today is $6,917 per month, and a typical Alzheimer’s patient will spend $395,000 for their nursing home care after diagnosis,” said Heiser, author of How to Protect Your Family’s Assets from Devastating Nursing Home Costs: Medicaid Secrets (www.MedicaidSecrets.com). “Those costs are only going to rise, so it’s important to plan now. One important benefit to consider is Medicaid, which can help offset a good amount of those costs, but only if you know what it takes to qualify for those benefits.”

The mistake a lot of people make is thinking that they can’t qualify for Medicaid, according to Heiser.

“Many feel that because they own a home or have some assets that they can’t qualify for Medicaid help with their nursing home and doctor’s bills,” he said. “The truth is there are a variety of assets people can own and still qualify. It’s just a matter of knowing the rules, and making a plan to meet those requirements.”

Heiser listed the asset limits for those applying for Medicaid. They include:

 

· Cash – You can possess $2,000 cash that will not be counted as an asset in determining your Medicaid eligibility.

· Home – There is a $500,000 exclusion toward your home, meaning that if your home is valued at $500,000 or less at the time of your application, it is excluded as an asset. Some states use the higher permitted exemption of $750,000.

· Car – Up until recently, you could exclude only one car at a value of $4,500 or less, however that law has been changed. Now, one automobile of ANY current market value is excluded on your application.

· Funeral and Burial Funds – If you have a pre-planned funeral or memorial arrangement, the entire value of that plan is excluded. If you do not, a separate bank account that contains $1,500 toward funeral expenses can be excluded. If you have pre-purchased burial plots, you can exclude not only the costs of the plot for the applicant, but for the entire family, and still be eligible for Medicaid.

· Property – According to federal law, any real or personal property that is essential to self-support, regardless of value or rate of return, is excluded. That could include farms, rental properties and other real estate investments that generate income necessary for self-support. For rental income, however, the property must generate at least 6 percent of its value annually in order to qualify for the exclusion.

· Life Insurance – Only the cash value of a life insurance policy owned by the applicant is counted, thus, all term policies are ignored.

If you would like to interview Gabriel Heiser or request a review copy of How to Protect Your Family’s Assets from Devastating Nursing Home Costs contact Ginny Grimsley at ginny@newsandexperts.com.

Ginny Grimsley
National Print Campaign Manager
News and Experts
1127 Grove Street · Clearwater, Florida 33755
Phone: 727-443-7115 EXT 207
www.newsandexperts.com

 

Lisa Zamosky answers legal questions related to health care for the Los Angeles Times.  Her answer to the following question was right on point and worthy of sharing.

My aunt is in a nursing home. They tell us she isn’t allowed to leave unless she gets the doctor’s permission. If she does, she has to sign a statement saying she doesn’t hold them liable and will lose all her healthcare coverage. She is on Medicare. Can you help?

For starters, no doctor or any other healthcare provider has the authority to strip you of your health insurance benefits, including Medicare, the federal program for senior citizens.

There are requirements that must be met in order for Medicare to cover some of the cost of your aunt’s current stay in the skilled nursing facility, or SNF. However, it’s unlikely that the care she’s already received from the home would be denied because she left against the doctor’s orders.

What determines coverage is that there was a qualifying three-day hospital stay before entering the SNF, that your aunt has Medicare Part A with days left in the benefit period and that the services she received in the SNF were ordered by her doctor and are related to the treatment of her diagnosed condition. For more information about benefits, visit the Medicare Rights Center at medicareinteractive.org.

Also inaccurate is the nursing home staff’s assertion that your aunt is not allowed to leave, says Eric Carlson, directing attorney with the Los Angeles office of the National Senior Citizens Law Center. "The person isn’t incarcerated, and doctors are professionals hired to give advice, not to force people to do things against their will," he says.

If someone chooses to leave a nursing home against a doctor’s advice, the decision simply has to be documented. "Often it’s the kind of thing that can be noted on the medical chart," Carlson says.

With regard to signing a document related to liability, steer clear of anything stating that the doctors or facility are off the hook for any wrongdoing. "Healthcare people can’t [legally] absolve themselves from their own negligence," Carlson says.

It’s possible that the staff at the nursing home have misunderstood what they’ve been told about discharge procedures and/or Medicare benefits, which are quite complicated. This is a common problem, according to Carlson.

Understanding your rights and communicating them clearly to the staff often is enough to rectify the situation. A good place to start is the National Senior Citizens Law Center’s website (www.nsclc.org), which offers a free consumer guide called "20 Common Nursing Home Problems and How to Resolve Them."

If you continue to face trouble, however, there are places to turn for help.

The Office of the Medicare Ombudsman handles complaints. To find a representative in your state, visit the National Long-Term Care Ombudsman Resource Center at http://www.ltcombudsman.org/ombudsman.

In California, an ombudsman can be located by county on the California Department of Aging website, http://www.aging.ca.gov. Click on "Other Service Providers" and navigate your way to the Long-term Care Ombudsman Program, which has a link to local county program coordinators.

If you have concerns about the quality of care being delivered at a specific nursing facility, you can file a complaint with your state’s Department of Public Health.

To report abuse, go to the National Center on Elder Abuse website at http://www.ncea.aoa.gov, click on "Nursing Home Abuse," then "Where to Report" to find hotlines in your state.

If your circumstance requires you to work with a lawyer, you can find one at the National Academy of Elder Law Attorneys (www.naela.org) or the California Advocates for Nursing Home Reform (www.canhr.org).
 

According to the Cincinnati Enquirer, the U.S. Attorney’s Office filed a civil complaint accusing Villaspring Health Care and Rehabilitation in Kentucky of providing services that were “inadequate” and “essentially worthless.” Villaspring’s parent company is Carespring Health Care Management.  The suit says that the nursing home violated the federal False Claims Act, committing common law fraud and unjust enrichment.  The neglect directly led to the death of five residents.  According to U.S. attorneys, several patients died from 2004-2008 due to the inadequate care.

Hours after news of the lawsuit became public, a woman who says she saw the lack of care first hand, spoke with Local 12’s Tiffany Wilson. She says her uncle was a resident at Villasprings. On one occasion, she says he went three weeks without a bath or a change of clothes. Another time, she found him slumped over in a hallway, and according to her, he was slipping into a diabetic coma.

Defendants face financial penalties up to $11,000 per false claim and would have to repay Medicare and Medicaid three times the amount of the government’s loss for the fraud.

The Enquirer reports that the inadequate care included failure to update resident care plans, failure to follow doctors’ orders, failure to treat wounds and pressure sores, and failure to monitor the blood sugar levels of diabetic residents. Additionally, the suit claims that the nursing home was not properly staffed at times, and that the staff was negligent in bathing residents for many days on end.

This is the first suit filed in Kentucky that accuses a nursing home of defrauding Medicare and Medicaid by submitting bills for reimbursement for providing consistently poor care to residents.

I wish more states would seek reibursement from national chains that promise quality care but deliver neglect to residents.

See full article at Third Age.
 

WYFF reported the arrest of Layla Jessica Davidson for one count each of financial transaction card theft, financial transaction fraud and exploitation of a vulnerable adult.  In an incident report, deputies said Davidson stole from Natalie Iskersky, 85, who is a resident of Skylyn Place, located in Spartanburg, S.C.   The resident’s son reported she was stealing from his mother.  Skylyn is owned and operated by Emeritus.

Iskersky’s son, Erick contacted deputies in June. He told them that Davidson had used his mother’s debit card and wrote 13 checks from his mother’s checkbook. The man told deputies that the checks were made out to Davidson and various other people. He said up to $7,000 had been taken from his mother’s Regions Bank account.  When confronted by her supervisors at Interim Health Care, deputies said Davidson admitted to writing the checks.

Families should never leave checkbooks, credit cards, or other valuables with residents in any facility. 

Last week in The Atlantic, Andrew Cohen wrote on the real world effects caps on damages have on the victims of tragedies and the ability of judges and juries to deliver justice. Below is a summary of the article.

When Congress passed the Amtrak Reform and Accountability Act in 1997, the railroad industry had successfully lobbied to include in "accountability" legislation a statutory-mandated limitation on damage awards in major railway negligence cases. The Amtrak Reform Act imposes such a cap, limiting the ability of American judges and juries to perform their constitutional roles in determining award amounts in civil cases where liability has been proven. 

" The new law meant that the average citizen could no longer use the justice system to determine the fair amount of damages in mass casualty cases. The statute told judges, juries and victims alike that federal lawmakers had determined, in advance, the amount of pain corporate America would be allowed to suffer at the hands of legitimate plaintiffs who had proven gross negligence cases in court. The railway industry cheered the arbitrary cap. So did the insurance companies. Certainty is a good thing in the world of the law and universe of business."

 

On September 12, 2008, an accident occurred in Chatsworth, California. Twenty-four people were killed and more than 100 were injured, many horrifically, when a Metrolink passenger train ran a red light and slammed head-on into a Union Pacific freight train. The passenger train engineer, who died in the crash, was texting someone and missed the stop signal.

 

 

"Metrolink, and a French company named Veolia Environment, which had employed the engineer (and which, it was said, had known before the crash of the man’s chilling propensity to text while steering trains full of people), decided not to fight liability. They took the blame. In 2010, two years after the accident, knowing that the damage award for their gross negligence would be huge, the companies paid into a special fund the $200 million ordained by the Amtrak Reform Act. And then they essentially washed their hands of the matter—as they were permitted to do by federal law."

 

Superior Court Judge Peter D. Lichtman was given the task of dividing up the money to the hundreds of people impacted by the deadly crash.  By all accounts, the exercise was brutally emotional for all concerned.  Judge Lichtman issued a 33-page ruling describing the results of the hearing and ordering the distribution of the $200 million fund. The opinion, which you can read here, is heartbreaking.

 

Heartbreaking—and particularly effective at describing in vivid detail the other side of so-called "tort reform." This other side focuses upon the terrible consequences people often face because legislators have limited the amount of damages that can be awarded to plaintiffs in negligence cases against big companies.   The opinion showcases the true cost of "tort reform" and, on a larger scale, the real cost of the nation’s current crest of corporatism. Here you have innocent victims whose rights and liberties were limited so that corporations could have litigation certainty. Here you have an honorable American judge hamstrung by statute to do right to the litigants before him. Justice in America in tort cases does not have to be, as the judge said, a "Sophie’s Choice" Yet in many respects it is.

 

From the evidentiary hearing, Judge Lichtman concluded:

 

Simply put, the sheer weight of the freight train crushed the lighter and more flexible passenger train. The fate of every passenger riding on Metrolink #111 that day, be it death, serious injury or the ability to walk away hinged on a passenger’s choice of seat and that seat’s direction of travel.

 

 

The judge wrote about the way the victims and survivors reacted in those first few moments.  And then the judge turned his attention to the assessment of the damages caused by the accident. He wrote:

 

This Court is powerless to express any words concerning the 24 souls that lost their lives that day. Each one of the victims was remarkable. Many families were left without any providers, not to mention the loss of a mom or dad. There were a number of families that lost their sons and daughters as well. The average age of the children who died was 19 years old…. Several of the passengers that died left behind special needs children at home with an already stretched budget and caregiver.

 

 

The argument against "tort reform"— the giving back to judges and juries the power to dispense justice—is a great populist argument in an age where there seems to be so much populist rage. And some Tea Party members, indeed, have been reluctant to vote for a federal malpractice damages cap. But not out of any expressed concern for the 7th Amendment’s right to trial by jury. And certainly not because the caps are unjust to individual plaintiffs. Instead, the Tea Partiers argue that a federal malpractice limitation law would encroach too heavily upon 10th Amendment rights "reserved to the states." In other words, the Tea Party, great populist bastion that it is, doesn’t mind if states dramatically limit the power of judges and juries to dispense justice—it just doesn’t want the feds doing it as well.

According to OpenSecrets.org, members of the House Transportation and Infrastructure Committee alone received just under $52 million during the 2010 election cycle from corporate political action committees, including $6 million from the transportation industry.

"I believe the American people often are duped into believing that so-called "tort reform" almostly always has to do with a greedy plaintiff, a frivolous lawsuit, an ambulance chaser on the make, and a beleaguered corporation.  Nor do I believe that most Americans understand how deeply these "tort reforms" undercut the fundamental democratic importance of the jury’s verdict. Judge Lichtman’s order is a testament to the neutering of the justice system—another policy choice which I don’t believe has ever been sufficiently explained or justified to the American people. So here’s what to do. The next time a politician shouts "tort reform" in your face, tell her or him to go spend a day with the victims and survivors of the Chatsworth crash, to live in their world for just a few hours, before talking again about why it makes sense to continue to give to the rich at the expense of the poor."

 

Press of Atlantic City wrote an article discussing the dismal record of New Jersey nursing homes. Seven New Jersey nursing homes received the lowest quality ratings from the federal government last year based partly on state inspections in 2009 and 2010. Inspection reports show that residents in the worst-rated homes live in dirty conditions, endure verbal and physical abuse, and are neglected.

Hundreds of violations of rules that govern quality of care, safety and sanitation were found by inspectors during the past two years at the 60 nursing homes in Atlantic, Cape May, Cumberland and Ocean counties. The reports are used by the U.S. Department of Health and Human Services to develop consumer ratings of one to five stars for nursing homes. The majority of area facilities – 65 percent – are rated three stars or lower, federal data show, and half are in the bottom two levels.

A review of more than 1,800 pages of New Jersey Department of Health and Senior Services inspection reports from 2009 through April 2011 for 10 nursing homes showed that residents are routinely found living in dirty conditions, endure verbal and physical abuse, and are subject to neglect. Other violations include staff giving out the wrong medications, residents being strapped into wheelchairs and ignored for hours, theft, untreated infections, falls resulting from fragile residents being left unattended, and fire- and building-code violations.

State reports provide details of problems found during inspections. Some residents live in fear of reprisal if they complain about conditions.

A recurring theme was a failure to investigate or report incidents of abuse. Another recurring problem was failure to properly administer medication.  The medication error rate is not supposed to exceed 5 percent. A November inspection found an 18 percent error rate at South Jersey Extended Care. Our Lady’s Residence had a 14 percent error rate. Lincoln Specialty Care was at 9 percent, and Arcadia was at 8 percent. In one case at South Jersey Extended Care, a resident was supposed to get morphine every three hours for rectal pain, but went days without it because there was none.

A nurse and an aide allegedly told a resident who wanted help getting out of bed frequently overnight that she could not get up before 4 a.m. The inspection report states the staffers threatened to take away her wheelchair, withheld snacks and threatened to keep her in bed longer if she complained. The report states the resident shook in fear in the presence of the nurse and aide.

There are 367 nursing homes in New Jersey charging an average of $250 per patient per day, said Paul Langevin of the Health Care Association of New Jersey, a trade group of 185 homes.  Most homes are for-profit businesses run by companies that have multiple facilities. Costs of more than $90,000 per patient per year are often paid through Medicare and Medicaid, so tax dollars pay much of the bill.

Jodi Lynn Holmes is going to prison for six years for trying to suffocate an elderly woman at a Bangor Nursing and Rehabilitation Center in Maine.  Holmes was sentenced after pleading guilty to trying to suffocate a 97-year-old woman with a pillow. Police say she did not know her victim.  Holmes has a long history of mental illness.  She is on federal probation for a series of bomb threats she made in 2007 and was barred from going into nursing homes because she had made threats to harm elderly people. Holmes has been in jail since her arrest

 

See article at Stamford Advocate.

AARP is pushing for mandatory criminal background checks for all employees.  92 percent of nursing homes in the U.S. employed at least one individual with at least one criminal conviction. One facility that employed 164 workers had 34 with criminal convictions.

These are among the results of an investigation ordered by the Senate Special Committee on Aging and executed by the Health and Human Services’ Office of Inspector General. The report entitled Nursing Facilities’ Employment of Individuals With Criminal Convictions was released in March 2011.

Federal regulation prohibits Medicare and Medicaid nursing facilities from employing individuals found guilty of abusing, neglecting, or mistreating residents by a court of law, or who have had a finding entered into the State Nurse Aide Registry concerning abuse, neglect, or mistreatment of residents or misappropriation of their property. Guidelines from Centers for Medicare & Medicaid Services for this regulation state that "[nursing] facilities must be thorough in their investigations of the past histories of individuals they are considering hiring."

Despite this guidance, Federal law does not require that nursing facilities conduct FBI or statewide criminal background checks. The issue is therefore left to the states to decide.

The common problem of criminality among nursing home workers stems from the low pay, long hours, poor working conditions, and lack of benefits and absence of opportunity for advancement. These factors produce a very small pool of workers to choose from.

 

Heidi Soland pled guilty and was sentenced after stealing painkiller patches from Broen Memorial Home where she worked. Soland was charged with theft and neglect after stealing nine painkiller patches from nursing home patients while working as a nursing assistant. Soland admitted to taking the Duragesic patches from four mentally and physically impaired patients at the nursing home.  See article at the KSAX website.

Staff members at the Broen Memorial Home said they began to notice the missing patches, that contain the powerful narcotic, Fentanyl, last Oct. and the trend continued through Jan., following Soland’s work shifts.