Nursing Home Violated resident's Rights

A California appeals court rules that a nursing home violated transfer and discharge requirements when it discharged an allegedly aggressive resident without prior notice and without providing notice of bed hold policies. Kindred Nursing Centers West v. Cal. Health and Human Services Agency (Cal. Ct. App., 4th, Div. 1, No. D044215, June 22, 2005). unpublished opinion

On January 8, 2004, at 1:40 a.m., Kindred Nursing Centers West, LLC, dba Village Square Nursing and Rehabilitation Center, transferred Morteza Kashaninia to a hospital emergency room, claiming the immediate cause of the transfer was Mr. Kashaninia's recent attempt to wrap his call button cord around a caregiver's neck. That same day, Village Square sent a letter to Mr. Kashaninia's son notifying him that his father was being discharged from the nursing home. Mr. Kashaninia was not issued a bed hold notice. The hospital twice attempted to discharge Mr. Kashaninia back to the nursing home, unsuccessfully. On January 12, 2004, Mr. Kashaninia's family contested Village Square's decision to deny him readmission.
A hearing officer found Village Square had failed to comply with state and federal transfer and discharge requirements and ordered his immediate readmission. Village Square refused, arguing that Mr. Kashaninia continued to pose a danger to residents and staff, and sought an immediate stay, alleging that the administrative process had not provided due process because it had received less than 24 hours? notice of the hearing. Mr. Kashaninia subsequently dropped his effort to enforce the readmission order, but Village Square continued its appeal. The trial court denied the writ and Village Square appealed again.

In an unpublished opinion, the California Court of Appeal affirms, finding that Village Square failed to grant Mr. Kashaninia statutory and regulatory rights owed to transferees, including adequate notice and issuing him a bed hold notice upon transfer. Although the notice period may be shortened by a facility's inability to care for a resident or when the safety of other residents is endangered, the court rules, "there is no provision for contemporaneous notice." The court also finds that Village Square failed to provide sufficient preparation and orientation to ensure Mr. Kashaninia's safe and orderly discharge from the facility. It rules that Village Square's claim about the danger Mr. Kashaninia posed to others was insufficient justification for failing to offer him a bed hold. The facility, the court notes, had ?failed to account for the possibility that [the resident?s] hospital treatment was effective and he might have returned to the facility with no further unmanageable problems.? The court goes on to rule that given the time-sensitive nature of Mr. Kashaninia?s situation, Village Square's due process rights were not violated by the short notice of the hearing.

An amicus brief in support of Mr. Kashaninia was filed by AARP and the National Citizens? Coalition for Nursing Home Reform, which was represented by the National Senior Citizens Law Center (NSCLC).

The full text of this decision in PDF format may be downloaded from the NSCLC's Web site. Go to: http://www.nsclc.org/news/05/06/Kindred_opinion.pdf.

State cannot recover payments from spouces estate

The Appellate Court of Illinois rules that a state law authorizing the state to recover Medicaid payments from the estate of a surviving spouse violates federal law. Hines v. Department of Public Aid (Ill. App. Ct., No. 3-04-0162, May 20, 2005).

Beverly and Julius Tutinas were married, and they jointly owned a house and a car. Mr. Tutinas entered a nursing home and received Medicaid until his death. No probate estate was created when he died. Mrs. Tutinas died four years later. Her estate consisted of the home and the car.
The Illinois Department of Public Aid filed a claim for repayment of the Medicaid it paid to Mr. Tutinas. The Department claimed that under state law (305 ILCS 5/5-13), it had the right to recover from the estate of a Medicaid recipient's spouse. The trial court agreed, holding that state law did not conflict with federal law (42 U.S.C. 1396p(b)) because the definition of "estate" in 42 U.S.C. 1396p(b) included any real property that the deceased had title to at the time of death, including through joint tenancy.

The Appellate Court of Illinois reverses, holding that the state statute authorizing the Department to recover from the estate of a surviving spouse exceeded the authority granted by 42 U.S.C. 1396p(b). According to the court, 42 U.S.C. 1396p(b) expressly prohibits recovery of medical assistance except in three specific circumstances. Because recovery against the estate of spouse is not one of those circumstances, 42 U.S.C. 1396p(b) prohibits the state from recovering from a surviving spouse's estate.

To download the full text of this decision, go to: http://www.state.il.us/court/Opinions/AppellateCourt/2005/3rdDistrict/May/Html/3040162.htm.

NPR Series Focuses on Financial Abuse of the Elderly

National Public Radio (NPR) recently featured a two-part series on financial abuse of the elderly. Such financial abuse involves the illegal or improper use of an elder's funds, property or assets. It can include cashing an elderly person's checks without their permission; forging their signature; stealing or misusing their money or possessions; or abusing a power of attorney.
There are up to 5 million instances of financial abuse of the elderly each year, according to NPR, but many incidents go unreported because the perpetrator is usually a trusted relative or friend whom elders are reluctant to turn over to the authorities.

NPR's first report focuses on the case of a mentally impaired senior who lost nearly $700,000 to his closest friend. In gaining a conviction against the man, prosecutors charged the abuser with using undue influence, a concept that has been used in civil cases like disputes over wills, but not in criminal cases before now. The case, which is on appeal, is being closely followed in legal circles.

Part two looks at the challenges authorities face in rooting out elder abuse, including the case of a 91-year-old woman who is unlikely to press charges against her 52-year-old son, despite indications of exploitation.

To listen to the NPR reports and read a list of signs of elder financial abuse, go to: http://www.npr.org/templates/story/story.php?storyId=4667720

Medicaid

The U.S. Court of Appeals for the Second Circuit affirms a district court ruling upholding the right of a Connecticut nursing home resident applying for Medicaid to assign support rights to the state and of his wife to exercise her right of spousal refusal. Morenz v. Wilson-Coker (2nd Cir., No. 04-4107-cv, July 14, 2005).

Robert Morenz, a Connecticut nursing home resident, applied for Medicaid coverage on November 1, 2003. In support of Mr. Morenz's application, his wife, Clara, also filed a written assignment of Mr. Morenz's support rights to the State of Connecticut, and a document entitled "Spousal Refusal Statement," in which Mrs. Morenz disclaimed any intention to provide her husband with financial assistance. In the 36 months prior to applying for Medicaid, Mr. Morenz had transferred title to $323,131 in assets to Mrs. Morenz using a durable power of attorney her husband had executed. Mr. Morenz's application for Medicaid was denied on the basis of excess resources. Both the Morenzes and Patricia Wilson-Coker, Commissioner of the Connecticut Department of Social Services, moved for summary judgment.

Ms. Wilson-Coker argued that Connecticut law grants acceptance of spousal support rights only when the community spouse cannot or will not provide eligibility information. She further claimed that Mrs. Morenz's power of attorney did not authorize the assignment, and that Mrs. Morenz violated her fiduciary duty to her spouse by assigning support rights. Finally, Ms. Wilson-Coker contended that permitting Medicaid eligibility in cases like those of the Morenzes would undermine the intent of the program.

The U.S. District Court for the District of Connecticut rejected these arguments and enjoined Ms. Wilson-Coker from denying Mr. Morenz's Medicaid application. Morenz v. Wilson-Coker, 321 F. Supp. 2d 398 (D. Conn. 2004). The court also ordered that Mr. Morenz's eligibility become effective three months prior to the court's decision. Ms. Wilson-Coker appealed, arguing in addition that the district court's order as to the effective date of Mr. Morenz's eligibility violated the Eleventh Amendment.

The United States Court of Appeals, Second Circuit, affirms. "[A]s the district court noted," the court writes, "the language of the [federal Medicaid] statute could not be less ambiguous. A community spouse's resources cannot be included in making an institutionalized spouse's initial eligibility determination if the institutionalized spouse has assigned support rights to the state or undue hardship is present." [emphasis in original] The court also rules that the district court correctly held that neither the statute nor Connecticut's own published regulations support Ms. Wilson-Coker's interpretation of the assignment statute. Finally, the court rules that the district court's order does not run afoul of the Eleventh Amendment.

Solve Disputes Between Families With Mediation

The stress of taking care of an elderly family member can tear families apart. Conflict can erupt between siblings or between an adult child and his or her parent. Siblings may disagree on who should have power of attorney, one sibling may feel that he or she is doing all the caregiving, or a parent and child may disagree about the best living situation for the parent. In these situations, mediation may be the solution.

Mediation allows all the parties to sit down and discuss the issues and try to come up with a solution that everyone can agree on. A mediator is a neutral third party who can help families come to a consensus on a number of family issues from estate planning to guardianship decisions to living arrangements.

Mediation is completely voluntary. For it to be effective, all relevant family members should be involved. You can also involve other professionals, such as a geriatric care manager, a family lawyer, or a financial planner. The mediator doesn't make any decisions and doesn't take sides. Instead, the mediator listens to the issues, keeps the family focused on the goals, encourages consideration of all the options, and helps clear up misunderstandings and address hurt feelings. Through this process, the family can come up with answers to problems or ways of solving conflicts. The idea is not to have a winner or loser, but to have a solution everyone is happy with.

To find a mediator, look in your local phone book or get a referral from the Association for Conflict Resolution.

Report Explodes Myth That Medicaid Transfers Are a Problem

A new report concludes that the practice among the elderly of transferring assets in order to qualify for Medicaid coverage of nursing home care is uncommon and that efforts to further restrict such transfers will have little effect on Medicaid spending.

The report, by the Georgetown University Long-Term Care Financing Project, comes at a time when the Bush administration and many governors and state legislators are calling for the tightening or elimination of rules that permit asset transfers by the elderly in order to qualify for Medicaid. Proponents of these changes claim that asset transfers are widespread and costly to Medicaid.

But the May 2005 Issue Brief, which reviews empirical evidence on asset transfers, finds no support for such claims. "The argument that something needs to be done about abuses of theMedicaid eligibility rules is not supported by the facts," concludes the paper's author Ellen O?Brien, who is a Research Associate Professor at the Georgetown University Health Policy Institute.

Contrary to critics? portrayal of the elderly as hiring estate planning lawyers to artificially impoverish themselves to qualify for Medicaid, the report finds "little evidence that large numbers of the elderly are planning their estates for the purpose of gaining easy access to Medicaid in the event they need nursing home care."

The report cites one study that found that less than a third of the middle-class elderly gave gifts to children or grandchildren of $500 or more, and that the typical gift was $2,000. The largest transfers were made by those who believed they had a low probability of entering a nursing home in the next five years.

"Audits of Medicaid applications," the paper goes on, "also reveal that only a small fraction of individuals who applied for Medicaid, and an even smaller share of those found eligible for Medicaid, transfer assets for the purpose of qualifying for free care under Medicaid."
Most of the elderly who may require nursing home care have too little wealth to warrant hiring an attorney to arrange an asset transfer, O'Brien says. Most would qualify for Medicaid at admission to a nursing home, although she notes that in part because of an aversion to "welfare," the elderly shoulder more of the costs of nursing home care than they have to.
While acknowledging that "some families try to protect modest assets (and, very infrequently, substantial assets) for future needs or for inheritances," O'Brien found that the overwhelming majority do not.

"The fact is," the report concludes, "that Medicaid is what it was intended to be, a safety net for those who cannot afford to pay for long-term care."

Doubt on the Need to Tighten Medicaid Transfer Laws

A new issue paper by the Kaiser Family Foundation finds that most elderly people do not have assets sufficient to finance a nursing home stay of one year or more. Furthermore, the paper reports that 84 percent of the elderly most likely to need nursing home care would exhaust their assets within one year in a nursing home.
The paper is noteworthy because it calls into question the assertion that Medicaid spending will be significantly reduced by lengthening Medicaid's look-back period for transfers beyond three years or otherwise tightening transfer rules. The Bush administration and many governors and state legislators are calling for such restrictions on rules that permit asset transfers by the elderly in order to qualify for Medicaid, claiming that large savings would result.
Under current Medicaid law, state Medicaid agencies may look only at transfers made during the three years preceding an application for Medicaid (or five years if the transfer was made to certain trusts). The Kaiser study finds that two-thirds of elderly people living in the community lack assets ? excluding the equity in their homes -- that would cover even the cost of one year of nursing home care (currently $70,000). Moreover, elderly individuals most at risk of entering a nursing home ? those who have no spouse and are older and have functional or cognitive limitations ? are even less likely to be able to afford a year of nursing home care. Among the few elderly who could cover three or more years of nursing home care ? and so presumably could take full advantage of Medicaid's asset transfer rules -- only 1 percent are at high risk of needing nursing home care.