Articles Posted in NY Elder Law

Advocating for better long-term care is not just a concern of NY elder law attorneys. Policymakers at all levels and of all political persuasions are also keenly aware of the impact that the growing need for long-term care will have on communities nationwide.

There are few challenges more acute than figuring out how to ensure adequate senior care for all community members. As most know, we are on the cusp of a “gray wave” with demographics changes requiring an increased commitment to skilled care and assistance for seniors. The need extends to all facets of elder care, from ensuring there are enough physical spaces for those in need to coming up with ways to pay for the care.

Federal LTC Commission

Elder law issues are complex and comprehensive. Many attorneys practice exclusively in this area, because the legal issues facing the nation’s growing number of seniors are very unique, encompassing many different matters, including securing healthcare, at-home support, inheritance planning, and more.

Unfortunately, some try to use generic shortcuts to handle some of these matters, instead of creating comprehensive plans that take different issues into account. For example, some many that adding a child’s name onto a bank account or having a single Power of Attorney drafted are enough to solve any issues that might arise.

Examples continue to mount, however, illustrating how these shortcuts can cause serious problems. That is particularly true when disagreements arise between family members who were given various power and control over the affairs of the senior.

New conflict of interest claims are being made against a powerful New York State Senate leader related to nursing home legislation and operation. The situation presents troubling issues of undue influence, and it is also a good example of the complex relationships in the state which ultimately dictate rules and regulations regarding NY long-term care.

The Allegations

The New York Daily News reported on concerns that state Senator Jeffrey Klein may have acted improperly when he involved himself in issues affecting New York nursing home care in Albany while at the same time sitting on the Board of Directors for a Bronx nursing home. The BOD position was not paid, but the Senator did receive over $71,000 in campaign contributions from the nursing home industry. Troublingly, Klein did not disclose his relationship with the Bronx nursing home, Morningside House, on required disclosure forms.

If stereotypes are to be believed, all living arrangements outside of the home are mired in neglect, confusion, and unhappiness. Virtually no one claims that they want to move into a nursing home or assisted living facility, and many assume that leaving one’s house is only done at the last possible minute and often under duress.

This sort of generalizing about the “horrors” of senior care facilities is often misplaced. There are certainly many low-quality homes and individual residents who despise their living situation. But that is not at all to say that every facility–or even a majority–are like that. The truth is that there are many homes that allow residents to thrive, providing support so that their daily lives are more fulfilled than before, when they lived in their own home (often alone) and without necessary assistance with day to day tasks.

On that topic, a recent New York Times “New Old Age” blog post provides some interesting first-person discussion with one of the nation’s “foremost advocate for people living in assisted living,” Martin Bayne.

Reuters published a story this week on the latest audit of the New York Medicaid system which has given leverage to those hoping to use financial worry to trim the system and the state budget overall.

We have previously discussed the audit by the Centers for Medicare and Medicaid Services which found that the federal government overpaid the state by billions of dollars in recent years. The actual audit is still not yet complete, but federal officials are set to conclude by the end of this month. It is only then that the full scope of the situation will be known and the effect considered. The story notes how the overpayment may ultimately wreck havoc on the state’s financial health just as some were hoping things were finally settling down.

All of this has placed a pall over the current work in Albany where legislators are working to approve the state’s next budget–around $140 billion.

Last year federal legislation was passed affecting elder care issues. In particular, the new law eliminated a floundering attempt to create a national long-term care insurance program. At the same time, the law also called for the creation of a commission to study issues of senior care financing, delivery, and workforce needs. Known as the “Long-Term Care Commission,” the general idea was that the diverse Commission would investigate the issues, create policy proposals, and submit the ideas to Congress to spur possible legislation.

The Status Update

Unfortunately, as a recent Forbes story shares, the Commission is still in dock and there are serious doubts as to whether it will be able to achieve its mission at all. The first issue is that the slate of 15 people to sit on the panel have yet to be decided upon. Apparently the White House has yet to make its three choices, and nothing can be done until the roster is actually complete.

ElderCare Locator recently released a helpful new brochure that offers basic (but important) reminders about the need to be vigilant to prevent senior financial exploitation. The guide provides information about the scope of the problem, information on what to do if you suspect financial abuse, and prevention tips. You can download your own copy of the guide by clicking this link.

The Scope of the Problem

Getting accurate information of the significance of the problem is notoriously difficult. The vast majority of these incidents are never reported. In fact, one study found that even seniors who did report the misconduct, later denied ever having been victimized by financial exploitation in follow-up surveys. There remains a cloud of embarrassment, confusion, and shame surrounding these issues. That is unfortunate. The more discussion about these issues between family members, the more likely we are to tackle the problem.

Elder justice issues are slowing making their way into the 21st century. The New York City Elder Abuse Center (NYCEAC) is launching a new social media initiative to raise awareness of elder justice issues throughout the city. The effort is being done in conjunction with other NY public agencies, non-profit organizations, and advocacy groups. The idea is that the joint push on social media channels offers the best chance at influencing public consciousness so that these senior justice issues become part of local conversations. Basic negligence prevention, abuse elimination, and senior exploitation identification are at the root of the initiative.

Sadly, our NY elder law attorneys know that so many issues of senior injustice fly under the radar. Countless seniors are not living their best lives in their golden years because they are not receiving adequate care–in nursing homes, assisted living facilities, or even at home. In fact, studies continue to show that most misconduct actually occurs at the hands of those on whom the seniors should be able to trust–including friends and family members. Of course this does not mean that seniors should suddenly be suspicious of all those involved in their care. But it is a helpful reminder of the logic in seniors taking matters into their own hands to set up long-term care plans that meet their needs down the road.

What is the NYCEAC?

Last week the New York Times discussed changes in the nursing home industry that may affect how some local residents conduct elder care planning. In a time when nursing home care is becoming more expensive–and Medicare and Medicaid funding shrinks–many facilities are experimenting with at-home models of care. Our New York elder law attorneys understand that the nursing home is a rarely the location that seniors would prefer to age if they had a choice. Now, however, many health care experts and senior advocates are joining the call and explaining that nursing homes are rarely medically necessary or financially smart.

Instead, more and more resources are being put into advances in home care. Instead of living in an institutional-like facility, the new model essentially uses traveling doctors, social workers and therapists to provide care at the senior’s home or adult day-care centers. An at-home senior care program run by CenterLight Health System in New York City now has over 2,500 participating residents. New York State Medicaid program director Jason Helgerson explained that in the past the state “was institutionalizing service for people, many of whom didn’t need 24-hour nursing care. If a person can get a service like home health care or Meals on Wheels, they can stay in an apartment and thrive in that environment, and it’s a lower cost to taxpayers.” It is no surprise then that the state of New York plans to shift upwards of 80,000 Medicaid participants into at-home, managed care models over the next three years.

The Archdiocese of New York–one of the state’s largest nursing home providers–recently announced a shift away from nursing home ownership. In the announcement, Cardinal Timothy Dolan explained, “Seniors and others who have chronic health needs should not have to give up their homes and independence just to get the medical care and other attention they need to live safely and comfortably.”

Laws change. Elder law and estate planning strategies change. But the basic principles surrounding inheritance planning, disability planning, and preparing for one’s golden years have been around for centuries. In a soon to be released book from Harvard University Press entitled Someday All of This Will be Yours: A History of Inheritance and Old Age, author Dick Hartog takes a look at some of those timeless principles that have involved elder law and estate planning over the years.

A recent book review summarized the text by noting that Hartog (a legal historian) examines how “ordinary men and woman arranged for their own care as they aged, and then how their alleged caretakers attempted to use the law to make good on these arrangements.” Of course our New York elder law attorneys are immediately drawn to these sorts of topics as helping local families make these arrangements is a large part of our practice today. The new Hartog book looks at dozens of elder law cases over the years and “closely, carefully, and painstakingly examines these cases for what they show about changing patterns in care for the elderly, parent-child relations, [and] the tensions between family and commodification.” The book discusses how these issues have changed or not changed over the years.

While the principles have likely remained unchanged the strategies to carry out wishes has undoubtedly shifted in recent decades. For example, Hartog discusses how in many circumstances elderly parents convinced children to provide the caretaking they needed with promises (sometimes legally enforceable, sometimes not) that family assets would be passed to them so long as the care was satisfactory. He explains that the core inducement of providing such care was the understanding that a family farm, home, bank account, or other asset would be passed to the child in exchange for the child providing the help that the elder needed with tasks like cooking, cleaning, nursing, or even just companionship. Hartog also discusses how elder law attorneys have gotten involved over the years to help seniors, particularly when those previous promises are not fulfilled.

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