Articles Tagged with new york elder law attorney

The Trump administration recently issued a directive to revoke the Temporary Protected Status (TPS) for tens of thousands of immigrants from poverty stricken countries living in the country, many of whom who have found roles in the home healthcare market. With the cost of in-home and assisted living facility growing every year, the change could potentially add to those costs and put seniors and the disabled in a more difficult financial situation.

Approximately 59,000 Haitians came to live in the United States after the 2010 earthquake which devastated the country. Nursing homes and in-home care providers are already reporting staffing shortfalls as immigrants who found employment in their sectors have returned home for fear of forced deportation after losing their legal status. Even despite the threat of deportation, many immigrants working in nursing homes and as in-home health aides do not stay long in these jobs as they find professions in much higher paying sectors of the economy.

In Boston, Massachusetts for example, some elder care providers are speaking out about the selfless, hard work that their immigrant employees living on TPS status perform for long hours and modest pay. With many coming from nations where the witnessed humanitarian crises and seek to give back as part of the aid they themselves received in their times of need.

The dream of Americans is to age with dignity and independence while enjoying their golden years with family and friends and avoiding the need for any type of long term institutionalized care. However, trends in aging show that more and more Americans these days are relying on some type of intermediate institutionalized care before eventually moving into a nursing home to receive the attentive services they need.

However, despite receiving an estimated $10 billion in federal funding from the Centers for Medicare and Medicaid Studies (CMS), states encounter little oversight from regulators over the quality of care residents receive. Furthermore, over half the states do not report “critical incidents” to the federal government that include unexplained deaths, abuse, neglect or financial exploitation. All of that is according to a recent report from the Government Accountability Office (GAO).

Advocacy group Justice for Aging issued its own response to the GAO report to highlight the lack of accountability from many states and facilities receiving CMS funding. The directing attorney for Justice in Aging went as far as to point out that even among the 22 states that do provide the federal government with data on critical incidents the information is hard for the public to obtain and may not even illuminating enough.

The U.S. Department of Justice recently announced hundreds of indictments against individuals engaged in often elaborate schemes to defraud hundreds of thousands of elders across the country. The Justice Department said in a statement that it levied charges against over 250 defendants for their roles that contributed to an estimated $500 million in total financial damages against victims.

“Today’s actions send a clear message: We will hold perpetrators of elder fraud schemes accountable wherever they are,” Attorney General Jeff Sessions said in announcing the charges at a press conference. The Department of Justice coordinated with dozens of federal and local agencies to make the arrests, including working with Federal Bureau of Investigations, the Federal Trade Commission and state attorneys generals.

The perpetrators of the scheme allegedly used everything from mass mailing system and telemarketing schemes to identity theft to commit financial crimes against some of the most vulnerable portions of the population. In the past several years, the Senate Aging Committee received thousands of calls from individuals complaining they were either victims or an attempted target of some type of elder fraud.

The Social Security Administration recently released a list of changes to take place in 2017, which included the cost of living adjustment that we discussed in a previous article, as well as a new earnings test limits for those older adults who continue to work but qualify for social security. While the cost of living adjustment came out to a roughly $50 a year increase, the other changes listed by the Administration have encouraged many of those who receive their monthly benefits.

The Earnings Test

In order to provide the most equal distribution based on need, the Social Security Administration has come up with a test in order to determine how much in benefits an individual should be allotted. The earnings test applies to those older adults who have not yet reached their full age of retirement, which is 66 years old, and who are still working. For those beneficiaries who attain full retirement age after 2017, they can claim exemption of earnings up to $16,920 a year, or roughly $1,410 a month.

The cost of living continues to grow every year, making it difficult for those who have saved for the future, but did not anticipate how dramatically their expenses would increase. Several of our previous posts have noted the concern that have been raised regarding our nation’s ability to cover the costs of our aging adults through Social Security, Medicare and Medicaid, however a recently released study by the Joint Center for Housing Studies at Harvard University further confirms those notions. The study found that there the current generation that has retired or is coming upon retirement is facing greater financial trouble, leading to a lack of accessible and adequate housing, a problem for a population that will double in size.

There are specific elements of housing that need to be considered for the aging population, including accessibility to entrances either by ramp or walk up, single floor housing, whether that is in an apartment or a home, as well as wider entrances and doorways and walk in bathroom units, that are compatible with the size of wheelchairs and healthcare devices. However, according to the Center, only 3.5% of homes right now currently adhere to these elements of architectural design that are critical to elders staying in their homes. While a simple fix that many may propose would be to renovate the home in order to make it accessible, these types of renovations cost thousands of dollars that many elderly individuals cannot allocate out of their budget.

In an effort to maintain their housing situation, some elderly individuals have decided to cut back on transportation, refilling medicine that may be critical to maintain their health, as well as cutting back on buying food. All of these consequences lead elders to seclude themselves, which can further exacerbate health problems. Up to 95% of informal care for elders being taken on by family members, thus, it is important for elders to continue to maintain those relationships and for family members to be able to access their elderly family member and provide assistance in a safe environment.

Medicare was established by the federal government as a way to provide health insurance for people 65 years old and above, as well as younger people with disabilities. This program provides coverage through a variety of different plans for different services, such as skilled nursing home care, hospice care, doctor visits, outpatient care, as well as prescription drug services. Depending on the plan covered under, Medicare will pay for a specific amount of counseling services, which now will also include end of life counseling services.

Roughly 25% of Medicare spending is done for beneficiaries in their last year of life, and with the largest number of older adults turning 65 years old a day in United States history, end of life planning is more important than ever. While many doctors consult their patients about their wishes as they near closer to the end of their life, Medicare now will cover end of life care and advance care planning. Supporters of the change think that this will now allow doctors and other medical professionals to spend the time necessary with the patient to make these advance plans and have important conversations, since they are able to also bill for that time.

Currently only 17% of adults say they have had end of life discussions with their doctor or health care provider, but majority said they would want to have one. As of January 1, 2016, the Center for Medicare and Medicaid Services regulations for advance care planning will be in effect and directly cover costs instead of partially reimbursing any planning discussed. It will be billed to Medicare at $85 for the first 30 minutes to meet regarding explanation of advance directives and standard forms, and $75 for every 30 minutes thereafter. Medicare is currently working to establish a national final fee schedule for the counseling, and expects the Medicare administrative contractors to assist with that process for claims.

Planning how your assets are going to be distributed and for your health care needs is an important tool all adults, not just elders should utilize. However, over 60% of Americans have not made a basic will. There are many misconceptions about estate planning and the reasons for it, which has led many Americans to shy away from the process.

Common Mistakes & Misconceptions

  1. Estate planning is for the elderly or the wealthy. Determining how you want your property distributed or what you would like to happen to you in the event you can no longer speak for yourself are tasks everyone needs to think about. Even the most simple finances can become complicated when there are multiple parties involved.

NEED FOR UPDATED ESTATE PLANNING WHEN ONE SPOUSE GOES INTO NURSING HOME

When one spouse goes into a nursing home, there is a good chance that he/she is using to pay for their care. That means that the community spouse will have to live survive on certain income thresholds determined by Medicaid. There are also asset limits that are allowed under Medicaid. Estate planning can allow for a middle class family to have one spouse qualify for Medicaid through such legal mechanisms as spousal refusal, which is only allowed in a few states, New York being one of them. These asset and income thresholds presuppose that there is one spouse in a nursing home and the other in the community.

If the spouse in the nursing home passes away, there may be some legal effect on the community spouse, depending on what means based programs he/she qualifies for. They may also receive Medicaid but only receive community based care or any number of other programs, such as the veterans aid and attendance program. On the other hand, if the community spouse passes away first, there will be a much greater chance that the spouse in the nursing home will risk losing their Medicaid benefits or have that additional income provide for the medical care of the spouse in the nursing home and the assets liquidated. The retirement account, the family home any life insurance proceeds from the community spouse’s passing as well as any investments or valuable personal property owned by the community spouse. All of this may be quite contrary to the estate plans that both spouses had. They would have rather left their nest egg to their children and grandchildren rather than have it pay for a Medicaid lien.

IN HOME PERSONAL ASSISTANTS

If you already have New York Medicaid you may be eligible for managed long term care or in home care by a licensed Managed Long Term Care Agency (often simply referred to as MLTC). The animating thought is to ensure that older adults can remain in their home and community rather than in a nursing home. The menu of options available to eligible New York state residents is actually quite extensive. In fact, there is even the option of hiring and training your own personal assistant, know as Consumer Directed Personal Assistance Program.

Traditionally, they could not live with you and you cannot hire your own spouse, parent, son-in-law, son, daughter-in-law or daughter, although they can be grandchildren, neices or nephews or any other relative for that matter. That requirement is changing in April, 2016. There is an exception that allows your personal assistant to live in your home if the amount of care required by the patient makes it necessary. That means that parents (usually of a disabled child), children, grandchildren or sons and daughters in law may reside in the home and care for the patient and get paid for it. You are also required to hire and train an alternate for when the primary care assistant is unable to come to your home because of vacation or need for sick time.

LEADING COMPLAINT ABOUT NURSING HOME IS EVICTIONS

On February 25, 2016 National Public Radio (NPR) ran a story about what is looking to become like a national epidemic: nursing home evictions. According to statistics between 8,000 and 9,000 nursing home residents complain each year about nursing home evictions. The problem with this statistic is that it only measures the complaints, not the actual evictions. As if not being able to measure the full extent of the actual problem is not enough, there is a larger, more grievous issue wrapped up in the issue of nursing home evictions. According to the ombudsman to the Federal Department of Health and Human Services, Administration on Aging, it is the number one complaint regarding nursing facilities. In many cases the nursing home wrongfully evicted the resident(s) but will not honor rulings that find that the nursing home wrongfully evicted the resident. The entity that decides if a facility wrongfully evicts a resident is not the same entity to enforce its own decision. Without a sister state agency to enforce its decision (much like one state honoring a sister state’s money judgment on full faith and credit), such legal endeavors by residents are simply an exercise in futility. The rulings are not worth the paper they are printed on. It is a prime example of a bureaucracy run amok; without teeth to enforce its own ruling. One can and should rightfully ask, why do the agencies even bother to engage in a hearing to only allow the offending party to blithely ignore its ruling?

FEDERAL CASE TO FORCE CALIFORNIA TO ACT

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