When your loved one enters a nursing home or assisted living center, you expect them to be safe. You expect them to get the care they need in a peaceful environment. But do you ever wonder what happens when you aren't there? Do you wonder if their care declines when no one is looking? Especially in light of the visiting restrictions and the inevitable increased stress of staff that COVID-19 has imputed upon residential care facilities, do you worry about your loved one's care?
Indeed, around 5 million nursing home residents are abused each year. Elder abuse can come in many forms. According to the National Center for Victims of Crime, the breakdown of types of complaints about elder abuse is as follows:
One concern with granny cams is privacy. This entails the resident's privacy that is subject to the granny cam and the confidentiality of any other residents in the room. Would you want your every move in your residence recorded? Does having a granny cam ruin or distort the intended home-like atmosphere of the facility? Knowing that they are continually being recorded may make some residents feel uncomfortable or stressed.
Another concern is the security of the footage. Undoubtedly, private and vulnerable moments are captured on video, like a resident dressing or completing personal hygiene tasks. What are the responsibilities of the owner of such footage? Can it be stored for a period of time? Also, the video feed must be protected from hackers. Imagine the horror of seeing your loved one's private footage online or exploited!
The obvious benefit to having a granny cam installed is that you can monitor for abuse or crimes. Is the resident getting the care they need and deserve? Are their valuables safe? The footage from granny cams can be invaluable in prosecuting violations. You can also watch the footage for cues on how to make your senior healthier or more comfortable, such as watching for bad sleep patterns or noticing your loved one doesn't enjoy visits from a particular neighbor.
Granny cams are a legal minefield
Hidden cameras are perfectly legal in the privacy of your own home. You can monitor your kids after school or spy on your child care provider (“nannycam”). But it’s a different story in a nursing home or assisted living center. There are two main issues with cameras in elder care facilities:
Ten states have passed laws that authorize spouses and families to put videocams in the rooms of nursing home/assisted living patients. New York does not specifically legalize or ban granny cams.
New York is a one-party consent state for wiretap laws. Secret recordings are legal as long as least one of the parties is in the know. But that only applies to phone calls or audio recordings, not hidden cameras. Which leaves granny cams in limbo.
If you do decide to install a camera in your loved one’s room, it might be wise to:
As there is no federal law banning or allowing granny cams, some states have laws on the books regarding their use, such as Illinois, Kansas, Louisiana, New Jersey, New Mexico, Maryland, Oklahoma, Texas, Utah, Virginia, and Washington. Minnesota was the latest to join the group; their law became effective as of January 1, 2020.
The new Minnesota law dictates that a family member can install a granny cam in a loved one's room at a nursing home or assisted living facility. However, consent must be obtained from any other residents living in the room, and the nursing home must be notified that the camera is there within two weeks of installation. Finally, signs must be posted in the facility indicating that electronic monitoring may be occurring. The Minnesota law came on the heels of a case involving the use of a granny cam. A resident's family installed the camera, and the facility objected to its use. The Minnesota Department of Health subsequently ruled that the facility must allow the installation of the video camera.
The Kansas granny cam law is more liberal, as it applies not only to nursing homes but to all "adult care homes", which includes nursing homes, care facilities for mental health, intermediate care facilities for those with intellectual disabilities, residential health facilities, boarding care homes, assisted living facilities, and adult daycare businesses.
Recently, granny cams were litigated in Georgia. In late December 2020, in the Dempsey case, the Supreme Court of Georgia ruled that a hidden granny cam was legal, and the footage could be used in the criminal case against the resident's caregivers. In this case, a WWII Veteran was residing in a nursing home when he told his son that "strange things" were happening. The son installed the granny cam inside of a clock radio.The camera recorded some horrendous events. The nursing home staff failed to respond to repeated calls from the Veteran's help call button. The Veteran kept exclaiming that he could not breathe; he subsequently died. The staff was criminally charged and objected to the granny cam footage being used as evidence, as they did not consent to the granny cam being installed.
Georgia has a law that says you can't record another person's activities in a private place unless there is consent. However, the Georgia Supreme Court said that the case fell into an exception to the law: the law allows recordings by those who own or occupy the property. Since the Veteran had the legal right to occupy his part of the room, he could record that area without the consent of the caregivers. The granny cam, in this case, led to a caregiver being charged with felony murder.
New Jersey believes in the use of granny cams so much they will allow you to borrow one for free! The Safe Care Cam Program was instituted in 2017 and was initially established for camera use for in-home health care. It became so popular, the program expanded to include nursing homes and assisted living facilities. Former New Jersey Attorney General Chris Porrino stated, "At a time when the home healthcare industry is experiencing explosive growth, and the issue of patient abuse has become a national concern, New Jersey must do everything it can to ensure the safety of its most vulnerable citizens – the elderly and disabled."
Suppose a state doesn't have a statute explicitly authorizing the use of granny cams, and the act of recording doesn't fall into an exception to another related law. In that case, it may be a crime to install the granny cam in a resident's room. Granny cams could violate nudity laws, privacy laws, wiretapping and electronic surveillance laws, or HIPAA laws. It is important to know your actions are legal before taking steps to install a granny cam. This is why it is vital to consult an elder law attorney.
What are some other ways, besides installing a granny cam, to better protect your beloved senior while they are residing in a care facility?
Not all abuse is captured on tape. It often occurs in bathrooms or other areas of the nursing home, away from security cameras. The best way to keep tabs on your loved one is to visit them frequently (but at random times) and to be vigilant for any change in their appearance, health or demeanor.
If your loved one shows signs of physical abuse, sexual assault or medical neglect – with or without video evidence -- talk to an Elder Law attorney about the possible solutions.
The Levy Law Firm is pleased to report the reversal of an adverse determination by Archcare, an MLTC, authorized to provide Home Health Aide Services.
The facts of the case are that my client's Home Health Care service were reduced on the alleged ground that "the service is not medically necessary". The services were reduced from 12 hours/day of personal care and 3 hours/day of cluster care for a total of 15 hours/day, to only 6 hours/day of cluster care. This reduction was drastic and very detrimental to the well-being of the client.
Arlene Glotzer, the client's Daily Money Manager, contacted the Firm to oppose the unfair decision and strongly advocated for her client.
During the Fair Hearing, Archcare failed to support it's position and the Firm supported the client's claim with an expert report, negating Archcare's position.
The Decision and Order by the State of New York Department of Health, Commissioner's Designee, on 7/31/2020 completely reversed the adverse determination, reinstated ALL the Home Health Care services, effective within 10 days of receipt of the Order.
"And we're going to get through it because we are New York, and because we've dealt with a lot of things, and because we are smart. You have to be smart to make it in New York. And we are resourceful, and we are showing how resourceful we are. And because we are united, and when you are united, there is nothing you can't do. And because we are New York tough. We are tough. You have to be tough. This place makes you tough. But it makes you tough in a good way. We're going to make it because I love New York, and I love New York because New York loves you. "New York loves all of you. Black and white and brown and Asian and short and tall and gay and straight. New York loves everyone. That's why I love New York. It always has, it always will. And at the end of the day, my friends, even if it is a long day, and this is a long day, love wins. Always. And it will win again through this virus. Thank you."
Most people prepared with an abundance of toilet paper and hand sanitizer to manage the Covid-19 crisis, but many people have not protected their health care and financial actions/decisions with a Health Care Proxy and Power of Attorney. These documents should be executed before crisis strikes so that the correct health care and financial decisions can be made, in the event you are unable to act.
Under Executive Order 202.7, these documents can be executed using audio-video technology through April 18, 2020.
I can email a copy of the Executive Order if you would like a copy. Please email me at firstname.lastname@example.org
No one likes to think about the possibility of their own disability or the disability of a loved one. However, as the statistics below demonstrate, we should all plan for at least a temporary disability. This article examines the eye-opening statistics surrounding disability and some of the common disability planning options. Disability planning is one area where we can give each and every person and family we work with great comfort in knowing that, if they or a loved one becomes disabled, they will be prepared.
Most Individuals Will Face At Least a Temporary Disability
Study after study confirms that nearly everyone will face at least a temporary disability sometime during their lifetime. More specifically, one in three Americans will face at least a 90-day disability before reaching age 65 and, according to the definitive study in this area, depending upon their ages, up to 44% of Americans will face a disability of up to 4.7 years. On the whole, Americans are up to 3.5 times more likely to become disabled than die in any given year.
In raw numbers, over 37 million Americans, or roughly 12% of the total population, are classified as disabled according to the 2010 census. Perhaps surprisingly, more than 50% of those disabled Americans are in their working years, from 18-64. For example, in December 2012, according to the Social Security Administration more than 2.5 million disabled workers in their 20s, 30s, and 40s received SSDI (i.e., disability) benefits.
Many Persons Will Face a Long Term Disability
Unfortunately, for many Americans the disability will not be short-lived. According to the 2007 National Home and Hospice Care Survey, conducted by the Centers for Disease Control's National Center for Health Statistics, over 1.46 million Americans received long term home health care services at any given time in 2007 (the most recent year this information is available). Three-fourths of these patients received skilled care, the highest level of in-home care, and 51% needed help with at least one "activity of daily living" (such as eating, bathing, getting dressed, or the kind of care needed for a severe cognitive impairment like Alzheimer's disease). The average length of service was more than 300 days, and 69% of in-home patients were 65 years of age or older. Patient age is particularly important as more Americans live past age 65. The U.S. Department of Health and Human Services Administration on Aging tells us that Americans over 65 are increasing at an impressive rate:
The Department of Health and Human Services also estimates that 9 million Americans over age 65 will need long term care this year. That number is expected to increase to 12 million by 2020. The Department also estimates that 70% of all persons age 65 or older will need some type of long term care services during their lifetime.
The Council for Disability Awareness provides startling examples of how disability is likely to impact “typical” Americans.
“A typical female, age 35, 5’4", 125 pounds, non-smoker, who works mostly an office job, with some outdoor physical responsibilities, and who leads a healthy lifestyle has the following risks:
The Alzheimer's Factor
Alzheimer's is growing at an alarming rate. Alzheimer's increased by 46.1% as a cause of death between 2000 and 2006, while causes of death from prostate cancer, breast cancer, heart disease and HIV all declined during that same time period.
The 2015 Alzheimer's Association annual report titled, “Alzheimer's Disease Facts and Figures” explores different types of dementia, causes and risk factors, and the cost involved in providing health care, among other areas. This report contains some eye-opening statistics:
Spouses who are caregivers for the other spouse with Alzheimer's or other dementia are at greater risk for emergency room visits due to their health deteriorating as the result of providing care. A study mentioned in the 2010 Alzheimer's Association report found that caregivers of spouses who were hospitalized for dementia were more likely than caregivers of spouses who were hospitalized for other diseases to die in the following year.
Receiving care. According to the National Nursing Home Survey 2004 Study, the most recent of its kind, the national average length of stay for nursing home residents is 835 days, with over 56% of nursing home residents staying at least one year. Significantly, only 19% are discharged in less than three months. Those residents who were married or living with a partner at the time of admission had a significantly shorter average stay than those who were widowed, divorced or never married. Likewise, those who lived with a family member prior to admission also had a shorter average stay than those who lived alone prior to admission.
While a relatively small number (1.56 million) and percentage (4.5%) of the 65+ population lived in nursing homes in 2000, the percentage increased dramatically with age, ranging from 1.1% for persons 65-74 years to 4.7% for persons 75-84 years and 18.2% for persons 85+. According to the U.S. Census Bureau, 68% of nursing home residents were women, and only 16% of all residents were under the age of 65. The median age of residents was 83 years.
See Vol. 4 Issue 5 of the Elder Counselor, The Affordable Care Act: How It Impacts Our Senior Population, for a discussion of the Affordable Care Act’s Impact on information regarding nursing homes.
Long Term Care Costs Can Be Staggering
Not only will many individuals and families face prolonged long term care, in-home care and nursing home costs continue to rise. According to the Genworth 2015 Cost of Care Survey, Assisted Living, Adult Day Services, and Home Care Costs national averages for long term care costs are as follows:
Most Americans Underestimate the Risk
Perhaps most importantly, despite overwhelming and compelling statistics; most Americans grossly
underestimate the risk of disability to themselves and to their loved ones. According to the Council on Disability Awareness 2010 survey:
Given the high costs of care, this underestimation often leaves Americans ill prepared to pay for the costs of long term care.
Long Term Care Insurance May Cover These Costs
If a parent, their spouse, or family member needs long term care, the cost could easily deplete and/or extinguish the family's hard-earned assets. Alternatively, seniors (or their families) can pay for long term care completely or in part through long term care insurance.
Most long term care insurance plans let the individual choose the amount of the coverage she wants, as well as how and where she can use her benefits. A comprehensive plan includes benefits for all levels of care, custodial to skilled. Clients can receive care in a variety of settings, including the person's home, assisted living facilities, adult day care centers or hospice facilities.
Planning in the Event Long Term Care Insurance is Unavailable or Insufficient
Unfortunately, many older Americans will either be medically ineligible for long term care insurance or unable to afford the premiums. In that event, more aggressive planning should be considered as early as possible to make sure life savings are not depleted as a result of having to pay out-of-pocket for care. With the help of an elder law attorney, a plan can be created that will protect much of the assets of an individual or couple that would otherwise be at risk of being depleted.
All Planning Should Thoroughly Address Disability
When a person becomes disabled; he or she is often unable to make personal and/or financial decisions. If the disabled person cannot make these decisions, someone must have the legal authority to do so. Otherwise, the family must apply to the court for appointment of a guardian over the person or property, or both. Those who are old enough to remember the public guardianship proceedings for Groucho Marx recognize the need to avoid a guardianship proceeding if at all possible.
At a minimum, seniors need broad powers of attorney that will allow agents to handle all of their property upon disability, as well as the appointment of a decision-maker for health care decisions (the name of the legal document varies by state, but all accomplish the same thing). Alternatively, a fully funded revocable trust can ensure that the senior's person and property will be cared for as desired, pursuant to the highest duty under the law - that of a trustee.
The above discussion outlines the minimum planning everyone, including seniors and their loved ones, should consider in preparation for a possible disability. It is imperative that families work with a team of professional advisors (legal, medical and financial) to ensure that, in light of their unique goals and objectives, their planning addresses all aspects of a potential disability. Our firm is dedicated to helping seniors and their loved ones work through these issues and implement sound legal planning to address them. If we can help in any way, please don’t hesitate to contact our office.
To comply with the U.S. Treasury regulations, we must inform you that (i) any U.S. federal tax advice contained in this newsletter was not intended or written to be used, and cannot be used, by any person for the purpose of avoiding U.S. federal tax penalties that may be imposed on such person and (ii) each taxpayer should seek advice from their tax advisor based on the taxpayer's particular circumstances.
Contact the Levy Law Firm to learn about the changes to the net worth limitation, look back period and penalty period in connection with applying for the VA pension.
Announcing the LEVY LAW FIRM Manhattan location in the historical Woolworth Building located at 233 Broadway, New York, NY 10279
April 26, 2018 was a beautiful day for the Annual Hot Sauce party sponsored by the Atria, Nothing Forgotten and Senior Helpers, on the rooftop of the NYC Atria on 86th Street, overlooking the Hudson. In attendance were elder care professionals such as Comfort Keepers, Humana, Right at Home and Alliance Homecare, among many more elder professionals, too numerous to mention. The party was an opportunity to enjoy the elusive spring sun and to discuss the daily challenges elder professionals face. One such challenge that faces the Levy Law Firm is educating clients how Trusts are an effective elder planning tool. There are twelve main reasons why Trusts should be considered for anyone who is interested in creating or updating his or her Trust as follows:
The Dutch Train Elders how to Fall. https://www.nytimes.com/2018/01/02/world/europe/netherlands-falling-elderly.html
The Ethics of Medicaid Planning is on Par with Claiming Income Tax Deductions; Both are Responsible Strategies to Preserve Assets.
While mingling with Orion colleagues on the Atria 86 rooftop with other Elder Planning Professionals on July 20th, I was reminded of the important work we do for our clients who engage us to help them preserve their assets. There was a sense of relief among us that the Affordable Care Act, which includes Medicaid benefits, is safe for now. However, Medicaid is under attack lately by groups that mostly consist of business owners and corporations that deduct business expenses and losses from profits on their income tax returns to preserve their assets. But just as deductions are a legitimate income tax strategy, so is Medicaid planning to preserve assets.
Judge Learned Hand, a New York Court of Appeals Judge, held in Helvering v. Gregory, that "Any one may arrange his [or her] affairs so that his [or her] taxes shall be as low as possible; he [or she] is not bound to choose that pattern which best pays the treasury; there is not even a patriotic duty to increase one's taxes.” Helvering v. Gregory, 69 F.2d 809 at 810. (2d Cir. 1934). Additionally, Judge Hand's dissent in Commissioner v. Newman although not probative, is frequently referred to in support of not voluntarily paying taxes by admonishing that “Over and over again courts have said that there is nothing sinister in so arranging one's affairs as to keep taxes as low as possible. Everybody does so, rich or poor; and all do right, for nobody owes any public duty to pay more than the law demands: taxes are enforced exactions, not voluntary contributions. To demand more in the name of morals is mere cant.” Commissioner of Internal Revenue v. Newman, 159 F.2d 848 at 851 (2d Cir. 1947).
Based on the principals set forth above it is clear that everyone has a responsibility to "arrang[e] one's affairs" so that his or her taxes are as low as possible whether they are "rich or poor". Helvering at 810, Newman at 851. Morals and ethics are not a consideration. Since this is true, Medicaid planning can be applied in this context and is on par with income tax planning.
The July 22, 2017 NYT article by Ron Lieber, “The Ethics of Adjusting your Assets to Qualify for Medicaid”, questions whether it is ethical to preserve ones assets by using strategies qualifying oneself for Medicaid. However, planning to become eligible for Medicaid is no less ethical than when businesses owners or corporations claim tax deductions such as losses and capital improvements on their income tax returns to preserve assets; both burden taxpayers. While planning to avoid paying income taxes and planning for Medicaid are not completely analogous, the outcomes have the same result. Both concepts ethically “arrang[e] one affairs” to his or her personal advantage to preserve assets, but cause funds to be diverted from the tax base, thus causing a further burden on taxpayers. Id. at 810.
Since the ethics of the above case law is applicable to Medicaid planning, perhaps Mr. Lieber’s next NYT article will pose the question regarding whether the U.S. has a moral and ethical responsibility to provide care for our seniors and disabled people who medically qualify for Medicaid. I have first hand experience as an Elder Planning attorney and as a frequently appointed Court Evaluator for Article 81, NY Mental Hygiene cases regarding care for these people, who are among the most vulnerable in our society. It is difficult when they have family to assist them with planning. It becomes a crisis when seniors and disabled people are “orphaned” and have no one to advocate for them. Often times these orphaned people are treated as throwaways. As an advanced society, do we have a moral and ethical duty to care for these people?