By Suzanne Levy, co-authored Jamison Levy

​The Americans with Disabilities Act (ADA) is a broad-sweeping federal law designed to eliminate discrimination towards those with disabilities. Notably, the ADA doesn’t specifically address polling places, but Title II of the ADA requires equal voting rights for those with disabilities. “The Help America Vote Act of 2002 (HAVA) requires jurisdictions responsible for conducting federal elections to provide at least one accessible voting system for persons with disabilities at each polling place in federal elections.  According to the U.S. Department of Justice in their article “The Americans with Disabilities Act and Other Federal Laws Protecting the Rights of Voters with Disabilities” states that “The accessible voting system must provide the same opportunity for access and participation, including privacy and independence, that other voters receive.” (Sept 2014).

Notwithstanding these requirements, new trends in voting laws over the last couple of years have created discriminatory practices towards those with disabilities issues; this includes adults who are at a higher risk of being disabled. Those with these challenges often use non-traditional methods to cast their votes: mail-in ballots, ballot drop-boxes, curbside voting, or requesting the help of another at the voting booth. Altering these methods is often the focus of these new laws. The Brennan Center for Justice states that “Between January 1 and December 7 [2021], at least 19 states passed 34 laws restricting access to voting. More than 440 bills with provisions that restrict voting access have been introduced in 49 states in the 2021 legislative sessions.”

Among the most damaging is the new law in Texas, in effect since December 2021. In Texas, voters who mail in their ballots must now provide their driver’s license number on the ballot or the last four digits of their social security number if they do not have a driver’s license. That number provided must match the same number that was provided when they first registered to vote. According to the ABC News Article by White House Correspondent Rachel Scott, “Thirty percent of mail-in ballots were rejected or marked for rejected in Harris County, which includes Houston, when the law first went into effect. After the county gave voters like Gaskin the opportunity to correct the problem, the number lowered to a 13.45% rejection rate. (February 21, 2022)

In addition, the new Texas law has requirements for assistants at the polling location. The voting assistant must now sign a form containing their information and take an oath. There are now criminal penalties if the assistant helps the voter in any way that was unauthorized. These additional requirements will likely deter people from assisting those with disabilities when voting. The Texas law further limits voting by banning 24-hour voting and drive-through voting and adding provisions to bolster the authorities of poll watchers.

Georgia’s S.B. 202 is similar to Texas in that it too modifies the rules regarding absentee ballots. The old law allowed an absentee ballot to be requested up to 180 days before the election. Under the new law, that timeframe is decreased to 78 days and cuts off the ability to request such ballots at 11 days before election day. Absentee voters must now include their driver’s license number on the ballot. Georgia’s new law also limits the number of available drop boxes.
​
Alabama is not dissimilar as there is now a ban on curbside voting with all ballots and voting machines remaining inside the polling place. 

While it is understandable that legislatures want to make voting more secure and fair, the concern is how are these laws being balanced with the needs of those who are disabled and providing them “...the same opportunity for access and participation, including privacy and independence, that other voters receive.” See Article, “The Americans with Disabilities Act and Other Federal Laws Protecting the Rights of Voters with Disabilities” (Sept. 2014).

For a list of all the recent bills and laws involving these issues, click here.

  ​     Undue Influence occurs when someone pressures another in such a way that the person being influenced is not acting by their own free will; they are being coerced into taking a certain action that they would have not otherwise agreed to. Essentially, the person being influenced does not understand the repercussions of their actions.
The responsibility of recognizing undue influence can be observed by many – lawyers, financial advisors, notaries, bankers, and family members. Due to the nature of undue influence, it is often carried out by someone close (bad actor) to the decedent and kept hidden from others. Undue influence often happens when someone is of ill and whose mental and physical abilities are deteriorating. The bad actor will take advantage of the ill person, and unduly influence them into taking actions to benefit the bad actor, at the expense of loved ones.
        The issue of undue influence was recently litigated in Malousek v. Meyer. Here, we have Molly and Greg who began cohabitating in 2009. In 2015, Molly was diagnosed with cancer and began treatments. By 2017, her health had drastically deteriorated. In mid-October of 2017, the pair added Greg as a joint owner on Molly’s bank accounts, changed beneficiary designations in Greg’s favor, got married, and executed a quitclaim deed in order to have the home transfer to Greg upon Molly’s death. In addition, Molly executed a power of attorney naming Greg’s son, Mark, as agent.
By October 23, Molly passed away. Her adult children, A.J. and Courtney, filed a declaratory judgment action seeking to have all the property interest changes reversed and the marriage annulled. Their reasoning was that Molly lacked capacity to make these decisions, she had previously indicated that she did not want to get married and did not want Greg or Mark as beneficiaries, and thus was the victim of undue influence. The district court found in favor of A.J. and Courtney, declaring that the marriage was annulled and ordered that the property be conveyed to Molly’s estate. Greg and Mark appealed.
The instant case is out of the Nebraska Supreme Court. The court reviewed the evidence in the case. Plaintiffs’ arguments and evidence were as follows:
·       In 2010, Molly began wearing a ring that she had bought and told friends and family it was a commitment ring but that she did not want to ever get married again.
·       Mark eventually lived with Molly and Greg and several witnesses testified that Molly would routinely complain about having to financially support Mark.
·       Witnesses also testified that Molly complained that Greg spent too much of her money on alcohol, sometimes buying friends rounds of drinks and expecting her to pay for it.
·       Further testimony stated that in 2013, Greg asked to be included on the home’s deed and Molly told him no.
·       Molly was quoted as saying that Greg was “leeching” or “mooching” off of her.
·       Friends testified that Molly had stated, as late as August 2017, that she was thinking about leaving Greg $50,000 but nothing else.
·       In June 2017, Molly contacted her attorney to draw up both healthcare and financial powers of attorney, naming A.J. as agent. Molly made statements to her attorney that she did not need further estate planning because since she was single her assets would pass to her children, which is what she wanted.
·       Molly’s nail technician, who had done her nails every 3 weeks for years, testified that on September 14, 2017, Greg’s sister drove Molly to the appointment. The nail technician testified that Molly appeared frustrated with Greg’s sister and Molly told Greg’s sister to “Give me a break. Let me breathe.” The sister would also ask the nail technician what Molly had talked about during the session.
·       Near the end, friend and family couldn’t get in touch with Molly via phone. Greg would always answer and says Molly was unavailable or sleeping. Greg did not mention the marriage to any of Molly’s friends or family.
·       On October 10, 2017, Greg’s best friend came to the house and at that time, Molly did not recognize him.
·       The bank manager who assisted with adding Greg’s name to the accounts testified that Molly appeared sick and “couldn’t even walk” and that Greg was “holding her up”. Upon request, Greg refused to let the bank manager and Molly talk alone. Greg held Molly’s hand to help her sign the necessary documentation.
The Defendants’ arguments and evidence were as follows:
·       When Molly executed new beneficiary designation forms, Molly’s financial advisor and attorney were present. They both testified that Molly led the conversation and stated that she wanted to leave a certain amount to her children and to leave two residences to Greg. The attorney told Molly that if Greg’s names were on the deeds, he would have to pay inheritance taxes when Molly passed, if the two were not married. Molly supposedly replied “Then we’ll get married.”
·       The wedding officiant testified that he had a conversation alone with Molly before the ceremony and she appeared coherent and that the occasion was a happy one.
·       The notary who acknowledged the quitclaim deed and powers of attorney testified that Molly appeared to be coherent and uncoerced.
·       Greg produced evidence from Molly’s physician that stated Molly was oriented at her appointments between late 2016 and October 19, 2017, save the October 18 appointment where she was incoherent.
The court quoted Miller v Westwood and gave the elements of proving a claim of undue influence: “(1) that the person who executed the instrument was subject to undue influence, (2) that there was opportunity to exercise undue influence, (3) that there was a disposition to exercise undue influence for an improper purpose, and (4) that the result was clearly the effect of such undue influence.” The court further went on to state that undue influence is sometimes difficult to prove with direct evidence and other factors may need to be inferred.
In the end, the Supreme Court ruled for Molly’s children. The court stated that as Molly’s health deteriorated, there was a sequence of events carried out to transfer her property to Greg, it was done in secret, contact with Molly’s friend and family was controlled, and the effect of the transactions was contrary to her prior stated wishes. Importantly, the Supreme Court noted that witness credibility is an issue for the trier of fact, giving the district court deference since that court had the opportunity to observe and question the witnesses. The district court obviously found the Plaintiffs’ witnesses to be more credible than those called by the Defendants.
There are a few lessons from this case. The first is to plan early, while still healthy. This way, the likelihood of an argument for undue influence can be decreased. The second lesson is that practitioners need to be aware of undue influence and have a procedure to analyze each case for its presence. Talk to clients and their families about undue influence and the warning signs. Finally, it might be best to encourage clients to talk on their friends and family about their estate plan, so everyone is aware and on the same page before the client’s death

Due process, as guaranteed by the 5th Amendment, states that the federal government must treat each person fairly and apply the same rules to everyone. Due process applies to the states via the 14thAmendment. Procedural due process dictates that there must be a procedure for processing claims and each person is entitled to the same consideration at each step of the procedure. Certain steps must be followed in each case, regardless of who the claimant is.
Medicaid applications must be processed in a certain manner and applicants are afforded specific rights. Federal law requires:
·       that the state agency grants an opportunity for fair hearing to an individual who believes the state has taken incorrect action or the individual has had an application denied (see 42 C.F.R. § 431.220(a));
·       that the state provides notice of any required hearing (see 42 C.F.R. § 431.206(b)); and
·       that “[a] clear statement of the specific reasons supporting the intended action” be given in the event of adverse action (see 42 C.F.R. § 431.206(c)(2) and 42 C.F.R. § 431.210(b)).
But when does the applicant have appeal rights? Is it every time the state issues a notice? This issue was recently litigated in Illinois.
In this case, Alberta resided in a nursing home and filed an application for Medicaid benefits. The state requested certain documentation, but Alberta never supplied it. As a consequence, Alberta’s application was denied. Five days after the denial, Alberta requested that the state reopen the case and she submitted the appropriate documentation. The state denied Alberta’s request to reopen the case; Alberta filed suit.
The fair hearing determination was that Alberta was not entitled to an appeal on the notice to not reopen the case. Alberta appealed; the trial court affirmed the state’s decision. Alberta again appealed, arguing that the denial didn’t align with the requirements under the law and denied her due process.
Alberta’s first argument was that the denial to reopen the Medicaid application case did not comply with federal requirements. Alberta argued that the denial notice did not give a “clear statement” explaining why her application was denied. Even though the appeals court ruled that Alberta forfeited the argument because it was not brought up at earlier proceedings, the court noted that her argument lacked merit. The appeals court explained that the clear statement was required so that the applicant can verify the basis of the agency’s decision and then make an informed decision regarding whether to file an appeal. In this case, even though a clear statement was not given, Alberta was otherwise adequately informed why her application was denied. Prior correspondence to her stated exactly what was needed and informed Alberta that if the required documentation was not given that her application would be denied. Indeed, Alberta did supply the information after the deadline, thus indicating she knew what was required.
Albert’s second argument was that the Medicaid denial denied her due process. Alberta argued that she should have been able to appeal the denial to reopen her case, as it was a disposition of her application. The state argued that the denial to reopen the case was not a new decision. Rather, it was “a refusal to make a new determination.” The state cited Your Home Visiting Nurse Services, Inc. v. Shalala, 525 U.S. 449 (1999) and the court found this case applicable and persuasive.
In the end, the appeals court found that a decision not to reopen a case is not a disposition of the application or a subsequent decision regarding the applicant’s eligibility. Instead, it is a determination that the applicant failed to meet the stated requirements to process the application. Thus, there are no appeal rights to the decision not to reopen a case and due process was not denied for failing to give such appeal rights. The court stated: “the relevant authority requiring ‘notice of disposition of the application’ and a hearing following a ‘subsequent decision regarding eligibility’ does not define the scope of judicial review but only the scope of review the Department is required to provide.” (See 42 C.F.R. § 431.220(a)(1)(i).).

Now, the question is whether this decision effects a subsequent Medicaid application?
 

​Florida Community Property Trust Act. On July 1, 2021, the Community Property Trust Act became effective in Florida, a separate property state, potentially providing substantial tax benefits to married couples. Under Internal Revenue Code § 1014(b)(6), when a spouse owning community property dies, the basis of both the deceased spouse’s and the surviving spouse’s 50 percent shares of the property is adjusted to the fair market value of the property at the date of the decedent spouse’s death. In contrast, under a separate property regime, only the half owned by the decedent spouse receives the stepped-up basis, meaning that if the asset is transferred during the living spouse’s lifetime, higher taxes will be owed. Some commentators have raised doubts about whether the Internal Revenue Service will allow a full step up in basis at the death of one spouse for assets held in a community property trust for individuals who do not live in a community property state.
A community property trust established under the new law would allow Florida residents and others, regardless of domicile, who establish Florida community property trusts to benefit from these tax advantages, as the property owned by the trust and the appreciation of and income from the property are deemed to be community property. Under the new statute, the community property trust must

• expressly declare that the trust is a community property trust within the meaning of the statute,
• have at least one trustee who is a qualified trustee (either spouse or both spouses if they are Florida residents or a trust company registered in Florida),
• be signed by both settlor spouses with the formalities required for the execution of a trust, and
• contain cautionary language at the beginning of the trust agreement set forth in the statute warning of the consequences of the formation of the trust and recommending consultation with separate counsel for each spouse if either of them has questions.

Another benefit of the Florida community property trust over community property trusts in most other states in which they are available is that an obligation owed solely by one settlor spouse may only be satisfied from that spouse’s one-half share of the community property trust unless otherwise provided in the trust agreement. 

When someone is unable to manage his or her own affairs, a guardian or conservator may be appointed. The person who is unable to manage his or her affairs is termed the ward. A person appointed to protect the ward’s health and well-being is a guardian; a person appointed to protect the ward’s financial affairs is a conservator.
A guardian is responsible for making sure the ward is healthy and safe. But what happens when the ward disagrees with the guardian’s decisions regarding who the ward can interact with? A recent case in Minnesota sheds some light on this topic.
In this case, Margaret was the ward. Her daughter, Tammy, was her guardian. Tammy attempted to obtain a harassment restraining order (HRO), on Margaret’s behalf, against Richard. Richard and Margaret had known each other for some ten years, having a romantic relationship on and off during that time. Tammy contended that Richard and Margaret’s relationship involved drugs and alcohol, that Richard had made Margaret suicidal, and that Margaret was fearful and grinded her teeth due to the stress brought on by Richard.
Margaret objected to the HRO, stating that she wanted the visits from Richard. Margaret obtained her own representation in the matter. Her attorney argued to the court that Margaret’s guardian could not deny Margaret the “right to visit with persons of her choice as guaranteed under the bill of rights”, pointing to Minn. Stat. § 524.5-120(10):
524.5-120 BILL OF RIGHTS FOR PERSONS SUBJECT TO GUARDIANSHIP OR CONSERVATORSHIP.
The person subject to guardianship or person subject to conservatorship retains all rights not restricted by court order and these rights must be enforced by the court. These rights include the right to:
(1) treatment with dignity and respect;
(2) due consideration of current and previously stated personal desires and preferences, including but not limited to medical treatment preferences, cultural practices, religious beliefs, and other preferences and opinions in decisions made by the guardian or conservator;
(3) participate in decision making about and receive timely and appropriate health care and medical treatment that does not violate known preferences or conscientious, religious, or moral beliefs of the person subject to guardianship or person subject to conservatorship;
(4) exercise control of all aspects of life unless delegated specifically to the guardian or conservator by court order;
(5) guardianship or conservatorship services individually suited to the conditions and needs of the person subject to guardianship or the person subject to conservatorship;
(6) petition the court to prevent or initiate a change in abode;
(7) care, comfort, social and recreational needs, employment and employment supports, training, education, habilitation, and rehabilitation care and services, within available resources;
(8) be consulted concerning, and to decide to the extent possible, the reasonable care and disposition of the clothing, furniture, vehicles, and other personal property and effects of the person subject to guardianship or person subject to conservatorship, to object to the disposition of personal property and effects, and to petition the court for a review of the guardian's or conservator's proposed disposition;
(9) personal privacy;
(10) communicate, visit, or interact with others, including receiving visitors or making or receiving telephone calls, personal mail, or electronic communications including through social media, or participating in social activities, unless the guardian has good cause to believe restriction is necessary because interaction with the person poses a risk of significant physical, psychological, or financial harm to the person subject to guardianship, and there is no other means to avoid the significant harm. In all cases, the guardian shall provide written notice of the restrictions imposed to the court, to the person subject to guardianship, and to the person subject to restrictions. The person subject to guardianship or the person subject to restrictions may petition the court to remove or modify the restrictions;
(11) marry and procreate, unless court approval is required;
(12) elect or object to sterilization as provided in section 524.5-313, paragraph (c), clause (4), item (iv);
(13) at any time, petition the court for termination or modification of the guardianship or conservatorship, and any decisions made by the guardian or conservator in relation to powers granted, or for other appropriate relief;
(14) be represented by an attorney in any proceeding or for the purpose of petitioning the court;
(15) vote, unless restricted by the court;
(16) be consulted concerning, and make decisions to the extent possible, about personal image and name, unless restricted by the court; and
(17) execute a health care directive, including both health care instructions and the appointment of a health care agent, if the court has not granted a guardian any of the powers or duties under section 524.5-313, paragraph (c), clause (1), (2), or (4). 
(emphasis added)
The district court granted the HRO against Richard; Richard appealed. The appeals court reversed, stating that the district court didn’t adequately consider Margaret’s rights, as outlined in her bill of rights, when determining the matter. The appeals court explicitly stated that “courts have an affirmative duty in any proceeding involving a person subject to guardianship to examine the bill of rights, determine the rights retained by the person in question, and enforce those retained rights.”
Indeed, the bill of rights issue or argument doesn’t have to be raised by any party —the court should automatically consider the ward’s rights in such cases. As such, the case was remanded for further consideration.

Beware of Senior Scams!
     There are many, many good people in the world.  Some strangers would give you the shirt off their back, folks who volunteer their time to help others in need, and those who hold the door open for you as you are entering a store.  Especially in our tumultuous times, it is important to be kind and generous to our fellow neighbors.  However, with the good must come the bad.  There are scammers out there who prey on various populations, usually ones who are more vulnerable.  Beware of senior scams!
What are some senior scams to be aware of?
     The ne’er-do well must somehow get in contact with you in order to scam you.  This would usually be via telephone or the internet, but it can also be in-person contact.
  ​1. Watch out for fake Facebook friends. The Better Business Bureau reported that a government grant scam is prevalent on Facebook.[1]  The scammer makes a fake Facebook profile that looks like it belongs to a friend of yours.  The “friend” sends a message to you stating that the “friend” received a government grant of some sort.  Of course, to receive the government grant, you must make an initial investment or pay an application fee. 

• Don’t believe every Facebook profile is real, even ones that look like they belong to a real-life friend.  
• All legitimate federal grants are listed on www.grants.gov.
• Government agencies will not communicate with you via social media. 

   2.  Watch out for scam emails, fake pop-ups, and fake bank transfers.Some scammers will send out an email stating that you have a virus or other malware on your computer. In one instance[2], the victim was contacted by a company called Premium Tech Support to clean up his computer. The victim was quoted a price of $599, which he paid. The company subsequently told him they accidentally deposited almost $80,000 into the victim’s bank account and asked for the money back. The victim transferred the funds back to the company, only to realize that the initial transfer of funds from the company into the victim’s bank account was phony.
 
     In another instance[3], the senior had a pop-up window appear on their computer that informed them they had a virus. The pop-up asked for the senior to contact customer support to fix the issue. Once the senior called customer support, a representative took control over the victim’s computer to remove the non-existent virus. Paying to remove the non-existent virus was one part of the scam, but then the scammer also had access to sensitive information.  

• Do some research to ensure you are working with a reputable business.  
• If you think there has been a banking error of some sort, contact the bank to determine the real facts.
• Don’t give a third-party access to your computer unless you know for sure it is customer support from a company that you contacted. 

 
   3. Watch out for home repair scams Home repair scams can come in many forms.  The first thing a scammer can do is quote you one cheaper price for work and then demand much more after it is finished. Another way the scammer can operate is to do repairs that you never requested or agreed to. Or, the scammer can impersonate a building inspector and demand immediate repairs. Some scammers will up their fear game by telling you that they will put a lien on your home if you don’t agree to what they offer.     

• If a stranger comes to your home seeking to do repairs, tell them you want to get other estimates. This will give you time to see if the company is whom they say they are. Legitimate companies shouldn’t have a problem with you getting other estimates.
• If you aren’t interested in the product or service, then don’t feel bad saying no. It is your choice!
• If you tell the scammer “no,” then they will oftentimes try to throw in a last-minute “deal.” Please, don’t fall for it!

 
   4. Watch out for romance scams Seniors are vulnerable to loneliness, especially in light of COVID-19 restrictions.  Since you may not be able to go to the places you would normally go to meet people, you may turn to the internet to find companionship. And there are many legitimate websites to find love! However, some scammers will create fake dating profiles and try to lure you into a relationship.  Then, the scammer can ask for money, sensitive banking information, or gift cards.  
 
    In one instance[4], the scammer talked the senior into doing an illegal act.  The senior went to China to meet her paramour, whom she had met online.  He was mysteriously unavailable to meet when she arrived, but some of his “friends” asked her to take a backpack full of the paramour’s clothing back to Australia. The backpack contained drugs, unbeknownst to the senior. After taking the backpack through airport security, she was arrested and sentenced to death.  

• Don’t rush into any relationship.
• If the person cannot be available to video chat, they may not be who they say they are.
• Do an internet search of the individual’s name and profile pictures.  
• If an in-person meeting occurs, do so in a public place.
• Definitely don’t send any money to someone unless you are confident it isn’t a scam. 

 
Why don’t seniors report being scammed?
Unfortunately, many senior scams go unreported.  Between 2 and 3 million seniors get scammed every year.[5]  However, on average, only 1 in 44 cases is reported.[6]  But why?  One reason is that many seniors are embarrassed that they were scammed. They think that others will think them unfit and may even “put them in a home.”  Another reason financial exploitation isn’t reported is the perpetrator is a family member, and the senior doesn’t want to see them get in trouble.  
Where can you go for help?
If you or a loved one thinks they have been the victim of a scam, there are ways to get help.  You can call your local police department or call 1-800-677-1116 to reach the Eldercare Locator. This government-sponsored national resource line helps folks find contact information for Adult Protective Services in their area. Here are some more resources to keep handy:
FBI’s Internet Crime Complaint Center
Federal Trade Commission
National Institute of Justice
National Adult Protective Services Association


[1] https://www.bbb.org/globalassets/local-bbbs/cleveland-oh-78/cleveland_oh_78/senior-alerts/government-grant-scammers-using-your-friends-facebook-profiles.pdf

[2] https://www.bbb.org/globalassets/local-bbbs/cleveland-oh-78/cleveland_oh_78/senior-alerts/brook-park-man-loses-$80000-in-tech-support-scam.pdf

[3] https://www.bbb.org/globalassets/local-bbbs/cleveland-oh-78/cleveland_oh_78/senior-alerts/fraudsters-charged-in-$10-million-tech-support-scheme.pdf

[4] https://www.bbb.org/globalassets/local-bbbs/cleveland-oh-78/cleveland_oh_78/senior-alerts/from-love-to-jail_-romance-scams-and-money-mules.pdf

[5] https://ajph.aphapublications.org/doi/abs/10.2105/AJPH.2017.303821

[6] https://www.napsa-now.org/get-informed/exploitation-resources/
​

​Copied from
http://www.wnylc.com/health/news/85/#lookback

Because the Public Health Emergency due to the Pandemic was extended the State Department of Health on January 21, 2021, the look-back period for Community Medicaid has likely been extended to July 1, 2021.

• The State Dept of Health unofficially informed the NYS Bar Association today that the new "lookback" is not likely to be implemented until July 1, 2021.  This is because of protections enacted under the FFCRA Families First Cares Act,  which prohibits states from  restricting eligibility until the quarter following the end of the Public Health Emergency (PHE).  The Public Health Emergency  was just  extended  on Jan. 21, 2021, for 3 months to April  21, 2021.   Therefore, NYS cannot begin requiring the lookback and imposing transfer penalties until the following quarter, which begins July 1, 2021.
• Once the lookback is implemented, assets transferred since Oct. 1, 2020 will still be subject to the lookback.   If the extension to July 1st is confirmed,  if someone transferred assets after Oct. 1, 2020, they have extra time until July 1, 2021 to submit an application seeking eligibility for home care or the Assisted Living Program, with no lookback or transfer penalty.  Check back to this website for news to see if this extension is confirmed.  

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.[1]  Elder abuse can come in many forms.  According to the National Center for Victims of Crime[2], the breakdown of types of complaints about elder abuse is as follows:

• 28% – Physical abuse
• 22% – Resident-on-resident abuse (physical or sexual)
• 19% – Psychological abuse
• 15% – Gross neglect
• 8% – Sexual abuse
• 8% – Financial exploitation

How can you better ensure your loved one isn't suffering from these types of abuse at a trusted care facility? Most folks have probably heard of a nanny cam – a camera set up to see how the babysitter treats your kids while you are away.But in recent years, granny cams have also become popular. This is a camera that is set up in your loved one's room at the nursing home or assisted living facility.Knowing what's going on behind closed doors could give the senior's family and friends peace of mind.  But are granny cams legal? If so, are there any requirements that you provide the nursing home notice that the camera is there? Are there any concerns about granny cams? 
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:

• Privacy – Cameras can serve as a deterrent to abuse or evidence of mistreatment. But you are also spying on your loved one in vulnerable or embarrassing moments. Even if your family member consents, their roommate may not. Being videotaped while working also takes a toll on morale and retention of caregivers.
  
  
• Liability – Owners, administrators and insurers of elder care facilities have little incentive to allow cameras inside patient rooms. A video recording is more likely to provide evidence of abuse or neglect than it is to disprove bogus lawsuits. If the recording accidentally captures another resident or reveals certain medical treatments, it could violate the HIPAA regulations on disclosing patient data.

What does New York law say about granny cams?
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:

• Inform the facility you are setting up the camera. Some facilities expressly forbid granny cams.
• Obtain the written consent of any roommates.
• Post a sign indicating to staff and visitors that the room is under video surveillance. The mere presence of a camera is a powerful deterrent.

If you are denied permission, the other option is to notify the facility and contact state authorities if you suspect abuse. Nursing homes are mandated to report and investigate complaints, and law enforcement may authorize surveillance to catch the offenders in the fact.
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?  

• Make friends with the staff.  If you treat them well and they care for you, they may be apt to go the extra mile for your loved one.
• Let the staff know what type of care your loved one needs.  Make sure they know what your standards are.
• Talk with administrators about their hiring and employee retention policies.  Are criminal background checks conducted on an ongoing basis?  What certifications or educational requirements do staff have?  
• Visit often and at various times.  If the staff knows you may pop in at any minute, they'll be on their toes! Can't visit due to COVID-19?  Make phone or Zoom calls, or visit a resident by going to their window.
• Communicate with your loved one.  Ask them a specific question about their care and property.  Let them know they can always come to you with concerns.  
• Talk with other residents if they are willing.  What do they notice going on at the facility? Do they have any concerns about the staff?

With the use of technology continually on the rise, the usage of granny cams likely won't be quelled anytime soon.  In fact, more states will likely put laws on the books to address their use.  And who knows what technology the years to come will bring –possibly better surveillance technology with enhanced security.  Hopefully, this means better care for seniors in care facilities.  Cameras are just one tool against elder abuse
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.

 
 
Sources:  
https://www.heraldmailmedia.com/news/nation/granny-cam-footage-allowed-under-georgia-supreme-court-ruling/article_fb36c59a-d14c-5b33-8244-ee7bc09d90c9.html
https://www.nursinghomeabuse.org/nursing-home-abuse/statistics/
https://victimsofcrime.org/
https://www.carrcarr.com/granny-cam-laws-seek-to-protect-against-elder-abuse/
https://health.usnews.com/health-care/for-better/articles/should-you-use-a-granny-cam-to-monitor-a-loved-ones-care
https://www.mprnews.org/story/2019/08/01/minnesotas-new-granny-cam-law-takes-effect-on-thursday  
https://seniorjustice.com/new-jersey-provides-free-nanny-cameras-nursing-home-residents/
https://www.sakkascahn.com/blog/2019/01/new-york-law-neither-authorizes-nor-prohibits-granny-cams.shtml

[1] https://www.nursinghomeabuse.org/nursing-home-abuse/statistics/

[2] https://victimsofcrime.org/
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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.