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 effect 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
Friends, NYS enacted S.8427/A10528,to provide additional benefits for the families of public employees who contracted COVID-19 and died of COVID-19 during the course of their employment, and for retired persons who returned to aid in pandemic, from March 2020-May 2020.
This package is based on the fact that despite the dangers of this pandemic, many municipal workers continued to provide critical services to New Yorkers. Their commitment to the communities that they serve led to many being exposed to COVID-19, with some members tragically passing away. While nothing can ever take away the pain caused by the loss of a loved one, this legislation is intended to help their families with needed expenses.
The Levy Law & Mediation Firm, P.C. is currently assisting such families receive these benefits.
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).
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. 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.
In another instance, 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.
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.
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, 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.
Why don’t seniors report being scammed?
Unfortunately, many senior scams go unreported. Between 2 and 3 million seniors get scammed every year. However, on average, only 1 in 44 cases is reported. 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
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.
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
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