Justice in Aging’s 2015 Resource manual educates consumers about nursing home practices

Justice in Aging  is a national nonprofit agency which advocates for seniors and pursues litigation involving unlawful practices that affect large classes of the population who are aged or have disabilities. I have previously written about nursing home practices in this space and am glad to tell you that the 2015 updated guidebook  20 Common Nursing Home Problems and How to Resolve Them published by Justice in Aging  on this topic is now available  online.  When you are monitoring the care of your loved on in any nursing home, it is vital that you stay informed about the law and the practical strategies for addressing problems as they arise. Nursing home residents have many rights that are protected by law, and zealous advocacy will help ensure that those rights are protected.

Contact us for legal advice when you are involved in selecting a nursing home, changing your loved one’s facility or advocating on care plan issues for a loved one who needs nursing home care … 732-382-6070

Techniques of Behavioral Analysis can be useful in avoiding threatened discharge from a nursing home

If you are the advocate for a loved one in a nursing home, whether that’s your spouse, parent or other person, you might encounter this problem. Your loved one suffers from dementia, confusion, and limited ability to express themselves in a coherent manner. You visit them frequently and you find that the staff are beginning to complain to you that they are developing “behavioral problems” and may have to be transferred to a facility that can handle the psychiatrically-disturbed dementia patient. You want them to remain where they are, in the environment they have adapted to, close to the people who need to visit them regularly. This situation calls for vigorous advocacy.

The federal Nursing Home Reform Law limits the grounds on which a nursing home can involuntarily discharge the patient. So does New jersey law at N.J.S.A. 30:13-6 and N.J.A.C. 10:63-1.10(g)(2).  njac833h   These grounds are:

  • The transfer or discharge is necessary to meet the resident’s welfare, and the resident’s welfare cannot be met in the facility;
  • The transfer or discharge is appropriate the resident’s health has improved sufficiently so that resident no longer needs the services provided by the facility;
  • The safety of individuals in the facility is endangered;
  • The health of individuals in the facility would otherwise be endangered;
  • The resident has failed, after reasonable and appropriate notice, to pay (or to have paid under Medicaid or Medicare on the resident’s behalf) for a stay at the facility
  • The facility ceases to operate.

42 U.S.C. §§1395i-3(c)(2)(A), 1396r(c)(2)(A); 42 C.F.R. §483.12(a)(2).

In this situation, you may be told that the resident’s aberrant behavior, outbursts, flailing, hostility or agitation are endangering the safety of others, or that their welfare cannot be met in the facility. First, go to the facility ahead of time and study the chart. See if there are entries that document the alleged behavioral problems. These might be recorded in nursing notes as well as in a physician’s progress notes. There are also “incident reports” for situations that rise to that level.

Contact the Social Worker and ask that a family meeting be scheduled which includes the representatives of social work, recreation, nursing, and dietary, and if required, the doctor. Remind the team that under federal law,  42 USC 1395i-(3)(A), ” A skilled nursing facility must conduct a comprehensive, accurate, standardized, reproducible assessment of each resident’s functional capacity, which assessment— (i) describes the resident’s capability to perform daily life functions and significant impairments in functional capacity. …”  , and I suggest that you raise the following questions.

First, you want to get detailed explanations of the alleged behavior and discuss possible causes that need to be addressed. What was your individualized assessment at time of admission? How did you intend to address each of those issues in the initial individualized plan of care? What is in the most recent assessment? Are there any documented incident reports? What  problems have you documented? If they are not documented, why not? Has the patient been evaluated by a psychologist? What medications are being prescribed, and can the change in behavior be attributed to adverse reactions to medication? Have you consulted with the attending physician about this? Has a pain assessment been done? Can the agitation be related to oral discomfort from dentures or infection, or other bodily pain?  Are you relying on a PRN prescription for pain relief with a patient who cannot communicate effectively that they are in pain?

Then there are opportunities to apply techniques of behavioral analysis to address the problem. While this field may be better known with respect to developmental disabilities such as autism than regards elder care, it seems to me that we have much to learn from behavioral analysis strategies. Ask the staff: have you identified specific triggers for the reaction/agitation/behavior? What can you do differently that will avoid triggering the reaction? How can you approach the patient differently? What activity can be avoided to prevent the adverse reaction? Should music be added to his program? Should tactile activity such as simple crafts, clay or crayoning be added? Creative advocacy is often the key to solution of problems in a nursing home setting. If all else fails, one may have to resort to the courts, but there are plenty of opportunities before you reach that point.

Learn more about Behavior Analysis at http://www.abacnj.com/webinar-workshops/;http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2078575/; and Behavior Analysis and dementia  .

 

For legal advice, advocacy, and representation at care planning and elder care asset preservation planning, call us at … 732-382-6070

Bank had no duty to protect aged customer against suspected scam

New Jersey enacted a statute in 1998 that enables banks to release certain information to law enforcement concerning their customers’ accounts when they suspect that the customer may be the victim of illegal schemes such as scams, fraud or elder abuse.  It was deemed important to provide immunity from liability for such a release, in cases where the information was relevant to actual or suspected illegal activities with accounts owned by senior citizens and vulnerable adults. The underlying concern had been the risk of liability for violation of the customer’s privacy rights. Click here to read the preamble and the first three sections of the Act, N.J.S.A. 17:16T-1 to 4.NJSA 17.16T-1

NJSA 117.16T-2   NJSA 17.16T-3 Release to law enforcement agencies or county adult protective services    NJSA 17.16T-4 Liability of financial institutions officers agents or employees

A new Appellate Division published (precedential) decision called Lucca-v-Wells Fargo  addressed the question of whether the statute just described above gives the bank has an affirmative duty to report a series of transactions by an elderly customer to the authorities for investigation. The case involved an 82 year old customer who wired a total of $330,000 to unknown persons who had persuaded her to repeatedly send them money. She did not know their identities. 23 transfers were involved, and although the bank’s personnel had suspicions about what was going on, the bank did not report the situation to either adult protective services or law enforcement. There was no finding of bad faith on the part of the bank. However, the court held that the statute did not impose an affirmative duty to report. The statute was held to have a specific focus — immunity from liability. In the absence of mandatory reporting obligations, the bank could not be held liable for the failure to report. Although some states do have mandatory reporting of suspected fraud, abuse and neglect of the elderly and vulnerable adults, New Jersey’s reporting is voluntary. MandatoryReportingProvisionsChart.authcheckdam

For a fascinating story about  vigorous prosecution in a case of elder abuse, and ideas and innovations in law enforcement efforts to deal with these hidden abuses, read the spring 2014 issue of Experience Magazine, published by the ABA (American Bar Association) Senior Lawyer Division, click here: called “The Case for Specialized prosecutors.”

Call us for legal advice and representation and strategies to protect vulnerable adults whom you are concerned about …………..732-382-6070

Bank may owe no duty to third parties unhappy with an IRA’s beneficiary designation

As discussed in previous posts, the beneficiary designation on an asset presumptively controls its disposition if the account-owner dies. Beneficiary designations are typically used on IRAs, 401Ks, annuities and life insurance policies, but sometimes people choose to place beneficiary designations on their bank accounts, CDs or brokerage accounts. Disputes may arise when the decedent’s children from his first marriage discover after his death that he named his second spouse, and not his children, as the beneficiaries of his IRA accounts. A recent “unpublished” decision (meaning, it is not precedential or binding on other courts) by the New Jersey Superior Court, Appellate Division, addressed this question in a case called  Estate of Pauli v. Wachovia Bank NA, App. Div. The deceased man’s daughters sued Wachovia Bank, and alleged that in the process of assisting Mr. Pauli to prepare his IRA forms, the bank personnel were negligent, breached their fiduciary duty to him, breached a contract between  him and the bank, and committed consumer fraud. There had been conversation between the daughter(s) and the bank in which the bank had erroneously informed her/them that the daughters were the beneficiaries. Estate of Pauli vs Wachovia.

The case was tried before a jury. All of the claims were dismissed by the trial court at the close of the plaintiffs’ case except the claim for breach of contract. The jury then deliberated on whether the bank breached a contract it had with its customer. The jury was also charged to decide whether the bank should be liable under a doctrine called “promissory estoppel,” which requires the plaintiffs to prove that certain promises were made and that the plaintiffs relied upon those promises or representations by changing their position “to their detriment.” If the plaintiffs had proved these elements, the court could bar or “estop” the bank from failing to fulfill the “promise.” The jury found that there was no breach of contract, but that the plaintiff had proved the elements of promissory estoppel. The Appellate Court sustained all of the dismissals and the finding of no breach of contract, and reversed the jury finding of promissory estoppel because there was no proof that the plaintiffs had changed their position in detrimental reliance on the misrepresentation that they were actually the beneficiaries.

The lesson of the case is that (1) it can be difficult to overturn a beneficiary designation unless it can be shown that the situation involved fraud, duress, undue influence, mistake, or incapacity at the time the designation was made, and (2) the written document generally supersedes intentions that were thought about but never acted upon. Of course, every case is fact-sensitive, and the precise facts and evidence in a different situation could lead to a different outcome.

 

For legal advice on elder estate planning including the coordination of beneficiary designations call … 732-382-6070

 

 

NJ Medicaid raises the spousal monthly maintenance allowance

Effective July 1, the State of New Jersey Division of Medical Assistance and health Services (DMAHS) has raised the Minimum Monthly Maintenance Allowance (MMMNA) for the spouse of a person who is on Medicaid. For residents of nursing homes, the general rule is that all of the resident’s income must be turned over to the facility as a cost-share, except for authorized deductions which include support of a spouse if the spouse’s own income is less than the Maintenance Allowance. The NJ MMMNA is now $1,991.25. The relevant regulation is N.J.A.C. 10:71-5.7, and here is the new MedCom No. 15-09, dated July 1m 2015.

15-09_2015_Community_Spousal_Maintenance_Allowance

In calculating the amount of this spousal support deduction, an excess shelter allowance is provided if shelter costs are in excess of $597.38. Also, if the spouse pays for utilities, a utility allowance of $491.00 per month is added to the base MMMNA.

Typically, these calculations are not done until after the applicant has been found to be resource-eligible (“after the spend-down”). This does not mean that all the excess assets have to be spent on the nursing home, and there are techniques available that preserve substantial assets for support of the spouse. Also, in some cases, the combined income of the spouses will not be enough to provide the spousal support amount. There is a special regulation for those cases, in which the community spouse can keep more assets than usual because the income is too low. You need to address these issues with your elder law attorney at the earliest possible time, well before you embark on a spend-down.

Call us for legal advice and assistance with Medicaid eligibility and asset protection, as well as applications and appeals … 732-382-6070