Caregiving

Arbitration and Nursing Home Contracts

Published on: October 12, 2016 | by Ettinger Law Firm

In continued efforts to protect the rights of elders, The Department of Health and Human Services has passed a rule to further ensure that elders are not taken advantage of and have the right to decide whether they seek a trial or alternative dispute resolution measures when bringing a legal claim. Currently, a majority of nursing home contracts contain arbitration clauses in the event that a residents bring a claim against the nursing home for incidents such as safety, quality of care, sexual harassment, elder abuse, as well as wrongful death.

Arbitration is a method of alternative dispute resolution that is used as a way to settle a legal claim instead of using litigation. Arbitration involves both parties and a third party neutral arbitrator, who listens to both sides present their case, similar to a judge, and renders a decision after both sides are heard. While arbitration can be a very useful and effective legal tool, the implementation of mandatory arbitration has left room for abuse of the system and injustice for residents and their families who seek legal recourse when bringing their claim. One benefit of arbitration is that it is also a private process; unlike legal proceedings, arbitration proceedings and their rulings will not be made public record, which makes it more difficult to measure rates concerning legal claims brought by elders against nursing homes.

Currently, there are roughly 1.5 million elders in nursing homes who are said to be affected as a result of this rule change, and this number will continue to grow. There may be some confusion regarding the applicability of this new rule however; the rule will only apply to new nursing home contracts that are entered into going forward. Those nursing home contracts already existing that contain a mandatory arbitration clause will be enforceable under the Federal Arbitration Act, according to the Center for Medicare & Medicaid Services. Additionally, a nursing home and potential resident can enter into a contract for arbitration if they wish, but it will not be mandatory in their contract.

The Emergency Preparedness Rule

Published on: September 29, 2016 | by Ettinger Law Firm

The Centers for Medicare and Medicaid Services finalized a rule recently in light of the most recent natural disasters in Louisiana that compromised the safety and well being of many Medicare and Medicaid beneficiaries throughout the affected area. Unfortunately, this rule came as a direct response not only to the devastating natural disasters we have experienced within the last decade, but the man made disasters as well, including terrorist attacks and health care scares. The rule was established in order to provider coordination for federal, estate, tribal, regional and local systems, that will now be required to comply with a unified system of emergency preparedness.

The need for additional support was realized when several patients who received treatment covered under Medicare or Medicaid were not able to obtain their care in light of the disaster, which furthered their need thereafter for additional care. Some of the organizations that provide care have complied with other emergency preparedness measures in order to receive accreditation, many residential mental health centers do not have a plan established, leaving a very vulnerable population without help in times of need.

In an effort to individualize emergency preparedness requirements, the new rules will apply to all 17 provider types, but will be different for each in order to receive certification. In order to comply with the rules, an annual training program will be implemented in order to ensure compliance and staff will be subject to drills and exercises to demonstrate their knowledge of the emergency rules.

End of Life Counseling and Medicare

Published on: September 25, 2016 | by Ettinger Law Firm

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

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

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

Back to the Basics – The Notice Act

Published on: September 14, 2016 | by Ettinger Law Firm

Rising Medical Bills

Experiencing a life threatening accident or injury is one of the scariest and most confusing times in a person’s life, but what further complicates these emotional times are the staggering medical bills received after, without warning. In an effort to combat receiving these unexpectedly high bills and further open communication between hospital and patient, The NOTICE, or Notice of Observation of Treatment and Implication for Care Eligibility, Act will change the way patients are notified about potential costs incurred.

Starting in August 2016, this Act requires that hospitals throughout the country notify a patient about their status as either ‘inpatient’ or ‘observation’ status. When classified as an inpatient, Medicare will cover all, or a substantial amount, of the costs of medical bills incurred by the patient if they are covered under it. However, if the patient is classified as being under observation, Medicare may no longer be responsible for the bills incurred and the out of pocket costs fall on the patient, which has commonly been unbeknownst to the patient until release or weeks later when the bill is received. In order for an elder to receive care at a nursing home following a hospital visit, they must have spent three days in a hospital under inpatient status.

Understanding the Law – Real Estate Investment Trusts

Published on: September 4, 2016 | by Ettinger Law Firm

Real Estate Investment Trusts are an investment tool that allows an interested party the ability to invest in commercial real estate by buying a specific portion or interest of property. A Real Estate Investment Trust, or REIT, is a company that owns and also finances income-producing commercial real estate, generally for the purpose of investment and resale.

Many people who seek to invest their income and build a diverse portfolio look to add real estate due to its income producing potential. This investment tool allows an investor to own a share in several properties without having to front the major costs of purchasing an office building, apartment complex, industrial warehouse, or shopping plaza.

Why Add a REIT to your Portfolio?

Private Equity and PACE

Published on: September 1, 2016 | by Ettinger Law Firm

Providing reasonable care for the rising number of senior citizens continues to be issue of concern for our health care system. What constitutes providing adequate care differs depending on the situation; many senior citizens have expressed concern regarding their ability to stay in their homes and receive care versus moving to a nursing home in order to receive adequate health care under Medicare. In response to this issue, Medicare enacted a program that will pay to keep elderly and disabled citizens out of nursing homes by providing in home care specialist teams to treat the patient.

Program for All Inclusive Care

PACE, or the Program for All Inclusive Care, is a program for elderly adults who seek comprehensive medical and social services, wish to stay in their community, and in most situations are eligible for both Medicaid and Medicare. To be eligible, the individual must be 55 years of age or older, live in the area of a PACE organization, be eligible for nursing home care, and be able to live safely within the community. PACE is program administered by Medicare, but must be elected at the state level to provide the optional benefit to Medicaid beneficiaries. Once elected, the program will be the only source of Medicare and Medicaid benefits for the beneficiary, but is much more comprehensive.

Palliative Care: Know Your Rights To It

Published on: July 24, 2016 | by Ettinger Law Firm

New York Statute

In February 2011, New York amended the Palliative Care Information Act, requiring doctors and nurse practitioners to inform terminally-ill patients about end of life options and counseling regarding palliative care. To receive palliative care information under the New York statute, the patient must reasonably be expected to be within the last six months of his or her life, a standard that is commonly associated with hospice care. The information provided to the terminally ill patients includes their diagnosis and the likely course of the disease, the options that would be available to treat the disease, risks and benefits of those options, and their legal rights to pain and symptom management during their final months. If the patient lacks decision making capacity, their appointed proxy or representative must be provided with the information.

Hospice versus Palliative Care

Validity of Living Wills in New York

Published on: July 20, 2016 | by Ettinger Law Firm

In a previous post titled Health Care Proxy: What is Their Role in My Health Care Decisionmaking?, we discussed the role of health care proxies in your end of life planning and what capabilities they have regarding your medical treatment in the event you are not able to make your own decisions due to incapacity. In New York, naming a health care proxy is commonly done along with the formation of a living will. A living will is another type of advanced directive, it is a written statement that outlines what the patient seeks to have done regarding his or her medical treatment, in the event of incapacity or unconscious. A health care proxy will carry out the terms of a living will when there is one on record, instead of making the medical decisions for the patient which is their traditional role. A living will puts the patient’s loved ones on notice of what the patient’s wishes are and ensures they are carried out.

Interestingly, in New York, legislation has not given guidance as to the right of an incapacitated individual to have their last rights respected. However, courts in New York will, through clear and convincing evidence, attempt to respect those wishes if there is a way for them to be known, i.e. through a written document such as a living will. In the living will, you can state which treatments you wish to refuse in the event that they are being considered for treating your condition. Many forum living wills state that in the event of irreversible physical or mental condition, either due to terminal illness, permanent unconscious condition, or minimal consciousness but inability to make decisions, the patient can decide whether they wish for treatment to be withheld. You can also indicate in which scenarios, such as cardiac resuscitation, artificial feeding, mechanical respiration or refusal of antibiotics, you wish for treatment to be administered or withheld.

When it comes to terminal illness, majority of doctors are quick to respect the wishes of a patient who has completed a living will. Terminal illness is generally the most common and uncontroversial example of a situation where a patient’s living will being recognized by the court. However, situations such as permanent disability have been more difficult to apply living wills to. While some people view disability as an intolerable condition in which they would rather cease living than to have a lesser quality of life, doctors have a difficult time because many people will show signs of improvement over time in situations such as a traumatic accident or episode in which they are left in a lesser state than before.

Home Care Workers Secure Compensation Victory

Published on: July 15, 2016 | by Ettinger Law Firm

While most of us know that the baby boomer population is vast, many do not realize the impact this population will have as they start to retire over the next few decades. In fact, over the next 20 years, 10,000 baby boomers will turn 65 everyday. Between 65-70 years old has been the age of retirement for many, with some retiring early and some pushing through another decade of work. However, as this generation gets older, their need for care will continue to grow.

Federal Level

In late June, the Supreme Court decided not to hear Home Care Association of America v. Weil, a case that was attempting to deprive home care workers of their ability to qualify for minimum wage and additionally, for overtime pay for those hours worked over 40 per week. These home care workers have been part of the ‘Fight for 15’ movement to get equal pay and higher pay for minimum wage. Home care workers have previously been labeled by the Labor Department as ‘companions,’ which does not allow them to qualify as employees who are subject to minimum wage and overtime pay. The rules governing home care workers were not fixed until this past year, when the Labor Department determined that home care employers needed to follow the same rules as any other employer and pay their employees according to minimum wage standards.

Elder Law Concern – Capacity Issues

Published on: July 9, 2016 | by Ettinger Law Firm

Sumner Redstone, founder of Viacom, once again had made headlines recently in his decision to alter the terms of his will, raising questions about his decision making capacity. Mr. Redstone suddenly removed two longtime trusted businessmen and friends, the chief executive and director of Viacom, from the trust that controls the media business when Mr. Redstone dies. After the ouster, both filed suit to invalidate the decision, claiming Mr. Redstone had diminished mental capacity and was being manipulated by his daughter, whom he has had rocky relationship with over the years. This is not the first time Mr. Redstone’s capacity has been challenged however. Prior to the recent ouster, he also has taken his former companions out of his trust, both were estimated to receive $75 million each.

After a series of strokes, Mr. Redstone now has a severe speech impediment that has left him needing an interpreter to speak on his behalf in a recent deposition. However, after evaluation by medical professionals, he has once again been cleared as mental capable of making his own decisions. In his most recent medical evaluation, he recalled why he made the decision to oust the two businessmen, pointing to falling stock prices and their inability to run the company correctly.

What Does Diminished Capacity Mean?