New York elder law

NON-PROFIT REPRESENTATIVE PAYEES FOR DISABLED

Published on: May 19, 2016 | by Ettinger Law Firm

GROWING NEED

More ten million elderly Americans rely exclusively on their Social Security pension as their sole means of support. Approximately 90 percent of senior citizens receive some sort of income from Social Security and approximately half of those relied on Social Security for at least half of their monthly income. It keeps approximately 35 percent of elderly Americans from dipping below the federal poverty line. To say that Social Security is vital to this population is an understatement. Included within that population are a subset of individuals who do not directly receive their income from the Social Security Administration but instead rely on a representative payee to manage their money and pay their bills.

The incidence of Alzheimer’s disease and other related cognitive impairments increases with age and with people living longer, there will naturally be an increase in such conditions and thus a greater need for more Social Security representative payees. The Social Security Administration’s own Inspector General estimated in 2010 that at least one million elderly Americans over the age of 85 need a representative payee but did not have one. Within this group there is concern that there are de facto representative payee who were not formally approved or vetted by the Social Security Administration and could be perpetuating financial abuse of the beneficiary. Of the existing pool of representative payees, approximately three out of four are family members.

SOCIAL SECURITY SURVIVOR BENEFITS

Published on: April 5, 2016 | by Ettinger Law Firm

NEW RULES FOR SAME SEX COUPLES

Social security survivor benefits may seem like a relatively straightforward issues to understand. Indeed, it can be for the majority of people, but with the Supreme Court ruling in Obergefell v. Hodges that states must recognize the right of all couples, including same sex couples, to marry, the issue of social security survivor benefits for spouses and even for children should at least be touched upon. The opinion in Obergefell may be as monumental of an opinion as the Court ever penned. While only history will tell, the social consequences may be of the same magnitude as the Supreme Court’s opinion in Brown v. Little Rock Board of Education, requiring racial integration of schools across the country.

The implications ripple throughout the law, from tax law to social security benefits to family law, estate planning, bankruptcy and even elder law. Less than a year prior to the writing of this blog there was a patchwork of treatment for same sex couples, which was anything but similar in its treatment of two similarly situated couples, with the only difference being what jurisdiction the couple lived in. Social Security indeed denied some same sex life partners survivor benefits when a couple resided with each other as spouses for decades. Even before the Supreme Court heard oral arguments in Obergefell some who be widows/widowers (but for the state law denial of this right) sued the Social Security for this disparate treatment.

PERSONAL INJURY AND MEDICAID: WHY WOULD STATE GET INVOLVED IN PERSONAL INJURY SETTLEMENT?

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

It is a fortunate state of affairs that it is happening less and less, with the requirement for every American obtain health insurance under the Affordable Care Act (often called Obamacare), that some people do not have proper health insurance coverage for a catastrophic injury. It is still unfortunate that is happens often enough. As such, either a loved one or when you are well enough retain an attorney in a personal injury suit against the offending party or entity for your past pain and suffering, future anticipated pain and suffering and future medical bills.

Most personal injury attorneys know that any settlement or jury (or even judge if the matter proceeded to trial without a jury) award should earmark or indicate the amount of the award or settlement for your future medical expenses because the government will get involved and assert a lien over any financial award for medical expenses. This overall schema enables you to effectuate a meaningful change in your life, by satisfying the state’s obligation to recoup its medical costs and leaves some money to you to live at a level above the basic minimum that medicaid insures.

It must be asked, however, what of the cases where there is no designation of the settlement or verdict that speaks to the amount awarded for medical expenses and what is pain and suffering or other line awards. Both Congress and the Federal Supreme Court dealt with these issues. Congress enacted 42 U.S.C. § 1396p(a)(1) as part of the Social Security Act that prohibits the government from asserting a medicaid lien against the property of a medicaid recipient, except under certain clearly delineated circumstances. One of those delineated circumstances is when the state may seek recovery for “any medical assistance correctly paid”. The Supreme Court dealt with this issue in 2013, in the case of Wos v. E.M.A. when it ruled that a state may only asset a medicaid lien against that portion of a personal injury settlement or verdict that is specifically designated for medical expenses.

NURSING HOME CHAIN FILES PETITION FOR REVIEW OF CASE WITH UNITED STATES SUPREME COURT

Published on: February 7, 2016 | by Ettinger Law Firm

GOLDEN LIVING CENTER SEEKING TO FORCE ARBITRATION

On December 18, 2015, national long term care facility operator, Golden Living Centers filed a writ of certiorari with the United States Supreme Court to review a decision of the Pennsylvania Supreme Court issued on October 27, 2015. The Pennsylvania Supreme Court determined that the arbitration agreement was void due to reliance on the National Arbitration Forum as the exclusive arbitrator.

The National Arbitration Forum, based in Minneapolis, Minnesota, no longer accepts consumer cases pursuant a consent decree with Minnesota Attorney General, Lori Swanson. According to Plaintiff’s counsel (the prevailing party), the Pennsylvania Supreme Court also noted a distorted “lopsided balance of power” between the “far less sophisticated non-drafting party” and the national corporation. As such, the Pennsylvania Supreme Court implicitly framed the matter as a consumer contract, which creates further complications for the Defendant corporation. Consumer contracts are governed by a whole different set of rules and regulations, such as Regulation Z which grants consumers a three day right of rescission on all consumer contracts. Regulation Z controls in timeshare purchases and home refinance loans, so the idea that it would control in nursing home contracts is not a far stretch of existing law.

FILIAL SUPPORT LAWS

Published on: November 16, 2015 | by Ettinger Law Firm

LAWS THROUGHOUT THE STATES

More than half the states have filial support laws on their books. Most states that still have filial support laws as part of its statutory code rarely enforce them. The last time that Georgia successfully enforced its filial support law was 1936. Filial support laws are now coming back into focus, as judged by the relatively recent case of John Pittas in Pennsylvania. Pennsylvania more than most states has a more regular history of enforcement of its filial support statute, as judged from the several cases from 1994 and 2003. Louisiana recently enacted a filial responsibility act on June 29, 2015. North Dakota enforced its filial support law in 2013 when Four Season’s Healthcare Center sought payment from Elden Linderkamp, although the outcome of that case placed much weight on an allegedly fraudulent transfer of the parents land. These cases are the outliers, however.

ENFORCEMENT IN NEW YORK