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Advocating Against the Nursing Home Discharge

By Shannon Laymon-Pecoraro, CELA

We see many instances where a nursing home has discharged a patient against the wishes of the family of the client. Most will accept the discharge because they do not understand their rights. Among the numerous stories I have heard, a few of the common reports I received are that the facility said the patient could not remain in the nursing home because Medicare would no longer pay (without explaining other financial options that may be available), that they could not keep their loved one because they are not a “memory care unit,” the patient is “difficult,” or that there are no “long-term care beds available.” All of these explanations are intended to mislead a patient or family into accepting an undesired discharge.

The Nursing Home Reform Act must permit a resident to remain in a facility unless one of the following applies:

  1. The transfer or discharge is necessary to meet the resident’s welfare and the resident’s welfare cannot be met in the facility.
  2. The transfer or discharge is appropriate because the resident’s health has improved sufficiently so the resident no longer needs the services provided by the facility.
  3. The safety of individuals in the facility is endangered.
  4. The health of individuals in the facility would otherwise be endangered.
  5. The resident has failed, after reasonable and appropriate note, to pay for services.
  6. The facility ceases to operate.

In understanding these exceptions, it is important to note that a nursing home is required to provide all necessary care, and even with difficult patients, cannot require a patient of their family to privately pay for additional care. Meeting the patient’s needs is the responsibility of the facility and a care plan must be developed to accommodate such needs.

If the conditions under the Nursing Home Reform Act are met, the facility will still have the responsibility of ensuring a safe discharge or transfer. An unsafe discharge would be one that does not provide for a long-term solution for substituted care services. We often see unsafe discharges were family cannot provide the necessary care, whether due to skills or time, and the resident cannot afford to pay for the necessary care. 

So, what options are there if you are facing an unlawful discharge? You should let the facility know that you are aware of the discharge rights, that you will not be accepting the discharge. Further, if the facility is expecting you to act on behalf of the patient, you should refuse to pick the patient up for discharge. If the facility continues to press for discharge, you should required the facility’s physician to sign off on the discharge, and let the facility and the physician know that they will be held accountable for any harm suffered by the patient due to an unlawful discharge. In my experience, this will usually stop the discharge; however, if the facility continues to press for discharge, Robert Fleming and Lisa Nachmias Davis, authors of the Elder Law Answer Book, indicate the patient should suggest the nursing home administrator inform the facility’s insurance carrier about the discharge and that the patient should immediately notify the local long-term care ombudsman. Fleming and Davis further point out that this can, “… be a game of ‘chicken,’ where the nursing home believes the family will, in fact, step up and take care of the individual who is delivered to the child’s home, and is willing to risk the repercussions if harm comes to the individual as a result. The family has to resist the pressure and be willing to contact police if the tactic is tried, resulting, presumably, in an emergency placement in a new facility.“

Ask Kit Kat: Paws in Need

Hook Law Center: Kit Kat, what can you tell us about “Paws in Need?”

Kit Kat: Well, this is an online resource for pet owners who have emergencies, and who need help in paying for extraordinary veterinary costs. It was started by Gina Highfield of Hampton, VA. Gina has been helping animals in the Hampton Roads, VA area for at least 6 years. Gina is known for establishing and running a Facebook group of over 30,000 called Lost & Found Pets that helps reunite lost animals and their owners. Through this project, she became aware of a need to help pet owners who had large, unexpected veterinary bills. Thus, she established a second organization to help with this goal called “Paws in Need.”  Gina says, “We never want to see a family have to euthanize or surrender their pet due to money.”

One such recent recipient of the “Paws in Need” Fund is a dog named Pirate who lives in Portsmouth, VA. Pirate darted out into a road recently and was hit by a car. His left front leg had to be amputated. The veterinarian had estimated the cost to be approximately $2,500. “Paws in Need” contributed $250; another group called Animal Resources of Tidewater gave $200. Pirate’s owners, the Worthingtons, gave $300, and the family has set up a payment plan to pay for the rest of the expenses.

“Paws in Need” will not cover routine expenses like spaying/neutering or yearly vaccinations, but it will assist with those large, unexpected pet emergencies. It also provides emotional support to the families of ill or injured pets. Dana Worthington, Pirate’s owner, says, “She (Highfield) gave us hope and opened up the door to all of these different resources so that I was able to make an informed choice for the healthcare of my dog. I wouldn’t have been able to do that without her.” (Saleen Martin, “ ‘ Paws’ help pet owners fund costly life-or-death surgeries,” The Virginian-Pilot, January 31, 2019, p.1 & 4)

Posted on Monday, February 25th, 2019. Filed under Senior Law News.

What is the difference between a Living Will and a “Do Not Resuscitate” Order?

By Emily Martin, Esq.

When we meet with clients, one issue that comes up often is end-of-life care. While it’s certainly an unpleasant thought, it is important to face the possibility that you may become unable to make decisions about your healthcare at some point. Whether you suffer from dementia and gradually become incapacitated or you experience a stroke or terrible accident and the change is more sudden, if you cannot make decisions yourself, someone is going to have to take on that responsibility for you. Perhaps most importantly, whoever is making these decisions for you will need guidance on what your wishes would be in certain situations. For example, if you were in a terminal state with no hope of recovery, would you want to be kept alive artificially through assisted respiration, feeding tubes, and other mechanisms? If so, how long would you want to be kept alive?

Many people confuse the terms “Living Will” and a “Do Not Resuscitate” Order (commonly called a DNR). A Living Will is simply a statement of your wishes. In this document, you can state whether you would like to have life-prolonging procedures such as artificial nutrition and hydration continued if you were in a vegetative state with no hope of recovery. You can also state whether you prefer to be buried or cremated and give direction as to whether you would like your body or organs to be donated for either scientific or medical purposes. This document works with your healthcare power of attorney – your agent under that document must follow your wishes as laid out in the advance medical directive.

On the other hand, a DNR is a written physician’s order to withhold resuscitation from a patient in the event of cardiac or respiratory arrest. Resuscitation measures that can be withheld under a DNR Order include cardiac compression, intubation, artificial ventilation, defibrillation, and other related procedures (Virginia Code § 54.1-2982).  Instructions to implement a DNR order are typically given by whoever is legally permitted to make medical decisions on behalf of a patient in the hospital – whether that person is the next of kin as defined by Virginia law or is someone appointed under a Healthcare Power of Attorney.

While Living Wills typically remain in effect until the person who implemented it passes away or executes a new one, DNR orders typically are revoked if a patient makes a full recovery and leaves the hospital. That means that a new DNR would need to be implemented if there were another hospitalization.

Another important document that is related to both Living Wills and DNR Orders is the Healthcare Power of Attorney. This document allows you to appoint one or more people who will work with your doctors to make healthcare decisions on your behalf should you become incapacitated. An agent under a healthcare power of attorney has a variety of powers and responsibilities, including the ability to decide which course of treatment is best for you, whether you should enter a long-term care facility, and which doctors should be consulted as to your care. If you have a Healthcare Power of Attorney, your agent will be the one who decides whether to instruct the doctor to issue a DNR Order or not.

If you don’t have a Healthcare Power of Attorney, Virginia law provides for a list of priority “surrogate decision-makers.” First on the list is your guardian (if one has been appointed), then your spouse, then any adult children you may have (Virginia Code § 54.12986).  Often, this list does not align with whom many people would want making medical decisions for them if they became incapacitated.

Although no one enjoys facing the possibility that they may become incapacitated, it is important that you make your wishes known. Doing so cannot only provide reassurance to your family, because they know what your wishes are; but, it can also guarantee you have a voice in deciding who should make medical decisions for you in the event that you cannot make them on your own.

Ask Kit Kat: Westminster Kennel Club Dog Show

Hook Law Center: Kit Kat, what can you tell us about the Westminster Kennel Club Dog Show which was held last week in New York City?

Kit Kat: Well, it’s a wonderful competition that has been held 142 times! This year’s opened on Feb.11, 2019. The first Westminster Kennel Club Dog Show opened in 1877 at Gilmore’s Garden, which later became known as Madison Square Garden. The show has grown over the years from 1,200 dogs to nearly 3,000 dogs from all 50 states. Originally, a 3-to4-day competition, it is now completed in 2 days. The name “Westminster” was chosen by its founding group as a tribute to their favorite hotel and bar—the Westminster Hotel near Union Square. Though the hotel is long gone, it still lives on in the name of the dog show. The dog show in its early days focused on hunting dogs. Other than the Kentucky Derby, it is the second-oldest continuously run sporting event in the United States. This year marks the 70th year that the event has been televised.

Not many know that the Westminster Dog Show has a junior division for dog handlers who are between the ages of 9-18. It is known as the Junior Showmanship competition. The kids themselves are evaluated, perhaps more so, than their dogs. They have to work as a team. One girl, Rylie May of Hillsboro, Kansas, is now 18, but in her first competition at a 4 H show at age 9, she competed with a 6-month old puppy, who dragged her everywhere. She’s learned a lot since then. May entered her Australian shepherd this year. They didn’t get to the finals, but she was really proud of her dog, Toby. She said, “It’s taught me a lot about responsibility. It’s a lot of hard work. It’s putting the dog’s needs before your own.” (Claudio E. Cabrera, “How the Westminster Dog Show Got Its Name,” The New York Times, Feb.12, 2019/Amy Wang,”At this Westminster Dog Show competition, it’s the humans who are judged, ”The Washington Post, Feb.11, 2019)

Posted on Monday, February 18th, 2019. Filed under Senior Law News.

Protecting a Spouse Remaining in the Community

By Letha Sgritta McDowell, CELA CAP

When one spouse is facing a long-term care need, the initial focus is on the health needs of the spouse who will need long-term care (the “institutionalized spouse” or “IS“); yet, once the care needs have been determined and placement or home care is secured, then the focus necessarily turns towards the needs of the spouse who does not need care (the “community spouse” or “CS”).  Without planning or education, it is possible for all funds, including income and savings, to be expended on the institutionalized spouse, leaving the community spouse with little or nothing.

For individuals needing long-term care, there are a number of ways to pay for care, all of which should be considered when facing such a large expense.  Should one spouse need nursing care for a long period of time, then it is wise to consider Medicaid as an option to assist in paying for care.  Many have misconceptions about the Medicaid program, and there are numerous myths about Medicaid and nursing care. The realty for many is that Medicaid payment of nursing care expenses is the only way that both an institutionalized spouse and a community spouse can be cared for both physically and financially.  Most importantly for married couples, federal Medicaid policy takes the needs of a spouse into account and offers financial protections specifically for the community spouse.

There are a number of requirements for Medicaid eligibility but of most concern is the “income” and “asset” requirements. Practically speaking, income is considered to be amounts paid regularly to the applicant, such as social security, retirement pensions, or annuity payments.  While the definition of income can be much more complex than described here, generally, so long as the applicant’s monthly income is less than the private pay rate of the nursing facility, then the applicant meets the income requirement for Medicaid.  If the individual takes advantage of Medicaid’s home and community-based waiver services, then the income in Virginia is $2,313 and North Carolina is $1,012.  Note that, for purposes of eligibility, only the income of the spouse applying for benefits is relevant.  Therefore, if the spouse remaining in the community has income which exceeds either the private pay rate of the nursing facility or the above waiver limits, then the applicant still meets the income requirements.  Unfortunately, often it is the institutionalized spouse who has the greater income.  While the community spouse’s income is not considered for eligibility, it is considered when looking at what the institutionalized spouse may need to contribute towards his or her cost of care.  Federal Medicaid policy requires that each state create a Minimum Monthly Maintenance Needs Allowance (“MMMNA”) and, if the community spouse’s income falls below the MMMNA amount, then the institutionalized spouse will be directed to contribute an amount from his or her income to the community spouse in order to provide that the community spouse has income of at least the MMMNA. In addition, there are circumstances in which an even greater contribution from the institutionalized spouse may be allowed if the community spouse can demonstrate a need.  Currently the MMMNA for Virginia is $2,057.50 and North Carolina is $2,058.

Even more concerning than monthly income, is often what happens to a couple’s assets (“assets”) if one spouse has a long-term nursing care need.  As with income, federal Medicaid policy includes protections for a couple’s assets, ensuring that the spouse remaining in the community may continue to have assets to use for his/her needs. Unlike with the income requirement for eligibility, Medicaid policy does consider the assets of both spouses for eligibility purposes. However, there are two key factors which protect the community spouse.  The first is that certain assets are excluded when reviewing eligibility requirements; essentially, some assets just don’t count. A prime example and of great importance is the couple’s primary residence.  Examples of other assets which don’t count are funerals or burial arrangements, the value of one vehicle, term life insurance, certain annuity contracts, certain loan arrangements, and more.    In addition to allowing certain assets to not count, the community spouse is allowed to keep a percentage of the couple’s combined countable assets up to a maximum of $126,420 (the same in both Virginia and North Carolina).  There was some concern toward the end of last year that this CSRA allowance would no longer apply to home and community-based services; however, Congress has agreed to continue to make allowances for the CSRA even in a home setting.  This amount is known as the Community Spouse Resource Allowance (“CSRA”). Therefore, Medicaid policy allows a community spouse to continue to maintain countable assets up to the CSRA in addition to an unlimited amount of non-countable assets. 

Thus, a community spouse can be financially protected, even if  his/her spouse needs nursing care. Unfortunately, many couples fear financial ruin of chronic illness and have considered drastic measures such as gifting away their property or getting a divorce; or, they mistakenly think that this type of planning needs to be done five years before nursing home placement .  However, this advance planning is not necessary, and no such extreme measures are required to protect a spouse remaining in the community.

Ask Kit Kat: Orca Calf in Northwest

Hook Law Center: Kit Kat, what can you tell us about the newest orca calf born in the Pacific Northwest?

Kit Kat: Well, this is very good news indeed!  A new orca calf was spotted in mid-January 2019 in Admiralty Inlet, at the north end of Puget Sound. Observers are not sure whether it’s male or female, but it belongs to the L pod, and will be known as L124 for now. At the time of sighting, it appeared to be about 3 weeks old. No calves born to this pod have survived to adulthood since 2015, so everyone is hoping for the best. The L pod has shrunk to 35 in number.  A decline in the Chinook salmon population, its main food source, appears to be the reason for the decline, as well as water pollution. Other groupings of orcas who do not live so close to industrialized areas are faring better.

L pod, along with J and K pods, comprise a group known as the Southern Residents. In its heyday, the Southern Residents numbered about 100. Today, there are approximately 75. J pod became famous last year, when one of its calves died shortly after birth and her distraught mother, J35, pushed her corpse around for 17 days using her nose, before letting her go. J35 may soon lose her mother, J17, who appears to be hungry and weak, according to Melisa Pinnow, a biologist with the Center for Whale Research, which is based in Washington State. Orcas must swim to feed and survive. When they can no longer do that, they die. The Southern Residents are organized around the females. Grandmothers live with their daughters and help young mothers raise their calves. Older females even go through menopause like humans do.

Washington State established a task force last year to look at what could be done to help the orcas. Among the recommendations were 1) to remove certain dams to let rivers take their natural course, 2) to remove net pens of farmed salmon, and 3) to cut back on salmon  consumption, generally. Time will tell whether these recommendations will have a positive impact. (Jacey Fortin, “Orca Cal Offers Hope for a Fading Group in the Pacific Northwest,” The New York Times, Jan. 17, 2019)

Posted on Thursday, February 7th, 2019. Filed under Senior Law News.
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Ask Kit Kat: Pet advice and wisdom as Kit Kat sees it.