Caregiving

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.

The Law – Charitable Trusts

Published on: August 27, 2016 | by Ettinger Law Firm

An Overview

A trust is established by an individual, referred to as a settlor, who seeks to have their property held for the benefit of another party. When it comes to charitable trusts, the settlor intends to have their property or assets transferred for the benefit of one or more charities.

Charitable ‘split interest’ trusts have a number of benefits, not only because they allow the settlor to give to both charitable and noncharitable beneficiaries, but they also reduce the amount paid in estate taxes, they eliminate capital gains, provide an income tax deduction and also provide for and benefit charitable organizations versus paying the IRS. There are two different kinds of charitable ’split interest’ trusts available, which differ depending on the property or assets you seek to donate to the charity, how you want the property to be distributed, as well as any wealth preservation measures you seek to have followed.

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?

Elders Right to Live in the Community

Published on: June 16, 2016 | by Ettinger Law Firm

In 1999, the United States Supreme Court ruled in Olmstead v. L.C. that, consistent with the Americans with Disabilities Act, individuals with mental disabilities have a right to live within their community as opposed to an institution, if professionals have determined that the patient’s ability to adapt and live in their community is appropriate, the patient can be reasonably accommodated and the move to community living offers a less restrictive setting. Following this ruling, President Clinton then directed all states to evaluate individuals in mental hospitals, as well as nursing homes and state institutions to determine whether they could too be acclimated back into their communities. Due not only to the major expenses facing Medicaid and maintaining nursing homes, this was thought to be a possible solution to overcrowding and retaining civil rights for those affected individuals.

However, in the decade and a half since the Supreme Court ruling and the President’s policy statement, the government has done little comparatively to remedy the problem. This has resulted in too many disabled and handicapped people remaining in institutions against their will and left without a method of recourse. While the federal government can control state spending for nursing homes and how Medicaid is spent, the community based care programs that so many disabled and handicapped people are seeking care from are optional.

Yet, Medicaid only pays for about 40% of all long term care services, thus, major bills are still piling up on patients, and in states such as South Dakota, the state with the highest percentage of individuals in nursing homes that have a low need or no need at all the services provided for the institution, they are forced to remain in the institution to receive any kind of care. With over 1.4 million individuals in nursing homes throughout the United States, some states are taking active steps to address the issue by allocating a portion of Medicaid funds to in-home care.

ALZHEIMER’S ASSOCIATION RELEASES 2O16 REPORT

Published on: May 17, 2016 | by Ettinger Law Firm

STAGGERING FIGURES

The Alzheimer’s Association recently released its 2016 Alzheimer’s facts and figures report earlier this month with a long list of many facts and figures, as the reports name implies. While the Alzheimer’s Association produces and publishes its report yearly, the 2016 report highlights the personal financial impact that the disease has on family caregivers. Most specifically, the report helps to show the amazing costs that are shouldered by American families in caring for patients with not just Alzheimer’s but dementia and those with general cognitive delays. In New York alone there are estimated to be 390,000 Alzheimer patients. The Alzheimer’s Association also estimates that there will be approximately 460,000 patients by 2025, an increase of approximately 20%. Overall, 4.7 million Americans are diagnosed with Alzheimer’s. That number is expected to triple by 2050. The emotional impact is already high, yet there is hope. Dr. Samuel Cohen gave a TED talk in late 2015 outlining breakthroughs that could spell a cure for the disease, which would in turn mean that the above numbers would indeed need to be revised.

As for the caregivers, there are approximately 16 million of you in the country who give your time and energy for your loved ones without any financial recompense. You give 18 billion hours of unpaid care for your parents, grandparents and other family members. National Public Radio (NPR) produced a report on the financial impact to individuals and families on March 30, 2016 which showed that the average caretaker used their own financial resources to help their loved ones with Alzheimer’s. The average cost was around $400 per month ($4,800 per year), although some spent up to $10,000 per year to help their relatives with Alzheimer’s. Oftentimes, the caretaker had to make choices between of certain necessities, for example, between food and medical care. As if the financial hit was not enough, it often necessitated that the caretaker reduce their own working hours to care for their loved ones with Alzheimer’s, thereby reducing their income even further. Many caretakers had to sell their own personal belongings to help make ends meet. Some were even reduced to basic poverty levels.