manhattan elder law

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.

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.

NURSING HOMES UNDER THE MICROSCOPE

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

FURTHER INVESTIGATION INTO NEW YORK NURSING HOMES

Nurses are often on the frontline of dealing with issues of elder law, with their often compassionate personal sacrifices, mixed with their almost always professional approach to the care and treatment of their patients in any number of nursing homes across the state. They deal with some of the most intimate, personal and human experiences up front and personal. The vast majority of nurses across the state that work in nursing homes and with the elderly (as well as in other fields and venues) are quiet professionals who are content to simply do their job and move one in life.

New York, however, is one of only a handful of states that has lax licensing regulations and enforcement. New York’s nursing licensure schema requires nurses to self report any criminal convictions and may take years before it actually disciplines a nurse for egregious conduct. Currently the New York state Department of Education, Office of Professions sets the rules and regulations for nurses and issues nursing licenses in the state. This blog explored a well reported ProPublica investigation into nursing home abuse almost three months ago. Following the extensive investigative journalism piece, the federal government opened its own investigation on several different levels.

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.

DISABLED MILITARY CHILD PROTECTION ACT HELPS WITH SPECIAL NEEDS PLANNING

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

SPECIAL NEEDS LAWS HELP PROTECT THOSE WHO PROTECT US

For those of us who come from families with many military members, we know the sacrifices and hard work that service members incur for their principles and belief that there are certain obligations in life that precede all else. Unfortunately, until recently, for a select few of those dedicated service members faced a choice between two equally important obligations, their obligations to their country and their obligations to their family. More specifically, service members with special needs children who received benefits publicly funded programs such as Medicaid or Supplemental Security Income knew that if something happened to them and their family received monies through the Military Survivor Benefits pension, their children would lose those vital benefits.

It should be noted that the protections contemplated by the law are even allowed for if a service member retires and collects a pension for retirement but also diverts some of that money for the benefit of their special needs child. This was a choice that was too high for some service members and helped them decide to not reenlist. The military spends a tremendous amount of money on training and maintaining our military. Any lost member is a lost investment to put it in economic terms. To help combat the lose of these soldiers, sailors and airmen Congress created the Disabled Military Child Protection Act (DMPA). The DMPA allows a service member to choose a special needs trusts as the beneficiary of any money given through a Military Survivor Benefits pension. This allows the service member to have peace of mind knowing that if they do pay the ultimate sacrifice, their children and loved ones will not suffer further.

NURSING HOME EVICTIONS

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

LEADING COMPLAINT ABOUT NURSING HOME IS EVICTIONS

On February 25, 2016 National Public Radio (NPR) ran a story about what is looking to become like a national epidemic: nursing home evictions. According to statistics between 8,000 and 9,000 nursing home residents complain each year about nursing home evictions. The problem with this statistic is that it only measures the complaints, not the actual evictions. As if not being able to measure the full extent of the actual problem is not enough, there is a larger, more grievous issue wrapped up in the issue of nursing home evictions. According to the ombudsman to the Federal Department of Health and Human Services, Administration on Aging, it is the number one complaint regarding nursing facilities. In many cases the nursing home wrongfully evicted the resident(s) but will not honor rulings that find that the nursing home wrongfully evicted the resident. The entity that decides if a facility wrongfully evicts a resident is not the same entity to enforce its own decision. Without a sister state agency to enforce its decision (much like one state honoring a sister state’s money judgment on full faith and credit), such legal endeavors by residents are simply an exercise in futility. The rulings are not worth the paper they are printed on. It is a prime example of a bureaucracy run amok; without teeth to enforce its own ruling. One can and should rightfully ask, why do the agencies even bother to engage in a hearing to only allow the offending party to blithely ignore its ruling?

FEDERAL CASE TO FORCE CALIFORNIA TO ACT

GERIATRIC CARE MANAGER

Published on: February 18, 2016 | by Ettinger Law Firm

DISTANCE AND PROFESSIONALISM

The New York Times ran an article on December 23, 2015 discussing the distance that the average American lives from their mother. As revealed in longitudinal study published in 2010, half of Americans live 18 miles or less from their their mother. As shown in the graph plotting these distances, the half of Americans who live less than 18 miles usually live extremely close. 40 percent live five miles or less. It seems as if the 40 percent and five mile mark is where the divergence occurs. 55 percent live less than 28, 60 percent live at least 47 miles or less, 65 percent live 80 miles or less and 70 percent live 129 miles. Depending on whether you live in the suburbs, the far suburbs, rural America or in the inner city with a reliable and timely public transportation system, these percentages and distances mean different things. 128 miles is not insurmountable and is actually a common commute if you live in Philadelphia and have to commute to Manhattan.

If you live in Southern New Jersey and have to battle the daily commute to Manhattan the same 128 miles is entirely different. Other factors also play out in your ability to see your parents as often as you want or need to. If you are a busy emergency room physician, working 24 hour shifts, you may not be able to see them anywhere near as often as need be or as you want. If your parents rely on you for basic assistance with medical issues or long term care decision making and you cannot dedicate the time to help them, you may want to consider a relatively under utilized service in the form of a geriatric care manager. In addition to assisting their clients and families make informed decisions, they are professionals who almost always work in the community and have a better working knowledge of different issues that may crop up with one provider or facility but not another.

ADVANCES ON PENSIONS: IS IT PREDATORY LENDING?

Published on: November 25, 2015 | by Ettinger Law Firm

GOVERNMENT ACCOUNTING OFFICE INVESTIGATION

On September 30, 2015 the Government Accounting Office (GAO) issued a report following a 15 month investigation regarding advances to pensioners, secured by monies that the pensioner would receive in their pension. The same day the Senate Committee on Aging held hearings on this exact issue to determine if indeed this practice is predatory as well as how the federal government will respond. The GAO conducted an undercover operation and received substantive offers from six different pension advance companies. The GAO report also indicated that there was a lack of disclosure on some fees, interest rates and various options, in addition to undisclosed affliations between 21 of the 38 companies that were investigated. The majority of the offers had interest rates of a stiffling 27 to 46 percent. While there is no set federal definition for usury, New York law defines usury as any loan which requires a payment of 25 percent or more; more about this below. Not surpringly the some of the companies focused their efforts on financially vulnerable pensioners with poor or bad cre dit. One of the recommendations from the GAO report was that the Consumer Financial Protection Bureau (CFPB) and the Federal Trade Commission (FTC) educate consumers about these practices.

WHY THE GAO INVESTIGATED

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

Protecting Your Loved One in a Nursing Home

Published on: September 24, 2015 | by Ettinger Law Firm

Recently, a New York woman pleaded guilty to charges in connection with neglect and sexual abuse of nursing home residents in a New York long term care facility. The woman’s case was related to charges against others working at the facility, including the company that operates the home. According to the National Council on Aging, 1 in 10 persons over the age of 60 have been affected by elder abuse, many of which go unreported. The number of elder abuse cases increases dramatically in nursing homes, with abuse occurring in 1 in 3 nursing homes. Sometimes a nursing facility is the best care setting for a loved one; however, with the staggering statistics of nursing home abuse cases, you have to take steps to ensure your loved one is getting the best care possible with the dignity and respect they deserve.

Showing Up is Half the Battle

One of the single most effective ways to ensure the proper care for your loved one is to visit the facility often and monitor your loved one’s condition. By frequently making visits to your loved one’s facility you can engage the staff, observe behavior, ask important questions, and make your presence known to those who will be providing care. By planning your visits at varying intervals and times, you can ensure your visits are unexpected so that you have the opportunity to see the delivery of care throughout the day and different staff members.