Women bear the majority of costs for Alzheimer’s disease, according to a new study from researchers at Emory University.  As reported by Pacific Standard, women bear six times as much of the cost for caring for Alzheimer’s patients.

The study’s authors look at direct costs – spending money on fees for home care aides or long-term care facilities – as well as indirect costs, like lost productivity due to serving as caretaker for a spouse or parent with Alzheimer’s disease.

Women bear so much more of the costs for a variety of reasons.  First, women are likely to contract Alzheimer’s disease, both because women live longer, and because women appear more susceptible to the disease for reasons unknown.  Second, women are more likely than men to serve as a caretaker for a loved one who has Alzheimer’s.

As the baby boomer generation ages and more people suffer from Alzheimer’s, lost productivity of caretakers could become a significant drain on the economy.  This is particularly true when caretakers are adult children taking care of their parents.  These caretakers are often in their working years, and may also be taking care of their own children.  Taking care of an Alzheimer’s patient is a draining role to which family-caretakers often devote more than twenty unpaid hours per week.  If more women are forced to shoulder this burden during their peak working years, it could have an impact on the economy.

The study raises an interesting and provocative question:  If men bore as much of the cost of Alzheimer’s as women, would there be more effort and resources put into finding a cure?  Alzheimer’s is the sixth leading cause of death in the United States, according to the CDC.  At any given time, there are five million people in the country suffering from Alzheimer’s.  Yet research efforts on the disease receive a fraction of the resources of other diseases, and much less than researchers say is needed to make meaningful progress towards a cure.

In any event, it’s certainly true that Alzheimer’s disease imposes significant costs on patients and their families, but government programs are available to help, including the Medicaid long term care benefit.  For more information on coping with the costs of Alzheimer’s, call or email FriedmanLaw today.

This month, Medicare and Medicaid turn 50.

On July 30, 1965, President Lyndon Johnson signed the Social Security Act into law, which created the Medicare and Medicaid programs.  Today, these programs provide health coverage for tens of millions of Americans, including many seniors, disabled people and low-income families who would not otherwise have access to healthcare.

Against this backdrop, the White House yesterday held  its Conference on Aging, a conference that has been held every ten years since 1961.  President Obama addressed the conference, remarking that “One of the best measures of a country is how it treats its older citizens.  And by that measure, the United States has a lot to be proud of.”

We agree with that sentiment.  The United States has one of the best systems in the world for providing care to seniors and people with disabilities, and I encourage our readers to take advantage of the opportunities therein.  Make sure you sign up for the Medicare plan that’s right for you, and get the maximum Social Security benefit that you can.  See whether you may be eligible for disability benefits.  If a family member may soon need long term care, consider whether Medicaid planning is appropriate.  Make sure you have a healthcare directive and power of attorney.  If a loved one with disabilities is receiving an inheritance or lawsuit settlement, consider using a special needs trust.

That’s not to say the American system is perfect.  Seniors and people with disabilities who obtain healthcare face a number of glaring problems, some of which we help our clients ameliorate.  But at the end of the day, in America, we take care of our own.  For that we should all be proud.

A nursing home debt is subject to the Fair Debt Collection Practices Act (FDCPA), according to the Second Circuit federal appeals court in New York.

In Eades v. Kennedy, PC, a Pennsylvania nursing home resident died with an unpaid bill owed to the nursing home. The nursing home hired a debt collection law firm, which contacted the resident’s daughter in New York and put pressure on her to pay her mother’s debt, claiming that her wages could be garnished and a lien could be put on her father’s home.

As a sidenote, the nursing home’s claim rested on Pennsylvania’s “filial responsibility” laws, and on the fact that the resident’s husband signed an admission agreement as responsible party. We’ve written about attempts to hold children liable previously, and it bears repeating that you should approach admission agreements with great caution. It’s worth having your own attorney review the admission agreement before you sign.

The Second Circuit held that law firm’s attempt to collect the nursing home debt was subject to the federal FDCPA law. This is significant because the FDCPA provides important protections to consumers. The FDCPA forbids debts collectors from making misrepresentations, making unrealistic threats of legal action, making harassing phonecalls, calling outside reasonable hours, using profanity, etc. It creates a procedure that debt collectors are required to follow.

While the Second Circuit decision isn’t controlling in New Jersey (since New Jersey is within the Third Circuit), this decision is a strong indication that the FDCPA does apply to efforts to collect nursing home debts. That is good news for anyone with a close relative in a long term care facility. These days, it seems that attempts to collect unpaid facility fees against family members are becoming more common. The FDCPA grants consumers valuable protections in collection attempts.

There is a lot of information floating around out there regarding Medicaid and long term care.   People write books and articles about “Medicaid secrets” and protecting against nursing home costs.  Information is a good thing, but sometimes people who act on limited information make big mistakes.

We occasionally see clients who have tried to do their own Medicaid planning.  They have made large gifts to their children or put their house into a sibling’s name.  Problem is, in doing their own planning they’ve often lost opportunities to save much more with professional planning, and sometimes have made things much worse.  Medicaid has a 60-month “look back” period, so gifts made within five years of the application can incur a hefty penalty unless they meet certain exceptions.  People who are in a nursing home who make gifts without proper planning could end up with Medicaid refusing to pay the bill and no other money available to pay.  In that situation, nursing homes may be able to go after family members for unpaid bills.

You can read a book about how the heart works, but you (hopefully) wouldn’t try to do heart surgery afterwards.  Medicaid planning can be the legal and financial equivalent of heart surgery – it can be just as complex and important.  To do Medicaid planning right, you should understand complicated federal and state laws and regulations (e.g.), and that understanding can’t be gleaned by reading a newspaper article or listening to what a friend tells you.

Nursing homes in New Jersey typically cost $10,000 or more, so the costs quickly add up for mistakes or missed opportunities that delay Medicaid eligibility.  With the stakes that high, doing your own Medicaid planning is penny wise and pound foolish.

I’m excited to announce that I’ve been nominated to serve legislative coordinator of the New Jersey State Bar Association, Elder Law and Disability section.  If approved, I’ll review proposed laws from the New Jersey legislature to see how they would impact seniors and people with disabilities, and advise on whether the Bar Association should support or oppose those laws or take another stance.

It’s a position that Larry Friedman and a lot of other great attorneys have held before me, and I look forward to it with gusto.

NJ Medicaid issued a notice that effective today, April 1, 2015, the penalty divisor has been increased to $332.59 / day.

What is the penalty divisor?  It arises when someone is seeking long term care Medicaid (i.e., Medicaid that pays for a nursing home, assisted living facility or home care aides) and has made gifts.  A gift is any transfer of property to any person other than your spouse (or certain other exceptions like a disabled child) for less than fair market value.  For example, if you give $50,000 in cash and securities to your children, that would be a gift.  Or, if you sell your house to your son for $50,000 when the fair market value is $300,000, then you have given a $250,000 gift.

(If you can prove the transfer was for a purpose other than to qualify for Medicaid, e.g. a wedding gift, then the transfer may not be counted as a gift.  But doing so is difficult.)

If you’re applying for long term care Medicaid, and you’ve made gifts in the last five years, then Medicaid calculates the total amount of your gifts (by reviewing your financial records) and assigns a transfer penalty.  A transfer penalty (aka “penalty period”) is a time period of Medicaid eligibility.  I.e., during the penalty period, Medicaid will not pay for your nursing home, and you must foot the bill yourself.

The transfer penalty is calculated using the penalty divisor.  So under the new transfer penalty of $332.59 / day, if you have made $50,000 in gifts, then you divide 50,000 by 332.59, for a penalty period of 150 days (roughly 5 months).

Since gifts are often an integral part of Medicaid planning and asset protection, an increased penalty divisor is a very good thing for New Jerseyans who need long term care.  FriedmanLaw is pleased that the increased penalty divisor will allow us to better help our clients protect their savings and their families from enormous long term care costs.

The federal government is changing how it rates nursing homes.

Medicare publishes ratings on every nursing home in the country in a database called Nursing Home Compare.  It makes available a variety of information, and assigns a “star rating” similar to a restaurant or hotel, from one to five stars.

In August 2014, the New York Times reported that many nursing homes had received a five-star rating despite serious complaints about inadequate care at those facilities.  The thrust of the report was that Medicare did not examine nursing homes rigorously enough, and the star ratings could therefore be misleading.

Now, Medicare has released a new version of its database that it calls “Nursing Home Compare 3.0.”  The Centers for Medicare and Medicaid Services (CMS) says that the nursing home ratings will now consider standards on prescribing anti-psychotics, set higher standards for assigning a five-star rating, adjust how it considers staffing levels, and expand the use of targeted surveys to verify information that facilities self-report to CMS.

I applaud these measures, and hope they will make Nursing Home Compare more useful for seniors and their families grappling with the difficult decision on whether and where to enter into a long term care facility.  In particular I applaud the expanded use of surveys.  If CMS follows through on that point, it would go a ways towards addressing the heart of the problem with the nursing home ratings, which is that they rely too heavily on unverified data reported by the facilities themselves.

These developments are particularly welcome since Medicare has announced that it will begin assigning star ratings to hospitals.  Hopefully the standards for hospitals will be more rigorous.

Folks who are researching facilities may find it useful to examine ProPublica’s nursing homes violation database as well (although this is based on CMS data), including its New Jersey chart.

The New York Times ran an article today on nursing homes filing for guardianship over incapacitated residents in an effort to collect on nursing home bills, even when other family members are available to serve as guardian.

The Times article covered a woman with a dementia in a Manhattan nursing home that filed to have a stranger appointed as her guardian, even though her husband visits her every day and holds power of attorney for her.  The husband’s representative claimed that the guardianship was an effort to intimidate the family into paying back-owed bills.  Guardianship is meant to allow someone to provide for an incapacitated person’s care and best interests, so if guardianships really are being brought to strong-arm people into paying debts, it is a troubling development.

In New Jersey, I hear of nursing homes applying for guardianship where no family member is available to serve, but I haven’t seen a nursing home seek guardianship when a family member is available. (I have seen nursing homes sue family members who co-sign the resident’s admission agreement as “responsible party”).  And in New Jersey, the nursing home would have difficulty being appointed as guardian where a devoted husband is available to serve, because NJ’s guardianship statute gives preference to family members over others.

Indeed, a court evaluator in the Times case recommended that the resident’s husband be appointed as guardian.  Still, the husband claimed the case cost him $10,000.  The legal bill in and of itself in a contentious guardianship case may be enough to intimidate a family into paying back bills.

A guardianship application is a serious matter that involves taking away a person’s autonomy.  The guardian has a fiduciary obligation to the ward and is supposed to put the ward’s best interests first.  It is not a process with which to be trifled unscrupulously.

“Chemical restraints” – the use of anti-psychotics in nursing homes to control resident behavior – may be dangerous, illegal, and widespread.

Today, NPR covered one family’s experience with chemical restraints in a nursing home. The practice involves facility doctors prescribing anti-psychotic drugs to sedate residents who create problems for the facility due to Alzheimer’s disesase, vascular dementia or other illnesses that affect behavior.

Many anti-psychotic drugs are not intended for use with dementia patients, but they can make unruly nursing home residents more pliable and easier for staff to manage. However, blunting the senses with anti-psychotic drugs can put residents at greater risk of injurious falls and bone fractures, and exacerbate health problems. And excessive anti-psychotic use can dull emotions, sap away personality and put the resident into a “stupor.”

The use of anti-psychotics as chemical restraints, without medical need and for the convenience of staff, is illegal under federal regulations. But according to a government investigation, questionable anti-psychotic use is widespread in nursing homes [link] across the country.

The NPR story linked above includes a tool that it says was drawn from data from the Centers for Medicare and Medicaid Services (CMS). Using the tool, you can look up data on the percentage of residents at a nursing home who receive anti-psychotic medication, and how that percentage compares to the state and national average. The New Jersey rate of 14.9% is lower than the national average of 19%.

It’s cliche to point out that in the United States we have an aging population. But as more people check their parents and spouses into nursing homes and enter facilities themselves, I believe the use of chemical restrains will have to recede. It’s a nightmarish practice, and as more people experience it and a brighter spotlight is shone, families won’t stand for it.

If you believe a facility may be using chemical restraints by prescribing anti-psychotic drugs inappropriately to your loved one, you should know about your rights and how to enforce them. FriedmanLaw is here to help; call or email us today.

A New York appeals court ruled that a mother’s gift to her daughter incurred a Medicaid transfer penalty, even when the daughter used part of the money to pay for her mother’s care.

Petitioner Martha Weiss gave $78,237 to her daughter, who used the majority ($41,600) of the money to pay her mother’s care costs in an assisted living facility.  New York Medicaid rules provide that where a portion of assets that were gifted are returned to a Medicaid applicant, the transfer penalty period can be reduced for the returned portion.

However, the Court took a narrow reading on what constitutes a return of assets.  The regulation says an asset is returned if it’s used to pay for the applicant’s “nursing facility services.”  The NY Medicaid agency took the position that care in an assisted living facility is not “nursing facility services,” and the Court agreed.  Ms. Weiss was hit with the full penalty period.

It seems to me an overly technical position.  However, it’s worth noting that in New Jersey, the Petitioner wouldn’t have even gotten that far.  Under NJ Medicaid rules, the penalty period is reduced only for a full return of assets.

South Jersey elder law attorney Barbara Lieberman reportedly plead guilty today to stealing millions of dollars from her clients.

According to the American Bar Association: “Prosecutors said Lieberman… used fake powers of attorney… to steal from clients who often had no close family members to intervene. All told, victims were bilked of millions between 2006 and 2013, the government contended… Lieberman put her name on client bank accounts, wrote checks for her own personal expenses, transferred assets into her law firm’s accounts, helped clients draft wills and then stole more while serving as executrix… according to the attorney general’s office.”

According to the Philadelphia Inquirer: “Lieberman paid off six-figure credit-card bills, while Van Holt bought a Florida condominium and two Mercedes-Benzes, authorities said.”

Lieberman will reportedly forfeit $3 million, her law license and a BMW, and faces up to ten years in prison.

FriedmanLaw has no independent knowledge of the facts surrounding this case, but if the government’s allegations are true, then this is a very sad situation.

As elder law attorneys, our job is to protect some of society’s most vulnerable members. Our clients put their trust in us.  We work hard to deserve the trust of seniors and people with disabilities, who rely on our help. When one lawyer takes advantage of clients’ trust, it affects us all.

Lawrence Friedman was invited to give a presentation on elder law ethics to New Jersey’s Office of Attorney Ethics, the state agency charged with regulating the legal profession. We hope that our contribution will help the state ensure that this doesn’t happen again.

Medicare open enrollment begins on Wednesday. To kick off the season, the New York Times reported over the weekend that federal officials have repeatedly criticized and fined Medicare Advantage health plans for violations, including improper rejection of claims for medical services and unjustified limits on coverage of prescription drugs.

Medicare Advantage plans are private health plans that consumers may choose instead of getting Medicare directly through the government. These plans are offered by private insurers like Horizon BCBS and Aetna, and typically provide the same benefits as Medicare Part B and D through a private network. Medicare Advantage plans may be attractive to seniors because they offer a different cost structure than traditional Medicare, and may save you money on things like prescription drugs.

However, these plans won’t save you money if insurers unfairly deny coverage for things they’re supposed to cover, as federal officials charge. It’s a message to seniors to be wary shoppers when selecting between original Medicare and a Medicare Advantage plan, and to all of us that sometimes the law is only as good as its enforcement.