The Dreaded Plateau

Medicare does not cover care in a “nursing home,” but it does cover up to 100 days of “skilled care” or rehabilitation. Getting the full 100 days of rehabilitation can be a problem because skilled nursing facilities, or SNFs, will issue a Notice of Medicare Skilled Care Termination as soon as there is any doubt that the patient needs skilled care. Often the reason given is that the patient has reached a “plateau” in his or her progress. That is not a valid reason for termination, so it is important to appeal the notice. An experienced Elder Law attorney can help the patient get all of the rehabilitation days covered by Medicare.

Rehabilitation is extremely important after a hospitalization. Even a few days as an inpatient can weaken a person who is aged or has a disability. Getting as many days of rehabilitation as possible should be a major goal for the patient and the patient’s family. The problem from the SNF’s point of view is that if skilled care is provided and Medicare later decides that the patient was not eligible, the SNF cannot look to the patient or the patient’s family for payment unless it issued a Notice of Termination. Therefore, the SNF will always issue the notice if there is any doubt that the patient is eligible. As a result, approximately 90% of appeals are upheld by Medicare. Appeals for Medicare Advantage enrollees are more complicated, but my experience has been that they are also usually successful.

Appealing in most cases is very simple–just call the number on the back of the notice by noon of the day before the termination. The SNF must give notice at least two days before the termination date. If the patient or the patient’s representative does not have two days advance written notice, the SNF must continue to provide skilled care until the date of termination following proper notice.

SNFs often give improper notice. In some cases, they tell the family over the telephone or at the facility that skilled care is terminating, or give written notice too late or with wrong information. In these cases, skilled care must not be terminated.

The office that handles the appeal is called a Quality Improvement Organization (QIO) or Peer Review Organization (PRO). The QIOs and PROs are very responsive, at least in Michigan and Pennsylvania.

One client received notice by regular mail on a Saturday that her husband’s skilled care was being terminated that day. We called the QIO that evening and left the husband’s name, his Medicare claim number, and the name of the facility. We also explained that she had received notice on the day of the termination. The next morning, Sunday, my client received a call from the QIO telling her that the SNF had been informed that it had not provided proper notice and must continue providing skilled care to the patient. My client was pleasantly surprised that the QIO provided service on the weekend.

That should have been the end of the matter, but it was not. The next Tuesday, the same client received a certified letter from the SNF informing her that her husband’s skilled care would be terminated that same day. Once again, we called the QIO and went through the routine. The QIO informed the SNF that it had not provided proper notice and must continue to provide skilled care to the patient. One would think that two strikes would be sufficient to clue the SNF in to the requirements. Not so.

On the following Saturday, my client had to sign for a Notice of Termination delivered by FedEx. It informed her that her husband’s skilled care would be terminated the same day! They still had not figured out that silly old two-day thing.

Getting the full 100 days of skilled care is often as simple as making a phone call to the QIO if the SNF gives the patient a notice of Medicare Termination. However, there are many aspects to appealing that make a consultation with an Elder Law attorney a good idea. For example, the family may be liable for the cost of skilled care at $500 per day or more if the appeal is not successful. The appeals are generally upheld or denied within 72 hours, but occasionally they take several weeks. If you or a loved one receives a notice that skilled care is being terminated, there are serious legal ramifications. It is worth the cost of a consultation to ensure that the patient is getting the benefits he or she is due.

John Payne, Attorney
Garrison LawHouse, PC
1800 Grindley Park Street, Suite 6
Dearborn, Michigan 48124
Come visit me at: http://www.law-business.com
313.563.4900/fax 313.583.3100

Pennsylvania Office:
9853 Old Perry Highway.
Wexford, Pennsylvania 15090
800.220.7200/fax 412.548.0022

Nursing Home Evictions

Nobody wants to go to a nursing home, but for many persons it is absolutely necessary. Once a person has become adjusted to life in a nursing home, a forced move to another nursing home can be further devastating. A change in surroundings for someone whose life is that closed-in can cause long-lasting trauma. This is reflected in federal regulations that require careful planning of these moves. However, I have been involved in many situations where facilities have not followed the law.

One client in a nursing home had problems with Medicaid. He was not getting his full Social Security because money for child-support was being withheld. This resulted in a balance owed to the nursing home and the administrator started leaning on the family to pay up. He threatened to put the resident in a taxi and have him dropped off at his former residence. Doing so would be a serous violation of state and federal regulations, as was making such a threat. The administrator’s flagrant violation of the law cost his employer the amount claimed to be owed, plus costs.

As undesirable as nursing-home placement is, there are important rights that protect the residents. Some of the most important pertain to evictions, or “involuntary discharge.”

Federal law offers many protections against involuntary eviction from a nursing home. These protections cover facilities that participate in either Medicare or Medicaid. If even a few of a nursing home’s residents participate in either program, the entire facility and all of its residents–including those not receiving direct benefits under either program–are subject to the transfer and discharge laws and regulations.

To lawfully transfer or discharge a resident, a nursing facility and the state Medicaid agency are required to follow numerous substantive and procedural guidelines. Any breach of these provisions may be sufficient to prevent or reverse an unwanted transfer or discharge.

The law limits a facility’s authority to transfer or discharge residents to six situations.
The facility must permit each resident to remain in the facility, and not transfer or discharge the resident from the facility, unless the transfer or discharge is necessary because:
✓ The resident’s needs cannot be met in the facility;
✓ The resident’s health has improved and the resident no longer needs the services;
✓ The safety of individuals in the facility is endangered;
✓ The health of individuals in the facility would otherwise be endangered;
✓ The resident has failed to pay OR to apply for Medicare or Medicaid; or
✓ The facility ceases to operate.

One of the most common excuses of nursing homes for moving a resident is that “the resident’s needs cannot be met in the facility.” Transfers of this sort often stem from the facility’s desire to specialize in a particular type of patient or care–e.g., Alzheimer’s, respite or short-term rehabilitation–to maximize reimbursement or streamline care requirements. The law recognizes no such distinctions. There is no basis, therefore, for a discharge simply because the resident may now require long-term custodial care rather than rehabilitation, or no longer qualifies for Medicare-covered skilled care. The Reform Law states that every nursing facility “must provide services to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident” and must do so “in such a manner and in such an environment as will promote maintenance and enhancement of the quality of life of each resident.”

If you have a family member in a nursing home and that resident is being threatened with eviction, an Elder Law attorney can intercede to enforce the resident’s rights. However, the time to appeal an involuntary discharge is very short. If the nursing home staff is threatening to kick out a resident, talk to an attorney immediately.

Here are some points to remember:

If a staff member threatens to kick a resident out of a nursing home, that may be a violation of the Nursing Home Reform Act, by itself. However, a statement that is not in writing has no legal effect. An involuntary discharge notice must be in writing and must inform the resident and the resident’s representative of the resident’s rights.

Many times a notice of involuntary discharge is invalid because it does not include all of the required information or because the reasons given for the involuntary discharge are not sufficient grounds for discharge. Talk to an Elder Law attorney immediately if you or someone you love receives an eviction notice from a nursing home–even if the family wants to move the resident, anyway. Nursing home administrators talk to one another. A person who is evicted from one nursing home may have a very difficult time in future placements.

Do not appeal a notice of involuntary discharge immediately! A hearing takes place very soon after the appeal is received by the nursing home regulatory agency. The resident has 10 days to appeal. Your attorney will need as much time as possible to prepare for the hearing, so the appeal should not be mailed or delivered before the tenth day.

As stressful as life is for a nursing home resident–some might say “inmate”–a threatened involuntary discharge can make things much worse. There are important rights guaranteed by the federal Nursing Home Reform Act. An attorney can help to enforce those rights to protect the resident.

John Payne, Attorney
Garrison LawHouse, PC
1800 Grindley Park Street, Suite 6
Dearborn, Michigan 48124
Come visit me at: http://www.law-business.com
313.563.4900/fax 313.583.3100

Pennsylvania Office:
9853 Old Perry Highway.
Wexford, Pennsylvania 15090
800.220.7200/fax 412.548.0022

© John B. Payne, 2009

NOT A CIRCULAR 230 DISCLAIMER

Based on the definitions set forth in 31 C.F.R. § 10.35, Circular 230 warnings are only necessary for tax advice that makes claims of legitimacy for transactions that equate to, or approach, tax evasion. Since any tax advice in this email is at least arguably sound, no Circular 230 disclaimer is necessary. Any communication that includes a Circular 230 disclaimer should be read with caution, since the presence of the disclaimer is an admission that the tax advice is unsound.

Do Not Have Sex in Israel

The fate of Sabbar Kashur, an “Arab” citizen of Isreal should be an object lesson in celibacy for anyone in the Jewish state. According to The Guardian, he was sentenced on Monday, July 19, 2010, after being convicted of “rape by deception.” The unfortunate fellow met a Jewish woman in Jerusalem in 2008 and held himself out as a single Jew looking for a “serious relationship.” After a chat, they had sex “in a nearby building.” The woman cried foul when she learned that Kashur was Arab, not Jew. Prosecutors acknowledged that the sex was consensual, but accused him of misrepresenting himself. If this was rape, no sexual encounter in Israel is safe sex.

The court made a truly bizarre assertion. It said, “The court is obliged to protect the public interest from sophisticated, smooth-tongued criminals who can deceive innocent victims at an unbearable price – the sanctity of their bodies and souls.” It further stated, “If she hadn’t thought the accused was a Jewish bachelor interested in a serious romantic relationship, she would not have co-operated.” http://www.guardian.co.uk/world/2010/jul/21/arab-guilty-rape-consensual-sex-jew

Apparently the court perceived Kashur as not merely a “sophisticated, smooth-tonged criminal,” but a sorcerer capable of hypnotic control over people’s minds. If a woman were an “innocent victim” looking for a “serious romantic relationship” would she cooperate in stand-up sex “in a nearby building” with someone she just met? Only if Kashur were a real-life Carnac the Magnificent would he have such mental powers. Face it. Kashur was not a psychic titan. The babe was easy. She had round heels. She was a tart, a harlot, a strumpet, a slut, a turntrick, in short, a piece. She was looking for action, the same as Kashur was, and was probably going commando.

A Lothario who impersonated an Isreali housing ministry official was convicted of rape by deception in 2008. He seduced women by promising them apartments. It is hard to see why he would be more culpable than the women who were willing to put out sexually to bribe him.

This is one of the world’s strangest laws. Deception in pursuit of sex is universal. Men feign love for sex. Women feign enjoyment during sex for commitment. Both sexes use artifice to enhance their physical appearance, to pretend to be smarter or stupider than they are, or to appear wealthier or poorer. The games continue in the bedroom. Men falsely claim that they have had vasectomies. Women claim to be protected when they are trying to get pregnant. If men and women were totally honest with one another, sexual intercourse would be an endangered species. No offspring would be conceived and the population would crash. Deception is a necessary component of sex. Israel can hardly expect to eliminate it. The law obviously has a different purpose.

Kashur was a victim of an anti-Arab justice system that is protective of the property value of women. Gideon Levy, an Israeli pundit summed it up: “If the man was . . . a Jew pretending to be an Arab so he could sleep with an Arab woman, would he then be convicted of rape?” http://www.haaretz.com/print-edition/opinion/he-impersonated-a-human-being-1.303359 He suggests that the answer is “no.”

John Payne, Attorney
Garrison LawHouse, PC
1800 Grindley Park Street, Suite 6
Dearborn, Michigan 48124
Come visit me at: http://www.law-business.com
313.563.4900/fax 313.583.3100

Pennsylvania Office:
9853 Old Perry Highway.
Wexford, Pennsylvania 15090
800.220.7200/fax 412.548.0022

Powers of Attorney

The Durable Power of Attorney is the most important estate-planning document a person can execute. Most estate plans are really death plans but a DPOA protects the living. However, too many people execute springing powers. That means that they are only effective when the agent (the person who is appointed to act for the principal) can prove that the principal is incompetent–that is completely round the bend.

The DPOA should be immediately effective, not effective only when a stranger or two strangers (physicians in hospital because seldom is the family doctor involved) decide that the family should have information and authority. If you are not totally “with it,” you want my family in control, knowing everything first-hand. You do not want your family waiting for strangers–doctors or nurses–to fill them in with second- and third-hand facts.

If you are in an emergency room, or any where else in a hospital, you want family members with you at all times. Family members know you. Personal history is of primary importance to the medical experts, who are strangers. If you are not in control, even temporarily, your agent or agents need to know what is going on. They should have access to all information, not just what the hospital employees want to tell them.

You should consider appointing several agents with each having immediate authority. If you do not want multiple agents with immediate power, appoint at least one successor agent in case your first choice cannot act for you. I often see couples who appoint only each other. That way at least one of them is assured to be without an agent, sooner or later. If you have no agent when you are hospitalized or in a convalescent center, your family has little say about your treatment until a guardian is appointed. Once you have a guardian, it may be impossible to regain control of your life.

John Payne, Attorney
Garrison LawHouse, PC
1800 Grindley Park Street, Suite 6
Dearborn, Michigan 48124
Come visit me at: http://www.law-business.com
313.563.4900/fax 866.399.7695

Pennsylvania Office:
9853 Old Perry Highway.
Wexford, Pennsylvania 15090
800.220.7200/fax 866.399.7695

Curb Your Xenophobic Politician

Rep. Daryl Metcalfe, a Pennsylvania Commonwealth legislator, was interviewed on National Public Radio about his website, www.statelegislatorsforlegalimmigration.com. During the interview he delivered a diatribe against undocumented immigrants, saying that they do not pay taxes, that they take jobs away from U.S. citizens, that they are causing a crime wave, that they are an economic drag on the Commonwealth, and that they are disease-ridden. His website makes the following statement:

Increasingly documented incidences of homicide, identity theft, property theft, serious infectious diseases, drug running, gang violence, human trafficking, terrorism and growing cost to taxpayers are just some of the most detrimental ‘imports’ being brought across America’s unsecured borders by illegal aliens. https://sitemanager.pahousegop.com/problemsandsolutions.aspx?SiteID=118

Metcalfe’s statements are so wrong on so many issues it would appear that he is deliberately trying to mislead the public. Just as Adolf Hitler cast blame on the Jews for Germany’s economic problems in the ‘30s, Metcalfe is scapegoating immigrants. Metcalfe is no mental mega-star, but he is not so stupid that he can not see the circular nature of his own arguments:

A) A person who enters the United States without legal documentation is breaking the law.
B) A person who breaks the law is a criminal.
C) Criminals commit murder, rape, and larceny.
D) Therefore, all undocumented immigrants are murderers, rapists and thieves.

Most people will not be fooled by Metcalfe’s Mendacious Myths, but in the absence of counter-arguments others will wonder if he is telling the truth. He is not telling the truth. Here is why.

Undocumented Immigrants Pay Taxes

The undocumented immigrants that concern Metcalfe are not those who slip across the border for a few days and then go back. He is concerned about long-term undocumented immigrants who stay in this country for years. No one lives in this country for any appreciable period without paying taxes. Immigrants–legal or not–citizens, tourists, diplomats, envoys, and every one else pays taxes while in this country. Has Metcalfe never heard that nothing is inevitable but death and taxes?

Every time an undocumented immigrant buys a battery for her vibrator, she pays sales tax. Part of each rent payment is for property taxes. When she rides on a bus, she is paying motor vehicle taxes.

Those who work “under the table” avoid some employment taxes, but the jobs are usually low-paid and the taxes would not be very much, anyway. Besides, the largest amount of tax on low-wage employees is for Social Security and Medicare, from which the undocumented immigrant will never draw benefits. Let’s assume that Daryl, an undocumented immigrant from Lower Slobbovia, is working for Holiday Hosts Hotel, cleaning rooms for $5.00 per hour. He has to work for such a low wage to motivate the employer to risk the penalties for skirting the law and because he is in a poor bargaining position. Even though his wage is nominally higher, he ends up working for $5.00 or less because the job translates into piece work and it would be impossible to complete the assigned tasks for one hour in less than an hour and a half. For tax-reporting purposes, Daryl has to give HHH a bogus Social Security number.

If the undocumented worker is using a bogus Social Security number, taxes are withheld, but the worker will never be eligible to draw benefits. Those taxes directly benefit the Social Security and Medicare systems. Some undocumented immigrants avoid some taxes, but there are also many citizens who get paid under the table or avoid taxes in other ways–and they are not all low-income.

Undocumented Immigrants Do Not Take Jobs Away from Citizens

How often will a citizen–someone like Samuel Wurzelbacher, a.k.a. Joe the Plumber, for example–get turned down for a well-paying job so the employer can hire an undocumented Somali or Haitian? According to a 2009 report by Linda Levine, Specialist in Labor Economics, the influx of lower-skilled immigrants into the United States has had only negligible effects on wages for lower-skilled native-born residents. She was talking primarily about legal immigrants and concluded that the influx of non-native workers in a specific region and occupation may displace some native-born workers, who move elsewhere or seek different jobs, but the overall effect is to depress low-wage pay rates by less than three percent. High-skilled native-born workers are not adversely affected by immigration, legal or not. The real causes of the decline in real income for workers who lack post-secondary education are automation and the export of jobs overseas. Levine, “Immigration: The Effect on Low-Skilled and High-Skilled Native-Born Workers,” Congressional Research Service (2009). The claim that immigrants displace native-born workers is xenophobic nonsense.

Undocumented Immigrants Are Not All Criminals

Apart from the fact that they either enter without documents or overstay their visa, undocumented immigrants are generally law-abiding. They have to be; the last thing they want is to attract the attention of the minions of the law! This is not to claim that no undocumented immigrants commit serious crimes. Hardened criminals cross the border for the precise purpose of committing murder, robbery, drug transactions, and other serious crimes. However, a huge majority cross the border for the sole purpose of getting a job and making money.

Working “under the table” is illegal, but who is more culpable? The employer who lures workers across the border with job offers not available in their home countries, or the worker who gives in to temptation? Undocumented immigrants are not solely to blame.

Furthermore, many undocumented immigrants were brought into this country as children. If there are blameless victims in this situation, it is the children and young adults who were brought into this country before the age of 16. Many of them have high school diplomas and college degrees, but cannot work legally and are subject to deportation. The first step in immigration reform should be to offer a path to citizenship for anyone who entered the country before a certain age, has a clean record, and completed high school.

Undocumented Immigrants Benefit the United States Economically

If undocumented immigrants are a drag on the US economy, why is there an underground labor market willing to hire them? Face facts, employing workers who cannot enforce their rights and who work for substandard wages is very profitable. Congress could pass laws that would stamp out the employment of undocumented workers in weeks, but too many people make huge profits from the undocumented labor market.

This is not about day laborers who congregate in front of certain bodegas hoping to get casual jobs. It is about large corporations like Wal*Mart and Tyson Fresh Meats that use undocumented workers for the dirtiest, most dangerous tasks, under unsafe conditions. They do not have undocumented workers on their payrolls; they contract with labor suppliers so they can maintain a curtain of deniability.

The motive is, of course, greed. It is profitable to delegate dangerous tasks to contractors at the lowest possible price. To get the lowest possible price, these contractors find the cheapest possible labor–undocumented workers. That these workers are so profitable that employers are willing to break the law belies the contention that they are an economic drag. Studies have shown that undocumented immigrants are an economic benefit to the country, at the local, state, and national levels. Neil Bhatiya, “Immigration, Jobs, and the American Economy, Re-visited,” March 30, 2010, http://takingnote.tcf.org/2010/03/immigration-jobs-and-the-american-economy-revisited.html

Laws like Arizona’s are ridiculous. The law is largely unnecessary and ineffective, but was proposed by political opportunists to appeal to their xenophobic conservative base. I am ashamed as a Michigander that Michael Cox, the Attorney General, proposes to file a brief in support of Arizona in the Supreme Court. I am ashamed as a Pennsylvania attorney by Daryl Metcalfe’s pernicious pandering to right-wing bigots.

Stop using undocumented immigrants as scapegoats to make political points with TEAbaggers. We need rational immigration laws that give undocumented residents who have been contributing to society for years a path to a work permit, if not citizenship. We also need to crack down on the employers who lure undocumented workers into the country with jobs. Finally, we need to recognize politicians like Daryl Metcalfe and Michael Cox for the pandering hacks that they are.

“I Can’t Afford an Attorney”

Oh, the lies we tell ourselves: “I’ll quit as soon as I finish this pack.” “He really loves me; I just said the wrong thing.” “I just have big bones.” One of the worst lies we tell ourselves is, “I can’t afford an attorney.”

If you are thinking that you cannot afford an attorney, it is because you need one! You ask yourself where the nearest restroom is because you feel a biological need to use one (unless you are four, and fascinated by public restrooms like every other four-year-old). You do not wonder about restrooms if you do not have a high-water or excess-cargo problem. The thought that you cannot afford an attorney must have been triggered by the realization that you need an attorney. And if you need an attorney, what you cannot afford is not to consult one.

Donald Dexter’s Case

A woman came to see me in 2008 about her deceased son’s estate. The son, whom we will call Donald Dexter, had purchased a house on land contract in the ‘70s. It was paid off in the ‘80s. However, he had not consulted a lawyer to make sure the house was in his name. Had he done so, it would have cost him a few hundred dollars at the most.

An attorney would have contacted the sellers and demanded a deed and title insurance. When he died more than 20 years later, nearly all the records had been lost. To probate the man’s estate and secure title to the property for the man’s heirs cost over $10,000 in attorney’s fees.

The county title records for Donald’s home showed only that a fellow we will call Adam Arnold received title through a quit-claim deed in the ‘50s. The only other name we had was Alice Arnold, who had written a letter to Donald in the ‘80s regarding a final payoff on a land contract. The case became like an episode of “Forgotten,” with me playing the role of Christian Slater. I found a half-dozen possible “Adam Arnolds” and eliminated them one by one. I finally got lucky when I found Alice Arnold’s probate estate in a neighboring county.

Alice’s personal representative was her sister Charlene Carter. Alice’s heirs had been Charlene and their sisters Ermine Edwards and Fiona Arnold, all in their 80s or 90s. Fiona was 95 and had been in a persistent vegetative state her whole life due to a birth trauma. From Charlene, I learned that Adam Arnold had died in the ‘50s and his wife in the ‘70s. Alice and her sisters had been the only heirs.

My client’s son’s property had not been properly disposed of in any of the relevant probate proceedings. I had to file extensive pleadings to persuade the judge that all of the persons who might have had an interest in the property had been notified and had either waived their interest or failed to respond.

Azalea Anderson’s Case

A lot of people buy property on a land contract and never receive the proper paperwork to secure title. I had a client referred to me by Lincoln Behavioral Services, where I am chair of the board of directors. We’ll call the client Azalea Anderson. Azalea bought her house on a land contract from a real estate company and paid it off in the 80s. The real estate company failed to give her a warranty deed and title insurance, as it was obligated to do. Fortunately, the real estate company was still in business, so it was easy to sue the company in an action to “quiet title.” Azalea was delighted when I sent her the recorded judgment giving her full title to her home and refunded the money she had put up for costs. I even received a small fee in the settlement I had worked out with the real estate company.

Azalea was fortunate that I was able to help her at no cost to her, but she had spent several years worrying about whether she would be able to stay in her home. It would have been much better to have consulted an attorney when she paid off her home.

Grist for Trust Mills

Do-It-Yourselfers and people who have non-lawyers create deeds, wills, or trusts for them can be even more “fun” than the procrastinators. A number of my clients have been victimized by “trust mills.” These are insurance agents or outright scammers who sell estate-planning kits door-to-door. Usually, there is an attorney in the background who signs off on the documents with little or no direct contact with the consumer. Several victims of trust mills have consulted me when they found out that the estate plans were not what they wanted and that their investments had been tied up in inappropriate annuities or other investments. Not only had they received worthless generic wills and trusts, but they had paid the trust mills more than I would have charged!

If any of these clients had consulted me when they paid off their house or purchased an estate-planning kit, they and their families would have avoided serious legal problems. A competent, responsible attorney will not charge a client more than their services are worth. Many times I tell a client that they have a legitimate complaint and could sue the other party, but there is not enough at stake for a lawsuit to be worthwhile. Even if I cannot take their case to court, they usually feel better because their situation has been professionally evaluated.

The next time you think, “I can’t afford an attorney,” call my office and make an appointment. You cannot afford not to.

John B. Payne, Attorney
Garrison LawHouse, P.C.
1800 Grindley Park Street, Suite 6
Dearborn, Michigan 48124

Pittsburgh Office:
9853 Old Perry Highway
Wexford, Pennsylvania 15090
800 220 7200
www.law-business.com