Nursing Home Discharges: Can You Appeal?

There are many reasons why elderly persons wind up in nursing homes, including voluntary admittance to obtain assistance with rehabilitation after a hospital stay or problematic behaviors associated with various mental conditions such as dementia. In order to afford nursing home costs, many of these adults rely on Medicaid and Medicare. A nursing home may choose to discharge a person for various reasons, including their coverage is running out or they feel the patient is ready for release.  However, if a resident is being discharged, the discharge can be challenged.

There are only five reasons in which a resident can be discharged: (1) the resident’s health has improved, (2) the resident’s needs cannot be met by the facility, (3) the health and safety of other residents is endangered, (4) the resident has not paid after receiving notice, or (5) the facility has stopped operating.

Sometimes, to get around the policy, the nursing home may transfer the patient to a hospital and then refuse to let them back in. In this case, state law requires that the hospital must hold their bed for a certain number of days. (A resident should check their policy to see the amount of time allotted for the hold.)

Without proper notice and planning, a nursing home is unable to discharge a resident at all. The discharge plan must ensure that the resident has a safe place to go and outline the care that they will receive. In general, written notice must be given to the resident 30 days before discharge. In emergency situations, the amount of time may be decreased.

Even if the above notices are given to the resident, they can still appeal a decision to discharge. For residents receiving government-funded healthcare assistance, there is a fast appeal if they are receiving care at a Medicare-covered facility, home health agency, rehabilitation facility, or hospice. The fast appeal is filed through the Beneficiary and Family Centered Care Quality Improvement Organization. During this appeal, the nursing home will be required to provide you with a “detailed explanation of non-coverage,” which will lay out when and why your services will no longer be continued. The Beneficiary and Family Centered Care Quality Improvement Organization will then ask why you believe the services should continue, review your records, and issue a decision by the close of business that day. The appeal process of a nursing home discharge can be overwhelming, so contacting an attorney immediately is recommended.

Taking proper care of the disabled and elderly in our society who depend on us is of the utmost importance. If you have questions about the care of a disabled or elderly loved one, contact an experienced New York elder law attorney who can help. For more information, contact Hobson-Williams, P.C. at (718) 210-4744 for the quality representation that you deserve.

Third-Party Debt Collectors Need to Follow New Regulations

As of 2015, new rules under the Fair Debt Collection Practices Act (FDCPA) went into effect.  These rules regulate third-party debt collector communication and disclosure requirements.  The aim of these reforms is to prevent predatory practices that deceive consumers for financial gain.

Debt collectors will now be required to give a disclaimer to the consumer if they believe the statute of limitations have expired.  This disclosure requirement and the statute of limitations rules are complex.  It is important to seek guidance from an experienced attorney to analyze whether the disclosure is sufficient or whether the collection efforts are time-barred.

There is also a new time-sensitive disclosure restricting behavior under the FDCPA.  The debt collector now has five days to list the original creditor, provide an itemized inventory of the debt due as of charge-off, the accrued interest, other fees accrued, and the total payments made since charge-off.

Previously, the law prohibited the use of a consumer’s email address to communicate with them.  Now, a debt collector is permitted to communicate with a consumer through the consumer’s personal email account if proper consent is obtained in writing.  With these new rules in place, dismissal of an otherwise valid debt could occur if the debt collector failed to obtain the proper written consent to communicate via email.

At some point, most businesses may need to attempt debt collection on monies owed.  To better understand your rights when it comes to debt collection, contact an experienced New York collections attorney Hobson-Williams by calling (718) 210-4744.

Nursing Home Chain Settles with New York Attorney General for $600K

Recently, the New York State Office of the Attorney General announced that a New York nursing home chain, Elant, settled with its office for $600,000 stemming from claims that they benefited financially by prolonging residents’ stays longer than necessary.  The nursing home chain admitted that several patients who were meant to be short term were transferred to one of their locations in financial peril.  The transfer was against the wishes and consent of the residents and their families, and was meant to generate income for the location and assist in remedying the financial condition.  Attorney General Schneiderman remarked that his office is dedicated to combating such practices and will “find those who use patients to siphon off critical taxpayer funds.”

The Attorney General’s Medicaid Fraud Control Unit and the New York State Department of Health engaged in a joint investigation that revealed the illegalities occurring.  The agencies discovered that the practice of retaining patients longer than necessary was aimed at patients who were the recipients of Medicare or Medicaid.  The patients were also provided with additional and unnecessary services during the period of delay despite the fact that the patients were seeking to be discharged.

Also resulting from the investigation were the license revocations of two former Chief Executives of the nursing home chain, and two former administrators.  Both former CEOs and an additional administrator voluntarily surrendered their licenses.  Additionally, the Attorney General is overseeing that new practices be put in place at Elant to safeguard the patients’ best interests and prevent the exploitation of vulnerable residents.  The chain is also required to enter into a Corporate Integrity Agreement with the Office of the Medicaid Inspector General.

If you believe that your loved one has been mistreated or been taken advantage of by a nursing home, contact an experienced attorney who has the skill and knowledge to handle such matters.  The Law Offices of Tanya Hobson-Williams has handled numerous nursing home claims including those of abuse and neglect.  For more information, call the Law Offices of Tanya Hobson-Williams toll free at (866) 825-1529 or (718) 210-4744.

 

Employees of Medford Multicare Found Guilty on Charges in Connection with Rehab Patient’s Death

Recently, five former health care workers at a nursing home facility were convicted of several crimes in connection with the death of a 72 year old rehabilitation patient.  A respiratory therapist and three nurses were sentenced to various jail terms and probation for the attempted cover–up of the circumstances surrounding the patient’s death.  In addition, another respiratory therapist entrusted with the patient’s care was convicted of criminally negligent homicide.

Aurelia Rios had gone to the Medford Multicare Center for Living, Inc. for rehabilitation purposes.  While there, she required the use of a ventilator to aid in respiration.  However, the respiratory therapist had not read the doctor’s instructions and neglected to connect the ventilator when Rios had gone to sleep.  Evidence shown at jury trial demonstrated that Rios’s respiratory and cardiac alarms had gone off when she stopped breathing, but that the therapist and the nurses ignored the activated alarms and the messages sent to their pagers.  Staff waited two hours before responding to Rios who had been dead for a considerable amount of time.  Additionally, surveillance footage showed two occasions when the respiratory therapist walked by Rios’s room, ignoring the alarms signifying respiratory distress.

The employees proceeded to both falsify nursing notes and conceal computer records in connection to the incident.  Further, none of the staff reported to the New York State Department of Health as required by law.

Among the charges the nursing staff were found guilty of include:

  • Falsifying Business Records
  • Endangering the Welfare of an Incompetent or Physically Disabled Person
  • Willful Violation of Health Laws

Three former aides pled guilty to charges arising from the same occurrence.  The Medford facility corporation’s owner will also be sentenced to seven days in jail on two counts of Falsifying Business Records and Willful Violation of Health Laws.

In addition to the criminal charges, the New York State Attorney General filed a civil lawsuit, charging the corporation with corporate looting and fraud related to a history of criminal activity conducted by the corporation’s employees.

If you or a loved one has experienced nursing home neglect or abuse, contact an attorney immediately who can protect and advise you of your legal rights.  The Law Offices of Tanya Hobson-Williams is dedicated to fighting for the rights of the elderly and vulnerable and has successfully handled numerous cases concerning nursing home abuse and neglect.  For more information, call the Law Offices of Tanya Hobson-Williams toll free at (866) 825-1529 or (718) 210-4744.

New Law Grants Tenants Greater Protection from Gentrification

Mayor de Blasio recently passed a law that would grant greater protection to tenants and prevent landlords from forcing them to move out of rent controlled and rent stabilized apartments.

The law is designed to prevent landlords from forcing tenants to move from rent controlled and stabilized apartments so that landlords can then re-rent the apartments and charge higher rents.  Violation of the new law will result in significant fines.  Landlords may face penalties for a first time offense ranging from $1,000 to $10,000 for engaging in prohibited tactics in an attempt to get tenants to vacate.  Fines up to $20,000 may be imposed for additional violations.

The new law provides that:

  • Landlords may not make a buyout offer within 180 days of a tenant refusing an offer;
  • Landlords may not threaten tenants;
  • Landlords may not contact tenants at unusual hours;
  • Landlords may not induce tenants to move out by providing false information;
  • Landlords must inform tenants that they may remain in their apartment;
  • Landlords are also required to inform the tenants that they may wish to get advice from an attorney;

No tenant should have to live in fear that they will be thrown out of their home, or be retaliated against for refusing to move out.  If you feel that your rights as a tenant have been violated, contact the skilled New York City landlord-tenant attorneys at the Law Office of Tanya Hobson-Williams. Please contact us online, toll free (866) 825-1529 or (718) 210-4744 to discuss your rights as a tenant and the solutions available to you.

Nursing Home Employee Indicted on Charges Related to Resident Trust Account Theft

The New York State Attorney General recently announced that a former employee of a nursing home has been arrested and indicted on 24 counts related to stealing over $6,000 from a nursing home trust fund.  The indictment alleges Criminal Possession of a Forged Instrument in the Second Degree; two counts of Grand Larceny in the Fourth Degree; and seven counts of Petit Larceny for incidents occurring between April 2013 and February 2014.

As the receptionist, the employee was entrusted with the responsibility of submitting requests for residents who wished to use funds from the trust account.  Standard operating procedure at nursing homes is to comingle all resident funds into one account at a bank.  A small amount of money is then kept at the nursing home for distribution to residents when requested.  Instead of distributing the funds to the residents, the indictment alleges that the employee forged the checks, cashed them, and withheld the money for herself.

Nursing home residents are some of the most vulnerable members of society.  Attorney General Schneidermann remarked, “Nursing home residents across New York State entrust financial control to those who are trained and paid to care for them, and those staff members must honor that trust.”

If your loved one is in a nursing home and has been abused financially or physically, contact an experienced Elder Law attorney who can advise you and your loved one regarding the best course of action to take.  Call the Law Offices of Tanya Hobson-Williams toll free at (866) 825-1529 or (718) 210-4744.

 

Do I Need to Make a Living Trust, or is my Will Enough?

Part of estate planning is determining how you will distribute your property and to whom at death.  It is very important to have a will, otherwise your property will be distributed by intestacy, and may not be distributed according to your wishes.  While wills and trusts have some elements in common, they serve two separate functions.

In New York State, a will is a written document that must contain a signature at the end witnessed by two people.  The purpose of a will is to name beneficiaries who will receive property after your death.  A will is revocable and can be destroyed by a physical act such as burning or tearing, by operation of law such as divorce, by presumption (for example, after your death the will cannot be found), or by a subsequent will.  Accordingly, a will may be revised many times during one’s life.  In a will, an executor for the estate and guardians for children may be named, and instructions for wishes to be carried out may be listed.  Upon death, a will goes through the probate process and becomes a public document.

A trust is a relationship between the person who funds the trust (the settlor), the trustee (the person who manages the trust), and the beneficiary (the person who benefits from the trust).  As a trust does not go through the probate process, it is much more private than a will.  Avoiding probate is both cost and time effective.   A trust also allows the beneficiary to enjoy gifts from the settlor of the trust during the settlor’s lifetime so that the settlor can see the enjoyment the beneficiary gets from it.  Additionally, a trust is a good option if you want to be able to distribute funds to children who have not yet reached the age of majority.  Generally, living trusts are revocable and allow for the continuous transfer of assets.  Another benefit of a living trust is that, unlike a will (unless you have appointed a power of attorney), if you become incapacitated, the trustee will take over.

It is best to consult with an experienced attorney to determine whether you should consider making a living trust.  Contact an experienced elder law attorney who can best assist you in planning your estate.  Call the Law Offices of Tanya Hobson-Williams toll free at (866) 825-1529 or (718) 210-4744.

Tenants Awarded Free Rent for Living in On-going Construction

Recently, the New York State Attorney General’s Office reached a settlement with a real estate developer protecting tenants’ rights and prohibiting an unfair buy-out agreement.  In an effort to convert a historic Manhattan apartment building into a luxury condominium, the landlord illegally induced tenants to leave.  Before the developers received approval to put the apartments on the market, they illegally bought out tenants, many of whom had resided at the location for many years.

Several of these units were rent controlled and inhabited by residents who had lived there for decades, some paying only $830 a month.  While construction was on-going in the 44 unit building, residents of 11 units chose to remain in their apartments while they were subjected to loud construction work, dust, debris, no hot water, and general upheaval to their daily lives.  The developer’s plan was to reduce the number of apartments by nearly half to create larger ones, and they offered tenants a fraction of what the apartment would be worth once it was converted to a condominium.  The tenants were offered between $40,000-$100,000 as an incentive to leave their units, although the market value of the units was estimated to be $2 million or more after the conversion.

Due to the illegal behavior of the developer, the Attorney General stepped in and mandated that two years rent be waived for the eleven tenants who chose to remain in the building, $6,000 paid to the tenants who incurred legal fees, and a $350,000 fine to be paid to the Attorney General’s Office. In addition, the Attorney General ordered the developer to contribute $1.24 million toward the construction of affordable housing at another location, since rent stabilized apartments were lost during the condominium conversion.  The landlord is also required to hold monthly meetings to offer the tenants an opportunity to express their concerns.

The building was also been cited for many construction code violations for hazardous conditions and improper asbestos removal.

Landlords have a duty to the tenants inhabiting their buildings to provide suitable housing.  The Implied Warranty of Habitability includes the right to occupy habitable premises free from unhealthy conditions and excessive noise.  In addition, the Covenant of Quiet Enjoyment gives tenants the right to live in an abode without disturbances.

If you feel that your rights as a tenant have been violated, contact the skilled New York City landlord-tenant attorneys at the Law Office of Tanya Hobson-Williams. Please contact us online, toll free (866) 825-1529 or (718) 210-4744 to discuss your rights as a tenant and the solutions available to you.

To read more about this issue, click here for an article recently published in the New York Times.

The Purpose of a Guardianship and the Mental Hygiene Law: Article 81

Tanya Hobson-WilliamsIf you’re finding it difficult to take care of your personal needs or your property, or maybe you do not really understand the decisions that you have been making, and/or your friends and family are concerned but are unable to provide the help you need, perhaps an appointed Guardian is an option for you or your loved one.

The New York Mental Hygiene Law Article 81 was established to provide a Guardian to handle the personal and property needs of an alleged incapacitated person.  Incapacitated persons are those who are unable to provide for their own personal needs and/or to manage their property.  In addition, an incapacitated person is someone who is unable to comprehend or appreciate the inability to handle such affairs.

You might be asking yourself, “Well, how does someone know they are an incapacitated person?  What are the signs or symptoms so that you or a loved one can be appointed a Guardian?”

A Guardian is rarely appointed to an incapacitated person because he/or she self declares or voluntarily decides to classify themselves as an incapacitate person.  Rather, it is a decision that is given by court order based upon the condition of the individual so that a Guardian can be appointed.  The court’s decision is based upon evidence that is clear and convincing that the individual is likely to suffer from harm because he or she cannot comprehend the consequences of the actions they are taking or cannot provide for themselves adequately.   The Guardian can be someone the incapacitated person recommends or nominates or simply someone the court appoints that can best serve their interests.

Now that you have an appointed Guardian or you’re aware that such an option is available, you’re probably wondering what a Guardian will actually do for me.  The Duties and obligations of the Guardian are created in a particular way so that the needs of the incapacitated person are catered to in regards to personal care and/or the individual’s property management.  There may be a variety of issues that a Guardian may be appointed to help with including financial affairs, physical illness, substance abuse or dependency, personal needs, management of property.  The purpose is to help with the best interest of the incapacitated person in mind.  The Guardian will help make decisions that may be too difficult to make alone, handle medical needs or personal care, and to make sure finances are in order.

The Law Firm of Hobson-Williams, P.C. can assist with all aspects of Guardianships from the application to the court, preparation for the court proceeding and after the Guardian is appointed.

Call our office at (718) 210-4744 now to schedule a consultation!

New Medicaid Fair Hearing Procedures

Tanya Hobson-WilliamsNew York City has implemented several changes to the Medicaid Fair Hearing procedures. One of those changes includes restricting the ability to obtain an adjournment of the hearing by making the request online or by telephone. When contacting the N.Y.S. Office of Temporary Disability and Assistance (OTDA) office in Albany to request an adjournment, the agents who answer the phone will question the basis for the adjournment. They use a subjective standard of “good cause” to determine whether or not to grant the adjournment. In fact, I had a client who requested an adjournment of a fair hearing because the hearing was scheduled on Rosh Hashanah and she wanted to use that day to prepare for family who would be visiting for the Holiday. OTDA denied my request for an adjournment because Rosh Hashanah was not observed until sundown on the scheduled date.

I argued vehemently that religious observance was “good cause” and that OTDA cannot deny an adjournment request based upon religious observance. However, the request for an adjournment was denied. The agency’s rigid construction of “good cause” emanates from a lawsuit filed against the OTDA for delays in providing fair hearings to individuals who require immediate assistance. A court order is in place requiring OTDA to schedule a fair hearing within 90 days of the request.

The need to ensure efficiency must be balanced with the need to ensure that those with legitimate needs to postpone hearings are not unduely prejudiced by OTDA’s need to comply with the court’s order. It must be noted that pursuant to the Fishman lawsuit, that if an individual defaults (fails to appear) on a fair hearing, OTDA is required to notifiy the individual that their case will be defaulted if they fail to notify the agency that they wish to proceed with the hearing. Although my request for an adjournment was denied, I was able to obtain another hearing date on behalf of my client knowing about the Fishman litigation.