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Nursing Home Contracts

Before a senior gets admitted to a nursing home, he or she will need to sign a contract or other admission’s agreement. A contract is a legally binding document that defines the conditions under which the senior is admitted. It is important for seniors and caregivers alike to review and understand the contract in its entirety to ensure optimal care, protection and provisions. Some of the most important terms of a nursing home contract define the circumstances under which a resident can be admitted, transferred or discharged and how they will pay for the services provided.

 

Under federal regulation, 42 CFR 483.12(a)(2), a nursing home facility must allow a resident to stay in the facility under the following conditions: 1. his or her needs cannot be met, 2. the individual’s health improved, 3. the facility services are not necessary, 4. the resident is unsafe in the facility, 5. the individual is a danger to other residents if he or she continues to stay, 6. the resident has failed to pay or apply for benefits to pay after “reasonable and appropriate notice,” and or 7. the facility goes out of business. These are the sole grounds for a nursing home facility to be able to discharge a resident.

 

A facility may not discharge residents when the resident entered for the purpose of rehabilitation, which has now concluded or the resident or family, etc. refuse to sign an admissions contract. Even though the facility can’t force the individual out, the resident is still responsible to pay privately for the care or apply for public benefits to cover the cost of services.

 

According to the National Association of Consumer Advocates (NACA), a nonprofit association of attorneys and consumer advocates committed to representing consumers’ interests, there are problems with recent trends in nursing home contracts.  Some nursing home facilities are requiring third parties to apply for Medicaid, recertification of Medicaid, and pay any legal fees incurred by the nursing home because of failure to apply for or maintain Medicaid, as well as expanding the definition of “representative” and/or “sponsor” to include legal liability beyond that required by federal and state laws .

 

In New York State, under 10 NYCRR §415.3(b)(1) & (6), there is no third party liability in these situations. As a condition of admission, expedited admission, or continued stay, there is no third party liability or guarantees. However, nursing homes may seek a third party to sign an agreement on behalf of a resident if that third party has access to the resident’s funds, such as an agent under power of attorney, joint account holder, or court-appointed guardian. Third parties are never personally liable. Their liability on extends to their access and use of a nursing home resident’s funds.

 

Furthermore, according to 10 NYCRR §415.3(b)(3) – (4), there is no waiver of federal rights. A nursing home may not require a resident to waive the right to Medicare or Medicaid. Also, they may not require a resident to guarantee that he or she will not apply for public benefits to pay for care.  This means they cannot require a resident to be a private payer.

 

For further information on nursing home care, contact a New York elder law attorney.  The goal of an elder law attorney is to help secure appropriate medical treatment and advise on a plan to secure payment of nursing home care.  Further, they will help protect your loved ones and preserve assets to the greatest extent possible under the law. Their tasks in this situation include, but are not limited to, providing an opinion letter for a nursing home, assisting in review of all nursing home contracts, and advising family on proper signing of a contract. i.e.“Resident Representative” vs. “Responsible Party” and protect a client’s right to privacy.

 

The lawyers at Tanya Hobson-Williams, PC are skilled in all aspects of elder law and are dedicated to representing its clients with diligence and compassion during emotional times. Contact the experienced New York elder law attorneys at Tanya Hobson-Williams, PC for a consultation by calling (718) 210-4744 or by filling out our contact form.

 

“All Asset” Agreement to Secure Loan Debated in Second Circuit

When secured creditors place an “all asset” agreement in their financing statement, they should be aware that less may be more. When First Niagara Bank supplemented the typical “all assets” language in its security agreement with a property description, the bank opened the door for some complex litigation.

In hearing the case of Ring v. First Niagara Bank NA, the Second Circuit sent notice to secured creditors that they should be careful in drafting their financing statements. First Niagara Bank intended to include all the debtor’s assets as collateral for a loan. However, when drafting the financing statement, First Niagara Bank supplemented the traditional “all assets” language with the additional language of “including, but not limited to, all assets located at [specific address where the collateral was located.]” The financing statement was subsequently filed to perfect their secured party status.

Since the filing of the financing statement, the debtor moved its location and, therefore, the location of the collateral. Additionally, the debtor changed the name of its corporation. First Niagara Bank amended the filings within the state’s UCC filing system to indicate the new name and address of the debtor, but they failed to change the collateral description. Several months later, after realizing the description was inaccurate, First Niagara Bank attempted to amend the filings again.

Eighty-eight days after the second amendment, the debtor filed for bankruptcy under Chapter 11. Because the code allows a bankruptcy trustee to void any transfer made within 90 days from the petition date, First Niagara Bank could not perfect its interests with the new amendments. Therefore, the case before the Second Circuit was to determine whether the earlier filings were sufficient to cover the assets that are now at a new location.

Fortunately for First Niagara Bank, the court found that the financing statement did cover the intended assets, even though they were no longer located at the place indicated when perfected. The court came to this conclusion by relying heavily on the “including, but not limited to” language. In reading that language, the court found that the financing statement still indicated the assets as collateral to the loan.

After the Second Circuit’s decision, businesses should refrain from becoming overly detailed in the “all assets” collateral descriptions. A creditor is provided with no benefit by using the additional language because the court has already held that the term “all assets” is already sufficient. Instead, it exposes them to increased litigation. In completing a financing statement, parties should seek review from an attorney.

From the initial startup of your business to any issues you may encounter along the way, you can rely on Hobson-Williams, P.C. for effective and diligent representation in all your business’ legal matters. The attorneys at Hobson-Williams, P.C. are skilled and knowledgeable in the area of business law and commercial transactions. Contact us at (718) 210-4744 for the quality representation that you deserve.

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.

Judge Decides Not to Dismiss Case Against Nursing Home

Eladia Ciprian, an 80-year-old patient at St. Barnabas Rehabilitation and Continuing Care Center, will not have her case dismissed for the center’s failure to correctly diagnose and treat a hematoma in her right bicep. A Bronx County Supreme Court judge decided not to dismiss the case after the center claimed she made no proof of the nursing home’s neglect or deprivation of her rights.

Rather than bringing a medical malpractice suit against the center, Ms. Ciprian filed a claim under Public Health Law § 2801-d. The law allows a private right of action based on the willful deprivation of certain rights of patients by nursing homes and other residential facilities. The rights of the statute protect a patient’s right to appropriate medical care, to be informed of their medical condition, and to have private communications with physicians or lawyers. Under the statute, the burden of proof is placed on the defendant to show that they did not deprive the patient of any of the previously stated rights. The shift of the burden provides a greater advantage to a patient under the statute than a medical malpractice suit, which places the burden on the plaintiff.

Ms. Ciprian states that, after having an amputation in her right leg, phlebotomists drew blood from her right arm for 12 straight days to see how the amputation was progressing. The staff of the center stated that Ms. Ciprian’s records did not show that multiple blood draws were ordered during the time. The complaint alleges that the neglect of the staff in providing adequate records led to the development of the hematoma. Furthermore, the staff’s records following the blood draws fail to show any documentation of the hematoma’s emergence. While remaining in the center’s care, Ms. Ciprian was admitted to the emergency room to evacuate the 800-milliliter hematoma to avoid amputation of her arm.

In reviewing the motion to dismiss, the court disagreed with the center’s argument and stated that there are triable issues as to whether Ms. Ciprian was properly treated. The court noted that the trial will go forward to answer the question of whether the center deprived Ms. Ciprian of any private right or benefit. If Ms. Ciprian is successful in proving her claim at trial, the statute allows for compensatory damages of no less than 25 percent of the daily rate the patient was paying to be in the facility, in addition to legal fees.

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.

Changes to the ABLE Act

The federal government passed the Achieving a Better Life Experience (ABLE) Act in December 2014. The ABLE Act allows the family of a disabled person to create a federal income-tax-free account to be used for the medical expenses of the disabled individual. This law was created under the same provisions of the tax code as 529 plans for college savings. According to Autism Speaks, the National Disability Institute estimates that there are 58 million individuals in the United States who have a qualified disability.

The ABLE Act account beneficiary must be deemed to be disabled before the age of 26. A person with a disability can save up to $100,000 without affecting their Social Security or other government benefits they may receive. Additionally, an individual’s Medicaid eligibility will not be affected by the funds in the account.

According to Disability Scoop, dozens of disability advocacy groups are in opposition to legislation to expand the ABLE Act. These groups believe that the changes to the act would not go far enough. In September 2016, the United States Senate Committee on Finance approved two bills, which provide additional flexibility to those with a qualifying ABLE account.

The ABLE to Work Act allows a disabled person who is employed to save more money in their account each year, and the ABLE Financial Planning Act allows money saved in a 529 college savings plan to be rolled over into an ABLE account for a person with a disability. In the original legislation, a limitation due to the age of onset did not exist. According to Chris Rodriguez at the National Disability Institute, the addition of the age restriction left out a lot of people who advocated for the ABLE Act for many years.

Many advocacy groups were under the assumption that the age concern would be addressed before already eligible individuals received additional benefits. According to Autism Speaks, organizations such as the Autism Society, United Cerebral Palsy, and National Down Syndrome Congress, among others, are pledging to oppose some ABLE bills.

Currently, there are four states offering programs where ABLE accounts are available. According to Autism Speaks, “accounts created through programs in Nebraska, Ohio and Tennessee are available to individuals nationwide and Florida’s program offers accounts to residents of the state.” By the end of this year, 15 more states are expected to offer ABLE accounts.

The experienced attorneys at Hobson-Williams, P.C. are available to assist you with your concerns relating to the professional care of disabled or elderly loved ones. For more information, contact our knowledgeable New York Elder Law attorneys at (718) 210-4744 to schedule an appointment.

Will the State Enforce Mandatory Arbitration Clauses in New York Nursing Homes?

The use of arbitration clauses by companies in all aspects of daily living has spread immensely across the country. The United States Supreme Court has recently held that the use of arbitration clauses is fully enforceable, and nearly impossible to overturn. With that being said, the Centers for Medicare and Medicaid Services (CMS) has limited the use of these clauses by implementing a new rule that restricts any nursing home receiving federal funding from requiring residents to resolve disputes in arbitration rather than in court. While the rule does not forbid arbitration completely, it does restrict the use of pre-dispute binding arbitration agreements. The rule will take effect over all nursing home admissions agreements signed after November 28, 2016.

The new rule ensures that a patient is no longer required to settle their dispute in arbitration, which can be costly. Instead, the patient can take their disputes to court which can be a more cost effective route of bringing a claim. A claim brought in arbitration can cost a patient upwards of tree-times as much as bringing an action within the court system due to the increased cost of fees for the arbitrators.

On the other side, nursing homes argue that the Centers for Medicare and Medicaid Services (CMS) stepped outside of their statutory authority as the rule does nothing to protect the residents’ health and safety. The nursing homes also argue that the additional cost to them of fighting these claims in court will force some nursing homes to close.

The New York Times reports that this new rule will not only save patients money in filing a claim, but it will restrict nursing homes from keeping embarrassing practices hidden in arbitration. The switch from arbitration to the court system means that all claims will become public rather than privately adjudicated. It is believed by patients that this transparency will ensure that the nursing homes will provide adequate services.

While the rule only applies to nursing homes receiving federal funding, New York State Public Health Law provides a statutory cause of action for nursing home residents as a result of injuries in any nursing home in New York State. Currently, a case is seeking review from the New York State Court of Appeals to determine whether the New York Statute makes an arbitration clause invalid. In this case, the trial court ruled that the statute invalidated the arbitration clause signed by an elderly woman who sued a nursing home after falling and breaking her hip. The NYS Court of Appeals overturned this decision by stating that the Federal Arbitration Act of preempts the state law because the nursing home engages in interstate commerce. A decision is expected in January 2017 as to whether the NYS Court of Appeals will grant a hearing on the decision.

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 the experienced New York elder law attorneys at Hobson-Williams, P.C. at (718) 210-4744 for the quality representation that you deserve.

Attorney General Files Suit After Investigation into Tenant Harassment

In partnership with Governor Andrew Cuomo’s Tenant Protection Unit, a subpoena was issued in 2014 to investigate Marolda Properties and different landlord companies concerning allegations of tenant harassment and business practices.

On November 1, a lawsuit was filed by New York State Attorney General Eric Schneiderman, against landlords and property management companies alleging that they harassed residents in Chinatown and the Lower East Side. The harassed tenants occupied rent regulated apartments. According to Crain’s New York Business, the landlords and management companies wanted these residents out of the building to bring in higher paying tenants to increase profits.

Marolda Properties, a party listed in the complaint, owns and manages upwards of 70 buildings with approximately 1,700 apartments throughout Westchester County and the five boroughs.

According to the complaint, Marolda Properties and landlords of different limited liability companies intimidated residents “by accusing them of not living in their unit.” They threatened the tenants with an eviction proceeding if they did not leave voluntarily. According to Crain’s, the property manager and landlords filed suit in housing court against tenants without any evidence to their claims in many cases.

According to the Attorney General, Marolda, who is a stakeholder in many of the buildings, turned off the gas to some units at a building in the Lower East Side and failed to make basic repairs in an attempt to make the tenants leave. Marolda has not turned the gas back on according to Schneiderman.

One example cited by Crain’s is that when Marolda “ripped out the toilet used by elderly residents in August and never replaced it.” The elderly tenants “had to climb three flights of stairs to use a different restroom.”

Marolda Properties has not yet commented on the allegations.

If you believe your rights as a tenant have been violated, contact Tanya Hobson-Williams, P.C. to learn about the protections available to you under New York State Law.

What is Medicaid Fraud?

Today, there are over 5.3 million New York residents enrolled in the Medicaid program, according to the New York State Department of Health. As one of the largest state and federally funded programs, both New York State and the federal government have devoted millions of dollars to investigate, penalize and prosecute individuals and entities engaging in Medicaid fraud.

There are several types of Medicaid fraud, such as those who receive Medicaid fraudulently. Medicaid recipient fraud may include an applicant falsifying information on the application and certification failure to disclose information about income and assets owned, and the failure to disclose income earned by a spouse or other household member. Other activities that can be deemed as Medicaid fraud are loaning another person their Medicaid identification card, changing or creating a falsified order or prescription, using more than one Medicaid identification card, deliberately receiving excess, duplicative or conflicting medical service and/or supplies, and selling Medicaid-provided supplies to others.

However, there are some instances that may trigger an investigation into Medicaid fraud, even if the individual has not acted outside the scope of the law. These instances may include an unusually high frequency of Medicaid claims, an anonymous call to the Medicaid fraud hotline, and a computer-generated analysis of Medicaid claims and billing codes. Medicaid can also perform an investigation if Medicaid benefits were paid incorrectly, even if you are not at fault.

On the federal level, Medicaid fraud is investigated by the Inspector General, the Federal Bureau of Investigation or other federal entities. On the state level, it is investigated by The Medicaid Control Unit of the New York Attorney General’s Office, the Office of Medicaid Inspector General, and local district attorneys. On the local level, it is investigated by the NYC Human Resources Administration or County Department of Social Services. Medicaid fraud can result in a variety of penalties and consequences, from repayment of Medicaid benefits to lengthy prison sentences. Due to the potentially severe consequences an individual can face, it is important that anyone under investigation for Medicaid fraud contact an experienced New York Medicaid fraud lawyer who can advise you of your legal rights and course of action.

The experienced New York Medicaid fraud defense attorneys at the Law Offices of Tanya Hobson-Williams have successfully defended clients who were accused of Medicaid fraud. Our lawyers are knowledgeable in the laws of Medicaid eligibility and usage and will vigorously defend your rights. To schedule a consultation, call 1-866-825-1LAW.

SCOTUS Declines Review of Debt Collection Case

On June 27, the Supreme Court declined to review a ruling by the United States Court of Appeals for the Second Circuit, allowing the decision in the class-action lawsuit against the debt collection company Encore Capital Group Inc., Midland Funding and Midland Credit Management to stand.

As is typically done in the debt collection industry, Midland had purchased millions of dollars of debt from Bank of America for pennies on the dollar, hoping to collect repayment at a higher rate from the borrowers. Midland rendered a 27 percent annual interest rate on New York resident Saliha Madden’s credit card debt she incurred years earlier through the Bank of America.

In May 2015, Ms. Madden commenced a class-action lawsuit against Midland and argued that the company could not charge her the 27 percent interest rate on her credit card debt because it exceeded the interest limits in her home state. The Second Circuit ruled in favor of Ms. Madden, stating that debt collection companies are not protected under the National Bank Act and must abide by the interest rate cap set under a state’s “usury” laws. The Appeals Court’s ruling extends to borrowers in New York, Connecticut and Vermont.

According to the New York Times, the Appeals Court’s decision is limited. In the Madden case, the borrower no longer had a relationship established with the bank after it sold off the debt to the loan collection company. However, the original interest rate a financial institution charges on credit card debt may still be applicable even after the debt has been sold.

At some point, a business owner may need to collect on debt owed under loan agreements, contracts, services, transactions, promissory notes, and goods that were sold and delivered. Hobson-Williams, P.C. is a full-service debt collections department that is available to advise you of your rights when it comes to debt collection. The firm’s debt collection attorneys practice in accordance with all federal and state debt collection laws when dealing with debtors. For more information, call 1 (866) 825-1529.

Antibiotic Usage in Nursing Homes Linked to Serious Health Problems

According to the Center for Disease Control (CDC), up to 70% of nursing home residents are prescribed antibiotics during the course of any given year, ranging in cost between $38 million to $137 million per year. Recently, the Journal of American Medical Association (JAMA) released the results of a study that linked the high usage of antibiotics in nursing homes to many health problems such as gastroenteritis, clostridium difficile, and resistance to superbugs, drug-resistant germs.

The study, which concentrated on a sample of 110,656 patients in 607 nursing homes in Ontario, Canada, found that the residents had a high percentage of antibiotic use. The most commonly prescribed antibiotics were penicillin and second-generation fluoroquinolones. Despite the fact that some elderly residents did not take the antibiotics, they were still at an increased risk of antibiotic-related harm.

As noted by the CDC, the over-prescription of antibiotics contributes to the development and sustainability of superbugs, one of the world’s leading health threats. Physicians are advised to only prescribe antibiotics if, based on evaluation, their patient has a bacterial infection. According to the JAMA study, it is estimated that 56% of inappropriately prescribed antibiotics are to treat suspected urinary tract infections, and up to one-third of these are for nursing home residents with asymptomatic bacteriuria, bacteria in the urinary tract. However, this bacteria is usually safe and does not require antibiotic treatment.

According to the CDC, nursing home residents are highly susceptible to to drug-resistant germs due to the possibility of the bacteria “colonizing,” residing without producing symptoms, on their skin.

If you or your loved one is in a nursing home and has been subjected to misuse or overuse of antibiotics, contact an experienced elder law attorney at the New York Elder Law Firm Hobson-Williams, P.C. at (718) 210-4744.