Elder Law And Social Policy
Frolik Text
Professor Brown
August, 2022
Characteristics of
elder law that
distinguish it from
traditional practices
of law:
(1) Elder Law places special emphasis on issues surrounding long life instead of
death.
(2) Elder Law integrates legal planning into the larger picture of planning needs.
(3) Elder Law strives for an interdisciplinary planning perspective (eg: disability
networks and community resources).
Core Goals of Elder
Law Representation:
●
●
●
Elder Law:
Autonomy
Dignity
Quality of life
Elder Law: the practice of counseling and representing an older person or their
representative in 5 core areas of law.
Predicaments of this conventional approach:
● Elder law practitioners actually exhibit tremendous variability in what
substantive areas they focus on within the panoply of elder law topics.
● The nature of the practice keeps evolving and branching into new areas, such
as special needs and trusts; and
● Elder law attorneys as a group probably serve as many or more younger
clients, who are either the adult children of elders or persons with disabilities,
who benefit from the planning and special needs expertise of elder law
attorneys.
2 VISIONS FOR
THE FUTURE OF
ELDER LAW:
(1) elder law will continue to mature into an established multi-faceted practice
field
(2) all lawyers in myriad types of practices will become competent in elder law
knowledge and skill.
Understanding the Four C’s of Elder Law Ethics:
CLIENT
IDENTIFICATION
CLIENT IDENTIFICATION: the client is the person whose interests are the most at
stake in the legal planning or legal problem.
● Professional duties of competence, diligence, loyalty and confidentiality.
CONFLICTS OF
INTEREST
CONFLICTS OF INTEREST: lawyers have an ethical obligation to avoid conflicts of
interest; a lawyer may typically only represent one person.
CONFIDENTIALITY
CONFIDENTIALITY: lawyers have an obligation to keep information and
communications between the client and other confidential; cannot share client
information with family members without the client’s approval.
CAPACITY
CAPACITY: lawyers have special ethical responsibilities in working with clients
whose capacity for making decisions may be diminished.
Elder Law Frolick Book
CHAPTER 1: AN AGING POPULATION: THE CHALLENGE TO THE LAW:
DEFINING ELDERLY
Defining “elderly”:
● Chronological age: measures the passage of time; denotes certain rites of
passages or the granting of legal rights.
● Function capacity:
● Social involvement:
● Physical and mental health:
INCREASE IN THE
NUMBER OF
ELDERLY
The absolute number of the elderly is increasing and the percentage of the total
population that is elderly is also increasing; caused by:
● Higher birth rates
● Immigration
PROPORTIONAL
GROWTH OF
ELDERLY IS
GREATEST AMONG
WHITES
Proportional growth of elderly subpopulations will be greater than white populations:
● Higher birth rates
● Improved healthcare
● Reduced rates of immigration
PROJECTED LIFE
EXPECTANCY
CHARTS
Projected life expectancy charts are deceiving because:
● They merely predict the average age of death for all those born in the same
year (age cohort).
● Well over half the individuals of an age/sex cohort will life past the
projected life expectancy age.
CHRONOLOGICAL
AGE AND CHRONIC
DISABILITY
Chronological Age and Chronic Disability:
● Adaptations in technology allow more jobs that can compensate for
disabilities so more people work past the retirement age of 65.v
● The group most likely to lose jobs when having lifelong disabilities is the
“near elderly” ages 54 to 63.
● The shift in the 21st century from industrial and manufacturing sectors to
technology and various services caused a significant number of older
workers to lose their jobs.
GROWTH IN
POPULATION OF 85+
Growth in the population over the age 85:
● The population age 85 or older by percentage is currently the fastest
growing segment of the population.
○ Healthier lifestyles
○ Electronic and adaptive home assistance
○ Technologically sophisticated medical care
AGING PATTERNS
BY GENDER
Aging patterns by gender: women outlive men.
● Society should take into consideration that the majority of the elderly are
women when allocating its assistance resources.
○ Difference in income → retirement benefits
○ Difference in health care issues
AGING PATTERNS
BY RACE
Aging patterns by race: predominately white, but changing.
● Although the life expectancy of minorities is increasing, the gap between
whites and minorities remains.
○ White will decline to about 65% of all elderly by the year 2050.
○ Current benefit programs disproportionately favor the white
elderly.
■
Eg: minorities do not live long enough to collect their
retirement benefits
LGBTQ IN ELDERS
Lesbian, Gay, Bi-sexual, and Transgender Elders:
● 1.6% of elderly identify as LGBTQ whereas 6.4% of young adults do.
● Unique health and welfare needs.
DEPENDENCY
RATIO
Dependency Ratio: assumes that everyone over the age of 65 is dependent and
everyone age 18-64 is a producer.
● Projected ratio → 27 (age 65+): 100 (age 18-64).
● BUT elderly have other incomes: pensions, savings, gifts, in-kind assistance.
PHYSICAL EFFECTS
OF AGING
Physical effects of aging: bone loss, muscle pain, loss of vision and hearing, memory
loss, chronic conditions, psychological effects/
CHALLENGES WITH
THE LAW
Challenges with law: making changes good for society as a whole, the disparate
segments of populations, and for the individual in need for protection from
exploitation.
● Mortality → need for help now: even if death does not intervence, changes
in the client’s circumstances (health, income, or social support) may
radically limit legal choices.
● Complications of declining physical and mental capacity: serious losses of
physical and mental capacity cause the clients to become dependent on
others and less capable of defending their own rights and interests.
○ Alzheimer's and related mental disorders → loss of mental
capacity; results in court ordered guardianship and durable power
of attorneys.
○ Chronic illness → loss of physical capacity; continued reliance on
health care.
○ Economic vulnerability → approx. 9% of those age 65+ have
incomes below the poverty index; economic vulnerability from low
wages, lack of proper pension plans, extra cost of health care and
assistance.
ELDERS DEPEND ON
THE YOUTH
The Old depend on the Promise of the Young:
● Formal Assistance → provided by institutions, agencies, and their
representatives.
● Family and Social Networks → living communities, families, friends. (but
some minority groups have been cut off by their families)
● Family Support Statutes → voluntary assistance by family members v. filial
relative responsibility laws (duty to assist or proof that parent failed to fulfill
duties of parenthood)
AUTONOMY V.
PROTECTION
Conflicting values: autonomy v. protection:
● Autonomy → elevates the rights of the individual over the wishes, opinions,
and needs of others.
● Protection → government programs that limit a person’s freedom to act
that results in dependency.
GENERATION
INJUSTICE
Generation Injustice: the debate centers not on the goal to protect the elderly, but the
means.
● how much does the young owe the old caused by the rising costs of social
programs?
AGE
DISCRIMINATION
Age Discrimination:
● Includes distributing government benefits or choosing the right person or
privileges for older and younger people.
○ Example of negative age dsicrimination: driver license
requirements → testing to retain a DL.
○ Example of positive age discrimination: expansion of granparental
rights.
● Cost considerations make it impossible for the programs to be universally
offered.
● Elderly are the favored group because old age is historically associated with
economic need.
● Financial justifications for positive age dscrimination → they worked all
their lives.
○ Counter → they should have saved.
● Health justifications for positive age dsicrimination → goal of securing
optimal health care both to strengthen an individual's ability to function
and care for themselves to enhance their quality of life.
○ Counter → balanced with the needs of young and poor people.
ELDERLY AND
LAWYERS
The Elderly and Lawyers: worthy of lawyer’s interests because the elderly are
favored by so many public and private benefit programs.
● Assistance to explain and clarify their rights
● Help to access benefit programs
● Help to ensure they receive all benefits they are entitled to
CHAPTER 2: ELDER LAW PRACTICE AND ETHICS:
The Legal Needs of
Elders
Legal Problems include:
● Age discrimination in employment
● Obtaining federal benefits such as SS and SSI
● Appeals from denial of medicare benefits
● Establishing medicaid eligibility
● Housing problems such as landlord and property tax exemptions and assessment
● Mental incapacity and guardianship
● Substandard nursing home care
● Abuse and neglect by caregivers and criminals
Elder Law Practice
Visions for the future of elder law:
● (1) elder law will continue to mature into an established multi-faceted practice
field.
● (2) all lawyers in myriad types of practices will become competent in elder law
knowledge and skill.
Practice Structure and Management:
● Law frisk that specialize in elder law have developed along three models:
○ Traditional firm: usually approached elder law from its origins in trusts
and estates, focuses on financial and property management and consults
to elder law expertise.
○ Clearing house referral source: (most frequent) offers expertise on
community and social-service resources, in addition to traditional legal
assistance.
○ Comprehensive “umbrella” firm: furnished direct, non-legal services
performed by members of the firm’s staff as well as referring clients to
community social-service providers.
The Elder Law
Office
Location, Amenities, and Communications:
● Location: percentage of elders within a reasonable distance; adequate parking,
easy access, reachable by public transportation, readily accessible.
● Amenities: disabled compliant, low audio.
● Communication: clear signage, directions, etc.
Legal Fees:
● Fundamental package of documents including durable power of attorney for
finance, durable power attorney for health care, and a will at a set cost.
● Negotiable matters include intra-family issues
● Model Rule 17: another person can cover attorney fees so long as the payment
does not compromise the loyalty of the lawyer to the client.
Multidisciplinary
Practice
MDP: lawyers and other professionals working in concert.
● Model Rule 5.4: a lawyer or law firm may not share legal fees with a nonlawyer,
except that: they may include nonlawyer employees in a compensation or
retirement plan, even though the plan is based in whole or in part on a profitsharing arrangement.
Discrete Task
Representation
Unbundling or discrete task legal representation: when lawyers are asked to participate in
a less than comprehensive form of legal assistance for the client who wants to save
money or be more active in their own representation by obtaining a document and some
advice, and pursuing the matter personally.
Forms of
Unauthorized
Practice of Law
Forms of Unauthorized Practice of Law:
● Paralegals
● Non-lawyer professional employee under law firms
● Dual license
● Reduced legal assistant by volunteer bar attorneys or firms (pro bono or free
consultation)
Thursday - August 19th, 2021
Six Pillars of Capacity
Six Pillars of
Capacity
(1) Medical Condition: “physical illness” or “physical disability”.
(a) Some conditions are temporary and reversible.
(b) Judge requires information on the specific disorder causing
diminished capacity.
(2) Cognition: unable to receive and evaluate information or make or
communicate decisions to such an extent that the individual lacks the ability to
meet essential requirements for physical health, safety, or self-care, even with
appropriate technological assistance.
(a) Cognitive functioning → alertness or arousal, memory, reasoning,
language, visual-spatial ability, and insight.
(3) Everyday Functioning: focuses on one’s ability to provide for one’s
“essential needs”, such as an inability to meet personal needs for medical care,
nutrition, clothing, shelter, or safety.
(4) Consistency of Choices with Values and Preferences: a guardian must
consider the expressed desires and personal values of the individual known to
the guardian.
(5) Risk and Level of Supervision Needed: degree of risk is the consideration the
environmental supports and demands; the level of supervision must match the
risk of harm to the individual and the corresponding level of supervision
required to mitigate that risk.
(6) Means to Enhance Capacity: means to enhance capacity must be determined
through practical accommodations through medical, psychological and
educational interventions.
Five Steps in
Determining Judicial
Capacity
(1) Screen Case
(a) Review trigger
(b) Determine if guardianship is potentially appropriate
(i)
If not → less restrictive alternatives
(c) Determine if immediate risk of substantial harm
(i)
Yes → emergency guardianship
(2) Gather Information
(a) Receive reports
(b) Ascertain if more information is necessary
(c) Obtain additional reports
(3) Conduct Hearing
(a) Take judicial note of reports
(b) Receive testimony
(c) Accommodate, observe, and/or engage individual
(4) Make Determination
(a) Analyze evidence in relation to the elements of state law
(b) Categorize judgement
(i)
Minimal or none → less restrictive alternatives
(ii)
Severely → plenary guardianship
(iii)
Mixed → limited guardianship
(c) Limited → identify rights retained and/or removed
(d) Identify statutory limits of guardian authority
(5) Ensure Oversight
(a) Monitor changes in capacity and guardian actions
(i)
If condition may improve → use time-limited guardianship
(b) Instruct guardian
Kapp - Legal Issues in Determining Capacity:
Issues that require
determination of
capacity:
Problem:
●
●
●
●
●
Executing a will
Entering a contract
Financial transactions
Living location and arrangements
Research participation
“Neuropsychological tests do not map directly on to legal constructs”
● There frequently is a huge difference between a general psychological
assessment done for diagnostic and/or therapeutic reasons on the one hand and
an evaluation done for purposes of determining a person’s capacity
autonomously to make specific kinds of decisions on the other.
Barriers to
determining legal
capacity:
(1) Informed consent
(2) Confidentiality considerations
(3) Standards of Practice and Liability Risk for Erroneous Assessment
Informed Consent
Informed Consent:
● A capacity evaluation can be a particularly threatening clinical encounter
because patients’ basic rights to make decisions for themselves are at stake
and patients are in a particularly vulnerable position (given some question
about their cognitive or psychiatric functioning).
● Outcomes of an express of implied request that one participates in a capacity
evaluation:
○ The patient consents
○ The patient does not consent/refuses
○ The patient cannot consent or refuse (lacks capacity to consent)
■ Assent but questionable comprehension of risks/benefits
● Legitimate consent for capacity evaluation contains three elements:
○ Consent must be voluntarily given
○ Consent must be based on an adequate presentation to the individual
of all material information
○ Decisional capacity
Confidentiality
Considerations
Confidentiality Considerations:
● Decisional capacity evaluations entails the release, collection, and
management of personality identifiable information about the individual
whose capacity is being questioned.
● Legal restrictions on sharing personally identifiable health information are
imposed by:
○ common-law precedent,
○ state medical privacy and testimonial privilege statutes, and
○ the federal Health Insurance Portability and Accountability Act
(HIPAA) and its implementing Privacy Rule.
Standards of Practice
and Liability Risk for
Erroneous
Assessment
Standards of Practice and Liability Risk for Erroneous Assessment: [Professional
Liability Claims] test cases seeking to impose civil liability on psychologists and other
professionals who perform decisional capacity evaluations on older individuals, to
succeed the plaintiff must prove:
1. The evaluator owed the alleged incapacitated persona a legally enforceable
duty of care (here → clinician’s duty to patient);
2. The evaluator breached or violated that duty with a specific standard of care;
3. The victim suffered legally compensable damage or injury (ex: false-positive
evaluation, or false-negative evaluation); and
4.
Sufficient proof of a causal connection between the evaluator’s negligent
behavior on the one hand and the damage or injury suffered on the other.
Specific Capacities:
Specific Capacities
Types:
Contractual Capacity
(1) Contractual capacity
(2) Capacity to Convey Real Property
(3) Testamentary Capacity
(4) Donative Capacity
(5) Capacity to Execute a Durable Power of Attorney
(6) Financial Capacity
(7) Capacity to Make Health Care Decisions
(8) Capacity to Appoint a Healthcare Agent
(9) Independent Living
(10) Capacity to Marry
(11) Capacity to Mediate
(12) Capacity to Testify
(13) Sexual Consent Capacity
Contractual Capacity: courts assess whether the person possesses sufficient mind to
understand, in a reasonable manner the nature, extrent, character and effect of the act or
transaction in which the person is engaged.
Functional/cognitive/other domains of capacity: determining whether the person:
● Understands the general nature of this contract
● Understands the effect of the contract
● Has the level of understanding required for the degree of difficulty of the
particular contract
● Possess the required level of understanding at the time the person signs the
contract
● Entered the contract voluntarily
● Can communicate the above, without assistance
Capacity to Convey
Real Property
Capacity to Convey Real Property: the grantor must generally be able to understand
the nature of the act and to comprehend its consequences.
Testamentary
Capacity
Testamentary Capacity: the testator or donor must be capable of knowing and
understanding in a general way the nature and extent of his or her property, the natural
objects of his or her bounty, and the disposition that he or she is making of that
property, and must able be capable of relating these elements to another and forming an
orderly desire regarding the disposition of the property.
Functional/cognitive/other domains of capacity: determining whether the person
has:
● Comprehension and judgement in understanding what a will is, the extent of
assets, and the claims of beneficiaries
● Long-term memory
● Immediate recall or registration
● Expressive and receptive language which are required to communicate with
legal advisor and beneficiaries to give instructions
Donative Capacity
Donative Capacity: same as testamentary, expect that it affects the donor’s financial
circumstances now and in the future, rather than at death. The donor must have the
mental capacity necessary to make or revoke a will and must also be capable of
understanding the effect that the gift may have on the future financial security of the
donor and anyone who may be dependent on the donor.
Capacity to Execute a
Durable Power of
Attorney
Capacity to Execute a Durable Power of Attorney: either the same as a will or
executing a contract.
Financial Capacity
Financial Capacity: alleged loss of financial capacity is often the basis for judicial
determinations of the need for conservatorship or guardianship of the property/estate.
Authorizes the appointment of a conservator only if the adult is unable to manage
property of financial affairs because:
● Person has limited ability to receive and evaluate information or make or
communicate decisions
● Appointment is necessary to avoid harm to the adult or significant dissipation
of the property of the adult; or obtain or provide funds or other property
needed for the support, care, education, health or welfare of the adult or an
individual entitled to the adult’s support; AND
● The respondent identifies that needs cannot be met by a protective
arrangement instead of conservatorship or other less restrictive alternative
Functional/cognitive/other domains of capacity: determining whether the person
has:
● Physical capacity to perform tasks
● Judgement and decision making skills that support a person’s financial best
interest and independence
● Personal values that guide a person’s financial choices and actions
Capacity to Make
Health Care Decisions
Capacity to Make Health Care Decisions: the ability to understand the nature and
purpose of the proposed treatment of procedure, its potential benefits and risks, and the
benefits and risks of alternative approaches.
Functional/cognitive/other domains of capacity: determining whether the person
has:
● Understanding
● Appreciation
● Reasoning
● Expressions of a choice
Capacity to Appoint a
Healthcare Agent
Capacity to Appoint a Healthcare Agent: turning to the contractual capacity
standard; understanding the nature and effect of a transaction.
Functional/cognitive/other domains of capacity: determining whether the person had
the capacity to understand:
● What it means to give authority to another for healthcare decisions
● Through a legal instrument
● Because of future (or present) inability to make treatment decisions and to
make a choice which requires:
○ The ability to determine who would be an appropriate agent, and
○ The ability to express a consistent choice of an appropriate agent
Independent Living
Independent Living: whether an individual can live as a resident of their choosing.
Legal standard may resort to guardianship and conservatorship statutes, possibly adult
protection services.
Functional/cognitive/other domains of capacity: determining whether the person
had:
●
●
Capacity to Marry
Demonstration of the skills necessary for living at their desired level.
Capacity to make decisions related to living independently.
Capacity to Marry: the legal standard is based upon common law; capacity exists if
the parties understood that the relationship was legally monogamous, interminable
except for death or divorce, and that it involved mutual support and cohabitation.
Functional/cognitive/other domains of capacity: determining whether the person
had:
● Known or be able to understand and communicate the nature of the marriage
contract
● Articulate and communicate the duties and obligations which marriage
creates.
● Needs to have the necessary skills and abilities to carry out the task
Capacity to Mediate
Capacity to Mediate: mediator should ascertain that a party understands the nature of
the mediation process, who the pirates are, the role of the mediator, the parties’
relationship to the mediator, and the issues at hand.
Capacity to Testify
Capacity to Testify: Under FRE 601, every person is presumed to be a competent
witness. In civil actions, competency is determined by state law. In a criminal trial, a
jury determines the witness’s credibility but a judge determines the witness’s
competence to testify → (1) whether the proposed witness can give an oath or
affirmation to testify truthfully and (2) whether the witness is capable of giving an
accurate account of what she or she has seen and heard.
Sexual Consent
Capacity
Sexual Consent Capacity: no uniform legal standard exists for a legal determination
of capacity to consent to sexual activity among incapaciatated adults; however, most
states consider factors like knowledge, decision making abilities, and voluntariness.
Functional/cognitive/other domains of capacity: determining whether the person
had:
● Knowledge: of the sexucal activity in question, potential consequences such
as STDs, and how to determine whether the partners consented.
● Decision-making abilities: such as understanding and appreciating the
behavior expressing a choice about engagement based on consideration of
relevant information and personal values; AND
● Voluntariness: of the decision to engage in the secual active and review of any
potential concerns for physical or sexual abuse or undue influence.
Frolick pp. 45-70:
Cincinnati Bar
Association v. Mezher
and Espohl
Rule: Prof. Cond.R. 71: A lawyer shall not make a false or misleading
communication about the lawyer or the lawyer's services. A communication is false or
misleading if it: contains a material misrepresentation of fact or law, or omits a fact
necessary to make the statement considered as a whole not materially misleading;
Reasoning: The advertising was misleading because it omitted a key piece of
information. The free consultation ended (and billing began) with the signing of the
fee agreement. The firm’s discharge, however, made the number of hours worked
relevant, but the client was never told during the consultation that it had changed from
a free to a billable vent. A lay person would consider the meeting as one continuous
event, rather than a free consultation followed immediately by an attorney conference.
Holding: Deenfants are publicly reprimanded and the costs of these proceedings are
assessed jointly against them.
Judicare
Judicare: a government funded program of reduced and free legal services that are
broader in scope and have more generous eligibility standards.
● Such a program would ensure that all citizens receive legal assistance if they
cannot pay.
Government
Subsidized Legal
Assistance
The federal government funds two programs that provide legal services to elders:
● Legal Services Corporation - provides services to the poor, including elders
○ Cannot participate in class action suits and cannot identify the
corporation with any political or partisan activity
● Older Americans Act Legal Services - a service that must be given some
portion of an OAA grant and spent on some form of legal assistance for
anyone who meets the age requirements.
These programs:
● Are underfunded; neither can take fee-generating cases
● Deal with landlord-tenant, debtor-creditor, custody disputes, divorce.
Administration on Aging (AoA): administers the Older Americans Act in which
individuals ages 65+ can receive subsidized legal assistance from providers.
● State plan must give priority to legal assistance related to income, health care,
long-term care, nutrition, housing, utilities, protective services, defense of
guardianship, abuse, neglect, and age discriminaton.
● Merged (as part of the DHHS) with the Office of Disabilities to create a new
Administration for Community Living (ACL).
○ Purpose → coordinate similar and overlapping services over time to
people with disabilities and older people.
Definition of Legal Services (OAA § 102(31)) → only for individuals with economic or
social needs:
(a) Means legal advice and representation provided by an attorney to older
individuals with economic or social needs; and
(b) Includes:
(i)
The extent feasible, counseling, or other appropriate assistance by a
paralegal or law student under the direct supervision of an attorney;
and
(ii)
counseling or representation by a nonlawyer where permitted by law.
Ethical Issues
Who is the Client? The attorney’s ethical duties are owed to the client.
(1) Joint and Common Representation:
(a) Rule 1.7 - Conflict of Interest:
(i)
A lawyer shall not represent a client if the representation
involved a concurrent conflict of interest, which exists if:
1) The representation of one client will be directly
adverse to another client; OR
2) There is a significant risks that the representation
of one or more clients will be materially limited by
the lawyer’s responsibilities to another client, a
former client or a third person or by personal
interest of the lawyer,
(ii)
(joint representation) Notwithstanding the existence of a
concurrent conflict of interest under paragraph (a), a lawyer
may represent a client if:
1) the lawyer reasonably believes that the lawyer will
be able to provide competent and diligent
representation to each affected client;
2) the representation is not prohibited by law;
3) the representation does not involve the assertion of
a claim by one client against another client
represented by the lawyer in the same litigation or
other proceeding before a tribunal; and
4) each affected client gives informed consent,
confirmed in writing.
(b) Rule 1.6 - Confidentiality:
(i)
A lawyer shall not reveal information relating to the
representation of a client unless the client gives informed
consent, the disclosure is impliedly authorized in order to
carry out the representation or the disclosure is permitted by
paragraph (b).
(ii)
A lawyer may reveal information relating to the
representation of a client to the extent the lawyer
reasonably believes necessary:
1) to prevent reasonably certain death or substantial
bodily harm;
2) to prevent the client from committing a crime or
fraud that is reasonably certain to result in
substantial injury to the financial interests or
property of another and in furtherance of which the
client has used or is using the lawyer's services;
3) to prevent, mitigate or rectify substantial injury to
the financial interests or property of another that is
reasonably certain to result or has resulted from
the client's commission of a crime or fraud in
furtherance of which the client has used the
lawyer's services;
4) to secure legal advice about the lawyer's
compliance with these Rules;
5) to establish a claim or defense on behalf of the
lawyer in a controversy between the lawyer and
the client, to establish a defense to a criminal
charge or civil claim against the lawyer based
upon conduct in which the client was involved, or
to respond to allegations in any proceeding
concerning the lawyer's representation of the
client;
6) to comply with other law or a court order; or
7) to detect and resolve conflicts of interest arising
from the lawyer’s change of employment or from
changes in the composition or ownership of a firm,
but only if the revealed information would not
compromise the attorney-client privilege or
otherwise prejudice the client.
(iii)
A lawyer shall make reasonable efforts to prevent the
inadvertent or unauthorized disclosure of, or unauthorized
access to, information relating to the representation of a
client.
(c) Join representation v. common representation:
(i)
Joint representation: the representation of multiple people
as a single client with unified interests that seeks to adjust a
relationship with an outside person or entity. Requires
consent to the relationship in which each person becomes
part of the client.
1) Ex: elder and adult child who seek to secure
Medicaid eligibility for the elder as a means of
paying the elder’s long-term care.
(ii)
Common representation: assists the individuals in resolving
issues among them and achieving their common goals.
Each individual is the client and is owed all the duties of an
individual client.
(2) Dual Representation of Spouses:
(a) lawyer may assume that each spouse will fulfill the ethical
obligations of the marriage commitment, AND
(b) The ethic rules should be construed to “provide appropriate delivery
of legal services without excessive cost or duplication of services,
and fulfillment of fluent expectation about the lawyer’s role
(3) Withdrawal from Representation: require withdrawal of some or all in the
family when conflict of interest arises.
(a) MR 1.7(B): Resolution of a conflict of interest problem under this
Rule requires the lawyer to:
(i)
clearly identify the client or clients;
(ii)
determine whether a conflict of interest exists;
(iii)
decide whether the representation may be undertaken
despite the existence of a conflict, i.e., whether the conflict
is consentable; and
(iv)
if so, consult with the clients … and obtain their informed
consent, confirmed in writing.
(4) Attorney Self Interest: issues of conflicts of interest, legal fees, and intrafamily disagreements.
In Re Guardianship of
Lillian P.
Withdrawal from
Representation:
require withdrawal of
some or all in the family
when conflict of interest
arises.
Dayton Bar Association
v. Parisi
Attorney Self Interest:
issues of conflicts of
interest, legal fees, and
intra-family
disagreements.
Clients of
The court reversed the circuit court’s order and found that the court erred in denying
motion to disqualify C from representing Liliann because (1) a conflict of interest did
exist, (2) Lillian was not competent to waive that conflict, and (3) Longert’s
appearance as co-counsel to C did not negate C’s conflict of interest.
The court affirmed and found that Parisi had violated the code of professional
responsibility and rules of professional conduct by engaging in representation and
conduct that was adverse to Demming’s interests and that Demming’s diminished
capacity did not make the execution of power of attorney to Parisi valid.
Ethic Rules:
Questionable Mental
Capacity
●
●
Model Rule 1.14(a): When a client's capacity to make adequately considered
decisions in connection with a representation is diminished, whether because
of minority, mental impairment or for some other reason, the lawyer shall, as
far as reasonably possible, maintain a normal client-lawyer relationship with
the client.
Lawyer considerations to determine the extent of a client’s diminished
capacity:
○ Client’s ability to articulate reasoning leading to a decision
○ Variability of state of mind and ability to appreciate consequences of
a decision
○ Substantive fairness of a decision
○ Consistent of a decision with the known long-term commitment and
values of the client
Determining Client Capacity:
● Decision making capacity requires (to a greater or lesser degree):
○ Possession of a set of values or goals;
○ The ability to communicate and to understand information; and
○ The ability to reason and to deliberate about one’s choices.
Frolick pp. 362-374:
The determination of
incapacity
Statutory Requirements: the petitioner must establish that the alleged incapacitated
person meets the statutory requirements of mental incapacity.
Expert Testimony: many state guardianship statutes require medical testimony in
order to prove mental incapacity in some states, however, such testimony can be
provided by any physician, without regard to whether he or she was trained to
diagnose mental incapacity.
● In the matter of the guardianship of waters → expert testimony was used to
assist in making a determination of whether the individual was incapacitated
and in need of a guardian. [The court finds a guardianship of Waters is
reasonable, necessary and in her best interest based on the medical
testimony].
● Losh v. McKinely → medical testimony DID NOT support the trial court’s
determination that guardianship of Losh is reasonable, necessary and in her
best interest because the evidence presented to the trial court fell far short
of the clear and convincing standard necessary to support the finding that
Losh was incapable of exercising her rights.
Mentally Incapacitated
or Merely Ecentric?
An individual's ability to make decisions depends upon the:
(a) Ability to communicate a choice;
(b) Ability to understand relevant information;
(c) Ability to appreciate the nature of the situation and its likely consequence;
and
(d) Ability to manipulate information rationally.
Tuesday - August 24th, 2021
Frolick: pp. 131-167
INCOME MEASURES
Primary sources of retired income:
● Personal savings
● Employment-related pensions plans
● Public benefits
Majority of income for people 65+:
● SS
● Pensions
● Earnings
● Income from assets
SOCIAL SECURITY
Old-Age, Survivors and Disability Insurance (OASDI) program: “SOCIAL
SECURITY” foundation of public income support for the elderly.
● Provides monthly cash benefits designed to partially replace the income that
is lost to the worker or the worker’s family if the worker retires, becomes
disabled, or dies.
Principles:
● SS benefits are an entitlement paid to those workers (and their spouses and
dependents) who paid SS wage taxes.
○ Some may still be employed and receive benefits.
● Benefits are designed to be a “floor of protection”, and not a complete source
of retirement income or a total replacement of earnings lost upon retirement.
● SS is an uneasy balance between the goals of social adequacy and individual
equity, with the former becoming more apparent.
● The level of benefits is related to the amount of wage taxes paid. Higher
income means higher contribution of wage taxes and thus higher benefits.
● SS is self-financing through employee and employer payroll taxes and does
not rely on general revenue appropriation .
● SS wage taxes and coverage aer mandatory and nearly universal.
● The system of benefits is defined in great detail. Program administrators have
almost no discretion in awarding benefits.
HISTORY OF SS
●
●
THE CURRENT
NEED FOR SS
(1) Economic security in retirement
(a) Achieve economic security or a safety net for retirees, disabled and
the elderly.
(b) Modest income distribution - progressive model.
(2) Amelioration of elderly poverty
(a) Percentage of elderly in poverty has decreased due to SS.
(3) Lack of personal savings
(a) Many elderly had such low incomes when they worked that they
could not save.
(b) During their working years, many elderly spent their savings on
their children.
(c) Most american save only a portion of what they earn.
CURRENT STATUS
OF SS
Enacted during the Great Depression of the 1930’s.
Under Title II of the Social Security Act.
○ Poor houses and relief agencies
○ Decentalized
Title III of the SSA (Old-Age, Survivors, and Disability Insurance Benefits):
● 42 U.S.C. §§ 401-433.
●
20 C.F.R. § 404.
Program Policy Resources:
● Social Security Administration under the Department of Health and Human
Services has primary authority for administering the Act.
● Program Operations Manual System (POMS)
Overview of OASDI Benefits:
● Benefits payable to workers on account of retirement or disability
○ Not eligible if 20/40 disability rule applies → have to work 5 out of
the last 10 years to be eligible
● Benefits for dependents of retired or disabled workers; and
● Benefits for the surviving families of deceased workers
Coverage:
● Individuals qualify for OASDI benefits through employment in jobs that are
covered by “SS”.
○ Jobs subject to payroll taxes on the employer and employee
○ The worker must accumulate enough calendar quarters of covered
employment in order to be eligible
NOT covered:
● Federal civilian employees hired before 01/01/84
● Employees of state and local governments, unless the government have
elected coverage
● Employees of nonprofit organization before 01/01/84, not covered by
voluntary agreements
● Railroad workers covered under the Railroad Retirement Benefit System.
Financing:
● FICA (Federal Insurance Contributions Act): SS financing through payroll
taxes on wages or self-employment income.
○ Applies to wages/salaries up to a statutory amount (adjusted
according to the increase in the national average wage)
○ Tax is withheld from employees and matched by employers.
■ Total - 15.3% on wages up to $118,500 (2015)
○ 6.2% (+ 1.45% for medicare) = total of 7.65%.
○ Rates are doubled for self-employed individuals, who, for income
tax purposes, may deduct as business expense half their selfemployment tax from their next earning.
● Income from rents, dividends, pensions, interest, or capital gains is not
subject to the tax.
Eligibility: The amount depends upon the individual’s earning record:
● Earning Record: lifetime record of covered employment.
○ Written request to fix a mistake is required within 3 years, 3 months,
and 15 days after the calendar day in which the wages were earned.
● Quarters of Coverage: to qualify for benefits, workers must have 40 quarters
(10 years) of eligible employment.
○ Individuals who earn 4x the minimum amount at any time during a
year will be credited with 4 quarters of coverage.
○ Individuals who lack enough quarters of coverage to be eligible for
retirement benefits may choose to return to work or remain until the
required quarters of coverage are obtained.
● Insured status: by being credited with QC’s, an individual qualifies for
●
●
●
●
insured status.
○ Fully insured status → 40 quarters/10 years.
○ Currently issues status → 13 quarters/3.5 years
Benefit Recipients: workers obtain the right to benefits for:
○ themselves,
○ their eligible spouses and children, and
○ their survivors.
Retired workers: an individual must:
○ Have worked enough quarters to be fully insured;
○ Have the “full retirement age” of 65 or age 62 with reduced
benefits; AND
○ Not have income in the excess of the earnings test if the individual
has not yet attained the “full retirement age” of 65.
Up to age 70, deferral causes a permanent increase in the benefit amount
each month by 8%. (total increase by 70 of 32%).
Earning test: the earning limit penalty exists for individuals who claim
benefits before they reach full retirement age → $1 of SS payments lost for
every $3 they earn above the annual limit.
○ Earned incomes such as waves, salaries, commissions and earning
from self-employment.
Spouses and Dependants of Retired Workers:
● Spousal benefits → the individual must be 62+ and married to the retired
worker for at least 1 year.
○ Spouses under 62 are eligible if they have a child under 16 or that is
disabled.
■ Spouses who claim benefits after 65 are eligible for the
greater of retirement benefits based upon their earning
records or an amount equal to 50% of their spouses
retirement benefits.
○ If the spouse dies, the surviving spouse (must be married 9 months
or accidental death otherwise) is eligible for the greater of
retirement benefits based upon their own earnings record or an
amount based equal to 100% of the retirement benefits to the
deceased spouse.
■ If the eligible surviving spouse has reached 65, they will
receive benefits equal to 100% of the deceased workers
benefits.
■ If the eligible surviving spouse has not reached 65, their
survivor benefits will be actuarially reduced based upon the
number of months left until they reach 65.
● Can begin at age 60 and receive an amount equal
to 71..5% of the deceased worker’s actual benefit.
○ If both spouses are past 65, they are assured SS retirement benefits
of at least equal to 150% of the higher retirement benefit payable to
one of them.
Divorced Spouses of Retirement Workers:
● Unmarried, divorce spouses of workers can receive retirement benefits
beginning at his or her full retirement age (65) equal to 50% of their exspouses retirement benefit if the marriage lasted at least 10 years.
○ If a spouse applies before either reaches full retirement age, their
benefits are reduced.
■ At least 62 and the divorce has been finalized for 2 years.
○
○
○
○
○
● Unless the ex-spouse reached full retirement age.
■ Regardless of whether the ex-spouse applied for benefits.
If a spouse applies after they reach full retirement age, the spouse
gets the greater benefit of either their earning records or 50% that of
the former spouse.
■ Regardless of whether the ex-spouse applied for benefits.
If a spouse whose ex-spouse is deceased, will received reduced
benefits is benefits begin before the surviving sponsor attains full
retirement age:
■ Married to deceased worker for at least 10 years
■ Can claim benefits as young as 60
● If the surviving spouse is younger than 60,
benefits only if they have a child that is under 16
or disabled
Derivative benefit rights of a divorced spouse are terminates upon
remarriage unless the divorced spouse was 60 or older when
remarried.
If the divorced spouse had more than 1 marriage that lasted at least
10 years and did not remarry before age 60, SS will calculate
maximum benefits.
Benefits paid to a divorced spouse do not affect the benefit rights of
a current spouse.
Dependants of Disabled or Deceased Workers:
● Unmarried children under 18 of a disabled or deceased worker are eligible
for benefits (or up to 19 if they are enrolled full time in elementary or
secondary school).
● If the child became disabled before age 22, benefits are paid to any
unmarried dependent of a covered worker regardless of their age.
○ (continue as long as the child is disabled).
● Benefits are also paid to dependent grandchildren and great-grandchildren
whose parents are disabled or deceased.
Survivor Benefits:
● Payable to widowed spouses of a deceased worker regardless of the age of
the surviving spouse if their child is under 16 or dissabled.
● Reduced benefits are available for spouses under 50 of deceased if they are
disabled.
● Surviving unmarried dependant children can receive benefits up to 18 (or 19
given school).
● Sometimes, dependant grandchildren and great grandchildren or dependant
parents age 62 + of deceased workers
● Apply for disability between 60-65 so you can get medicare at an earlier age
Application for SS benefits:
● Individuals must apply for SS benefits in order to receive them.
○ Written in person or online.
○ If incapacitated, a legal guardian, caregiver, or interest individual
may complete and sign it.
● Can be assisted by an attorney or other individual; so long as they apply for
SSA appointment of the claimant’s representation in order to access a right
of access to information or receive notice of SSA’s actions.
● Claimants have the burden of establishing eligibility for SS benefits.
Representative Payees:
●
SS benefit are paid directly to the claimant, unless they are incapable of
managing those payments or been declared legally incompetent.
○ SSA will, upon application and submission of appropriate evidence,
appoint a “representative payee” to receive the benefits and use
them for the claimant's care.
Overpayments:
● SSA will seek repayment of an overpayment by withholding future benefits
or may seek a refund.
● Most overpayments are corrected by a reduction or suspension of benefits
until overpayment is recovered.
● Claimants can appeal the decision.
● The SSA cannot recover for an overpayment if the claimant was not at fault
and the recovery would either be “against equity and good conscience” or
would “defeat the purpose of SSA”.
● remedies
○ Appeal fact or amount
○ Request waiver of recovery, must:
■ Be without fault, AND
● (eg: capacity, age, literacy)
■ Adjustment would:
● would defeat the purpose of SSI (financial
hardship), or
● be against equity and good conscience, or
● impede efficient and effective administration due
to small amount
Taxation of Benefits:
● Benefits may also be reduced by the imposition of the federal income tax.
Administrative and
Judicial Review
Process
SAME FOR SS AND
SSI BENEFITS
Claimants who are dissatisfied with a SSA determination regarding their SS benefits,
or the amount of such benefits, may appeal the decision through a (informal and nonadversarial) administration and judicial process:
1. Initial determination → the first decisions that SSA makes about a claimant’s
eligibility for benefits, the amount of such benefits, and the suspension,
reduction, or termination of benefits.
a. Obligation to repay and overpayment
b. Certification of payments to a representative payee
c. Imposition of penalties for failure to report certain information
d. Special rules for:
i.
Overpayment → 30 days to appeal; benefits will consider
for 30 days pending hearing
ii.
SSI termination → 10 days to appeal; benefits will consider
for 10 days pending hearing
2. Reconsideration → first step in the review process.
a. Written request with reasoning to SSA must be filed within 60 days
after receipt of the initial determination notice (extended for good
cause).
b. Case review conducted by the same SSA officer as before.
c. Can ask for an in-person conference with agent.
d. Written notice is sent to claimants for the decision and right to a
hearing.
3. Hearing; dissatisfied claimants can request a hearing before an administrative
judge.
a.
4.
5.
6.
Must be filed within 60 days after receipt of the previous notice
(extended for good cause).
b. May be dismissed based on collateral estoppel or res judicata if the
SSA has previously reached a final determination on the claimants
rights on the same facts or issues.
c. Claimant and representative can:
i.
present new evidence,
ii.
examine the evidence used in previous determinations,
iii.
object to that evidence,
iv.
request the ALJ to subpoena witnesses and documents, and
v.
cross-examine witnesses.
d. De novo → look at facts brand new and do not look at previous
determinations.
Appeals council review; - final step in the review process.
a. Must be filed in writing within 60 days after receipt of the hearing
decision or dismissal.
i.
Should send information by certified mail.
b. Appeals council may:
i.
grant review,
ii.
deny review,
iii.
issue revised decisions,
iv.
issue a remand order for a new hearing,
v.
otherwise amend the hearing’s decision;
vi.
BUT most are affirmed.
c. PAPER REVIEW (usually not in person)
d. The grounds for appeals to review ALJ’s prior determination:
i.
There appears to be an abuse of discretion by the ALJ;
ii.
There is an error of law;
iii.
The actions, findings, or conclusions of the ALJ are not
supported by substantial evidence;
iv.
A broad policy or procedural issue exists that may affect
the general public interest; OR
v.
Submission of new material evidence, relating to the period
on or before the date of ALJ’s decision, that upon review
results in a finding that the decision is contrary to the
weight of the evidence currently on the record.
e. The appeals decision is the SSA’s final determination.
Judicial review in federal district court: claimants may sue in federal district
court to overturn the SSA’s final determination within 60 days of the Appeal
Council’s decision or denial (extended for good cause).
a. Claimants may submit new and material evidence.
b. Secretary of the Department of Health and Human Services is the
defendant and is represented by the DOJ and a local U.S. Attorney.
c. If the court issues a remand, it is not appealed, but sent back to the
Appeals Council.
i.
Appeals then issues an order for a new administrative
hearing (sent back to the same ALJ).
ii.
Claimants may argue prejudice and request an order to
remand to a new ALJ for a de novo proceeding.
Non-acquiescence Policy: SSA declared that no precedential value is to be
given to unfavorable decision, and that it would proceed in similar cases with
the same circuit as if the unfavorable decision had never occurred.
a. SSA refuses to appeal decisions not in its favor to the Supreme
Court.
Representation and
Attorney’s Fees
Title II of the SSA provides that: “the commissioner of SS may, by rule and
regulation, prescribe the maximum fees which may be charged for services performed
in connection with any claim before the Commissioner of Social Security under this
subchapter, and any agreement in violation of such rules and regulations shall be
void”.
● If the SSA makes a determination favorable to the claimant → the
commissioner shall fi a reasonable fee to compensate the claimant's
attorney for the services performed by him in connection with such claim.
○ Attorney must file a written request for approval of a fee.
○ After approving a reasonable fee, SSA sends out a written notice to
the representative and the claimant, informing them of the amount
and how the decision was made.
■ Dissatisfied → 30 days to request a review
■ Fee awards are not subject to review by a court.
■ Attorney fees are paid out of retroactive benefits.
SS Disability Benefits
Disabled workers under the age of 65 are eligible for monthly payments equal to the
amounts payable at retirement:
● At age 65, they transfer to SS retirement benefits.
● Disabled spouses are eligible for benefits at age 50.
● Disabled children are eligible at age 50 if their disability was onset before
age 22.
Raising the Retirement
Age
Pros:
●
Cons:
●
●
●
Would reduce benefit expedientes and increase labor force participation thus increased SS wage tax collections and national productivity.
Life expectancy increase does not equate to ability to work.
Would increase the number of those who qualify for SS disability benefits.
Sub-populations have different life expectancies.
Garcia V. Colvin
Facts:
● Plaintiff applied for SS benefits in 2010 at the age of 40
○ Claimed to be disabled from abdominal pain caused by liver cirrhosis
■ Caused by alcoholism
■ Quit alcohol in 2010
● Judge ruled plaintiff was capable of doing sedintary work
● Cant work full time
○ A lot of facts back that up including doctors opinions
● Admin Law judge thought he was not disabled
○ Thought garcia was exagerating
● Not allowed to infer from failure to seek treatement that he’s a malingerer w/o asking why
● Garcia unable to perform full time work
●
2021 Social Security Fact Sheet
Cost of Living
Adjustments
Estimated Average SS
Based on the increase in the consumer price index from the 3rd quarter of 2019 to the
3rd quarter of 2020, SS and SSI beneficiaries will receive a 1.3% COLA for 2021
benefits payable in
January 2021
Before 1.3% COLA
Ater 1.3% COLA
All retired workers
$1,523
$1,543
Aged couple, both
receiving benefits
$2,563
$2,596
Widowed mother and two
children
$2,962
$3,001
Aged widow(er) alone
$1,434
$1,453
Disabled worker, spouse
and one or more children
$2,195
$2,224
All disabled workers
$1,261
$1,277
Code of Federal Regulations - Evaluation of Disability
§ 404.1520:
Evaluation of
Disability in General
(a) General; this section explains the 5-step sequential evaluation process we
use to decide whether you are disabed, as defined in §404.1505:
(b) Applicability; these rules if you file an application for:
(i)
A period of disability, or
(ii)
Disability insurance benefits, or
(iii)
Child’s insurance benefits based on disability
(iv)
Widow or widower’s benefits based on disability for months after
December 1990
(c) Evidence considered: we will consider all evidence in the case record when
making a determination or decision whether you are disabled.
(d) The Five Step Sequential Evaluation Process: If we can find that you are
disabled or not disabled at a step, we make our determination or decision and
we do not go on to the next step. If we cannot find that you are disabled or
not disabled at a step, we go on to the next step. Before we go from step three
to step four, we assess your residual functional capacity. (See paragraph (e)
of this section.) We use this residual functional capacity assessment at both
step four and step five when we evaluate your claim at these steps. These are
the five steps we follow:
(i)
Work activity → if you are doing a substantial gainful activity, you
are not disabled.
(ii)
Medical severity of impairment(s) and duration → if you do not
have a severe medically determinable physical or mental
impairment that meets duration requirements, or a combination of
impairments that is severe and meets the duration requirement, you
are not disabled.
(iii)
Medical severity of impairment(s) → if you have impairments
that meet or equals one of the relevant listing and meets the
duration requirement, you are disabled.
(iv)
Residual functional capacity and past relevant work → if you
can still do your past relevant work, you are not disabled.
(v)
Assessment of your residual functional capacity and your age,
education, and work experience to see if you can make an
adjustment to other work → if you can make an adjustment to
other work, you are no disabled.
§ 404.1565 Physical
Exertion Requirements
To determine the physical exertion requirements of work in the national economy,
jobs are classified as sedentary, light, medium, heavy, and very heavy:
(a) Sedentary work: involves lifting no more than 10lbs at a time and
occasionally lifting gand carrying articles like docket files, ledgers and smart
tools. Jobs are sedentary if walking and standing are required occasionally
and other sedentary criteria are met.
(b) Light work: involves lifting no more than 20lbs at a time with frequent
lifting and carrying of objects up to 10lbs. To be considered capable of
performing a full or wide range of light work, you must have the ability to do
substantially all of these activities (walking or standing, pushing or pulling of
arm or leg controls). If someone can do light work, they can also do
sedentary work unless there are additional limiting factors such as loss of
fine dexterity or inability to sit for long periods of time.
(c) Medium work: involves lifting no more than 50lbs at a time with frequent
lifting or carrying of objects up to 25lbs. If someone can do medium work,
they can do sedentary and light work.
(d) Heavy work: involves lifting no more than 100lbs at a time with frequent
lifting or carrying of objects weighing up to 50lbs. If someone can do heavy
work, they can do medium, light, and sedentary work.
(e) Very Heavy work: involves work lifting objects more than 100lbs at a time
with frequent lifting or carrying of objects weighing more than 50lbs. If
someone can do very heavy work, they can do heavy, medium, light, and
sedentary work.
Social Security Lifts More Americans Above Poverty Than Any Other Program
Social Security Lifts
More Americans Above
Poverty Than Any
Other Program
Social Security Protects
Without Social Security, 21.7 million more Americans would be poor, according to
analysis using the March 2019 Current Population Survey:
● Keeps 14,810,000 of elderly out of poverty:
○ Receive most of their income from social security
○ Without social security, 37.8% of elderly would fall below poverty
line
○ With social security, 6.7% of elderly fall below the poverty line
● Keeps 5,653,000 adults (18-64) out of poverty
○ Without social security, 13.5% of elderly would fall below poverty
line
○ With social security, 10.7% of elderly fall below the poverty line
● Keeps 1,197,000 children (under 18) out of poverty
○ Without social security, 17.8% of elderly would fall below poverty
line
○ With social security, 16.2% of elderly fall below the poverty line.
●
Protects women → Women tend to earn less than men, take more time out
Groups that are
Particularly
Vulnerable to Poverty
●
California - Elderly
Poverty
(2018)
California - SS
beneficiaries
(2018)
of the paid workforce, live longer, accumulate less savings, and receive
smaller pensions.
○ Social Security brings 8.7 million elderly women out of poverty.
○ Without social security, women poverty would be 41.3%.
○ With social security, women poverty is 11.1%.
Black and Latino workers → have higher disability rates and lower lifetime
earnings than white workers, on average.
○ Blacks have higher rates of premature death than whites.
○ Latinos have longer average life expectancies than whites.
○ Without social security:
■ Without social security, black poverty rates would be
50.5%
● With social security, black poverty rates are
18.8%.
■ Without social security, latino poverty rates would be
47.2%.
● With social security, latino poverty rates are
19.5%.
% in poverty if no SS
% in poverty with SS
Number lifted out of
poverty with SS
35.8%
10.6%
1,412,00
Total
5,962,804
Age 65+
4,682,586
Ages 18-64
1,049,789
Children under
18
230,429
TOP 10 FACTS ABOUT SOCIAL SECURITY
1: SS provides
important life
insurance and
disability insurance
protection
Social security is more than just a retirement program, it provides important life
insurance and disability insurance protection:
● 62 million, or 1 in 6, U.S. residents collect SS benefits.
● 4 in 5 elederly U.S. residents collect SS benefits.
In addition to retirement benefits, WORKERS earn:
● Life insurance → about 95% of people aged 20-49 have earned life
●
insurance protection through SS.
○ The risk of premature death is greater than most people realize;
about 6% of recent entrants in the labor roced will die before
reaching retirement age.
SSDI protection → about 89% of people aged 21-64 who work in covered
employment are insured through SS in case of severe disability.
2: SS provides a
guaranteed,
progressive benefit that
keeps up with the
increases of COL.
Progressive → they represent a higher proportion of a worker’s previous earnings
for workers at lower earnings levels.
3: SS provides a
foundation of
retirement protection
for nearly every
American, and its
benefits are not meanstested.
Universality of SS benefits:
● Not means tested → doesn’t reduce or deny benefits to people whose
income or assets exceed a certain level
○ Encourages private pensions + personal savings.
● SS provides a higher annual payout than private retirement annuities →
○ its risk pool is not limited to those who expect to live a long time,
○ No funs leak out in lump-sum payments or bequests, AND
○ Its administrative costs are lower
● Universal nature assures it continued popular and political support →
○ Most americans don't mind paying for SS because they value those
who rely on it.
4: SS benefits are
modest.
SS Benefits are Modest:
● Average SS benefit in 2018 was:
○ $1,413 monthly
○ $17,000 yearly
● Replaces about 39% of past earnings for those who worked all of their adult
life.
● Medicare Supplementary Medical Insurance (Part B) deducts premiums from
SS checks.
○ As health care costs continue to outpace general inflation, those
premiums will increase.
● Modest by international standards → 3rd tier bottom among developed
countries.
5: Children have an
important stake in SS.
About 6 million children under age 18 lived in families that received income from SS
in 2017:
● SS lifted 1.7 million children out of poverty in 2015.
6: SS lifts million of
elderly Americans out
of poverty.
Without SS benefits, about 4 in 10 elders would be in poverty:
● SS benefits lift more than 15 million elderly americans out of poverty.
7: Most elederly
beneficiaries rely on SS
for the majority of
their income.
SS provides the majority of income for the elderly:
● For about 50% of seniors, it provides at least 50% of their income.
● For 20% of seniors, it provides 90% of the income.
8: SS is particularly
important for people of
African Americans and Latino workers benefit substantially form SS because:
● Higher disability rates
Cost of Living → benefits increase to keep pace with inflation to ensure that people
do not fall into poverty.
● While private pensions and annuities are NOT adjusted for inflation.
color.
●
●
Lower lifetime earning wages
Blacks have higher premature death rates (more likely to benefit)
The poverty rate among elderly African Americans and Latinos is about 2.5 times as
high as for elderly white Americans.
9: SS is especially
beneficial for women.
SS is especially beneficial for women because:
● Women tend to earn less than men
● Women take more time out of the paid workforce
● Women live longer
● Women accumulate less savings
● Women receive smaller pensions
Womens make up 96% of SS survivor beneficiaries.
10: Relatively modest
changes would place SS
on sound financial
footing.
SS costs will grow in coming years as baby boomers retire:
● No action → Social Security’s combined Old-Age and Survivors Insurance
(OASI) and Disability Insurance trust funds will be exhausted in 2034.
Thursday - August 26th, 2021
Frolick: pp. 165-173:
Other Public Pension
Programs
SS is the most important public pension program, but there are similar benefits
depending on your status:
● Railroad Retirement
● Public Employee Programs
○ Federal and Civilian Employee Retirement
○ State and Local Public Employee Pension Plans
○ Military Retirement
○ Veteran Benefits
Railroad Retirement
Railroad Retirement: (established prior to SS and RRA) is a retirement system
covering rail industry employees.
● Codified at 45 U.S.C. §231.
● Regulated by 20 C.F.R. §§ 200-266.
● The Railroad Retirement Board manages the complex Railroad Retirement
system.
● Operates in lieu of SS for all railroad employees.
● Benefits and financing are coordinated with the SS program.
● Provides monthly annuities to insured retired, disableed workers, and their
eligible dependants and survivors.
Public Employee
Programs
A. Federal and Civilian Employee Retirement:
a. CSRS and FERS coexist under the Office of Personnel Management
who administers the program.
b. CRSRC covers ALL federal employees hired before 01/01/84 who
did not transfer to FERS by 12/31/87.
i.
Will no longer exist when the last employee dies.
ii.
Pay as you go system financed by the employee's payroll
taxes, the employer, and the general revenues.
iii.
Participants and employing agencies each contribute 7% of
the employee’s salary, but no SS FICA tax.
iv.
Benefits are adjusted to keep pace with the COL.
c. FERS covers ALL federal employees hired on or after 01/01/84.
i.
Relies on pre-funding and benefits similar to private
pension pls.
ii.
Provides benefits under SS, a defined benefit plan and taxdeferred savings plan.
B. State and Local Public Employee Pension Plans:
a. Many plans are not integrated with SS.
b. Provisions vary by jurisdiction, but most plans require contributions
from their participants:
i.
Employee contribution - 5-7%
ii.
Local gov contribution - 2x employee or at least equal
C. Military Retirement:
a. Members of the U.S. military have been covered by SS since 1957.
b. Payable immediately upon retirement from the armed services,
regardless of age or other income, including SS.
c. Fully indexed for COL, but retirement COLAs for service members
entering the military after 08/01/86 are held 1% below COL.
D. Veteran Benefits: most elderly, who are veterans, qualify for VA benefits:
a. Disability payments
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.
Supplemental Security
Income
TITLE XVI - “needs”
related.
TYPES OF INCOME
Education assistance
Hospitalization and medical care
Survivor and dependant benefits
Special loan programs
Hiring preference for certain jobs
Cash benefits
i.
Service-connected disabilities - not means tested
ii.
Non-service-connected - means tested
Compensation for service-connected disabilities
i.
Monthly cash benefits
ii.
Min. 30% disability allows dependant’s allowance
Pensions for non-service-connected disabilities
Benefits for survivors
Pensions for non-service-connected
Supplemental Security Income: To ensure that all the elderly have at least a small
monthly income (in case they don't receive SS or receive the minimum amount) →
Congress created the SSI program:
● Provides cash assistance to eligible aged (65+), blind at any age, and disabled
at any age individuals.
○ Supplements other sources of income
● Factors affecting benefits:
○ Reduced by the amount of other income and support available to
recipient:
■ Household size
■ Medicaid benefits
■ Public emergency shelters
■ Income
■ Assets (not cars, property, or life insurance below 1500)
● If eligible for SSI (regardless the amount), then also eligible for:
○ Medicaid/MediCal
○ IHSS (in CA) -- in home supportive services
○ Cal Fresh or Foodstamps
INCOME: (20 CFR 416.1102): anything you receive in cash or in-kind that you can
use to meet your needs for food and shelter… In-kind income is not cash, but is
actually food, or shelter, or something you can use to get one of these.
●
●
In-kind income: income that is not necessarily money, but can be used for
food and shelter (if none counted, SS presumes a base $264)
○ Ex: living in the household of someone else, donations.
○ NOT: foodstamps, child support.
○ Calculated by:
■ Presumed value = ⅓ of Federal Benefit Rate (FBR)
● FBR = $794
● ⅓ x $794 = $264 (what SS presumes the value of
in-kind income)
● If you actually get less (like only spend $150 on
groceries), you will rebut the presumed in-kind
income.
● If you get more, you take the hit.
■ If the amount of [countable income (unearned - earned) +
in-kind income] is greater than the SSI payment standard
(CA-954), the person is ineligible for SSI benefits.
Deemed income: income from a spouse, parent, or sponsor.
LIVING
ARRANGEMENTS
●
●
●
●
Excluded income: income that is not counted.
Unearned income: (ex: SS benefits)
Earned income: like salary.
Countable income: number used to compare in the benefit chart.
●
●
●
Benefit payment standard depends on living arrangements.
Living in the household of another may prompt in-kind income issues.
If you pay your pro rata share towards monthly household operating
expenses, then you are considered living on your own and not receiving inkind support and maintenance from other household members.
Consider “pro rata share” of household expenses - 20CFR §416.1133.
○ Household operating expenses are the houses’s total monthly
expenditure for:
■ Food
■ Rent
■ Mortgage
■ Property taxes
■ Heating fuel
■ Gas
■ Electricity
■ Water
■ Sewer
■ Garbage collection
●
RESOURCES
●
●
Liquid resources - INCLUDED; COUNTED: can be liquidated in 30 days;
eg: bank account, stock, collections. (you are allowed a 2,000 limit)
○ Can spend down excess resources → eg: buy a car so its not
counted.
○ Can’t transfer assets to be eligible, unless there is equal
consideration.
■ 36-month/3 years look back.
■ If transferred (gifts or otherwise) → not eligible for
determined months (asset value divided by the BPS).
● Ex: (15,000 in asssets-2,000 allowance) = 12,000
divided by 954 = 12.7
○ 12.7 rounded up is 13 months.
Non-liquid resources - EXCLUDED; NOT COUNTED: can’t be
liquidated in 30 days;
○ House and land its on
○ Household goods and personal effects
○ Burial places
○ Life insurance plan with payout of $1,500 or less if irrevocable
○ One vehicle used for transportation purposes
○ Retroactive SSI or SS benefits for p to 9 months after receipt
○ Grants, scholarships, fellowships or gifts for education expenses for
9 months after receipt
○ Up to $100,00 in ABLE (achieving a better life)
SSI 2021 - California
Social Security Income
(SSI):
SSI: provides monthly payments to people who have limited income and few
resources.
FOR WHO: people who are 65 or older, as well as people of any age, including
children, who are blind or who have disabilities.
●
Medical and ability tests are the same for SS and SSI.
TO QUALIFY:
● little or no income →
○ value of the things you own must be:
■ less than $2,000 if you’re single or
■ less than $3,000 for married couples living together.
○ DOES NOT INCLUDE:
■ the value of your home if you live in it, and, usually,
■ the value of your car.
■ the value of certain other resources either, such as a burial
plot.
● Must apply for all other government benefits you are eligible for
● Must live in the U.S. or the Northern Mariana Island
○ Eligible if you lawfully reside in the U.S.
MEDICAL ASSISTANCE: If you get SSI, you are automatically eligible for Medical.
SNAP: may apply or recertify for CalFresh benefits at any Social Security office if
all of the following apply:
● You are currently living in California.
● You are getting or applying for SSI.
● You live alone or in a household where everyone is either getting or
applying for SSI.
● You are not already getting CalFresh benefits.
● You have not filed for CalFresh within the past 60 days.
OTHER SOCIAL SERVICES:
● A special allowance for assistance dogs for people who are blind or who
have a disability.
● Certain domestic and personal care services provided to eligible people who
are elderly, blind, or who can’t perform the services themselves, and who
can’t safely remain in their own homes unless such services are provided.
● Protective services.
Disposal of Resources at Less than Fair Market Value:
20 C.F.R. § 416.1246:
Disposal of resources at
less than fair market
value.
An individual (or eligible spouse) who gives away or sells a non-excluded resource
for less than fair market value for the purpose of establishing SSI or Medicaid
eligibility will be charged with the difference between the fair market value of
the resource and the amount of compensation received. The difference is referred
to as uncompensated value and is counted toward the resource limit for a period of 24
months from the date of transfer.
SSA and VA pension Resources
Eligibility for Veterans
Aid and Attendance
Benefits:
Veterans who served on active duty for at least 90 consecutive days, including at
least one full day during a time of war, may be eligible for Aid and Attendance if
they also qualify for the basic Veterans Pension and meet the clinical and financial
requirements
Additional Requirements; AT LEAST ONE to qualify for basic pension:
●
Be 65 or older with no or limited income
●
●
●
●
Have a permanent and total disability
Receive Supplemental Security Income
Receive Social Security Disability Insurance
Reside in a nursing home
Additional requirements; Clinical; AT LEAST ONE to qualify for Aid and
Attendance:
●
●
●
●
Be bedridden except for medical and therapy appointments and treatments
Have severe visual impairment (eyesight limited to a corrected 5/200 visual
acuity OR less in both eyes OR concentric contraction of the visual field to
five degrees or less)
Reside in a nursing home because of physical or mental incapacity,
including Alzheimer’s and dementia
Require help with some activities of daily living (ADL's) such as, but not
limited to: bathing, dressing, eating, using the bathroom, etc.
Additional requirements; Financial: AT LEAST ONE to qualify for Aid and
Attendance:
●
the upper limit for applicants’ (and spouse) net worth of $130,773
○ not including the applicant’s automobile, personal effects and
residence.
○ three-year lookback period to see if assets were sold below market
value or gifted in a way that reduced net worth below the upper
eligibility limit.
■ If a transfer assets for less than fair market value during
the look-back period would have pushed net worth above
the limit for a VA pension, a penalty period of up to five
years may be imposed.
Thursday - Sep 1. 2021
SUPPLEMENTS:
Bloom v. USDHHS
Aggregation of an individual’s claims to satisfy the Act's amount-in-controversy
requirement are permitted so long as the claimants unaggregated claims:
(1) involve “related services” (here, the CGM sensors and transmitters)
(2) that are rendered “to the same individual” (Bloom)
(3) by “one or more providers.”
Medicare Resource
Library
Center for Medicare Advocacy https://medicareadvocacy.org/
*Medicare Basics https://medicareadvocacy.org/medicare-info/medicarebasics-2/
**Appeals https://medicareadvocacy.org/appeal-steps/
*In-Patient Rehabilitation
https://www.medicareadvocacy.org/wp-content/uploads/2019/04/IRF-JIMMOFactsheet.pdf
**Home Health Care
https://www.medicareadvocacy.org/wp-content/uploads/2018/04/Fact-SheetMedicare-Home-Health-Coverage-In-Light-of-Jimmo-v.-Sebelius.pdf
https://medicareadvocacy.org/toolkit-medicare-home-health-coverage-jimmov-sebelius/
**Observation Status https://medicareadvocacy.org/medicareinfo/observation-status/
**Medicare Savings Programs for Low Income Beneficiaries
https://medicareadvocacy.org/medicare-info/medicare-savings-programs/
**Medicare Secondary Payer
https://medicareadvocacy.org/medicare-info/medicare-secondary-payerprogram/
Kaiser Family Foundation
https://www.kff.org/
*Lacking Dental Coverage, Many People on Medicare Forgo Dental Care,
Especially Beneficiaries of Color | KFF
**Part C- Medicare Advantage
Medicare Advantage in 2021: Enrollment Update and Key Trends | KFF
Higher and Faster Growing Spending Per Medicare Advantage Enrollee
Adds to Medicare’s Solvency and Affordability Challenges | KFF
**A Dozen Facts About Medicare Advantage in 2020
https://www.kff.org/medicare/issue-brief/a-dozen-facts-about-medicareadvantage-in-2020/
*Part D:
https://www.kff.org/medicare/fact-sheet/an-overview-of-the-medicare-part-dprescription-drug-benefit/
Millions of Medicare Part D Enrollees Have Had Out-of-Pocket Drug
Spending Above the Catastrophic Threshold Over Time | KFF
*Medicare Beneficiaries’ Financial Security Before the Pandemic
https://www.kff.org/medicare/issue-brief/medicare-beneficiaries-financialsecurity-before-the-coronavirus-pandemic/
*How Much Could Medicare Beneficiaries Pay For a Hospital Stay Related to
COVID-19? https://www.kff.org/coronavirus-covid-19/issue-brief/how-muchcould-medicare-beneficiaries-pay-for-a-hospital-stay-related-to-covid-19/
Center for Medicare and Medicaid Service https://www.cms.gov/
** CMS MediGap Guide
Frolick: pp. 181-215:
Medicare
Cost of Healthcare for Medicare Beneficiaries:
● Premiums for physician fees
● Copayments and deductibles
● Insurance policies to supplement the Medicare benefits
● Out-of-pocket payments for services
In 1965 → Medicare was enacted to provide hospital and physician coverage.
Patient Protection and
Affordable Care Act of
2010
On June 28, 2012 → The U.S. Supreme Court ruled that the ACA was
constitutional except for the provision that would take a state’s current Medicaid
funding unless they agreed to participate in the expansion of the state’s Medicaid
program.
● Supreme court rules that mandatory medicare expansion is
unconstitutional.
Medicare
Medicare: federal subsidized health care insurance program for those age 65+
who are eligible for SS benefits.
● Pays for acute care needs, but not chronic long-term care.
● Consists of four parts:
○ Part A - covers hospital care
○ Part B - physicians
○ Part C - option and provides managed care
○ Part D - prescription drug offenses
● Administered by the Centers for Medicare and Medicaid (CMA) under
the DHHS.
● Found in Title XVIII of Social Security Act in Title 42 of the United
States Code.
Medicare Expansion provides → assistance with payment of Medicare premiums
and/or copayments to various categories of beneficiaries with incomes up to 200%
of the federal poverty level.
Medicare - Finances
Medicare - Finances:
● Part A - (covers hospital care); is financed by a mandatory payroll tax
under the FICA.
○ Average income employee (1.45% x 2 = 2.9%):
■ Employee contribution is a FICA tax of 1.45% on all
wage income. .
■ Employer matches the employee's contribution.
■ Total contribution is 2.9%.
○ Higher income employee (additional tax of 0.9%):
■ Higher income includes:
●
●
●
Medicare - Eligibility:
●
Married filing jointly earning ≥$250,000
●
Married filing separately earning ≥ $125,000
● Single taxpayers earning ≥ $200,000.
■ Employee contribution is a FICA tax of 2.35% on all
wage income.
■ Employer still pays 1.4%
■ Total contribution is 3.75%.
Part B - (SMI for supplemental medical insurance -physician fees);
financed by the combination of monthly premium payments by the
beneficiary and general revenues of the federal government.
○ Beneficiary payments are deducted from monthly SS benefits.
○ Part B premium pays about 25% of the costs of Part B.
■ Standard monthly premium (means tested):
● $104.90 - $85k or less
● $146.90 - $85,001-$107,00
● $209.80 - $107,001-$160,000
● $272.70 - $160,001-$214,000
● $335.70 - above $214,000
■ Penalty of 10% for each 12 month period for those who
are eligible for Part A and do not enroll in Part B.
Part C - (option and provides managed care); rely on beneficiary
premiums to purchase plans from the private sector.
○ Subsidies from federal general revenues
Part D - (prescription drug offenses); rely on beneficiary premiums to
purchase plans from the private sector.
○ Subsidies from federal general revenues
Medicare - Eligibility: depends on eligibility for Part A benefits, which generally
derives from being eligible for SS retirement or disability benefits. Individuals are
eligible for Medicare Part A hospital coverage, provided they are:
● Over the age 65, have paid FICA taxes for 40 quarters (fully insured
term);
● Disabled, as determined under SSA, for at least 24 months (regardless of
age, but have paid in the requisite quarters to SS);
● Persons with end-stage renal disease (ESRD) who require dialysis
treatment or a kidney transplant; OR
● Over age 65 and ineligible for SS benefits because of not having worked
enough quarters, but who elect to pay a monthly premium for Part A and
●
●
also buy Part B. EX:
○ Self or family employed and did not pay SS taxes,
○ Immigrants who have been in the country for at least 5 year
Spouse or surviving spouse of someone who through SS is eligible for
Medicare.
○ Must be 65+
Divorced spouse, who has not remarried, of someone who through SS is
eligible for Medicare.
○ Marriage lasted 10+ years
○ Remarriage by former spouse does not affect.
An individual does NOT need to collect SS benefits in order to be eligible for
Medicare.
● Penalty of 10% per year on premiums if one does not enroll in Medicare
at the eligibility age of 65 regardless of whether they claim SS benefits.
○ No premium or payments to enroll
● Medicare is a secondary payer of healthcare for those who still work.
Medicare - Benefits
Titlve XVIII of SSA
Part A - Hospital Insurance
● Covers institutional services such as: hospital room and board, routine
nursing care, diagnostic and therapeutic services, such as labs, radiology,
and physical therapy, supplies and equipment, prescription and
nonprescription drugs.
● Provides limited benefits for care rendered in a skilled nursing facility of
at least 3 days within 30 days of hospital discharge.
○ “3 Midnight Rule” → in order to qualify for Medicare-covered
SNF care, beneficiaries must be an inpatient of a hospital for at
least 3 consecutive days.
■ Problem → “observation status” equals outpatient, not
equal inpatient care.
● Tell doctor they NEED to be admitted
● Get observation status notice in writing in
order to appeal
■ Entitled a “moon notice”
■ COVID-Waiver Exception - COVID related treatment
to a nursing home does not require 3 days.
Part B - Supplemental Medical Insurance (voluntary):
● Supplementary medicare insurance - voluntary
● Funded by general revenues and beneficiary annual
● Premiums are means tested (only income is considered)
○ Premium increases with delayed enrollment, except if covered
by group health
● Part B is voluntary, but many group health plans require enrollment.
● Covers outpatient, non-institutional services not covered by Part A physician, outpatient, home health, preventive services:
○ covers: physician services, diagnostic studies performed in
physician;s office, therapeutic or surgical services, dialysis
services, rural health services, and durable medical equipment.
○ Does not cover: prescription drugs, routine physical exams,
routine eye exams, hearing aids, or dental services.
● Coverage is limited only by the “medical necessity” of the patient and is
subject to an annual deductible.
○ Fee for service: Medicare covers only pays 80% of “reasonable
charges” for approved physician services, regardless of the
●
actual amount billed by the provider.
■ Patient pays the remaining 20%.
■ Participating docs who take assignment in Medicare
agree not to charge more than the Medicare approved
amount.
Who determines what reasonable charges are?:
Part C - Medicare Advantage Plans: Individuals eligible for A and P may elect
to participate in MA, or medicare managed care.
● Managed care → limited to providers within that plan:
○ HMO - primary care physician (gatekeeper); require referrals;
not fee for service because capacitated payment (provider gets
paid a flat fee for the whole year for a patient’s care rather than
by single visits).
■ More difficult for older people (healthy or not) → lack
incentive to provide care because they may be losing
money.
● Lots of pressure to discharge/not provide
services.
■ Private insurance companies: United Health Care,
Humana, Blue Cross/Blue Shield, Kaiser, Wellpoint..
○ PPO - less tightly managed care with more options; network of
affiliated by independent providers:
■ Patients may be required to go to physicians who have
contracts with PPO.
● Offered by private insurance companies and must offer the services
available through Parts A and B (even if the HMO doesn’t provide it,
you are entitled to the services, and they have to refer you out).
○ Can offer other services using the economies of the managed
care plan or by charging more than the Part B premium.
○ Zero minimum plans; no additional cost to the enrollee because
it operates only on the Part B premium.
● Must accept Medicare applicants who live in the plan’s area, unless the
plan is closed to all new members.
● EXAMPLE: Do part C Plans have to cover everything? (yeseverything covered under Part A and B - have to be enrolled in both
but HMOs typically will cover Part B deductibles)
○ Home-bound → entitled to skilled nursing at home under
Medicare Home Health. (HMO would have to refer her to an
outside source).
○ Recourse → file an appeal (Part C go through Medicare Appeals
process - not arbitration) because she is entitled to the care
under Part B home health.
Part D - Subsidies prescription drugs: provides subsidies to insurance
companies that offer prescription drug plans to Medicare enrollees.
● In return for the subsidies, insurance companies offer drug plans that
provide at least the minimum required coverage.
○ Keeps costs down to the consumers
● Medicare doesn’t negotiate drug prices (unlike the VA who does)
● Like Part B, there is a penalty for late enrollment.
○ Average premium is $33.06.
● Beneficiary premiums only pay 10% of the costs of Part D, and the rest is
paid by general tax revenues.
Assignment
●
●
Doctors are not required to accept MEdicare.
When a physician “accepts assignment” he or she agrees to accept the
Medicare approved amount
EXAMPLE: (balanced billing) you can only be charged 115% of what medicare
says is reasonable.
● DR does not accept assignment; the actual charge is $100
Medicare Savings
Allow for those with slightly increased income who wouldn’t be eligible for
SSI:
● Qualified MEdicare Beneficiary
● Qualified Individual
● Specified Low-Income Medicare Beneficiary
● Qualified Disabled and Working Individuals
MediGap
●
Not Part C or D: MediGap policies supplement “original” Medicare.
○ Unlike an HMO, you are getting a fee for service plan
Assuring Quality p.219
●
●
●
Should CMS engage in quality care assessment?
How does CMS deal with this?
What is the relationship between CMS and JCAHO?
○ JCAHO issues sanctions for quality assurance
Are there unintended consequences that may present when peers certify
the quality of corporate providers?
Should a private entity have powers to sanction on behalf of CMS?
●
●
Medicare - Level of Care
Medicare requires that services be provided in the most appropriate circumstances.
Level of care is determined by the professional or technical training of the
personnel required to perform or supervise the services rendered and the
complexity of the care needed. Under Part A, benefits are available for acute
hospital care and skilled nursing home care, but not custodial care.
Acute level of care is met if:
● The care must be medically required and ordered by a physician
● It can only be provided in an inpatient hospital setting
● The beneficiary must require daily or frequent physician visits
● The beneficiaries condition must require the constant availability of
services or equipment found in a hospital setting; AND
● Required services cannot be furnished on an outpatient basis or in a lesser
care facility.
Services that qualify was skilled nursing care include:
● Intravenous feeding
● Gastronomy feeding
● Treatment of decubitus ulcers (bed sores)
● Tracheostomy aspiration
● Therapeutic exercises and activities
● Gait evaluation and training
Custodial care services include:
● Administration of medications or ointments
● Routine dressing changes
● Incontinence care
● Assistance in feeding, dressing, or bathing
Medicare - Spell of Illness
Spell of Illness: begins on the first day of hospitalization and ends 60 days after
discharge from the hospital or skilled nursing facility.
● Part A only covers up to 90 days of hospitalization
○ First 60 “spell of illness” - are covered in full; subject to a
deductible
○ Days 61-90 - the beneficiary must pay a daily copayment
○ Days 91-150 - only covered once in a lifetime under 60 “lifetime
reserve days” and must pay a higher daily copayment
● After the patient has been discharged for 60 days, a new admission begins
○ If readmitted before the next 60 days, a new benefit period does
not begin.
Medicare - Medically
Necessary Care and
Exceptions
Part A only covers care that is “reasonable and (medically) necessary”.
Medicare - Other services
Wood v. Thompson: The Seventh Circuit upheld the denial of Medicare coverage
for medically necessary dental treatment prior to the plaintiff’s heart valve surgery.
The Secretary of the DHHS held that Medicare Part B specifically excludes
payment for dental services except in three very narrow circumstances that did not
apply to the plaintiff.
● extraction of his diseased tooth was not reimbursed under Part B.
● Wood argued that HCFA’s interpretation of the statute (only allowed in
exceptions) was unreasonable.
● DHHS argued that the statutorily explicit coverage of services related to
dental procedures does not actually cover the dental services at all; it
merely reimburses providers of inpatient hospital services in connection
with dental procedures.
●
●
●
Home Health Care: includes nursing care provided by, or under the
supervision of, a registered nurse; physical, speech or occupational
therapy; medical social services under a physician’s direction; and
medical supplies and appliances.
○ Does not include transportation, housekeeping not directly
related to patient care, or home delivered meals.
Hospice Care: (palliative care-for terminally ill beneficiaries) includes
home health services, outpatient drugs for pain control, physician
services, counseling, and short-term patient care in an inpatient hospital
or SNF for pain control and symptom management.
○ Terminally ill → 6 months
■ If you don’t die in 6 months → approval of repeated 3
month intervals
○ You can opt out of hospice care or if you’re stable enough they
will take you off of hospice care
○ Hospice gets more access to care:
■ Individualized care
■ One-on-one
■ Therapy
Mental Health Benefits: covers both inpatient and outpatient mental
health treatment.
○ Inpatient stay is structured by the spell of illness (no limit for
general hospitals)
■ May have multiple spells of illness, but total of 190
lifetime days for inpatient psychiatric care in
psychiatric hospitals.
○ Out-patient care
○ Co-pays are the same as hospitals
Medicare Administration
and Appeals
The Centers for Medicare and Medicaid Services (CMS) are responsible for
resolving beneficiary claims. (AJL hearing is most critical)
Dual Eligibility: Medicare
and Medicaid
Estimated 20% of Medicare enrollees are also covered by Medicaid (Medical in
CA):
● Medicare makes the primary payment for hospital bills, physician fees,
and other Medicare-covered services.
● Medicaid supplements Medicare by paying for services that are not
included in the Medicare benefit package.
● No provider is required to take either Medicare or Medicaid/Medical.
Medicare as a Secondary
Payer
Secondary Payer: if a Medicare beneficiary has other health care insurance
coverage such as employee health benefits or received covered health services due
to an injury subject to a tort claim that leads to an award, Medicare can seek
recovery of its payments for the cost of the care.
● Medicare serves as the secondary payer ONLY responsible for the
covered costs no other source will pay.
○ Your other insurances MUST pay first
● Medicare may advance payment on or reimbursement from the other
source of coverage.
○ Statutory right to conditional payments (eg: settlement)
● Medigap and employer provided retiree health benefits are secondary to
Medicare.
Zinman v. Shalala: The Ninth Circuit Court of Appeals ruled in favor of Medicare
holding that under the MSP, Medicare was entitled to recover the full amount of its
conditional payments (less procurements costs and subject to a possible waiver)
even in situations where a Medicare beneficiary received a settlement for less than
his or her total damages.
Tuesday - Sep. 7 2021
Medicare and Family Caregivers
RAISE Family Caregivers
Act of 2018
Medicare
directs the Department of Health and Human Services to develop and maintain a
national family caregiver strategy that identifies actions and support for family
caregivers in the United States.
●
●
Medicare pays a portion of the cost of some health care.
Premiums, deductibles and cost-sharing are required of beneficiaries.
Medicare Coverage
Medicare does not provide coverage for family caregivers; however Medicare
does provide some in-home care through:
● home health aides: provided through a Medicare-certified home health
agency;
○ the individual must have:
■ an authorized practitioner’s order,
■ be homebound, and
■ need nursing or physical or speech therapy.
○ Coverage includes:
■ Part-time intermittent nursing care
■ Physical therapy, speech language pathology, and
occupational therapy
■ Part-time or intermittent services of a home health
aide
■ Medical social services; and
■ Medical supplies
○ No time limits
● Medicare hospice coverage: includes some limited respite coverage for
caregivers:
○ only available for beneficiaries who are terminally ill and
elect the hospice benefit
“Patient Driven Groupings
Model” (PDGM).
New Medicare payment system for home health services:
● changed home health agencies’ financial incentives and disincentives
to admit or continue care for Medicare beneficiaries.
○ Higher rates for the first 30 days of home care.
○ Higher payments for beneficiaries who are admitted after an
inpatient institutional stay (hospitals and skilled nursing
facilities).
○ Lower payments for patients from the community (hospital
outpatients, observation state, care from home without prior
hospital or SNF care).
○
● harmful to vulnerable beneficiaries, particularly those with chronic
conditions and longer-term health care needs.
Medicare Advantage Part B
Plan
MA plans are offering limited benefits to provide in-home:
● Because in-home support services (not attached to the home health
benefit) are not covered by traditional Medicare, provision of such
services is entirely voluntary and at the discretion of a given MA plan.
● Variability in payments to plans will inevitably lead to variability in
where such benefits are offered, creating uneven access to services.
● Medicare Advantage program is overpaid relative to what is spent on
traditional Medicare, thus current spending on supplemental benefits
may not be sustainable.
● Services that can help caregivers should be available to all Medicare
beneficiaries, not just a subset who choose to enroll in private plans.
Recommendation to improve
caregiver care from the
Federal Commission on
Long-Term Care “LTC”:
1.
2.
3.
Ensure the scope of current allowable home health benefits, generally,
and home health aides, specifically, are actually provided. Simply put,
ensure that current law is followed;
a. CMS should revamp the Medicare payment system to create
incentives for home health agencies to provide the full extent
of services available under the law.
Create a new stand-alone home health aide benefit that would provide
coverage without the current skilled care or homebound requirements,
using Medicare’s existing infrastructure as the vehicle for the new
coverage; and
a. Congress should pass a focused, stand-alone home health aide
benefit in traditional Medicare, to provide coverage for handson personal care without a homebound or skilled care
requirement.
Identify other opportunities for further exploration within and without
the Medicare program, including additional Medicare revisions,
demonstrations, and initiatives overseen by the Center for Medicare
and Medicaid Innovation (CMMI).
a. Comprehensive benefit
b. Incorporate a consumer directed care model into medicare
(similar to medicaid)
c. Medicare respite benefit
d. Medicare coverage updates that would help beneficiaries and
family caregivers
i.
Revise the homebound requirement to allow services
outside the home
ii.
Remove the 3-day prior inpatient hospital stay for
SNF coverage
iii.
Eliminate hospital “observation status” or count all
days spent in the hospital as “inpatient”
e. CMMI demonstrations and quality payment program
f.
Frolick: 215-225
Health Care Quality
Assurance
Health Care Quality Assurance: Federal legislation addressed the means of
assuming quality in institutional care by designating a program to accredit hospitals
to receive medicare benefits.
(1) Individual Credentials: state laws delegate responsibility for licensure and
discipline with medical licensure boards.
(a) Board establishes standards for good practice and monitors
physician competence.
(b) Issues → reluctant to discipline, self-serving to eliminate
competition, limiting operation budget
(2) Institutional Credentials: hospitals and other corporate health care
providers, such as home health agencies, nursing homes, and hospices must
be licensed by the state.
(a) Must be accredited by CMS and JCAHO.
Quality assurance in Medicare relies on the Peer Review of Utilization and Quality
(PRO) program → QIC [Qualified Improvement Contractors]: established by contract
with CMS to review physicians’ Medicare hospital admissions.
●
●
●
●
Review random sample of discharges by examining medicare claims as they
are processed for payment.
Also review 50% of admissions when the patient is transferred from one
acute care facility to another, and readmissions occurring less than 31 days
after the previous discharge.
QIC review includes overall treatment, quality of care issues, discharge
review, premature discharges, and level of care appropriateness.
○ Any facility deficient in a category is subject to sanctions, under
which all Medicare admissions may be subjected to review before
payment.
If the QIC intends to deny medicare payment for care, the recipient or
provider is entitled to discuss the issues with the PRO before the initial
denial.
○ Payment denied → provider or patient may seek reconsideration
from the WIC within 60 days from the denial notice.
■ PRO will re-review the patient’s medical record and issue
its decision within 30 days.
MEDIGAP
supplemental insurance
MEDIGAP supplemental insurance: private insurance companies offer policies
with benefits that supplement and complement Medicare benefits.
● Policies offer coverage for out-of-pocket costs, deductibles, co-payments,
and payment for hospital stays that extend beyond Medicare coverage
limits.
● Requirements for Medigap policy insurance, must:
○ Cover Part B 20% copays
○ Use standardized terms defined in the law
○ Have policy termination and cancellation causes prominently
displayed
○ Limit the period of restricted coverage for preexisting conditions;
AND
○ Provide purchasers a “free look” period during which the policy
can be canceled for a full refund
● Must use the same format, language, and definitions as models.
● Medigap “A” is the “core plan”: coverage must be included in all Medigap
policies, and all insurance companies who sell Medigap policies must offer
it.
Employer Provided
Retiree Health Benefits
Employer Provided Retiree Health Benefits: employer offered retirement health
coverage which supplements Medicare’s benefits for the retiree and spouse, some
physician fees, and some prescription drug benefits, with premiums paid entirely to
the employer.
● Governed by the federal Employee Retirement Income Security Act.
Tuesday - Sep. 14 2021
Work Related
Needs Related
OASDI (SS) - Title II
SSI - Title XVI
Medicare Title XVIII
*over 65 can buy Medicare
Medical/Medicaid - Title XIX
VA Pensions
In Home Supportive Services (CA only)
VA Tricare
VA Aid + Attendance
Frolick: 238-250
Medicaid - Needs Based
Medicaid: (created in 1965) a federal program designed to pay the medical
expenses of low-income individuals who are blind, aged or disabled. (although
conceived primarily as a source of payment for the cost of acute medical care,
Medicaid also pays for long-term care).
Medicaid - Federal and
State Administration
Finance
Federal and State Administration Finance: Medicaid is the only federal program
that is operated by the states.
● Jointly financed by the federal government and the states.
○ Funded more by state dollars then federal dollars
● The federal DHHS approves a state plan that details how that state will
operate its Medicaid program (known as Medical Assistance MA in many
states in Medical in California).
● The state share of the cost varies from 25-50% calculated using a formula
based on the state’s per capita income.
○ A state with a per capita income near the national average must
contribute 45%
● Federal law establishes minimum eligibility requirements, but many states
have enacted more liberal rules that have expanded the number of eligible
elderly.
Medicaid - Benefits
In order to receive federal Medicaid funding, the state must pay for long-term care
in a nursing home for individuals age 65+ who meet the income and asset eligibility
requirements.
Affordable care act: In 2010, attempted to expand the use of home and community
care by replacing the waiver program with a general rule that permits a state plan to
provide home and community care for individuals who meet required income and
asset tests.
● Home and community long-term care includes case management,
homemaker/home health aid and personal care services, adult day health
care, respite care, and other similar forms of assistance.
● The cost of services provided to an individual must not exceed the
anticipated total cost of Medicare institutional care to that individual.
Medicaid does not pay the market rate when it reimburses nursing home care.
● The daily reimbursement rate for nursing home care varies from state to
state and even within states because the rate is supposed to reflect the
actual cost of care.
● Stats establish what daily rate they will pay each nursing home.
●
Medicaid - Categorically
Needy Eligibility
Nursing homes are prohibited from discharging a resident who can no
longer afford the cost of care and has applied for Medicaid.
○ Ex: Medicaid pays nursing home $220 a day when it would
charge a private client $250 a day.
Rules governing Medicaid Eligibility:
(1) Income - individuals who are eligible for SSI (even $1).
(a) Income Cap States: Some states do not use the SSI eligibility test
though, and instead use Section 209(b) and apply a stricter
income eligibility standard.
(2) Resources - individual cannot have more than $2000 in assets if single or
$3000 in assets jointly if married,
(a) However, states can opt to allowed Medicaid applicants to keep
more resources.
(b) Section 206(b) states may allow less resources.
(c) NOT counted resources:
(i)
House
(ii)
One car
(iii)
Household and personal belongings
(iv)
Life insurance below $1500 value
(v)
Burial plots up to $1500
(3) Medically needy - individuals must meet the resource test, have income
sufficient to pay for their medical care, and meet other Medicaid
requirements (65+)
(a) Income - states have the option to use either the “spend down” or
income cap” tests.
(i)
Income spend down: many states allow some applicants
for long term medicaid care to spend down their income.
1) Nursing residents whose incomes exceed SII
eligibility become eligible for Medicaid by
spending down all their income on their medical
care, minus a retained personal needs allowance
of at least $30 a month.
2) Nursing residents keep a monthly allowance
and pay the remainder of their income to the
nursing facility, any other money owed is paid
to the facility by Medicaid.
(ii)
Income cap: some states use the income cap method to
determine medicaid eligibility.
1) Medically needy eligibility requires that an
individual’s income not exceed 300% of the SSI
monthly benefit for a single person.
a) EX: If SSI benefit is 733, the income
gap is 2199.
b) Ineligible even if only $1 above the
cap.
2) Solution → congress permits individuals to
create a Qualified Income Trust (QIT) that
“allows an individual to direct excess income
into a trust”; the trust must use the funds in
the trust to reimburse the state for all
Medicaid payments made on behalf of the
individual.
(iii)
Countable and available income: under SSI rules,
income includes anything received in cash or in kind
which can be used to meet needs for food or shelter.
1) Only income that is legally owned by the
prospective beneficiary and available for use or
reachable by reasonable efforts is considered
countable income.
(b) Resource eligibility: must have less than $2000 individually or
$3000 jointly if married of non-exempt resources.
(i)
State can only count resources as assets that the applicant
legally owns and that can be converted to cash to be
spent for care.
(ii)
Before applicants can claim the resource is unsalable or
unreachable, they must make a reasonable effort to sell
it.
(iii)
If the resource is counted, its values if FMV.
Mulder v. South Dakota
Dept. of Social Services
Facts:
● M entered a long term care facility in Aug. 2001 and applied to DSS for
long-term care assistance through Medicaid.
● M’s monthly income was $701 he received in SS benefits.
● From the $701, $50 is automatically withheld by SS to pay his Medicare
premium.
● $651 is directly deposited into his bank account each month, and $180 is
simultaneously withdrawn for alimony to his ex-wife.
● M receives a $30 deduction for his monthly allowance.
● M has $491 that he can actually spend after the allowance for the longterm care provider.
● In Dec. 2001, DSS informed M that he was eligible for assistance in the
amount of $322 each month.
● This amount left M responsible for paying his care facility $671 per month,
which is $150 more per month than M actually had.
● M appealed the DSS final decision, arguing that his available income
should not include the amount he pays for alimony and that the
determination was an arbitrary and capricious interpretation of Medicaid.
Issue: Whether alimony was includable as available income for the purpose of
determining the extent of Medicaid benefits? (court ordered-not voluntary)
Rule: The Medicaid long-term care program requires the recipient use all of their
available income to pay towards their care. The Medicaid program then covers
whatever the recipient cannot pay. In determining how much a recipient must
contribute, DSS considers the amount deducted or paid for alimony to be “available
income”.
Holding: The court reversed and held that the Department's determination that M’s
alimony payments constitute “available income” was not reasonable. The statutes
and administrative rules clearly indicated that M was entitled to a reasonable
evaluation of his income. The Department was required to provide benefits to the
extent M cannot afford to pay. M would never be able to pay the alimony and pay
his share of medical expenses.
Brewer v. Shalansky and
Hellebuyck
Facts:
● SRS found that B had non-exempt available resources in excess of
regulatory limits because she held stocks worth nearly $33,000 in joint
tenancy with two nieces.
●
●
At the time of the Medicaid application, the stock could not be sold or
otherwise disposed of without the consent of each joint tenant.
○ Both nieces (JTs) refused to consent to a sale of the stock.
After SRS denied B’s application for Medicaid benefits, D requested a fair
hearing and argued that the nature of the parties’ ownership of the stock
precluded B from selling it or converting it to cash; therefore it was not a
counted resource.
Issue: Whether assets that cannot be sold otherwise disposed of without the consent
of another constitute a counted resource?
Resource: cash other liquid assets or any real or personal property that an
individual owns and could convert to cash to be used for his support and
maintenance. If the individual has the right, authority or power to liquidate the
property, or his share of the property, it is considered a resource.
Holding: The court reversed and held that B did own the full value of the stock
because her nieces had not contributed to equity and that the partition action would
not necessarily be the simple procedure suggested by SRS. Failed because lack of
evidence/proof → B failed to meet her burden to establish that the cost of the
partition action would exhaust her equitable interest in the stock value.
Medical v. Medicare
Medical
Medicaod: combined federal AND California program designed to help pay for
medical care for public assistance recipients and other low-income persons.
● Not related to Medicare, so a person could have BOTH medical and
medicare.
● Need-based program
● Funded jointly with state and federal Medicaid funds
● Eligibility:
○ SSI and other categorically-related recipients are automatically
eligible.
○ "medically needy" may qualify if their income and resources are
within the Medi-Cal limits, (current resource limit is $2,000 for a
single individual). This includes:
■ Low-income persons who are 65 or over, blind or
disabled may qualify for the Aged and Disabled Federal
Poverty Level Program
■ Low-income persons with dependent children
■ Children under 21
■ Pregnant women
■ Medically indigent adults in skilled nursing or
intermediate care or those who qualify for Medi-Cal
funded home and community based waiver programs.
Medicare
Medicare: a federal insurance program paid out of Social Security deductions.
● Eligibility:
○ persons over 65 or older who have made Social Security
contributions
○ persons under 65 with disabilities who have been eligible for
Social Security disability benefits for at least two years
●
●
●
●
●
●
○ persons of any age with end-stage renal disease.
Not based on financial need; anyone who meets the age, disability and/or
coverage requirements is eligible.
Does not pay for all medical expenses, and usually must be supplemented
with private insurance (“medigap”) or consumers can enroll in an HMO
plan that contracts with Medicare.
Only pays for “skilled nursing care,” does not pay for “custodial care”
If the individual qualifies for Medi-Cal, s/he does not need private
"medigap" or HMO insurance to pay for costs.
○ though if such insurance is carried, the premiums are deducted
from income when computing the share of cost, and therefore
costs the beneficiary nothing.
Coverage: pays for health care services which meet the definition of
"medically necessary.":
○ Services such as:
■ some prescriptions (although the Medicare Part D
program now covers most prescriptions),
■ physician visits,
■ adult day health service,
■ some dental care,
■ ambulance services,
■ some home health,
■ X-ray and laboratory costs,
■ orthopedic devices,
■ eyeglasses,
■ hearing aids,
■ some medical equipment, etc.
○ Some services require prior authorization:
■ home health care,
■ durable medical equipment, and
■ some drugs
○ Nursing home care is covered if there is prior authorization from
the physician/health care provider.
■ Residents are admitted on a doctor's order and their stay
must be "medically necessary".
■ Residents are allowed to keep $35 of their income as a
personal needs allowance.
■ Residents with no income may apply for the
Supplemental Security Income/State Supplemental
Program (SSI/ SSP), and, if eligible, they will receive a
payment of $50 as a personal needs allowance.
Resource limitations: the property limit for one person has been set at
$2,000.
○ Exempt property is not counted in determining eligibility:
■ Home
■ Other reap property is FMV is $6,000 or less or used as
a business.
■ Household goods and personal effects.
■ Jewelry (wedding, engagement rings and heirlooms) or
other jewelry with FMV of $100 or less.
■ Once vehicle for transportation
■ Life insurance policites with total face value of $1500 or
less
■ Term life insurance
■ Burial pots
■
○
○
○
●
●
Prepaid irrevocable burial plan of any amount ant $1500
is designated burial funds
■ IRAs and work-related pensions
■ Non-work-related annuities
■ Community spouse resource allowance
■ Cash reserve less up to $2000
non-exempt property is counted: if the applicant has more than
$2,000 in non-exempt property, he/she will not be eligible, unless
the property is spent down for adequate consideration before the
end of the application month.
Spending down: Resources must be reduced to the property limit
for at least one day during the month in which a person is
establishing eligibility.
Gifting assets: Giving away resources may render a person
ineligible for a period of time running from the date of the
transfer.
■ Penalties for transferring or gifting away non-exempt
assets only apply if a Medi-Cal beneficiary or applicant
enters a nursing home.
■ If an applicant lives at home and gifts away property,
there are no transfer penalties
■ A transfer of non-exempt assets can result in a period of
ineligibility which is the lesser of 30 months or the value
of the transferred assets divided by the average private
pay rate (APPR) at the time of application. The current
APPR is $10,298 (effective January 1, 2020).
Spousal Impoverishment laws: California law allows the community
spouse to retain a certain amount of otherwise countable resources
available to the couple at the time of application.
○ CSRA: increases every year according to the Consumer Price
Index. The current (2021) CSRA is $130,380.
Family Allocation: allow for a family allocation to be offset from the
income of an institutionalized spouse for the support of a dependent
“family member” when there is a community spouse at home.
○ The current amount, $2,155 is effective July 1, 2020 through
June 30, 2021 .
Maintenance Need
Standard:
Maintenance need standard: the maintenance need standard for a single
elderly/disabled person in the community has been $600 monthly; the Long Term
Care maintenance need level (i.e., personal needs allowance when someone is in a
nursing home) remains at $35 monthly for each person.
Share of Cost:
Share of Cost: If your monthly income is higher than the limits to qualify for SSI or
the A&D FPL program (see above), but you meet the asset-level requirements, you
may still be eligible for Medi-Cal with a share of cost (SOC). An SOC functions
like a deductible. You must pay this amount in any month you incur medical costs.
After your SOC is paid, Medi-Cal will pay the remaining amount of your medical
bills for that month.
● Individuals eligible with a share of cost must pay or take responsibility for
a portion of their medical bills each month before they receive coverage.
● Medi-Cal then pays the remainder, provided the Medi-Cal program covers
the services.
● Share of cost = "maintenance need standard" - the individual's net nonexempt monthly income.
● Hunt v. Kizer → any monthly medical premiums can also be deducted
before the share of cost is determined such as your Medicare Part B
premium. (Share of Cost will be adjusted to reflect the cost of the
outstanding balance, which could, for example, mean no share of cost
until the old, unpaid bills are paid off).
● Johnson v. Rank → recipients may use their share of cost to pay for
medically necessary supplies, equipment or services not covered under
the Medi-Cal program. (The facility will deduct the cost of prescriptions
that are part of the physician's plan of care from that month’s share of cost
and bill the resident for the remaining share of cost.)
Aged and Disabled Federal
Poverty Level Program
(A&D FPL)
Aged and Disabled Federal Poverty Level Program (A&D FPL)
If you are aged (65+) or disabled and are not eligible for the SSI program, you may
be able to get Medi-Cal through the Aged & Disabled Federal Poverty Level (A&D
FPL) program. To qualify, you must:
1. Be aged (65+) or disabled (meet Social Security’s definition of disability,
even if your disability is blindness).
2. Have less than $2,000 in assets for an individual ($3,000 for a couple).
3.
250% California Working
Disabled (CWD) Program
Like SSI, this program does not count all of your assets. For more
information, see our Medi-Cal Programs – Qualification at a Glance chart
(above).
Have less than $1,502 in countable monthly income for an individual
($2,024 for a couple). These figures include the $20 disregard.
250% California Working Disabled (CWD) Program: helps Californians who
are working, disabled and have income too high to qualify for free Medi-Cal.
Californians who qualify may be able to receive Medi-Cal by paying a small
monthly premium based on their income. Premiums range from $20 to $250 per
month for an individual or from $30 to $375 for a couple.
To qualify, you must:
● Meet the medical requirements of Social Security’s definition of
disability.
● Be working and earning income (this can be part-time work).
● Have assets worth less than $2,000 for an individual or $3,000 for a
couple. Note: IRS-approved retirement funds, such as 401(k)s and IRAs,
are exempt and not counted.
● Have countable income less than 250% of the federal poverty level (in
2021, this equates to $2,704/mo. for individuals or $3,650/mo. for
couples; these figures include the $20 disregard). Disability income does
not count toward the limit, including:
● Social Security Disability Insurance (SSDI)
● Worker’s Compensation
● California State Disability Insurance (CSDI)
● Federal, state and private disability benefis.
Dual Eligibility -Medical
and Medicaid
Dual Eligibles or Medi-Medis: Medical beneficiaries who also qualify for
medicare because they are over a certain age and/or disabled.
● If you have both Medicare and Medi-Cal:
○ Medicare is the primary payer (meaning Medicare will pay first
for Medicare-covered benefits) and
○ Medi-Cal is the secondary payer.
● If you qualify for full Medi-Cal (Medi-Cal without a share of cost (SOC)),
Medi-Cal will also cover your Medicare Part A and B deductibles and
copayments, and pay your monthly Medicare Part B premium.
Prescription Drugs:
● Medicare Part D drug benefit will provide your prescription-drug coverage
instead of Medi-Cal.
○ must be enrolled in a Medicare Part D drug plan or a Medicare
Advantage prescription drug plan to get these benefits.
● Medi-Cal, however, will pay for certain categories of drugs not covered by
Part D, including:
● Drugs used for smoking cessation
● Certain cough and cold drugs
● Certain over-the-counter drugs
● Vitamins and minerals
Cal MediConnect: demonstration program with the goal of integrating care for
people with both Medicare and Medi-Cal.
● all Medicare Parts A, B, and D services (hospital care, outpatient care and
prescription drug coverage) and all Medi-Cal services, including longterm care services and supports, are covered by one plan.
● If you are eligible for this demonstration, you can “opt out.” “Opting out”
means you can choose to receive your Medicare benefits through Original
Medicare or a Medicare Advantage plan, but you must access your MediCal benefits through a Medi-Cal managed care plan.
Medi-Cal Programs – Qualification at a Glance – 2021
(Asset limits are the same for all
programs:
Single: $2,000; Couple: $3,000)
Program / Requirements
Your Monthly Income
Supplemental Security Income (SSI)
Single: up to $954.72/mo.
Couple: up to $1,598.14/mo. Note:
Higher income levels apply for
individuals who are blind.
● 65 or older, blind or disabled
Aged & Disabled Federal Poverty
Level (A&D FPL) Program
Single: up to $1,502/mo.
Couple: up to $2,024/mo.
● 65 or older, blind or disabled
Medi-Cal with a Share of Cost (SOC)
Single: over $1,502/mo.
Couple: over $2,024/mo.
● 65 or older, blind or disabled
250% California Working Disabled
(CWD)
● Have work
● Meet Social Security’s
●
definition of disability
Pay small monthly premium
Single: up to $2,704/mo.
Couple: up to $3,650/mo. Note:
Income excludes disability benefits
Thursday - Sep. 16 2021
42 USC §1396p(a)-(c)
Liens, adjustments and
recoveries, and
transfers of assets
https://1.next.westlaw.com/Link/Document/FullText?FindType=L&pubNum=10
00546&cite=42USCAS1396P&__lrTS=20210916013422714&transitionType=Def
ault&contextData=(sc.Default)&firstPage=true&bhcp=1
(a) Imposition of lien against property of an individual on account of medical
assistance rendered to him under a State plan
(1) No lien may be imposed against the property of any individual prior to his death
on account of medical assistance paid or to be paid on his behalf under the State plan,
except-- ...
(2) No lien may be imposed under paragraph (1)(B) on such individual's home if-- ...
(3) Any lien imposed with respect to an individual pursuant to paragraph (1)(B) shall
dissolve upon that individual's discharge from the medical institution and return
home.
(b) Adjustment or recovery of medical assistance correctly paid under a State
plan
(1) No adjustment or recovery of any medical assistance correctly paid on behalf of an
individual under the State plan may be made, except that the State shall seek
adjustment or recovery of any medical assistance correctly paid on behalf of an
individual under the State plan in the case of the following individuals
(2) Any adjustment or recovery under paragraph (1) may be made only after the death
of the individual's surviving spouse, if any, and only at a time-(3)(A) The State agency shall establish procedures (in accordance with standards
specified by the Secretary) under which the agency shall waive the application of this
subsection (other than paragraph (1)(C)) if such application would work an undue
hardship as determined on the basis of criteria established by the Secretary.
(c) Taking into account certain transfers of assets
(1)(A) In order to meet the requirements of this subsection for purposes of section
1396a(a)(18) of this title, the State plan must provide that if an institutionalized
individual or the spouse of such an individual (or, at the option of a State, a
noninstitutionalized individual or the spouse of such an individual) disposes of assets
for less than fair market value on or after the look-back date specified in subparagraph
(B)(i), the individual is ineligible for medical assistance for services described in
subparagraph (C)(i) (or, in the case of a noninstitutionalized individual, for the
services described in subparagraph (C)(ii)) during the period beginning on the date
specified in subparagraph (D) and equal to the number of months specified in
subparagraph (E).
Medi-Cal Resource
Limits for Long Term
Care
EXEMPT AND NOT COUNTED RESOURCES FOR LONG TERM CARE:
● The home: totally excluded, if it is the principal residence. The applicant
must state an “intent to return to the home.” Includes mobile home,
houseboat, or an entire multi-unit dwelling as long as any portion serves as
the principal residence of the applicant. (See "Your Home & Medi-Cal" for
more information)
● Other real property: may be excluded if it is used in whole or in part as a
business or means of self-support (you should see an attorney if you have
other real property).
● Household goods and personal effects: totally exempt.
● Jewelry: for a single person, wedding, engagement rings and heirlooms, and
items of jewelry with a net market value of $100 or less are totally exempt;
for spouses, there is no limit on exempt jewelry for determining the
institutionalized spouse’s eligibility.
●
●
●
●
●
●
●
●
●
One car is generally exempt if used for the benefit of the applicant or if
needed for medical reasons.
Whole life insurance policies with a total face value (also called
“combined death benefit”) of $1,500 or less.
Term life insurance: totally excluded.
Burial plots: totally excluded, includes headstone, crypts, etc.
Prepaid irrevocable burial plan of any amount and $1,500 in designated
burial funds. These designated funds must be kept separate from all other
accounts.
IRAs and work-related pensions: if in applicant’s name, the balance of the
IRA or the pension is considered unavailable if the applicant is receiving
periodic payments of interest and principal. If in the spouse’s name, the
balance of the IRA or pension is totally exempt.
Non-work related annuities: the balance of certain types of annuities may
be exempt (see CANHR’s fact sheet, “Medi-Cal for Long Term Care” for
more information.) You should see an attorney if you are considering buying
an annuity – call CANHR for a referral.
Up to $2,000 in cash reserve, e.g. in savings, checking, etc., for the MediCal applicant.
Community Spouse Resource Allowance (CSRA) for 2021: the spouse at
home can keep the first $130,380 in assets, and may be able to keep more if
his/her income is below the Minimum Monthly Maintenance Needs
Allowance (MMMNA). For 2021 this amount is $3,260. For more
information, contact CANHR at 800-474-1116 (consumers only.
Assisted Living Waiver
The goal of the ALW is to:
1) facilitate a safe and timely transition of Medi-Cal eligible seniors and persons with
disabilities from a nursing facility to a community home-like setting in a Residential
Care Facility (RCF), an Adult Residential Care Facility (ARF), or public subsidized
housing, utilizing ALW services; and
2) offer eligible seniors and persons with disabilities, who reside in the community,
but are at risk of being institutionalized, the option of utilizing ALW services to
develop a program that will safely meet his/her care needs while continuing to reside
in a RCF, ARF, or public subsidized housing.
To be eligible to receive services as an ALW Participant, an individual must meet
all of the following ALW eligibility criteria:
● Age 21 or older;
● Have full-scope Medi-Cal eligibility with zero share of cost;
● Have care needs equal to those of Medi-Cal-funded residents living and
receiving care in Nursing Facilities;
● Willing to live in an assisted living setting as an alternative to a Nursing
Facility;
● Able to reside safely in an assisted living facility or public subsidized
housing;
● Willing to live in an assisted living setting located in one of the following
counties providing ALW services: Alameda, Contra Costa, Fresno, Kern,
Los Angeles, Orange, Riverside, Sacramento, San Bernardino, San Diego,
San Francisco, San Joaquin, San Mateo, Santa Clara, and Sonoma counties.
Frolick: 250-265
Exempt Resources
Exempt Resources: some resources are classified as exempt property and are not
included as part of the countable resources:
● Home and land pertaining to it
○ Dwelling and ownership interest
○ Person must have possibility of returning to it
■ States vary on nursing home residents, with no spouse,
who own a home. (will they return to it?)
○ Limit on value of excluded home in 2015 as $552k with state
allowance up to $828,000
● Household items and personal effects
● A car for commuting
● A burial plot
● A burial fund up to $1,500 per person
● Life insurance policies with face values up to $1,500
●
Spend down excess
resources
A person with non-exempt resources must spend down those resources until they
have less than the state resource eligibility limit ($2,000 if single, $3,000 if married).
● Purchase a car
● Repair an exempt house
● Prepay a funeral
Spousal Protection
Institutionalized spouse: spouse who lives in a nursing home.
Community spouse: other spouse (not in the nursing home).
To protect the income for the community spouse, Medicaid eligibility
requirements permit a couple to protect some assets and all the income of the
community spouse.
● Name on the check rule: community spouse is permitted to retain all of their
income.
○ Only count the institutionalized spouse’s income.
● If they need more income → can get up to the MMMNA (minimum
monthly maintenance needs allowance - $1,966.25) amount and request
additional amount for shelter:
○ Some of the income of the institutionalized spouse can be diverted
to the community spouse to raise their income to the MMMNA
amount.
■ When the institutionalized spouse contributes income to
the community spouse, the institutionalized spouse pays
less of the cost of their nursing home care.
○ Can request additional income based on an excess shelter
allowance of up to $587.87
■ Determined by totalling the community spouse’s cost or
rent or mortgage payments, taxes and utilities.
■ If these costs exceed 30% of the MMMNA amount, the
community spouse has the right to additional income.
○ Community spouse can also go to court for additional income from
the institutionalized spouse in excess of the MMMA cap OR
request an administrative fair hearing and ask for additional income
due to “exceptional circumstances resulting in significant distress”.
○ Last resort → institutionalized spouse’s assets will be diverted to
the community spouse sufficient to raise their income to the
MMMNA amount.
Community Spouse Resource Allowance (CSRA): to avoid leading the community
spouse without any assets, they are permitted to retain a CSRA:
● At least $23,844 and up to $119,220 depending on state discretion:
○ A few states permit the maximum amount retained.
○ Most states permit 50% of the countable resources up to the
maximum amount retained and the other 50% would have to
be spent down to the $2,000 amount.
● If the community spouse acquires additional assets after the snapshot
evaluation of the couple’s resources, those assets do not affect the
eligibility of the institutionalized spouse or the right of the community
spouse to keep the CSRA.
Transfers (Gifts) of
Assets
Federal law permits states to deny eligibility to individuals who dispose of their
resources for less than FMV (make a gift) in order to obtain medicaid benefits.
● No penalty for transfers between spouses → because half of a couple’s
assets (less than the CSRA) without regard to ownership are considered
available for the care of the institutionalized spouse.
● Applicant must disclose any gift made in the 5 prior years (look-back
period)
○ Any gifts made prior to 5 years are not considered.
● Period of ineligibility is determined by dividing the value of the gift by the
average state cost of one month’s nursing home care.
○ Period begins once the applicant relies on the coverage.
● Gifts to trusts qualify as ineligible UNLESS the trust was established in an
income cap state as a means of handling excess income (Miller trust).
● Exceptions→ gifts causing a loss of eligibility that would cause a hardship
to the applicant or if the gift was not made to create eligibility for Medicare.
● Return of gifts → the gift can be “cured” if the entire value of the gift is
returned to the donor.
○ Some states permit partial return to reduce the penalty.
●
●
●
Medicaid Appeals
inheritance denies eligibility
annuity is considered a countable asset and income (can deny eligibility)
○ Geston → “Name on the check rule”: community spouses (one
must be in a nursing facility)
Lemmons → use of promissory notes to convert the value of a resource into
a stream of income are resources for purposes of Medicaid eligibility.
○ Look at value of resources actually available → you have the
ownership and ability to transfer?
○ promissory notes = applicant loans funds that are returned over the
duration of the note.
■ Paybacks are considered income and must be used by the
applicaton pay for their care.
Medicaid applications are often denied because of a dispute over the calculation of
income and resources attributable to the applicant. An individual who is denied
Medicaid services may seek a review of the decision:
(1) Fair hearing before the agency which denied the eligibility or claim.
(a) Must be held at a reasonable time, date, and place, before an
impartial hearing officer who was not involved in the initial
decision.
(b) Usually by telephone or video.
(2) If the decision is adverse, most state procedures allow another
administrative hearing at the state level.
(3) Right to judicial appeal of an agency’s final advertisement decision in the
federal court.
(a) Notice of appeal must be filed with the agency within 30 days of
the notice of the decision, after which the petition for judicial
review may be filed.
Sep. 16 Lecture
Medical - Long Term
Care Planning
Transfer of Assets Nursing Care
Transfer of Assets: federal law permits penalties on those who transfer their assets
for less than FMV (triggers a presumption that it was done to be eligible).
● Look back period:
○ Federal → 5 years/60 months.
○ California → 30 months.
● Period of ineligibility is determined by dividing the value of the gift by the
APPR (average state cost of one month’s nursing home care).
○ Purpose → you could have used that money to pay for your care.
○ $10,298 → average private pay rate in CA.
○ If you transfer less than the AAPR, you are eligible.
● Gifts to trusts qualify as ineligible - UNLESS the trust was established in
an income cap state as a means of handling excess income (Miller trust).
● Return of gifts → the gift can be “cured” if the entire value of the gift is
returned to the donor.
○ Some states permit partial return to reduce the penalty.
● Exceptions:
○ Gift was not made to create eligibility for Medicare (ex: like made
to avoid probate)
○ Hardship waiver
○ Transferring assets to community spouse (but consider the CSRA)
○ Disabled child
Hardship Waivers: gifts causing a loss of eligibility that would cause a hardship to
the applicant:
● Must show that denial of benefits negatively affects one's ability to access
food, shelter, or medical care.
EXAMPLE: D is in a nursing home and transkers $30k to his son in June 2021 and
applies for Medical in July of 2021.
● Triggers transfer rule
● Eligibility time → $30,000 (transfer amount)/$10,298 (APPR) = 2.93
months (round down)
○ ineligible for 2 months! (thus eligible in September)
● Stacked Gifting: What happens if D transfers $15,000 each to his son and
daughter in the same month:
○ 1.5 = 1 month because considered by each transaction (California
Fact Sheet #8).
○ Can be different amounts, but the largest amount controls.
● If child is on SSI →
○ Would delay him because it is over $10,298.
●
○ Would be counted as countable income for the child.
If children are blind or disabled, the transfer of the assets does not trigger the
transfer rule.
OTHER:
● inheritance denies eligibility
● annuity is considered a countable asset and income (can deny eligibility)
○ Geston → “Name on the check rule”: community spouses (one
must be in a nursing facility)
● Lemmons → use of promissory notes to convert the value of a resource into
a stream of income are resources for purposes of Medicaid eligibility.
○ Look at value of resources actually available → you have the
ownership and ability to transfer?
○ promissory notes = applicant loans funds that are returned over the
duration of the note.
■ Paybacks are considered income and must be used by the
application pay for their care.
Spousal Protections
●
●
●
●
●
CSRA in CA is $130,380.
But separate property will be counted in the total resources.
Only non-exempt resources count against CSRA.
CA allows an MMNA of $3,260.
No transfer penalties between couples.
Examples on p.252
Home and Community
Based Services/Waivers
HCBS Waivers: services available under these HCBS waivers include case
management, community transition services, private duty nursing, family training,
home health aides, life-sustaining utility reimbursement, habilitation services, and
respite care.
● Spousal impoverishment rules apply
Special Needs Trusts
(Gonzalez)
Estate Claims/Recovery
42 USC 1396p(b)(1)
California W&I Codes Sec. 14009.5
California Probate Codes Secs. 218; 9202; 19202
Regulations: Title 22 of the CCR , Div. 3, Chapter 2.5 Secs. 50960-50966
Medicid can seek recovery from the estates of individuals, who receive benefits,
through their:
● Home or any real property in which the beneficiary has legal title
○ Non-probate property passing through JT, survivorship, life estate,
or inter vivos trust.
● Amount of recovery is the amount of medical assistance paid, not just the
amount of nursing home expenses paid.
Lien → Medicare has the right to put a lien on a home during the lifetime of the
beneficiary;
● only going to be enforced if the house is sold, the person no longer intends
to return home;
●
Interplay of Federal
and State Law
waived if no spouse, DP, or disabled child in the home
OBRA, DRA, MCCA, 42 USC 1396p(c) → Federal:
● 60 month look back period for any other disposal of assets made on or after
2/8/2006.
● Home equity cap $595k state option up to $893k.Cap applies only for
LTC/CBC waivers.
State Law and SB 483:
● 30 month look back period until CA implements DRA.
● Hardship
● Home equity cap (CA-$893k) - 22 CCR § 50409
Frolik pp. 349-356; 358-359; 362-407
Guardianship and
Conservatorship
California = conservator of the person and the estate.
Is there a need?
● Yes; but a lot of these standards are subjective.
○ Protecting autonomy
○ Supporting the elderly
● Public policy → always look for a less restrictive alternative.
Insanity, Mental Illness:
● Mental incapacity does not mean the individual is insane or mentally ill.
○ Insanity → applied principally to the mental state of defendants
charged with a criminal case.
○ Mental illness → used in civil commitment statutes to define a
person who may be involuntarily committed to mental treatment
facilities.
Dementia, incapacity:
● Mental incapacity → legal determination that an individual lacks the
mental ability to care for his or her person or property.
○ Ex: dementia
Are the standards the same in criminal, civil, and probate courts?
● Criminal courts → insanity
● Civil courts → mental incapacity
● Probate courts → mental incapacity
Development of the Law
Law/Policy Origin
● Started as a way to protect the property
● Therapeutic Model → parents patria: state has an obligation to care for
the vulnerable and less fortunate.
○ Guardian should be more widely available
○ Behavior, not categories like disorders, should determine
eligibility.
Guardianship
Guardianship → Conservatorship in California: when individuals no longer have the
mental capacity to make decisions necessary to manage their property and personal
affairs, a guardian is appointed for the mentally incapacitated individual.
● Adults are presumed to be mentally competent to make their own decisions,
so only a court can declare an individual mentally incapacitated and appoint
someone with authority to make decisions for that individual.
Different Types:
● Probate
● Limited
● LPS
What authority is granted?
Personal Autonomy
Guardianship severely diminishes and individual’s personal autonomy:
Dale v. Hahn → stigma of incompetency, implication that she has some kind of
mental deficiency, involves more than a property right.
Due Process, Burden
and Standard of Proof:
(1) Notice: at minimum, the individual who files a petition should be given
notice of the nature of the proceedings.
(2) Burden of Proof: moving party/petitioner must show clear and convincing
evidence (pretty high burden)
(3) Standard of Proof:
(a) proof of mental capacity
(b) Proof of need for a guardian
(4) If met, does it follow that the court should appoint a surrogate?
(a) Guardianship of Samson →
Determination of
Incapacity
No single standard test for determining incapacity.
Person and Estate
Types of Guardianships:
● Guardianships of the estate
● Guardianship of the person
● Plenary guardianship
California keeps estate and person together as one.
Private Fiduciaries
Are banks always the best fiduciary?
Anthony v. Nat’l Bank of Commerce ● Bank was acting in its own best interest for its own use (preserving the
estate/funds instead of actually providing money to the conservatee so he
could support himself)
● Conflicts with social order, family expectations and heirs if the spending
money is freely given to conservatee
Barnes ● Roles of conservatorship of the person and estate may blur during:
○ Healthcare and housing decisions - must look at assets
● Conservatorship lessens the likelihood of a Will contest - more court
oversight.
● Duty of the conservator if the assets are insufficient to support to
conservatee -conservator may need to support themselves to support the
conservatee.
Pros and cons of A Public or Professional Conservator:
● Family members or friends → Esther on p.395
● Private for profit
● Private not for profit
● Public guardian
● Individual
● Professional health care provider model
● Commercial model
Professional
Conservators in
California
Professional Conservators: registry of Private Conservators, Guardians and
Trustees in the Cal DOJ.
● Paid out the estate
Office of Public Guardian (by county)
AB 1373 - Helen Jones
Omnibus reform - sample bill proposal
● Legislative findings (statistics)
● Ca. B&P § 6500 - Professional Fiduciaries Act
Frolick: 407-444; 465-474 → Alternatives to Conservatorship- Powers of Attorney and Other Substitute
Decision-Making Legal Tools
MEANS TO ASSIST INDIVIDUALS TO AVOID OR MINIMIZE THE NE
ED FOR GUARDIANSHIP:
● Appointed representative payee to manage individuals benefits;
○ SS
○ VA - fiduciary
● Revocable or living trust
● Powers of attorney;
● Joint ownership of (real and personal property);
● Trusts;
● Living wills and advance health care directives that permit an individual to record instructions regarding
the use of life-sustaining treatment or permit the appointment of a surrogate health care decision maker;
● Combination of the above
PROPERTY MANAGEMENT
LEAST RESTRICTIVE
ALTERNATIVE
Ca. Probate Code §18003(b)(1): No conservatorship should be granted unless the
court makes an express finding that granting so is the least restrictive alternative.
REPRESENTIATIVE
PAYEE
Representative Payee: SSA or VA may appoint a representative payee to receive
and manage the benefits if there are indicators that a beneficiary is not capable of
managing their benefits themselves.
● Advance representative payee designation → designate someone now
who you would like to be your designated payee should the need arise.
○ Not evidence of current incapacity or that the claimant is unable
to manage their finances.
○ Organizations can apply and charge 10% of the SSI amount
($82) - good cause can be higher fee
■
■ Cannot be designated in advance
● SSA → does NOT recognize a power of attorney, beneficiaries do have
the right to make an advance representative payee designation.
○ SSA is not bound to accept the designation if the designated
representative payee does not otherwise meet the requirements.
● VA “Fiduciary” → based on the assessment of the qualification of the
proposed fiduciary.
Government programs
that are alternative to
conservatorship
POWER TO
ATTORNEY
Power of attorney: a well-written authorization for one individual, referred to as
an agent or attorney-in-fact, to act on behalf of another individual, the principal, for
the purposes stated in the document.
● provides a substitute decision maker for all types of property decisions.
● Primary nonjudicial method of property management for an incapacitated
person.
● Conservatee must have capacity to enter into it (like a contract)
● Current law permits powers of attorney to be valid (durable) even if the
principal becomes mentally incapacitated.
○ Durable → authorizing documents must be prepared and
executed according to the formalities specified in the applicable
state statute.
○ Similar requirements in other states, so can be readily accepted
among states.
● Validity requires:
○ In writing
●
●
●
Capacity to create - power
of attorney
○ Signed by the principal
○ Witness
○ Dated
○ Notarization (some states)
Death of the principal terminates the power and the agent’’s right to act
for the principal
Many states detail what powers granted to the agent, but usually:
○ Right to manage the property of the principal
○ Right to spend income and principal in whatever manner the
principal might have
Principals who believe that their agent has abused their powers or acted
negligently can revoke the power and sue the agent for restitution.
○ If principal in incapacitated → some states permit other parties
to sue (family, other interested party, etc)
Capacity to create a power of attorney: individuals can execute a valid power of
attorney only if they have sufficient mental capacity to delegate power to an agent.
● Similar capacity as that needed to enter a contract → ability to
understand the nature of the document and the significance of signing it.
Thames v. Daniel → original agent appointed had their power of attorney
revoked, and sought to set aside their revocation and the appointment of a
different agent under a new durable power of attorney.
● In March 1996, the mother lived with V, who attempted to have a
guardian and a conservator appointed for her mother, on the ground that
her mother suffered from dementia and was mentally incompetent.
○ The probate court declined, concluding the mother was mentally
competent.
● In 1996, the mother executed a durable power of attorney in V’s favor
while living with her.
● The husband later brought a family court action seeking visitation with or
custody of his wife.
● The court held that the mother was to remain in V’s home, but other
family members were granted visitation, so long as they did not discuss
business.
● The husband and his son were in contempt when they drove the mother to
a bank to withdraw cash.
● The family court ordered that the mother was not competent to manage
her affairs.
● The husband brought an action in probate court to have a guardian
appointed for the mother because she was an “incapacitated person” and
the court appointed him as a guardian.
● Verdey sought to set aside her mother’s revocation of her earlier power of
attorney and the appointment of the father’s new power of attorney.
● V argued that at the date both documents were executed, the mother
lacked mental capacity.
HOLDING: there was ample evidence to support the probate court’s
determination that the mother possessed the requisite mental capacity to execute
the challenged documents.
● Because the court appointed the mother a guardian (the father- because of
her physical condition) and not a conservator (bc of mental condition), the
court’s reference to her as incapcitated can only be seen as adjudication of
her physical condition.
Formalities of Execution
- power of attorney
Requirements of execution formalities:
● Writing
● Signed and dated
● Witnessed
● Notarized
● Recitation of powers conferred to agent
Agent requirements:
● Anyone 18+ regardless of place of residence
● Successor agents should be named
● Joint agents are permissible, but third parties are reluctant to respond to
requests
● Serve without compensation, but can reimburse themselves for reasonable
expenses or hire themselves to perform duties for the principal
Revocation - power of
attorney
Revocation: power or attorney may be revoked by a competent principal at any
time by notifying the agent.
● May be revoked by:
○ Principal with capacity
○ Subsequent conservator
○ The Court
○ Death of the principal
● Generally valid until the attorney in fact has been notified of revocation
● Third parties acting in good faith reliance may be relieved of liability
In Re Guardianship of Hollenga → whether the trial court abused its discretion by
naming third parties (Estate Guardians) as the guardians over H’s estate, instead of
Cook, who was H’s nominated guardian in her power of attorney, when the trial
court had already issued an order denying the third parties’ petition to set aside H’s
power of attorney?
● Cook rented one of the H’s properties and helped her with household
chores.
● C helped H discover that the attorney in fact via power of attorney, her
financial advisor, was taking advantage of her. Lost $70k.
● H recovered some of the lost funds and purchased 3 annuities, all in C’s
name as the beneficiary, and then a fourth one later.
● H’s neighbor and his 2 friends (EG) filed a petition for appointment of
guardianship over H’s estate.
● The trial court appointed Lasynzki as the guardian ad litem (GAL).
● In 2003, H (opposed to the guardianship petition) executed a durable
power of attorney naming C as her attorney in fact and becoming effective
“upon determination by her treating physician that she is incompetent or
incpacitated to such an extent as to affect her ability to govern her affairs”.
○ Attorney believed she as competent to sign the doc
● H executed a living will and a will, which left everything to C.
● EG petitioned to set aside C’s power of attorney alleging that H was not
capable of making sound financial decisions, and that it would be in the
best interest of H to set aside the power of attorney until a final
determination is made by the Court with regard to H’s competence.
● Trial court denied EG’s position for both permanent and temporary
guardianship over H’s estate.
● In 2004, the trial court held a hearing on EG’s original petition and issued
a decision finding that H was incapable of handling her property because
of confusion about her financial affairs …
○ Granted EG’s petition for guardianship over H’s estate
●
●
H’s nieces G and C filed a petition for guardianship over H’s persons.
H fell and a doctor deemed her incapaitted → power of attorney became
effective.
● EG filed a petition over Cook’s power of attorney alleging that she was
incompetnent and under undue influence at execution.
● The trial court revoked Cooks’ power of attorney
HOLDING: reversed; pursuant to the state statute, the trial court, upon
establishing the guardianship over H’s estate, was required to appoint C, who was
H’s most recent nomination in a power of attorney, as H’s guardian - unless there
was a showing of “good cause or disqualification”.
Determining incapacity:
“springing powers” power of attorney
Determining incapacity: “springing powers”:
● Incapacitated principle → agent takes possession of documents and
begins to act in accordance with powers.
● Springing power of attorney → does not become effective immediately
upon signature, only becomes effective upon (if ever) the incapacity of
the principal.
○ unless otherwise stated, a power of attorney becomes effective
when it is executed, with the result that the principal and agent
are capable of exercising the authorized powers simultaneously.
● California Probate Code § 4030
● Possibility → certified by independent physicians to ensure when
incapacitated
Scope and use of power power of attorney
Scope and use of power: general power of attorney authorizes the holder to
undertake the broadest range of transactions on behalf of the principal.
Examples that may be included in the power of attorney:
● Make limited gifts
● Create a trust for my benefit
● Make additions to an existing trust for my benefit
● Claim an elective share of estate of my deceased spouse
● Disclaim any interest in property….
In Re Estate of Kurrelmeyer: wife’s trust is void as a matter of law - question
remains whether there was a breach of the fiduciary duty?
● Duty to self-deal? Just because you have the “unlimited” power; doesn't
that mean it is self-checked?
Gifts by the agent: in some states, the power to make gifts is implicitly granted,
but in most states, the power of attorney must explicitly grant the agent authority to
make gifts.
● Principal must decide:
○ whether the agent can make gifts alone or must seek the approval
of another party
○ Whether the agent can make gifts to him or herself or to his or
her immediate family, and whether the place any limits on the
amount of the gift
● Agent is bound to a fiduciary standard → duty of loyalty and the
obligation to act exclusively in the best interests of the principal.
● Mowrer v. Eddie → transfers had been the result of duress and undue
influence.
Safe Deposit Box Action: sometimes the original power of attorney is kept in the
grantor’s safety deposit box. If the agent does not also have an original document
which explicitly permits entry to the box, the bank cannot authorize access to the
contents of the box.
● Principal should NOT keep power of attorney in a safety deposit box.
● Sometimes the attorney who drafted the power holds the original signed
copies and waits to be notified to release it to the agent.
Difficulty of getting 3rd parties to accept the agent’s authority to act: unless
required by a statute, 3rd parties are usually under no obligation to recognize the
authority of the agent.
Minimal oversight to ensure agent’s fiduciary role → there is not much current
oversight to ensure that agents are acting in good faith, intending to bring no harm
to the principal, and avoiding acting out of self interest.
Abuses:
● Exploitation
● Embezzlement
● Forgery
● Fraud
● Larceny
● Money laundering
● Theft
JOINT OWNERSHIP
Joint ownership: effective means of providing property management for an
incpaticated person.
● Tenancy in common (JTIC) → most common JT; creates ownership
interests in property in 2 or more individuals. (presumed equal shares)
○ No right to survivorship
○ Deceased individual’s shares are passed by will or intestate
succession.
○ Any TIC can sell his or her interest in the property without
permission of other owners (no partition).
○ May hold unequal shares if specified in the document.
■ Bank accounts are usually held in equal shares,
proportioned to the amount of account holders.
● Joint Tenancy w/ ROS (JTROS) → equal ownership with rights of
survivorship.
○ ROS → when one JT dies, the other(s) inherit the deceased
owner’s interests.
○ Creditor of JT has no rights to collect against the joint property
after the death of one JT.
○ JT can sever the JT and other’s ROS by selling or giving away
their interest.
■ New owners become JTIC
Kitchen v. Guarisco → funds in the account belonged to decedent’s estate.
Forbis v. Neal → there is no false representation or concealment of a material fact
to support a claim that D engaged in actual fraud in setting up the two accounts and
Ps have no adequately forecasted evidence of D’s mental state, such as whether the
alleged forgery was reasonable calculated to deceive or made with the intent to
deceive.
Totten trust → creates a trust revocable by the grantor until death. If not
revoked, the trust assets automatically vest in the beneficiary at the grantor’s
death.
REVOCABLE TRUSTS:
Revocable Trusts: (along with DPOA) common way of avoiding probate and for
providing management of assets in the case of mental incapacity.
● “Living trusts” - low cost way of passing on assets after death without the
use of a will or the need to have the property pass through an expensive
probate system.
● When used with a power of attorney, they also promise to reduce or
eliminate the need for guardianship.
● Trust → a fiduciary relationship in which the person who has title to the
property, the trustee, holds it for the benefit of another, the beneficiary.
○ Creator of the trust → settlor/grantor/trustor
○ Assets of the trust → corpus or principal
○ Person who manages the trust → trustee (holds a fiduciary
duty)
○ Person who inherits under the trust → beneficiary
● Once created, a trust is irrevocable unless the settlor reverses the right to
revoke or amend it
● Existence of a trust to manage the property of a settlor (creator of the
trust) may forestall the need for a guardian.
○ Living trust + power of attorney should be sufficient to permit
the trustee and the agent (could be the same person) to manage
the incapacitated individual’s property.
■ Adding a surrogate health care decision maker makes
the need for a guardian even less necessary
Beneficiaries:
● Any competent adult can establish a trust, and any institution or person
can be the beneficiary
○ Can have more than one beneficiary or successor beneficiaries in
the death of one (institution or person)
● May sue trustees who daily in their obligations, even if they only have a
future interest or contingent interest.
Trustees:
● Can have more than one trustee, but if there is more than one, the trust
instrument must provide whether all must act in unison or if a majority of
the trustee can act (individuals or corporation)
● No trust can fail because a lack of a trustee
● In the named trustee dies, becomes incapacitated, or resigns, the
appropriate court will appoint a successor trustee
● Trust instrument can provide successor trustees. .
ADVANCE HEALTH
CARE DIRECTIVES:
Advance Health Care Directives: patients who are incapacitated and unable to
give informed consent are still protected by the doctrine since consent must be
obtained by a proxy decision maker before treatment is provided.
● Formal process → if patient lacks capacity to consent, a guardianship
petition must be filed requesting that the court find the patient to be
mentally incpaacityed and appoint a guardian for the person.
○ Or appoint an agent or substitute decision maker to make
decisions in their stead in the event of mental incapacity.
● Informal process → spouse or family members are in agreement and
consent to generally acceptable medical procedures.
Documents that enable
individuals to express
their wishes, to provide or
withhold their consent.
Documents that enable individuals to express their wishes, to provide or
withhold their consent:
(A) Living Wills → provides instruction from the patient as to future end of life
medical care; take effect when the declaration is terminal, confirmed by
physicians, and has lost mental capacity to make healthcare decisions.
(a) Only end of life decisions
(B) Health Care Substitute Decision Makers → a patient can choose a
substitute decision maker, terms an agent or surrogate decision maker, by
executing a document according to the requirements of the state statute. If
the patient has not done so, state law will appoint a decision maker
according to a family consent statute.
(a) Health Care Powers of Attorney: if mentally incapacitated provides means for medical decisions even if the declarant has
not provided instructions for a particular medical situation.
(i)
Can include end of life instructions
(ii)
Also includes health care decisions that are not limited
to end of life
(b) Appointment of an agent by statute: many states have enacted
statutes that provide a list of substituted decision makers in the
event the patient has not done so → provide that if the treating
physician determines that the individual is mentally
incapaictated, a list or hierarchy of family members and others
are authorized to serve as the surrogate decision maker.
(anyone can petition)
SURROGATE
DECISION MAKING
Surrogate Decision Making: agent is to act in accord with ant instructions the
patient included in the writing; if there are none, the agent is to make decisions in
accordance with substitute judgement (the patient’s other statements, personal
values, life choices).
BASICS OF ESTATE PLANNING Consequences of NO planning:
●
Overview of basic estate planning:
● Simple will: takes effect after the testator's death; executed by client w/ 2 witnesses.
● Trust: (revocable or irrevocable) vehicle to manage assets AFTER death.
○ Special needs trust:
○ A-B trust: for estates with a lot of assets; way to avoid paying federal estate tax.
○ Marital Trust: blended families.
● Pour-over will: required to transfer any assets that were not placed in the trust at the time the trust was
executed into the trust at the death of the settlor (eg: personal possessions).
● Transfer on death deed: filed with county recorder - transferring deed to property at death (revocable).
● Powers of attorney: see above.
● Current issues:
Initial considerations:
● 4 C’s of Elder Law ethics
○ Capacity
○ Client
○ Confidentiality2
○ Conflicts
● Review of capacity:
○ Testamentary capacity is required for a valid will or trust.
■ CA → “sound mind”
○ No capacity if:
■ Does not understand that they are executing a will
■ Does not understand or remember their personal property (within reason), OR
■ Does not remember living descendent and family members who will be affected by the
will
● Types of capacity:
○ Testamentary
○ Contractual
○ Marriage
Frolick: 445-464; → health care decision making:
RIGHTS TO
HEALTH CARE
AND AGEISM IN
TREATMENTS
●
●
●
●
●
●
INFORMED
CONSENT
In developed countries, all but the U.S. and South Africa have universal health
care programs.
The U.S. distributes health care based on a patient’s ability to pay, unless a
certain group.
EMTLA → an individual who comes to an emergency room and asks for
assessment must be provided the same assessment as others, and if an
emergency, stabilize the condition.
Bradgon → a person with a disability must be treated as other patients who
seek care.
Healthcare provider has no duty to treat another person, unless a treatment
relationship has begun and the patient cannot be referred to another provider
without harm.
○ Relationships might arise out of a provider’s contract to treat all
patients within a certain plan.
■ The plan cannot dictate the physician's medical judgement
and require a particular course of treatment such as drugs or
surgery.
Any lack of services to the elderyly covered by Medicare, Medicaid, or other
publicly administered programs is not the result of lack of payment, but one of
professional choice, or discrimination.
Informed consent: patient must be told the risks of treatment and non-treatment to
enable the patient to decide about a proposed treatment and alternatives.
● Objective test - whether a reasonable person would not have consented
● Subjective test - demeanor of the patient
ELEMENTS:
(1) physician failed to inform the patient of material risk before securing consent
to the proposed treatment;
(2) If the patient has been inform of the risks and alternatives, he or she would not
have consented;
(3) Treatment would cause adverse consequences that were not disclosed.
DEFENSES:
● Plaintiff knew the risks; or
● Risks are commonly known or inherent in the activity, or
● Risk was remote or little harm
WAIVERS:
● Patient can waive the right to information
● Patient can waive the right to decide
INCAPACITATION: doctrine is not suspended even if the patient is incapactiated and
unable to consent; consent must be obtained from a surrogate (family member or
judicially appointed guardian)
RIGHT OF A
COMPETENT
PATIENT TO DIE
Right of a competent patient to die: Individuals have the right to refuse to accept
medical care or the request that it be discontinued.
● Saikewicz → recognition of the right to refuse necessary treatment in
appropriate circumstances is consistent with existing medical mores; the
doctrine does not threaten either the integrity of the medical profession, the
proper rule of hospitals in caring for such patients, or the state’s interest in
protecting the same.
Courts have ordered treatment, despite a patient’s refusal, for a combination of
the following reasons:
● Medical crisis is not a recurring need to treatment (eg: chronic disease)
● Treatment is not prolonged, highly invasies, or very painful
● Patient has responsibility for children who have no other natural caregiver
● Patient is a minor and the parent treatment decisions endanger the child’s life
SURROGATE
CONSENT FOR
THE
INCAPACITATED
PATIENT
INCAPACITATED
OR INDEPENDANT
PATIENT
DECISIONS?
Surrogate consent for the incapacitated patient: a paitent who is incapacitated
(unable to make or express deciiosn because aof mental of physcial incapacity) cannot
give informed consent to medical treatment decisions, and require a surrogate to make
these decisions.
● Payne → even if the patient exhibits symptoms of dementia, the treating
physician must make the attempt to communicate with the patient.
● Kevin R. Wolff → 5 approaches/tests in evaluating capacity in the informed
consent topic:
○ (1) evidencing a choice - if a patient can make a choice (any choice)
that decision serves to sufficiently prove his competency.
■ Only non decisions are incompetent choices.
○ (2) reasonable outcome of choice - requires that an evaluator agree the
patient has made the “right” or “responsible” decision.
○ (3) rational reasons for choice - evaluates the quality of the decision
making; whether the choice was made based on rational reasons.
○ (4) ability to understand - evaluation of the patient’s ability to
understand the risks, benefits, and alternatives of treatments.
○ (5) actual understanding - requires the patient to actually understand
the costs, benefits, and alternatives of treatment and be able to apply
these to their current situation.
●
●
●
Capacitated individuals have the right to make wrong decisions.
If the individual's behavior seems bizarre or inexplicable, courts may find it
better to use a “objective” behavioral evidence of mental incapacity, weighing
the choice against that of a reasonable person .
Re Milton → patient’s religious freedom to believe and act according to the
dictates of her belief in spiritual healing prevents a court from ordering
treatment against her will that would violate her religious beliefs.
○ The state may not compel a legally competent adult to submit to
medical treatment which would violate that individuals religious
beliefs even though the treatment is arguably life-extending.
CAPACITY
In California, as in most jurisdictions, an individual is presumed competent for all
purposes. Cal. Probate Code § 810.
1. It is the process of the decision-making, rather than the decision itself that will
be weighed by courts to determine if the individual has the capacity to give
informed consent.
V.
COMPETENCY: judicial determination.
DIMINISHED
CAPACITY
CAPACITY: (and the capacity to give informed consent or to make legal decisions), is
a determination that physicians and attorneys make every day with regard to their
patients and clients.
● testamentary capacity (the capacity to make a Will, Trust or Estate Plan) and
● contractual capacity (ability to understand the nature and effect of the
agreement or business transaction, including the ability to create a power of
attorney, POLST or advance health care directive).
COMPETENCY
V.
V.
DECISIONAL
CAPACITY
DIMINISHED CAPACITY: (in between) - clients and patients who are diagnosed
with cognitive or other impairments do not lose their rights to self-determination and the
presumption of competency, based on the diagnoses alone.
DECISIONAL CAPACITY: clinical judgment relating to the patients’ ability to
provide informed consent or refusal of medical treatment.
● attorney must assess capacity during the course of legal representation,
● the physician must be aware of changes in capacity, mitigating factors and
consider whether the decision is consistent with the client/patient’s values.
DECISIONS OF
SURROGATES
DECISIONS OF SURROGATES: the interests of the elder are paramount and to the
extent possible, the attorney client relationship is with the elder and not his or her
surrogate.
● substituted judgment model: the surrogate make decisions consistent with
the known wishes of the principle, unless the wishes are unknown, in which
case the decision must be in the best interest of the principle.
INFORMED
CONSENT:
INFORMED CONSENT: The legal element for a lawsuit based on the failure to
obtain informed consent is predicated on the occurrence of an actual injury. Once
proved, the burden is on the plaintiff to prove that:
● the physician failed to inform of a material risk;
● had the plaintiff been informed, the plaintiff would not have consented to the
treatment ; and,
● The undisclosed risks in fact incurred, resulting in injury.
EXCEPTIONS:
● Emergency Care- This may seem obvious, but given the advent of POLST
and electronic records which contain Advance Health Care Directives, reliance
on this exception may prove to be more tenuous;
● Therapeutic Privilege- This exception is based on the premise that disclosure
would be detrimental to the patient in that it would be so upsetting that he or
she could not make a rational decision or would undergo some form of psychic
trauma or other form of mental distress. Reliance on this exception should be
supported by contemporaneous charting and even then, is a difficult
proposition.
● Patient Waiver- This is premised on the theory that the patient can waive the
right to the information and therefore the right to decide. It’s the “Doctor, you
know best” position of the patient.
Dr. Wilke’s Discussion
Curative Care
Palliative Care
●
Includes hospice (6 months - no curative care
allowed).
●
Futile Care
Terminally Ill
Terminally Ill: incurable and irreversible condition
that will result in death within a relatively short time.
California Hospital Association Form:
I do not want my life prolonged if:
(1) I have an incurable and irreversible condition
that will result in my death within a relatively
short time.
(2) I become unconscious and, to a reasonable
degree of medical certainty, I will not regain
consciousness, OR
(3) The likely risks and burdens of treatment
would outweigh the expected benefits.
(a) How much pain and suffering
outweighs the expected benefits?
Class 16- October 7, 2021
Frolik pp. 313-348 → Housing Issues- Continuing Care Retirement Communities, Assisted Living, Reverse
Mortgages
Choices in Housing
Choices in Housing:
LEAST
RESTRICTIVE
Ageing in place
Single family house
Apartment or condo
House sharing
In-home personal care
Supportive Housing
Age restricted housing
Assisted living facility or board-and-care home
NORC
MORE
RESTRICTIVE
Continuing care retirement community - CCCR
Nursing facility
Medical SNF care
Acute Care - Hospital
HOUSING
EXAMPLES
-
Quasi-village
Cheesecake (like a commune)
Tiny houses
Granny pods
Shared housing
Assistance at home
Adult day care
Assisted living
Greenhouse project
Non-medical residential care
Skilled nursing home
Planning Concerns
●
●
●
●
●
Least restrictive alternatives
Wealth
Public benefits (IHSS, etc.)
Health
Relationships:
○ Family
○ Friends
○ Neighborhoods
○ Pets
Elder care
agreements
Elder care agreements: (family service contract) - agreement for ongoing services,
whether with a family member or anyone else, benefits from a contract that defines the
responsibilities of the elder and the caregiver. The written contract should include
causes on:
1) The date the care begins
2) A detailed description of services expected to be provided
3) The frequency with which the services are to be provided
4) The amount of compensation the caregiver should receive and how often the
payment will be made
5) How long the contract is in effect
6) A description of how and why the terms of the contract can be modified
7) The location where services will be provided
8) Exemption from any liability for the medical care of the elder
9) Reimbursement for any care related expenses incurred by the caregiver
10) Arrangements for substitute cre when the caregiver is N/A
11) Conditions under which the contract can be terminated
12) The signatures of both parties
13) Require state withholding and federal taxes (as an employment contract)
Life Care Planning
Firms
Life Care Planning Firms: center on the elder care continuum; three areas of concern:
(1) Whether the elder will receive appropriate care if he or she remains at the
home, in the home of a relative, or in some type of assisted care facility.
(2) What are the types of personal or public funding available to ensure an
ongoing appropriate living arrangement
(3) Whether the plan provides adequate care while preserving family assets
according to the elder’s wishes
Payment sources for
in-home services
(1) Reverse Mortgage: permits the homeowner to borrow against the value of the
home which provides an income to live on, that typically need not be repaid
until the house is sold, the owner dies, or when you’re out of the home for a
certain amount of time (eg: a nursing home). (lump sum or fixed monthly
payment until the mortgage debt reaches a predetermined dollar amount):
● Home Equity Conversion Mortgage: The only reverse mortgage
insured by the U.S. Federal Government is called a Home Equity
Conversion Mortgage (HECM), and is only available through an
FHA-approved lender. The HECM is FHA's reverse mortgage
program that enables you to withdraw a portion of your home's
equity. The amount that will be available for withdrawal varies by
borrower and depends on:
○ Age of the youngest borrower or eligible non-borrowing
spouse;
○ Current interest rate; and
○ Lesser of appraised value or the HECM FHA mortgage limit
or the sales price.
● 2021 CAP - $765,600
● Non-recourse
● Medical implications - (but not included as an asset):
○ Lines of credit
○ Annuities
○ Stream of income
○ Lump sum
○ Transfer of home limitations
(2) Family Financing - Sale and Leaseback: the owner sells the house and
simultaneously enters into a lease agreement with the buyer that guarantees the
seller right to occupancy of the house until his death or he chooses to move.
● Usually occurs between family members.
● Unlike like a reverse mortgage, it does not create debt for the
homeowner.
(3) Government subsidies: assistance based on age or age AND financial need:
(a) State property relief tax: homestead exemption (reduces the
property tax on owner-occupied housing) - may be a fixed dollar or a
fixed reduction in the assessed value of the homestead or fixed
reduction in the amount of the tax bill.
(b) Low income housing assistance program: assistance with utilities
costs for low income households - may be triggered by bills from
home heating cooling and weatherization; either directly to
households or by payments to vendors for fuel or services, to help
pay the costs of home eating, cooling and weatherization.
(4) Community based government services - Older American’s Act and Title
XX poverty assistance: establishes the admin structure and delivery system
which provides many services to the elderly, including assistance with
housing, obtaining employment, securing restorative care, and coordinating
community services.
IHSS Services
In home Services Max 392 hours/month:
● Personal care services like dressing, bathing, feeding and toilet
● Paramedical services like helping with injections, wound care, and colostomy
● Cooking, shopping, laundry etc
Kelly v. Kent - spousal impoverishment rules (gives you more income or assets) can
apply if you would be in a nursing home, but for the waiver.
Communities for
Older Persons
Naturally occurring retirement communities and planned unit developments:
(a) Naturally occurring retirement communities - NORCs
(b) Single room occupancy - SROs
(c) Planned unit developments - PUDs
Supportive Housing
Supportive Housing: refers to housing that is accompanied by the provision of
personal care services needed because of the frailties or disabilities of the residents.
● Does not provide health care or nursing services.
Assisted Living
Assisted Living: non-medical, supportive housing for elder who need daily assistance.
Board and care
homes
Board and care homes: “retirement” or “personal care” homes; community based
residences for older adults who need supportive assistance.
Continuing care
Retirement
Communities
Continuing care Retirement Communities: supportive housing that guarantees
lifetime appropriate care to their residents in the form of independent living, assisted
living, and nursing care home care .
● Offer independence w/ wrap around services.
● Expensive, mostly upper class.
● 90% are owned by not-for-profit entities, such as religious groups.
● Require an entrance fee or endowment in return for a prime by the community
to prove all the personal care and nursing home services a resident requires for
the rest of their life (varies from $150,000 to $500,000) which are often funded
by an elderly individual selling their current residences.
Rowatti v. Gonchar
● An addition converted the owner’s residence into a a two family or multi family dwelling
● Violated code
● However, northvale ordinance holds that a residential structure is capable of housing two completely
independent housing usints is a multi dwelling home and prohibited
Dissent
● Ordinance unclear. Relied on subjective material
Storm v. NSL Rockland Place
● Whether an assisted living facility may advance an affirmative defense of primary assumption of risk in
response to a resident’s claim that the faculty provided negligent or reckless care to him
● Mr. Storm fell and suffered injuries
● Court says no
○ Bad public policy letting healthcare providers escape liability
○ Conset to assumption of risk is always at question
● Needed 24 hour supervision
● Wife found Mr. storm drinking alcohol
○ Hes not supposed to leave campus but he would
● Storms sought out this facility to deal with his alcoholism
● Resident home cannot provide less tha care
Denied summary judgement
Morris v. Deerfield Episcopal Retirement Community
●
READING pp. 475-494 - October 19, 2021 - end of life
Health Care
Decision Making
Health Care Decision Making:
● Do not resuscitate (DNRs) - applies to any patient whether terminally ill or not,
so it is effective when neither a living will nor advance directive are active.
○ “No code” - no resuscitation if the patient is in a cardiac or pulmonary
arrest
○ “Slow code” - wait to see if severe enough to require action
○ No other treatments are refused besides listed above.
○ Patients can orally override a DNR.
● POLST - physician's order for life sustaining treatment forms.
○ Completed and signed by the physician
○ Intended to interpret the wishes of the patient who has an advanced,
progressiv ei llness, into physician orders that must be followed by all
healthcare providers who interact with the patient
○ Supplements living will and other advance health directives
● Assisted Death ○ Passive or Euthenasia
■ Passive assistance - assistant might take actions to obtain the
means of death but the patient takes final actions.
■ Euthenasia - assistant takes the definitive steps that cause the
death.
○ Not a constitutional right
Dr. Nathan Fieldman
END OF LIFE
(1)
(2)
(3)
(4)
Informed consent
Surrogate decision-making
POLST
CA End of Life Option Act
BIOETHICS
Bioethics → Principlism elements:
● Respect of autonomy
● Minimize harm
● Justice
Concepts:
● Urgency
INFORMED
CONSENT
Components of informed consent:
(1) Doctor is obligated to disclose all relevant information to patient
(a) Physician standard
(b) Patient standard
(2) Patient makes voluntary choice
(a) Free from coercion
(3) Decisional capacity
SURROGATE
DECISION
MAKING
(1) Designation of surrogate:
(a) Substitute judgment: role is to help the clinical team make the decision
that the patient would make.
(2) Instructions (eg: living will):
POLST
physician's order for life sustaining treatment forms.
CA END OF LIFE
OPTION ACT
SB 380
“Medical Aid in Dying”:
● Physican assisted suicide (PAS)
● Death with dignity (DWD)
PROBATE AND ESTATE - OCTOBER 21, 2021
Edward and Barbara
v. Defendants
Petitioners: Edward and Barbara → co-trustee’s of P’s trust.
Defendants: P’s caregiver “B” and attorney “T”
Settlor: “P” - 85 and suffers from Alzheimers and Dementia
FACTS:
●
●
●
●
●
●
●
●
●
●
●
CLAIMS
Co-trustees and beneficiaries of the Trust dated May 22, 1986 created by
settlor “P”, who is 85 and suffers from Alzheimers and Dementia
Petitioners sought redress for elder abuse and other serious wrongs committed
by the caregiver “B” and attorney “T”.
B set in motion a scheme to take control of P’s assets, worth at least $3 million
according to T.
B only knew P when she became her caregiver in 2016. In 2017, B ended her
employment with the caregiving facility and became directly employed by P.
Petitioners believe that B was trying to limit their contact with P.
A neuropsychologist determined P to lack testamentary capacity, and the
doctor became concerned by B’s excessive called that he reported B’s
behavior to APS.
B and/or T had P sign documents in 2018 which allegedly amended the 1986
Trust and/or set up a new trust; to leave the remainder to B and make her a
trustee.
B entered into a purported marriage with P in 2018, with T as a witness.
B has taken control of at least 1.1 million from P’s bank and has transferred P
home out of the 1986 trust.
Petitioners argue that P lacked capacity to marry and thus the marriage is void.
K was appointed as temporary conservator for P’s person and estate in 2018 by
the court.
(1) Elder abuse
(a) B created a plan to deprive P of her property knowing that P was
vulnerable.
(b) B actively participated in preparation of docs that purported to
appoint B as the co-trustee of the 1986 Trust.
(c) B tools these actions and used these tactics to unduly influence P.
(d) As a direct result of P’s conduct, B tok, secreted, appropriated,
obtained or retained P’s real or personal property for a wrongful use
with intent to defraud, or both.
(e) B should have known this conduct was likely to be harmful to P as an
elder.
(f) Result obtained by B is inequitable because
(i)
It has or will deprive P of her property; and
(ii)
It will prevent said property from being used for P’s benefit,
care, and support; and
(iii)
Is it divergence from P’s long standing intentions regarding
her estate and is contrary to her will and the 1986 Trust; and
(iv)
It improperly rewards and benefits B for her fraud and other
wrongful conduct
(2) Determine validity of trust:
(a) Order sustaining the validity of the 1986 trust and setting aside 2018
trust
(i)
Lack of capacity
(ii)
Undue influence
(iii)
Vulnerability of the victim
(3)
(4)
(5)
(6)
(7)
(8)
(iv)
Unfair advantage of weakness of mind
(v)
Grossly oppressive advantage of necessities or distress
Rescission of the 2018 Trust:
(a) P was incapacitated and hterefore could not consent to the 2018 Trust
or the changeles allegedly made to the 1986 Trust.
Constructive Trust:
(a) B breached her fiduciary duties by doing the acts alleged, including
taking advantage of P’s lack of capacity and through use of undue
influence, fraud, duress, and/or mistake.
(b) B ordered to return the property and/or be surcharged amounts as
compensation to P.
Accounting:
(a) B be directed to provide full and complete accounting regarding all
assets and property taking from P and/or the 1986 Trust and estate.
Other Relief:
(a) Annulment of alleged marriage
(b) Order disinheriting B
Persons entitled to notice
Prayer
October 27 - Reading pp. 495-527
Elder Abuse and Neglect:
Elder Abuse: physical, psychological, fidicuiary, sexual abuse, explotion or neglect.
● Elder Neglect: failure to provide basic needs such as clothing, food, shelter,
supervision, and care for physical and mental health.
● Financial Exploitation: the illegal or or improper use of a vulnerable or
incapaictated elder’s assets for the explorer’s or another’s monetary profit or personal
advantage.
● Physical abuse: violent or passive conduct that results in bodily harm or mental
distress.
● Psychological abuse: name calling and verbal assaults or a protractected and
systematized effort to dehumanize.
● Violation of rights: being forced out of one’s dwelling or being forced into another
setting against the elder’s will, violation of ability to move freely, right to a safe and
clean environment, right to receive adequate medical care, right to freedom from
verbal and physical abuse, and right to complain and seek redress.
Who abuses elderly people?
Who abuses elderly people:
● Domestic (family) Caregivers
● Institutional caregivers
Plank v. Mount
Plank v. Mount → elder abuse as defined by the CA statute requires a high degree of neglect
or harmful actions:
Domestic family caregiver
Standard of review: To constitute neglect within the meaning of the Elder Abuse Act, and
thereby trigger the enhanced remedies available under the act, a plaintiff must allege and
prove by clear and convincing evidence that the defendant (1) had responsibility for meeting
the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or
medical care; (2) knew of conditions that made the elder or dependent adult unable to provide
for his or her own basic needs; and (3) denied or withheld goods or services necessary to meet
the elder or dependent adult’s basic needs, either with knowledge that injury was substantially
certain to befall the elder or dependent adult, or with conscious disregard of the high
probability of such injury.
Rule - Heightened remedies are provided under Welfare and Institutions Code section
15657, if the plaintiff establishes recklessness, oppression, fraud or malice in the
commission of the abuse or neglect.
● “Recklessness” refers to a subjective state of culpability greater than simple
negligence, involving deliberate disregard of the high degree of probability that
an injury will occur.
● “Negligent” under the Elder Abuse Act, the plaintiff must thus allege (and
ultimately prove by clear and convincing evidence) that the neglect caused the
elder or dependent adult to suffer physical harm, pain or mental suffering.
Reasoning:
● Not recklessness - Given the evidence that Mr. Mount was in relatively good
condition (lucid, ambulatory and able to feed himself) until the week or so
preceding his death, there was no evidence that Mr. Mount had been neglected
for an extended period of time with deliberate disregard.
● Not negligence - can’t prove cause in fact; while it may be said in hindsight that
defendants failed to ease Mr. Mount’s suffering, there was no evidence that
defendants’ conduct caused it. To the contrary, the evidence was overwhelming
that Mr. Mount suffered from end stage lung cancer (and possibly prostate
cancer) which caused his suffering during the last week of his life.
Holding: Even if defendants breached the duty of care by failing to provide palliative
care for Mr. Mount prior to the eve of his death, they did not cause his suffering. They
caused suffering only to the plaintiff and her family, but the Elder Abuse Act provides no
remedy for family alienation.
Hong v. Dept. of Social and
Health Services
Institutional Caregivers
FACTS:
● Hong hired Theo LaFargue as a live-in caregiver for the residents of Heritage House
I.
● Hong never received the results of LaFargue's background check.
● Hong also failed to provide LaFargue with training related to the residents' mental
health needs or ensure that LaFargue had an updated tuberculosis test and CPR
certification.
● Hong admitted that she occasionally left the facility to run errands, leaving LaFargue
as the only caregiver on site.
● Hong terminated LaFargue's employment immediately.
● However, Hong told LaFargue he could continue to live and work at Heritage House
I until October 31, 2008 to give him time to find somewhere else to live.
● The Department of Social and Health Services (DSHS) revoked Sue Hong's license to
operate an adult family home based on Hong's violation of multiple administrative
regulations.
● An administrative law judge (ALJ), the DSHS Board of Appeals, and the superior
court all affirmed the revocation.
● a Group Health volunteer was conducting a social visit with K.K.
● The volunteer observed LaFargue insult, criticize and yell at K.K. for approximately
90 minutes.
● Hong was notified by a Group Health social worker that, on multiple occasions,
LaFargue had unzipped pants and had adjusted his genital area in front of K.K
HOLDING: Hong's actions demonstrated a serious lack of understanding of how to keep her
residents safe.
REASONING: Adult family home providers are required to understand how to meet the
special needs of vulnerable adults and to take steps to protect any resident who is alleged to be
a victim of abuse or neglect.
Self Neglect
Self Neglect: an older person who fails to meet his or her basic needs for food, shelter,
clothing or health care due to physical or mental impairments, orboth, or a diminished
capacity, to perform essential self-care tasks that substantially threaten his or her own health,
cinlduing: proving essential food, clothing, shelter, and health care; and obtaining goods and
services necessary to maintain physical health, mental health, emotional well-being, and
general safety.
Davis v. Cuyahoga County
Adult Protective Services
FACTS:
● Debs, a health inspector, went to appellant's home in the company of Rakowsky, a
social worker.
● Numerous complaints and referrals were made since 1976 about appellant and the
condition of her home.
● Rakowsky first met appellant in 1996 after she received a self-neglect referral
regarding appellant.
● In the spring of 1999, Officer Riley observed appellant in the middle of the street,
yelling at two neighborhood children.
○ open sores on her face and arms, appeared to be disheveled and had not
bathed for some time.
○ house contained garbage which was piled up inside and noticed a rancid
smell coming from the house.
Self Neglect
●
●
●
Officer Riley contacted his superior and appellant was transported to the hospital for
treatment.
Officer later came back with a search warrant:
○ clothing, unopened cans of food, opened cans of cat food, and refuse were
strewn about the premises.
○ Cat and dog feces were present.
○ The electricity did not work and twenty-six kerosene cans were found in the
house.
○ Ten to twelve of the kerosene cans were full and surrounded by garbage.
○ One dog and twelve to fifteen cats were living there.
○ infested with insects including fleas and cockroaches.
○ Evidence of the presence of rodents was observed.
The police transported appellant to St. Vincent's Charity Hospital where she was
admitted into the psychiatric ward.
PROCEDURAL HISTORY:
● On June 3, 1999, probate court issued an emergency protective services order.
● On July 21, 1999, an application for the appointment of a guardian was filed in
probate court.
● The application alleged appellant to be incompetent by reason of mental impairment.
ISSUES:
(1) whether the probate court abused its discretion in finding that the appellant suffered
from a mental impairment so severe that it rendered her incapable of caring for
herself or her property.
(2) whether the probate court abused its discretion in failing to properly consider less
restrictive alternatives to guardianship.
HOLDING: affirmed; assignment of a guardian was not an error and the less restrictive
question was overruled.
REASONING: Evidence shows that appellant was not capable of managing her daily affairs
and had become a danger to herself.
Florida Department of Children
and Family services v. McKim
Self Neglect - consent to APS
HOLDING: Affirmed; the court found as a matter of law that it did not have authority to
order protective services in the form of involuntary placement in a licensed facility because
the statutory definition of “neglect” requires that “neglect” have occurred at the hand of a
caregiver, and there was insufficient evidence of caregiver neglect.
REASONING: Section 415.1051, Florida Statutes, which is at issue in this case, does not
employ the phrase “vulnerable adult in need of services.” Rather, it uses the phrase
“vulnerable adult,” which is defined separately in the statute. Unlike the definition of
“vulnerable adult in need of services,” the definition of “vulnerable adult” does not include the
concept of self-neglect.
Adult Protective Services
Adult Protective Services:
● Some states let APS intervene without Elder’s consent (ex: lacked capacity)
○ Must show clear and convincing evidence that E lacks capacity
NAIK factors of self-care and
self-protection
NAIK factors of self-care and self-protection:
● Personal needs and hygiene
● Condition of the home environment
● Activities for independent living
● Medical self-care
● Ability to handle financial affairs and estate
●
●
Decisional capacity for the appreciation of problems and consequential problem
solving
Executive capacity (verification of task performance)
Common presenting signs of self-neglect in elders:
● Physical examination
○ Unkempt hair, nails or clothes
○ Unexplained weight loss
○ Inusual wounds or odors
● Clinical signs
○ Missed med refills or appts
○ Decline in cognitive function
○ Frequent acute excavations of chronic illnesses
○ Untreated medical issues
● Proxy reports
○ Dangerous or unkept home
○ Unpaid bills and debts or evidence of exploitation
○ Functional decline activities of daily living
Mandated Reporting
Mandated Reporting:
● Self neglect mandated reporting → paternalistic
● Confidentiality v. well-being?
● LAWYERS ARE NOT MANDATED REPORTERS3
Confidentiality of Records
Theories of Recovery for Elder
Abuse
Theories of Recovery for Elder Abuse:
● Action under WIC § 15610.70 requires evidence of apparent authority:
○ Fiduciary
○ Care provider
○ Health care professional
○ Legal professional
○ Spiritual advisor
● Action under WIC § 15610.70 requires evidence of an unequitable result:
○ Economic consequences of the victim
○ Divergence from victim’s prior intent or course of conduct or dealing
○ Relationship of the value conveyed to the value of the service or the
consideration
○ The appropriateness of the change in light of the length and nature of
relationship
● Undue influence under Probate Code § 86
○
● Undue influence under Civil Code § 1575
● Presumptions of undue influence -- caregivers + attorneys (gits are invalidated unless
exception applies)
○ Can rebut presumption in documents
Other theories of recovery:
● Quiet title
● Conversion
● Breach of contract
● Breach of fiduciary duty
● Fraud
● unfair/deceptive trade practices against seniors (Ca. Civ. Code § 3345)
●
Constructive trust
November 4th - Elder Law: pp. 275-312
Nursing Home Quality
Assurance Act of OBRA ‘87
Nursing Home Quality Assurance Act of OBRA ‘87:
● “condition level statements” or conditions of participation -- statutory requirements,
violation of which can lead to termination of the facility’s payments from government
programs.
● “Standard level statements” -- lesser requirements which may be subject to lesser
sanctions and do not threaten federal funding.
● Areas that define the change in approach to the assurance of quality:
○ Survey and certification - sets standard of care and services to residents that
meet federal requirements for participation in Medicare and Medicaid.
○ Resident assessment and annual resident review - states must use a system of
resident assessment provided by CMS that is comprehensive, accurate,
standardized, and reproducible - which described tha resident’s significant
impairments in functional capacity and ability to perform daily functions.
■ Assessed within 4 days of admission
■ Nursing home Reform Act mandates that nursing homes use Resident
Assessment Instrument (RAI)
Nursing Facility Staffing
Nursing Facility Staffing:
● Certified nurse aids or nursing assistants - nurse aids must be supervised by a license
nurse
● 42 CFR 483.25 - a nursing facility must provide: “sufficiency nursing staff and related
services to attain or maintain the highest practicable physical, mental, and psychological
wellbeing of each reticent, as determined by residence assessments and individual plans
of care” in order to do so the facility must have at least:
○ 1 registered nurse
○ 1 licensed nurse
○ Full time director of nursing who may serve as a change nurse
○ Nurse assistant staff are determined by a formula based on number of residents
and their needs
● OBRA permits waivers for both RNs and LPN requirements if:
○ Facility demonstrates that is has been unable to recruit personnel;
○ State determines that a waiver will not endanger the health or safety of an
individual staying there; AND
○ State finds that, for periods when license services are not available, a RN or
physician is obligated to respond immediately to telephone calls from the
facility
Nurse Aid Training
Nurse Aid Training :
● OBRA established the first nationwide requirements for nurse aid (and home health
aide) training - states must require at least this training but have many more curriculum
requirements.
○ Min. 75 hours of training (16 in classroom and 16 hours skills training)
○ State established training and a formal competency evaluation before
certification
Nursing Home Resident
BOR - 42 CFR § 483.10
Nursing Home Resident BOR under 42 CFR § 483.10
● Autonomy
● Information
● Privacy and communication
● Limitations on transfers and discharges
Intermediate Sanctions
●
●
●
personal financial protection and access
Freedom from Medicaid discrimination, bedhold polciies, and evictions
Freedom from abuse and use of restraints (physical or chemical) without patient’s
authority
●
Prior to OBRA, there was only one time of sanction - withdraw the state’s license and
decertification which cut off the federal funding.
OBRA amended the law to require states to use a range of intermediate sanctions:
○ Civil monetary penalties
○ Temporary denial of funding
○ Temporary manager
○ State sanctions in addition to federal
●
Long Term Care
Ombudsman - 42 USC §
3027(a)(12)(A)(i)
Long Term Care Ombudsman: Section 307 of the Older Americans Act requires that each state
operate a long-term care ombudsman program.
● Works full time
● Investigates and resolves complaints
Contracts for Nursing Home
Care
Contracts for Nursing Home Care: upon admission, nursing home resident signs a contract
with the facility stating the conditions under which care will be provided, the type of care, and the
terms of payment.
● Resident lacks mental capacity → residents agent or guardian can sign
● Restrictions on commonly misused provisions
Arbitration Clauses
Arbitration Clauses: In response to lawsuits alleging negligent care, nursing homes increasingly
include mandatory arbitration clauses in admission contrats.
● Patients are denied the right to a jury trial and no punitive damages can be awarded.
● Usually not negotiable.
● Federal Arbitration Act of 1925 upholds arbitrations when residents attack it.
● Courts have overturned arbitration clause agreement when someone other than the
reticent signed the contract and lacked authority to bind or when the resident signed and
lacked capacity.
● Some courts have found arbitration clauses unenforceable on the basis of
unconscionability (procedural in nature → the weaker party had no bargaining power)
Third Party Guarantees
Third Party Guarantees: nursing homes routinely require that a “responsible party” other than
the president sign the admissions contract.
● Justified by the need to have an alternate to make a decision if the resident becomes
unable to do so.
● nursing homes cannot look to the signer for payment.
Solicitations of
Contributions
Solicitations of Contributions: it is illegal under the Medicare and Medicaid anti fraud and antiabuse act for a nursing home to require a “gift, money, donation or other contribution” as a
condition for admission or continued stay.
Duration of Stay Clauses
Duration of Stay Clauses: (prohibited by OBRA) require the prospective resident and family to
assure the facility a certain number of months at the private pay rate before the resident attempts
to qualify for Medicare.
● Admission can be denied despite OBRA on financial information
Waivers of Liability
Waivers of Liability: health care law rejects general waivers of all liability (“exculpatory
clauses”), so such waivers are scattered throughout the admissions contract.
● Objectionable clause similar in effect gives broad advance consent to medical treatment
(deprives the resident the right to withhold informed consent to specific procedures,
contrary to med mal law)
Unfair Trade Practices
Unfair Trade Practices: nursing home contracts include many provisions that, while not
expressly prohibited, can be challenged as unfair trade practices under states laws on Unfair and
Deceptive Acts and Practices (UDAP).
● UDAP includes:
○ taking advantage of the consumer by using superior knowledge or bargaining
position
○ coercive or misleading sales practices
○ Use of contract terms that are vague or misleading
● Public and private remedies
Nursing Home Quality of
Care Litigation
Nursing Home Quality of Care Litigation:
● Common negligence
● Comparative fault
● Medical malpractice and nursing home negligence distinguished
● Negligence per se
● Criminal acts and intentional torts