1. How many people think that a
Caremanager, a.k.a, Casemanager, is a
licensed profession, i.e., regulated by
the State of Illinois?
2. If the correct answer is “No….it is not”;
and, I talk about the subject for the
next hour, will you still be receiving 1
hour of CLE?
1
DECONSTRUCTING THE ROLE OF A
CAREMANAGER
Howard Berk, Esq.
Executive Director
Illinois Disability Pooled Trust
Email: howard.berk@ilpooledtrust.com & Website:
www.ilpooledtrust.com
2
IDA/CVLS Collaboration
• CVLS and the IDA, both non-profit
associations, have partnered to offer a series
of Continuing Legal Education seminars on
guardianships with a focus on persons with
disabilities.
• This series is part of a new collaboration
between CVLS and the IDA to expand and
enhance pro bono services to low-income
persons with disabilities and their guardians.
3
IDA/CVLS Collaboration
•
SEMINAR SERIES
Deconstructing the Role of a "CareManager:" January
21, 2015 (presented by Howard Berk, Executive
Director)
• A Closer Look at the Role of the Guardian ad Litem:
February 18, 2015 (presented by Vida Cruz, IDA Staff
Attorney)
• Special Needs Trusts: March 18, 2015 (presented by
Eileen Durkin, IDA Staff Attorney)
• POA Abuse: April 22, 2015 (presented by Kerry Peck,
IDA Board of Directors Member)
4
WHAT IS THE ILLINOIS DISABILITY
POOLED TRUST?
• The Illinois Disability Association serves as cotrustee with The Private Bank of the Illinois
Disability Pooled Trust (“IDPT”).
5
WHAT IS THE ILLINOIS DISABILITY
POOLED TRUST?
• The IDPT serves as trustee of both self-settled
special needs trusts (for example, when the
person with disabilities receives funds through
a personal injury suit, medical malpractice
suit, or inheritance) and
• third-party-funded special needs trusts (for
example, a parent funding a trust for a child
with disabilities.)
6
WHAT IS THE ILLINOIS DISABILITY
POOLED TRUST?
• The IDPT currently manages over 80 million
dollars in assets and has served over 1,300
persons with disabilities representing a broad
spectrum of race and ethnicity that is Chicago,
Cook County and the State of Illinois.
7
One of the benefits of having a SNT is
the ability to hire a sophisticated
advocate
• My proposition is: Caremanagers, a.k.a.,
casemanagers, can be important to the
“successful” management of a case;
• What are “caremanagers”?
• When is it appropriate to hire a caremanager?
• What is a qualified caremanger?
8
What is a Caremanager? Nebulous
• No legal definition in Illinois.
• Under the “Illinois Family Case Management Act”, the
term “qualified case manager" is not defined (410 ILCS
212) in contrast to (210 ILCS 55) Home Health, Home
Services, and Home Nursing Agency Licensing Act,
which establishes licensing standards for custodial care
agencies.
• No Licensing
9
Caremanager – function is defined, not
qualifications
• Administrative Code Title 89 Section 686.1025
(§686.1025. Provisional Case Manager -Brain
Injuries)
• 410 ILCS 212/15 (Illinois Family Case
Management Act)
• 20 ILCS 505/5 (Children and Family Services Act.)
•
Ostensibly, Caremanagers are non-licensed professionals with training and/or
experience in a variety of disciplines including nursing, social work, physical
therapy, and mental health.
10
What is a Caremanager’s function?
• A Caremanager provides a means for achieving client
wellness and autonomy through collaboration,
advocacy, communication, education, and identification
of service resources and service facilitation.
• http://www.caremanager.org/
11
Why should Guardians and Trustees
consider hiring a caremanager?
• Understanding and meeting the needs and
wants of your ward/beneficiary may best be
accomplished by hiring a Caremanager
• Guardian – statutory duty to advance the ward’s best
interests under the Illinois Probate Act (755 ILCS 5/11a-18).
• Trustee – Duty of prudent investment under the Illinois
Trust and Trustees Act inherently implies that the trustee
needs to know the beneficiary’s needs in order to invest
trust assets to provide for those needs (760 ILCS 5/5)
12
When is the involvement of a
Caremanager appropriate?
• Caremanagers often work in collaboration
with GALs, Guardians, Attorneys and Trust
Officers to:
– Resolve immediate crisis
– Expedite the provision of services
– Identify resources
– Perform assessments for services or other
intervention
13
When is the involvement of a
Caremanager appropriate? Cont.
– Develop care plans
– Apply for government benefits
– Remain involved to maintain a stable environment
– Make purchases for the benefit of the beneficiary
& socialization
– Four Illustrations – see appendix
14
How to select a Caremanager?
Qualifications (noting there are no licensing of care
managers)
• Education
• License, e.g., clinical social worker
• On-going training
15
How to select a Caremanager?
• Practical experience/expertise with certain populations
and in what settings
– Community versus institutional
– Mental illness
– Developmental delay
– Brain trauma
– Drug dependency
– Sexual abuse, financial exploitation, physical & emotional
abuse/neglect
– Minors
– Elderly
– Non responsive or unsophisticated guardians
16
Additional considerations when hiring
a Caremanager
– Experience working within a court setting
• Drafting reports to the court
• Testifying
– Time frame/immediacy?
• When is the CM able to start
• What is the anticipated time frame to complete the tasks
• Does this timeframe meet the needs/reality of this case
– Liability insurance
– Costs
17
Additional considerations when hiring
a Caremanager (continued)
• Depth of bench, a.k.a., number of
employees/colleagues that can step-in if need
be
• Languages spoken
• Gender
18
CHALLENGES WITH HIRING A
CAREMANAGER
– Prejudices against Caremanagers: assumptions by
judges, GALS, attorneys, and litigants assuming that
they themselves have the necessary skill sets and
therefore CM is not needed
– Family members bias: I am the Guardian not the
Court
– Caremanager bias: preserving the guardian’s careplan;
tendency to maintain the relationship with the
guardian and not rock the boat; difficulty toggling
back and forth b/t general advocacy and making it
work, for example, w/in the limits of the snt rules or
properly calibrating expectations (minor's vs. family’s
money)
19
CHALLENGES WITH HIRING A
CAREMANAGER
– Costs
– Third parties cooperating/recognizing HIPAA
releases in favor the CM (guardian of the person’s
agent?)
– Experience working within the guidelines of a
Special Needs Trust, e.g., SSI and the trust not
paying for food and shelter
20
So, how does this work within a
COURT SETTING?
Considerations for a Court order to hire CM
• Is the Caremanager independent of the guardian or
trustee and operating at the behest of the court? and is
the estate merely responsible for paying for their
services?
• Does the Caremanager need to consent to the
jurisdiction of the court via some type of waiver?
• Should the order anticipate that third parties will
require either the guardian to sign a release or the
court to authorize specific authorities, e.g., HIPAA,
guardian needs to sign medical consents
21
WORKING WITHIN A COURT SETTING
CONT.
• Explicit and implicit mandates/Reporting
requirements:
• To whom is the Caremanager to report?
• The court directly? The GAL? The guardian of the person?
The guardian of the estate?
• Specifying the content of the reporting…what does judge
want to seen in the report?
22
WORKING WITHIN A
COURT SETTING cont.
• CM is given a specific mandate of “X”, e.g., apply
for SSI, and the Y event occurs, e.g., the case
manager identifies that there is no food in the
house. The expectations regarding the scope and
nature of the reporting should that be spelled out
in the agreement or court order, i.e., “hereby
authorized to hire CM for the following purposes
(X); however, the court further requires to the
extent that the CM identifies matters of concern
in carrying out his/her functions pursuant to this
court order, that CM shall have a requirement of
candor to this court and report said concerns.”
23
SUGGESTED FIXES
– (never seen in Cook County) Make CM a GAL – by
doing so, the court has an opportunity to set
eligibility standards for what the court’s
expectations are and who it would consider to be
a resource (noting that a CM is an otherwise
undefined term) 755 ILCS 5/11a-10
– Clarify in a court order whether the
guardian/trustee is authorized to hire CM (or
merely the payor) or whether the CM is courtappointed and required to report directly back to
the court?
24
SUGGESTED FIXES
• Incorporate an overview of Caremanagement
services into the court’s comprehensive training of
guardians ad litem.
25
FIXES – ALL IT TAKES IS A COURT
ORDER
– Sample court order (See Appendix):
• Suggested standardized language describing the care
management agency’s areas of strength and
experience. This language can assist the probate judges
by providing details that will be of use when appointing
a CM, and selecting a well-matched provider when care
management is needed.
26
FIXES – COURT ORDER THEMES TO BE
ADDRESSED
•
•
•
•
•
Include issue of HIPAA,
CM consenting to court jurisdiction
Costs
Mandate – implicit and explicit
Reporting requirements: to whom and expected
content
27
Ultimate Considerations
1. Elevate the mundane to the sacred
2. “Trust but verify “
CONTACT INFO:
Howard.Berk@ilpooledtrust.com
Website: www.ilpooledtrust.com
28
Appendix: FOUR CAREMANAGER
ILLUSTRATIONS
• Case examples where case managers have been
appointed illustrate the diverse roles and
interventions by case managers that achieve
positive outcomes for wards of the court
• The complexity of these case examples illustrates
the importance of selecting a case management
agency with the expertise and training to assure
the best outcomes in terms of quality of life and
preservation of resources for the ward.
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Appendix: CAREMANAGER
ILLUSTRATIONS – Stabilizing Careplan
• CareManager (CM) was appointed to assist a ward’s family when the trust
officer was concerned about the family’s ongoing requests for funds and
apparent needs. CM discovered that the ward’s extended family was
residing in the ward’s home without a financial contribution. The disabled
child was not receiving the medical care or educational services needed.
CM raised the need for extended family to contribute financially or to
relocate. CM also discussed with the family why they were residing in the
home and assessed whether family members were contributing to the
ward’s care. CM arranged for doctor appointments and transportation to
same, arranged for a visit to the minor’s school and for transportation to
and from school, monitored the family for stability, and placed services as
needed including respite care. CM’s primary contributions were to
stabilize the ward’s residence and assist the ward’s family to meet
educational and medical needs.
30
Appendix: CAREMANAGER
ILLUSTRATIONS – Stop Abuse/Neglect
• CM was appointed to intervene when the trust officer was concerned that
a cognitively impaired older adult may be the victim of undue influence
and financial exploitation by a paid care giver. CM worked with the ward’s
out-of-state family to provide care giver agency resources in order to keep
the ward in the home, arranged for specialty care doctors, monitored the
care giver agency services once in place, and continued communication
with the family. When the ward’s needs changed, CM advised the family
regarding additional in-home services and options for placement in a longterm care facility. CM’s primary contributions were to provide supervision
of the ward such that the ward was no longer a target for exploitation, and
to provide the ward’s family with information and local monitoring of the
ward’s status.
31
Appendix: CAREMANAGER
ILLUSTRATIONS –Helping the Guardian effect
her responsibilities
• Caremanager (CM) was appointed to assist the family of a disabled adult.
The trust officer was concerned that the ward’s primary care provider was
unable to express the ward’s needs, to return calls, to respond to the trust
officer’s inquiries, and to keep scheduled appointments. CM investigated
and determined that the care provider had unmet mental health needs
which impeded his ability to care for the ward. CM worked with the care
provider to accept a mental health diagnosis and to participate in
treatment. CM made sure that the care provider had ongoing resources
and services that assisted with the ward’s care, such as respite care,
transportation and home visits by a social worker. CM’s primary
contributions were to enhance the care provider’s ability to meet his
responsibilities to the ward effectively and thereby allow the ward to
remain in a familiar, safe environment.
32
Appendix: CAREMANAGER
ILLUSTRATIONS – A Minor
• CM was appointed to assist the ward’s family in relocating
to a safer environment. CM evaluated the housing needs of
the disabled minor and the family, located appropriate
housing, arranged for a new school placement with special
education services, found medical providers and therapies,
and found durable medical equipment providers to service
the minor in the new home. CM also investigated and
advised the court regarding the need and eligibility for an
OBRA / Special Needs Trust and potential entitlements to
government benefits for the ward. CM’s primary
contributions were to facilitate the minor’s move to safe,
appropriate housing, to secure all necessary services in the
new location, and to advise regarding maximizing potential
benefits.
33
Appendix-Don’t Become a Fiduciary
De Facto
• Found to exist by the facts NOT by the
relationship
• Trust is reposed on one side and results in
superiority and influence on the other side
• Proof must be by clear and convincing
• Long v. Lyon 311 Ill. App. 3d 959, 726 N.E. 2d 187
• 755 ILCS 5/4a-10 “Presumption of void transfer”
(transferee is a caregiver and exceeds $20,000)
CM maybe distinguished (statute not applicable)
if not providing ADLs
34
Attachment – Sample Order
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, PROBATE DIVISION
ESTATE OF
A DISABLED PERSON
)
)
)
)
)
No.
P
ORDER TO HIRE CASE MANAGEMENT SERVICES
This matter coming before the Court on the Guardian’s Petition for Leave to Hire Case
Management Services, ____________appearing on behalf of the Guardian, the Parties having notice and
the Court having jurisdiction and being advised on the Premises;
IT IS HEREBY ORDERED: The Illinois Disability Association, as Co-trustee of the Illinois
Disability Pooled Trust, Jane Doe Sub-Account is authorized as follows:
1. To make disbursements from the Illinois Disability Pooled Trust, Jane Doe Sub-Account for
case management services to Agency/Individual CM for the purpose of assisting the
guardian of the person with:
35
a. locating appropriate housing, including exploring residential placement for the
ward;
b. procuring a prepaid funeral/burial plan on behalf of the ward which satisfies
the requirements of Illinois Medicaid program;
c. Assist guardian in making application for public benefits (SSI, IDOA,
Medicaid)
d. Other__________
2. The fees of the Case Manager: shall not exceed ___/hour;
a. The Case Manager’s travel expenses shall not exceed 50% of the hourly dollar
amount charged; and,
b. The Case Manager is authorized to expend up to 15 hours for the above
services.
3. The Case Manager is hereby ordered authority to execute releases and consents on
behalf of ward in accordance with the provisions of the Health Insurance Portability
and Accountability Act (HIPAA), to access her medical records and information.
36
4. The court further requires to the extent that the Case Manager identifies matters of
concern in carrying out his/her functions pursuant to this court order, that Case
Manager shall have a requirement of candor to this court and report said concerns.
5. The Court hereby takes judicial notice of the Case Manager’s waiver of service of
summons and consents to the jurisdiction of this Court pursuant to Section 5/2-213 of
the Illinois Code of Civil Procedure.
6. This matter is continued to _______ [date] for the presentation of the report of Case
Manager.
Entered:
Judge: ___________________________
37
Who is Howard Berk
•
•
•
•
•
The Federal Government’s Consumer Financial Protection Bureau’s Illinois point
person and expert drafter of the soon to be published “Lay Fiduciary Guide”
(current)
Innovated and drafted the first court ordered self-settled special needs trusts in
the State of Illinois and created the Illinois Disability Pooled Trust having had more
than 1300 disabled beneficiaries and managing over 140 million dollars in assets
(1999 to present)
Chair of F.L.A.G – a task force comprising of financial institutions, law enforcement
and government agencies in Cook County to share and develop strategies to
combat financial exploitation (2003)
Chair of the Chicago Bar Association’s committee to draft and effect legislative
changes to the Illinois statutory power of attorney acts so as to afford greater
protections to the disabled principal against exploitation by the agent (2000-2001)
Supervising attorney for the Cook County Public Guardian responsible for disabled
estate management and litigation against third-parties for breach of their fiduciary
responsibilities (1993-2000)
38