Following up our last post, here is a four-minute video explaining the recent Pennsylvania case holding a son liable –retrospectively–for his mother’s $93,000 nursing home bill: video

Lesson: encourage your parents to do advance long-term care planning with an elder law attorney. It is well worth the investment. They (and you) can’t afford not to.

In a previous post, we explored the state law making adult children liable to support indigent parents who need long term care.

A recent Pennsylvania case reaffirmed these concerns.

In Health Care & Retirement Corp. v. Pittas (decided May 7, 2012), Pennsylvania’s Superior Court upheld a judgment of $92,943 against the son of an elderly woman who had resided in a nursing home. The nursing home had to show the son had the ability to pay the bill, the court said, but found sufficient proof because the son had yearly income of over $85,000 and had recently paid off a tax lien by making monthly payments of $1,100.

The court further held that the trial court need not consider other sources of income available to the mother, such as the mother’s husband, her two other grown children, or her pending application for Medicaid benefits. As a result, the one son sued by the nursing home was stuck for the entire bill, unless the mother’s Medicaid application was ultimately approved.

This case once again underscores the importance of having a plan in place to pay for long term care, protect assets, and avoid becoming a burden to family members.

You may be surprised to learn that Pennsylvania law provides that the spouse, parent, or child of an indigent person has “the responsibility to care for and maintain or financially assist” that person, and that this responsibility applies “regardless of whether the indigent person is a public charge.”

(There are two exceptions. A child is not liable for support of a parent who abandoned the child for 10 years while the child was a minor. No person is liable under this law if there is a financial inability to pay support.)

Before you panic, though, keep in mind that the state of Pennsylvania does not generally bring support actions against family members whose relatives have run out of money and qualify for benefits. (Whether the law would even be enforceable for that purpose is questionable.) Medicaid, veterans benefits, and other public benefits regularly assist in paying for long term care for seniors who lack the ability to pay.

But Pennsylvania’s support law has been used by nursing homes and assisted living facilities to hold family members responsible for the cost of care in certain circumstances.

One important factor is whether Mom or Dad reside in a nursing facility that is certified to receive Medicare or Medicaid reimbursement. Under the federal Nursing Home Reform Act, such a facility may not require someone other than the resident (such as a family member) to guarantee payment. A facility may require someone who has access to the resident’s income or resources to sign a contract to make payment from the resident’s assets, but such a person incurs no personal financial liability.

Facilities that are not certified for Medicare or Medicaid, such as personal care or assisted living facilities, have successfully sought payment from family members. In 2009, for example, Allegheny County Judge Stanton Wettick allowed an assisted living facility to bring a lawsuit against a son of one of its residents for payment under Pennsylvania’s support law. (To read opinion, click here and find page 284.)

Another important factor is whether a family member has signed any kind of agreement to be a “responsible party” (or some similar term) for payment. Such agreements are not always enforced by the courts, but facilities sometimes use them to insist on payment from the signer.

When helping a relative with admission to a long term care facility, be sure you understand your possible liability to help make payments. An elder law attorney can help you review admission contracts and discuss the financial responsibility you may incur.

What does “assisted living” mean in Pennsylvania now?

It’s getting harder for consumers to know.

When I have visited assisted living facilities in the past year, I have been struck by the wide variation in the services offered. One place may offer a narrow range of services and expect its residents to be nearly independent, while another may keep residents who require help with most activities of daily living.

New regulations that took effect in the state in January appeared, at first, to offer a solution. Licensed “assisted living” facilities would have to offer certain core services. Facilities would also have to provide, or arrange for, certain “supplemental health care services” which would be “packaged, contracted and priced separately from the resident agreement.” Thus, consumers could compare facilities and prices more transparently.

A licensed facility would also have to meet certain requirements in its physical site, staffing, and training. So if you moved into a licensed assisted living facility, you would generally know what you were going to get.

But the regulations would only apply to a facility that chose to use the term “assisted living” in its name or written materials.

Regulators expected hundreds of facilities to apply but few have, according to a news report. Gary Rotstein of the Pittsburgh Post-Gazette has reported that state officials predicted there would be at least 150 assisted living residences licensed by now, but there are only 10 (with only one in Western Pennsylvania). Since facilities fall under the new regulations only if they describe themselves to consumers using the term “assisted living,” it seems many are choosing to avoid that term and thereby escape the regulatory requirements, the article said.

These developments are a sure-fire recipe for confusion.

Consumers know the well-branded term “assisted living” as a place where a person can receive help with activities of daily living in a home-like setting, instead of going to a nursing home. But where can a person find that service? The 10 licensed facilities cannot possibly serve the demand in Pennsylvania. People will be unsure if what used to be called the XYZ Assisted Living Residence is providing the same service now that it’s called the XYZ Personal Care Residence. Terms like “personal care” are so vague that many consumers may not know what services the facility offers.

When the regulations went into effect in January, it was hoped they would give meaning to the term “assisted living” and help consumers find the services they need. Now it appears the use of that term may become increasingly rare and consumers will be left to wonder what services are offered at which facilities, and where they can find the right mix of help they need.

What does “assisted living” mean in Pennsylvania now?

It’s getting harder for consumers to know.

When I have visited assisted living facilities in the past year, I have been struck by the wide variation in the services offered. One place may offer a narrow range of services and expect its residents to be nearly independent, while another may keep residents who require help with most activities of daily living.

New regulations that took effect in the state in January appeared, at first, to offer a solution. Licensed “assisted living” facilities would have to offer certain core services. Facilities would also have to provide, or arrange for, certain “supplemental health care services” which would be “packaged, contracted and priced separately from the resident agreement.” Thus, consumers could compare facilities and prices more transparently.

A licensed facility would also have to meet certain requirements in its physical site, staffing, and training. So if you moved into a licensed assisted living facility, you would generally know what you were going to get.

But the regulations would only apply to a facility that chose to use the term “assisted living” in its name or written materials.

Regulators expected hundreds of facilities to apply but few have, according to a news report. Gary Rotstein of the Pittsburgh Post-Gazette has reported that state officials predicted there would be at least 150 assisted living residences licensed by now, but there are only 10 (with only one in Western Pennsylvania). Since facilities fall under the new regulations only if they describe themselves to consumers using the term “assisted living,” it seems many are choosing to avoid that term and thereby escape the regulatory requirements, the article said.

These developments are a sure-fire recipe for confusion.

Consumers know the well-branded term “assisted living” as a place where a person can receive help with activities of daily living in a home-like setting, instead of going to a nursing home. But where can a person find that service? The 10 licensed facilities cannot possibly serve the demand in Pennsylvania. People will be unsure if what used to be called the XYZ Assisted Living Residence is providing the same service now that it’s called the XYZ Personal Care Residence. Terms like “personal care” are so vague that many consumers may not know what services the facility offers.  

When the regulations went into effect in January, it was hoped they would give meaning to the term “assisted living” and help consumers find the services they need. Now it appears the use of that term may become increasingly rare and consumers will be left to wonder what services are offered at which facilities, and where they can find the right mix of help they need.

Let’s suppose you are a doctor, or other similar health care provider. Every time you see your patient Joe his memory has worsened.

Joe struggles to recall whether he took his medications this morning, and if so, what they were. He used to ask about your children, but now he seems not to recognize you. Yesterday he left his coat – containing his wallet and keys – in the waiting room.

You believe Joe now needs someone to look after him.

Can you tell the family?

If a family member or friend of Joe’s calls to ask whether you think he needs a guardian, can you answer the question?

Thankfully, the regulations under HIPAA (the Health Insurance Portability and Accountability Act) provide an answer.

In certain circumstances, HIPAA allows a health care provider to furnish information relevant to a patient’s care to “a family member, other relative, or a close personal friend” of the patient, or to “any other person identified” by the patient for involvement in health care matters.

One circumstance appropriate for such disclosure is when the patient agrees to disclosure, or at least does not object when provided the opportunity. For example, if Joe brings his caregiver daughter to his appointment, he may agree to let you discuss his condition with her.

A health care provider may also make this type of disclosure if the patient is unable to agree to disclosure “because of the individual’s incapacity” and the provider determines that “disclosure is in the best interests of the individual.” In that case, disclosure may be made even if the patient is not present and has not agreed.

In either of these circumstances, the provider may “disclose only the protected health information that is directly relevant to the person’s involvement with the [patient]’s health care.”

(The regulation discussing these circumstances may be found in the Code of Federal Regulations at 45 C.F.R. §164.510(b).)

You can therefore tell an appropriate person in Joe’s life that you believe Joe can no longer make and communicate decisions effectively and is unable to manage his financial resources or meet essential requirements for his physical health and safety.

So HIPAA not only protects Joe’s patient information when he has all his mental faculties, but also allows his doctor to notify an appropriate person when Joe has lost capacity and needs guardianship.

When you see Joe next, you may have more peace of mind knowing that someone else is in charge of his finances and health care decisions.

A version of this blog post originally appeared in the Western Pennsylvania Hospital News.

We don’t like to think about it, but it happens. Someone is careless, negligent, or worse – and you (or someone you love) get hurt. Maybe quite seriously.

The elderly are as vulnerable as anyone else to falling victim to serious injury and they often experience longer lasting consequences because they don’t bounce back as quickly.

If it’s something minor, take my advice: don’t bother with a lawsuit. You don’t want the hassle of litigation for something trivial. Life is too short.

But if it’s a death or major, lasting injury, then give some serious thought to standing up for your rights. You may suffer the consequences of your loss or injury for years. Financial compensation often won’t make up for what you’ve lost but it can help ease the way.

So who do you call? Are all personal injury lawyers the same? How do you find someone who will stand up for your rights and fight to get what you deserve?

Here are my tips for finding the right PI attorney.

Expertise. Just as lawyers usually specialize in one area (criminal, bankruptcy, patents, etc.), PI lawyers often have more expertise or experience dealing with certain types of injuries. As I reflect on the PI lawyers I’ve known and referred clients to over the past 22 years, I know that there are some I would prefer to call if I were injured in an auto accident, others for medical malpractice, nursing home injury, defective products, and so on.

Some lawyers focus their practice in one area because they are particularly good at it or they’ve had success in it. For others, it’s a matter of economics. If I’m going to take a lot of medical cases, the thinking goes, I should hire a full-time nurse to review cases, which in turn means I should take more medical cases to fill up the nurse’s time.

Other times, it was simply by chance that early in a lawyer’s career a number of, say, Social Security disability cases came her way and she became known for winning them.

Whatever the reason, I think it’s wise to look for an attorney who has expertise dealing with the type of case you have.

Chemistry. Hiring a lawyer is a lot like starting any relationship. You have to have good chemistry for it to work.

Let’s say you talk to Atticus Finch about taking your case. (For trivia buffs, Atticus is the fictional lawyer featured in Harper Lee’s To Kill a Mockingbird.)

Do you like Atticus and feel you could get along with him? Do you trust him and feel he has integrity? Does he seem to care about you and your circumstances? Does he still have passion for what he does or do you sense the years have left him jaded or burned out?

You could be with the lawyer you hire for the months or years your case lasts and your relationship will likely be tested. It helps if you start out having a good bond.

Reputation. Picking a lawyer on the basis of reputation among peers is much more reliable than picking on the basis of, say, who has the best advertising.

Reputation not only indicates quality, but also helps in getting the best outcome. If defense lawyers and insurance companies know a lawyer is not afraid to take a case to trial, and frequently wins high awards from juries, then they are more likely to offer higher settlements to that lawyer.

You also want to look for someone who has a reputation for hanging tough in negotiations. Let’s face it – some lawyers cave in early because they just want a quick settlement or don’t want to prepare for trial. Look for someone who has a reputation for believing in their clients and not selling them short.

Referral. If you know someone who is familiar with plaintiffs’ lawyers in your area, and knows their reputations, ask for a referral. When I’m asked to make a referral, I take great care in that choice because I want the client to get the best possible outcome, and I know choosing the right lawyer is one of the best ways to do that.

Let me tell you about my favorite book on individual retirement accounts (IRAs) and 401(k) plans: The Retirement Savings Time Bomb…and How to Defuse It by Ed Slott.

Here are the reasons I like it so much and refer to it often.

It makes a dry subject interesting

I’m continually amazed at how the author takes dull, technical rules and turns them into entertaining, informative advice. Reading the rules on IRA distributions and taxation could put a valium to sleep. Somehow Ed Slott explains them so that they make sense, while keeping the reader interested.

Now granted, I’m interested in this subject because it relates to what I do for a living. But I think even casual readers would enjoy reading this book.

It’s practical

By the time you’ve read the book, you’ll understand the important rules about rollovers, early distributions, required minimum distributions, designated beneficiaries, Roth plans, and so on.

Knowing the rules is useless, though, if you don’t know how they relate to you. That’s where Slott’s book really shines. He relates the rules to practical questions about whether you should roll over a 401(k) into an IRA, how and why to name a designated beneficiary, the consequences of early withdrawals, reasons to insure an IRA, and other issues that probably never occurred to you.

It gives great advice

As you might guess from the title, Slott believes that many people don’t do enough to protect the value of retirement plans from taxation, forced distributions, and other problems. He shows the reader the many ways things and go wrong and offers this observation about those with large IRAs who stand to lose much of it to estate and income taxation:

“Why do IRA owners let their savings fall into such an abyss? The reasons can be summed up in a single word: admiration.

“Rather than doing whatever it takes (even—oh, horror of horrors!—spending some money) to keep their accounts from being sacked and pillaged by the IRS after they’re gone, they just sit there admiring how much the balance is.”

He then presents different approaches to help you keep from losing the value of retirement accounts, and making sure that your beneficiaries can get the maximum benefit from it after you’re gone. The book offers five chapters devoted to protecting your retirement savings:

Step #1: Time It Smartly

Step #2: Insure It

Step #3: Stretch It

Step #4: Roth It

Step #5: Avoid the Death Tax Trap

If you have an IRA, 401(k), or 403(b) retirement plan, I highly recommend that you read this book. You’ll learn things you need to know about how to make the most of it and how to avoid mistakes that could rob it of its value. And you’ll enjoy the read.