Court Affirms Termination of Personal Care Assistance Services Received by Disabled Person Since 2009

In this case, a New Jersey appeals court held that a disabled New Jersey resident eligible for Personal Care Assistance (PCA) services since 2009 was no longer eligible for PCA services under the Medicaid requirements. J.R. v. Division of Medical Assistance and Health Services, Docket No. A-0648-14T3 (App. Div.,  April 18, 2016

J.R. was diagnosed with Tourette's syndrome and several other medical conditions. He lived with his mother and began receiving PCA services, paid for by Medicaid, in May 2009 to help him perform activities of daily living (ADLs), such as grooming, bathing, eating, dressing, and the like.

In 2013, a registered nurse reassessed J.R.'s continued need for PCA services. The nurse employed the PCA Beneficiary Assessment Tool (PCA Tool), required by NJ regulations, and concluded that J.R. no longer demonstrated a need for continued PCA services. As a result, J.R.'s PCA services were terminated.  J.R. requested a hearing, and the matter was transferred to the Office of Administrative Law for a hearing before an administrative law judge (ALJ).

Prior to the hearing, the state undertook another reassessment of J.R.'s eligibility. A new registered nursed was assigned. The nurse met with J.R. and his mother in their home, conducted another clinical evaluation of him, and again employed the PCA Tool. Like the first nurse, the new nurse also concluded that J.R. was ineligible for continued PCA services.

The hearing was held after the second assessment was concluded. At the hearing, the ALJ heard from several witnesses. Thereafter, the ALJ concluded that J.R. no longer needed PCA services. J.R. again appealed.

The Superior Court of New Jersey, Appellate Division, heard the new appeal.  In the Appellate Division, J.R. argued that the ALJ's decision was arbitrary, capricious, and not supported by the record. Further, he argued that the ALJ engaged in improper rule-making in determining he was ineligible for PCA benefits because of the intermittent nature of his ailment. He also contended that the ALJ reached his conclusion by relying upon the PCA Tool, which he argued is flawed.

The appeals court upheld the ALJ's decision. The court ruled that the ALJ's decision was supported by evidence on the record. Specifically, the court held that the findings and conclusions of the first reassessment nurse were independently verified by the second reassessment nurse. Each employed the PCA Tool, in conjunction with a face-to-face clinical appraisal, to conclude that J.R. was capable of living independently with his mother, despite being subject to an occasional seizure, which would interfere with his ADLs. Therefore, the court, like the ALJ, ruled J.R. to be ineligible for continued PCA services.

The case is annexed here – J.R. v. Division of Medical Assistance and Health Services

For additional information concerning Medicaid applications and appeals, visit: http://vanarellilaw.com/medicaid-applications-medicaid-appeals/

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Court affirms termination of Personal Care Assistance Services received by disabled person since 2009

In this case, a New Jersey appeals court held that a disabled New Jersey resident eligible for Personal Care Assistance (PCA) services since 2009 was no longer eligible for PCA services under the Medicaid requirements. J.R. v. Division of Medical Assistance and Health Services, Docket No. A-0648-14T3 (App. Div.,  April 18, 2016

J.R. was diagnosed with Tourette's syndrome and several other medical conditions. He lived with his mother and began receiving PCA services, paid for by Medicaid, in May 2009 to help him perform activities of daily living (ADLs), such as grooming, bathing, eating, dressing, and the like.

In 2013, a registered nurse reassessed J.R.'s continued need for PCA services. The nurse employed the PCA Beneficiary Assessment Tool (PCA Tool), required by NJ regulations, and concluded that J.R. no longer demonstrated a need for continued PCA services. As a result, J.R.'s PCA services were terminated.  J.R. requested a hearing, and the matter was transferred to the Office of Administrative Law for a hearing before an administrative law judge (ALJ).

Prior to the hearing, the state undertook another reassessment of J.R.'s eligibility. A new registered nursed was assigned. The nurse met with J.R. and his mother in their home, conducted another clinical evaluation of him, and again employed the PCA Tool. Like the first nurse, the new nurse also concluded that J.R. was ineligible for continued PCA services.

The hearing was held after the second assessment was concluded. At the hearing, the ALJ heard from several witnesses. Thereafter, the ALJ concluded that J.R. no longer needed PCA services. J.R. again appealed.

The Superior Court of New Jersey, Appellate Division, heard the new appeal.  In the Appellate Division, J.R. argued that the ALJ's decision was arbitrary, capricious, and not supported by the record. Further, he argued that the ALJ engaged in improper rule-making in determining he was ineligible for PCA benefits because of the intermittent nature of his ailment. He also contended that the ALJ reached his conclusion by relying upon the PCA Tool, which he argued is flawed.

The appeals court upheld the ALJ's decision. The court ruled that the ALJ's decision was supported by evidence on the record. Specifically, the court held that the findings and conclusions of the first reassessment nurse were independently verified by the second reassessment nurse. Each employed the PCA Tool, in conjunction with a face-to-face clinical appraisal, to conclude that J.R. was capable of living independently with his mother, despite being subject to an occasional seizure, which would interfere with his ADLs. Therefore, the court, like the ALJ, ruled J.R. to be ineligible for continued PCA services.

The case is annexed here – J.R. v. Division of Medical Assistance and Health Services

For additional information concerning Medicaid applications and appeals, visit: http://vanarellilaw.com/medicaid-applications-medicaid-appeals/

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Husband's Extramarital Affairs Result in Forfeiture of Intestate Share of Wife's Estate

Pennsylvania Superior Court ruled that a husband's separation from his wife and subsequent extramarital affairs deprived him of his right to an intestate share of the deceased spouse's estate. Estate of Kathleen Talerico, __ A.3d __ (No. 728 MDA 2015, filed March 18, 2016).

Kathleen and Donald Talerico were married in 2006. The couple resided in Scranton, Pennsylvania in a home solely owned by Kathleen. They separated in 2010.  Divorce proceedings were commenced in 2011, but the divorce was not finalized before Kathleen's death in 2014.

Between 2011 and 2014, both Kathleen and Donald engaged in multiple extramarital affairs. However, despite the separation, the filing for divorce and the subsequent affairs, Kathleen and Donald maintained a friendship and he helped and supported her financially and emotionally at all times after their separation.

Kathleen died intestate. After Kathleen died, Donald petitioned for letters of administration, which were granted. Kathleen's sister then filed a notice of claim against the estate.  Donald filed to dismiss the sister's claim on the basis that, since he and Kathleen were married at the time of her death, he was entitled to the intestate share of Kathleen's estate. In contrast, the sister maintained that Donald's extramarital affairs constituted a forfeiture of any right he had to an intestate share of the Kathleen's estate. The orphans' court denied Donald's motion to dismiss, holding that Donald forfeited his intestate share by virtue of his post-separation conduct. Donald filed an appeal.

In a unanimous opinion, the Superior Court affirmed. The court held that Donald forfeited his spousal interest in Kathleen's estate under Section 2106(a) of the state's Probate, Estates and Fiduciaries Code, which states that a spouse who has “willfully and maliciously deserted” his or her decedent spouse shall have no right or interest in the estate. 20 Pa. C.S. §2106(a). The Court found that Donald's extramarital affairs gave rise to an inference of willful and malicious desertion that Donald failed to rebut. The Court noted that the “decision stands as an acknowledgment that the separation of spouses, although not finalized by divorce, should be given effect even following the death of a spouse.”

The case is annexed here – Estate of Kathleen Talerico

For additional information concerning New Jersey divorce law, visit: http://vanarellilaw.com/family-law-services/#sdpnj

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Why Your Medicaid Application Should Be Entrusted To An Elder Law Attorney

The New York State Bar Association has issued a brochure to help consumers understand the benefits of utilizing an elder law attorney to assist in the preparation of Medicaid applications and in planning for yourself or a loved one to protect assets when seeking eligibility for public benefits based upon financial need. The information provided in the brochure is summarized below.

What Is Medicaid?

Medicaid is the government funded program through which many persons receive care at home or in a nursing home. Medicaid is a statewide and state specific program. In New York, the Medicaid program currently administered through each county's Department of Social Services (with the exception of the five counties comprising metropolitan New York, which are administered through the single NYC entity, Human Resources Administration). In New Jersey, the Medicaid program is administered by the welfare board in each county, as directed by the state Department of Medical Assistance and Health Services.

The process of applying for Medicaid is complex and often times confusing. Because Medicaid offers many different programs, the eligibility rules and application processes differ. Having an attorney who has a full and thorough understanding of the benefits available through Medicaid, the rules for eligibility, and the process by which to secure those benefits provides a tremendous advantage to the applicant for Medicaid benefits.

The Medicaid Application Process

Information Needed

Depending upon the program for which you are applying, different information may be required. All Medicaid applications, regardless of benefits sought, require extensive personal documentation and detailed proof of income. Certain programs require proof of assets and sixty months of records for all assets held during that period.

Help with the Application

An experienced Elder Law Attorney can advise you on the benefits available, the process for obtaining the benefits you need, the provisions of the law that might enable your family to protect assets, and the rights that certain family members of the applicant may have.

In both New York and New Jersey, it is not required that an attorney assist with the Medicaid application. In fact, you can prepare the application yourself. There are many entities, agencies, or divisions within hospitals and nursing homes which may offer to prepare and submit the application for you for free or for a reduced fee. However, you must exercise great caution when accepting that help, as those entities and agencies are not obligated to advise you of your rights and are not permitted to give legal advice or implement legal strategies. Using these services might expose you and your family to risk.

Be Wary Of:

• Offers to prepare the Medicaid application free of charge or at a significantly reduced rate-if it's “too good to be true,” it probably is!


• Persons holding themselves out as attorneys or giving legal advice without confirming they are admitted to the State Bar Association.


• Guarantees of Medicaid eligibility or other government benefits.


• Agencies, entities or groups which have as their “sole job” the securing of Medicaid benefits for you. These entities may not have any liability to you if they fail to secure Medicaid eligibility.

Exposure to Risks When an Elder Law Attorney Is Not Used

The law has many nuances and intricacies. An Elder Law Attorney has the obligation to ensure that you are fully informed of all the provisions of law related to Medicaid, and to accurately answer any questions you may have. The Elder Law Attorney does not work for the nursing home. In fact, the Elder Law Attorney has an ethical duty to advocate for you and your interests. Failing to use an Elder Law Attorney could expose you to the following risks:

• Failure to be fully informed of spousal rights;


• Failure to be informed of opportunities for asset protection;


• Incomplete or inaccurate application submission;


• Denial of application due to failure to provide information;


• Failure to be informed of consequences of prior actions;


• Imposition of a penalty for which mitigation strategies could have been implemented;


• Failure to have a dedicated advocate working with you through the process.

Case Studies

Case #1: Client utilizes the services of the in-hospital “Medicaid Enrollment Facilitator” when her mother is hospitalized and needs to be discharged to a skilled nursing facility. Client is grateful for the “free help” and then is horrified to learn after the Mother's death that a lien has been placed on the mother's home and that the house could have been protected under one of the Medicaid exceptions to the transfer-of-asset rules.

Case #2: Client uses a Geriatric Care Manager to assist in preparing the Medicaid application because costs are less that of local attorney. Application results in significant penalty period during which Medicaid will not pay for care due to prior transfers. Geriatric care manager failed to warn client or take steps to mitigate penalty period. Client then retains an elder law attorney to help.

Case #3: Client uses independent Medicaid Application Preparer as recommended by nursing home to prepare application for incapacitated Husband. Client is told to “spend down” excess assets on cost of nursing home care, and does so. Client later learns that she was never advised of her legal rights as spouse and could have pursued other avenues to secure Medicaid for her husband much sooner.

Elder Law Attorneys

We are compassionate and dedicated advocates who will work with you and your family during the often stressful time when Medicaid is needed to pay for long term care. We have the legal and ethical obligation to ensure that you are fully informed of your rights. It is our mission to afford you peace of mind and the knowledge that while you focus on the care you or your loved one needs, we are focused on advocating and protecting your interests. Elder Law Attorneys can be a lifeline and support system for you and your loved ones.

The brochure is annexed here: Why Your Medicaid Application Should Be Entrusted To An Elder Law Attorney

For additional information concerning Medicaid applications and appeals, visit: http://vanarellilaw.com/medicaid-applications-medicaid-appeals/

 

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Court Dismisses Legal Malpractice Suit For Failure To Assert Unjust Enrichment Claim In Earlier Undue Influence Case

Vicinio v. Carluccio, Leone, Dimon, Doyle & Sacks, LLC is a legal malpractice action stemming from an underlying family dispute involving the Estate of Philomena Vicinio.

Philomena Vicinio's health began to deteriorate after her husband's death. Thereafter, Mrs. Vicinio attempted to reside with her daughter, Roseann, on several occasions, with each attempt short-lived because of their strained relationship. Mrs. Vicinio eventually began residing with her son, Peter, in 2002. Peter purchased a home for his family and his mother, and began to oversee, maintain, renovate and lease his mother's Kenilworth property. During this time, the relationship between Mrs. Vicinio and Roseann continued to deteriorate.

In April 2003, Mrs. Vicinio executed a Last Will and Testament, in which she bequeathed her estate to Peter and Roseann equally. A month later, Mrs. Vicinio transferred all of her liquid assets to Peter. A month after the liquid assets were transferred, Mrs. Vicinio transferred her Kenilworth property to Peter, using a different attorney than the one who prepared her will.

In June 2004, Roseann filed litigation seeking visitation with Mrs. Vicinio, alleging that Peter was interfering with that visitation. A visitation order was entered later that month. Mrs. Vicinio died in 2007.

After their mother's death, Roseann filed suit challenging the 2003 will and alleging breach of fiduciary duty, negligent misrepresentation, fraud and unjust enrichment against Peter. She sought to remove Peter as executor of the estate, and sought to void the inter vivos real and personal property transfers.

Peter was represented in the action by Carluccio, Leone, Dimon, Doyle & Sacks, LLC (“Carluccio”). Following a trial, the Court found that Peter had exerted undue influence over Mrs. Vicinio. He was ordered to return the real and personal property back to the estate.

The decision was affirmed on appeal. In that decision, the Appellate Division had rejected Peter's claim based on unjust enrichment, concluding that Peter had failed to prove that he “expected remuneration for his labor and mileage at the time he performed the services” at the Kenilworth property.

In 2010, Peter filed a legal malpractice claim against Carluccio, claiming, inter alia, that Carluccio should have known that Peter had a claim for unjust enrichment based on the services Peter performed at his mother's Kenilworth property. An expert opined on behalf of Peter that Carluccio's failure to assert a quantum meruit claim was a deviation from the requisite standard of care.

Carluccio filed a motion for summary judgment, which was granted. Peter's request for reconsideration was denied, and Peter appealed.

After agreeing with the trial court that Peter's expert report was an inadmissible “net opinion,” the Appellate Division considered Peter's claim that Carluccio negligently failed to assert a quantum meruit claim. The trial court had relied in part on the previous appellate court decision, which had held that Peter had failed to prove that he expected remuneration for the services he performed on Mrs. Vicinio's Kenilworth property. There was insufficient evidence to establish that a failure to raise the quantum meruit claim was the proximate cause of damages. Instead, Peter undertook those services voluntarily, with no reasonable expectation of repayment. Moreover, Peter failed to submit proofs as to what benefit Roseann gained, or what loss he sustained, relating to the claim.

Consequently, the Appellate Division affirmed the summary judgment dismissal of Peter's legal malpractice claims, concluding that,

Because [Peter] could not have recovered under a theory of quantum meruit, he cannot demonstrate that he suffered damages or that Carluccio's alleged malpractice was a “substantial factor” contributing to any alleged damage.

A copy of Vicinio v. Carluccio can be found here – Vicinio v. Carluccio, Leone, Dimon, Doyle & Sacks, LLC

For additional information concerning probate litigation and will contests, visit: http://vanarellilaw.com/will-contests-probate-litigation-elder-abuse-actions/#iplwc

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Did You Know…? In Some Situations, A Medicaid Applicant's Home Can Be Gifted Without A Medicaid Penalty

In general, Medicaid rules impose periods of Medicaid ineligibility (“penalty periods”) when a Medicaid applicant makes gifts of assets in an attempt to qualify for Medicaid. If a Medicaid applicant gifts assets within the 60-month “look-back” period, the applicant may be subject to a Medicaid penalty period, based on the value of the gift.

Notably, however, in some situations, a Medicaid applicant can give away his or her home and not receive a Medicaid penalty, thereby preserving this important asset for the applicant's loved ones:

To The “Community Spouse” 

Under current Medicaid law, the applicant may give the home to his/her non-institutionalized (“community”) spouse without triggering a Medicaid penalty. By making the gift, the home will escape the imposition of a “Medicaid lien” under legislation that permits the State of New Jersey to recover payments made on behalf of a Medicaid recipient on property owned by the Medicaid recipient at the time of death.

To The “Caregiver Child”

Current Medicaid law permits an applicant to gift his or her home to a “caregiver child” without triggering a Medicaid penalty. To qualify as a “caregiver child,” the applicant must require a high level of special care and attention, and must prove that his or her child lived in the home with the applicant and provided a level of care sufficient to allow the applicant to remain at home, rather than in a nursing home, for a period of more than two years. By making the gift, the home will escape the imposition of a “Medicaid lien,” as described above.

To A Disabled Child

Medicaid law also currently permits the applicant to gift his or her home to a child who is under 21, blind or disabled. As with the other gifting situations described above, the home will escape a Medicaid lien.

If you are considering gifting your home and would like to see whether you would qualify for one of these important gift exemptions, contact a Certified Elder Law Attorney.

For additional information concerning Medicaid applications and appeals, visit: http://vanarellilaw.com/medicaid-applications-medicaid-appeals/

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Alzheimer's Association Issues 2016 Alzheimer's Disease Facts and Figures Report

The Alzheimer's Association has issued its 2016 Alzheimer's Disease Facts and Figures report. The report is “a statistical resource for U.S. data related to Alzheimer's disease, the most common cause of dementia, as well as other dementias.”

Aside from providing a definition of Alzheimer's disease (“Alzheimer's disease is a degenerative brain disease and the most common cause of dementia. Dementia is characterized by a decline in memory, language, problem-solving and other cognitive skills that affects a person's ability to perform everyday activities.”), the Facts and Figures report provides detailed information about the prevalence of Alzheimer's disease and other dementias in the U.S., deaths from Alzheimer's disease, impact of Alzheimer's disease on caregivers, costs of health care, long-term care and hospice, and a special report on the personal financial impact of Alzheimer's disease on families.

According to the report, an estimated 5.4 million Americans of all ages have Alzheimer's disease in 2016. This number includes an estimated 5.2 million people age 65 and older, and approximately 200,000 individuals under age 65 who have younger-onset Alzheimer's. One in nine people age 65 and older (11%) has Alzheimer's disease. 81% of people who have Alzheimer's disease are age 75 or older. More women than men have Alzheimer's disease and other dementias; almost two-thirds of Americans with Alzheimer's are women. According to the report, since the number of Americans surviving into their 80s, 90s and beyond is expected to grow dramatically due to medical advances, as well as social and environmental conditions, the numbers of new and existing cases of Alzheimer's disease will grow rapidly too.

The report identifies age as the greatest risk factor for Alzheimer's disease. Most people with Alzheimer's disease are age 65 or older. People younger than 65 can have Alzheimer's, but they are much less likely to develop the disease than older individuals. As age increases, so does the likelihood of having Alzheimer's

The report also confirms that few individuals with Alzheimer's disease and other dementias have sufficient long-term care insurance or can afford to pay out of pocket for long-term care services for as long as the services are needed. As a result, relatives and friends often provide care and financial support for family members and others with Alzheimer's disease. Due to the substantial cost of care, both financially and emotionally, relatives and friends of people with dementia often jeopardize their own health and financial security to help pay for dementia-related costs.

The report recognizes that better solutions are needed to prepare families for the high out-of-pocket costs associated with Alzheimer's disease and other dementias. In addition, the report advises individuals and families to become educated about the financial resources available to them and use that information to plan for the future. The report recommends that better education of Americans about the roles of Medicare, Medicaid and private insurance in paying for long-term care costs is needed. The following tips are offered:

• When planning for retirement, remember to think about how to prepare for the need for long-term medical care. After an Alzheimer's diagnosis, your options may be more limited.


• Check with your employer to see what types of programs and benefits may be available to you.


• Conduct an inventory of your financial resources (savings, insurance, retirement benefits, government assistance, VA benefits, etc.). A financial planner or elder care attorney can help with this.


• Learn about Medicare and the expenses it covers.


• Learn about Medicaid and who is eligible.


• Investigate long-term care services (for example, home care, assisted living residences and nursing homes) in your area. Ask what types of insurance they accept and if they accept Medicaid in case you run out of money.


• Call the local Agency on Aging to determine what community services and support programs are available (for example, respite care, home maker services and Meals on Wheels) to help alleviate financial burdens.


• Once you understand your financial resources and what you can afford, make a plan for how to access care.

The 2016 Alzheimer's Disease Facts and Figures report concludes as follows:

The costs of caring for a relative or friend with Alzheimer's disease or another dementia can have striking effects on a household. These costs can jeopardize the ability to buy food, leading to food insecurity and increasing the risks of poor nutrition and hunger. In addition, the costs can make it more difficult for individuals and families to maintain their own health and financial security. Lack of knowledge about the roles of government assistance programs for older people and those with low income is common, leaving many families vulnerable to unexpected expenses associated with chronic conditions such as Alzheimer's and other dementias. Better solutions are needed to ensure that relatives and friends of people with dementia are not jeopardizing their own health and financial security to help pay for dementia-related costs. (Emphasis Added)

The report is annexed here –  2016 Alzheimer's Disease Facts and Figures report

For additional information concerning Medicaid and public benefits planning, visit: http://vanarellilaw.com/medicaid-public-benefits-planning/

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Law Designed to Protect Seniors Does Not Impose a Duty on Banks to Report Elder Abuse to Authorities

Following bench trial, a trial judge ruled that a state law designed to protect seniors and other vulnerable customers does not (1) impose a legal duty on a bank or its employees to report fraudulent wire tire transfers to authorities, or (2) create a private right of action permitting an elderly customer who was the victim of senior abuse to sue the bank for damages. Lucca v. Wells Fargo Bank N.A., 441 N.J. Super 301 (Law Div. Jan. 28, 2015)

During 2011, Margaret Lucca, who was then 82 years old, made approximately 27 wire transfers, totaling roughly $330,000, from her account at Wells Fargo Bank. Lucca sent the funds at the direction of an individual who telephoned her home, identified himself as a lawyer, and provided her with information for the wire transfers. The recipients of the wire transfers were individuals in Alabama and Costa Rica, none of whom Lucca knew. Simply stated, plaintiff was the victim of a scam, and she never recovered the funds.

Lucca sued Wells Fargo, and Samantha Weinstein, a Wells Fargo employee who helped her arrange the wire transfers. Plaintiff charged defendants with negligence, breach of contract, breach of the implied covenant of good faith and fair dealing, and a violation of N.J.S.A. 17:16T-1 to -4 based on the failure to “disclose the wire transfers to the appropriate authorities.”

Before trial, a pretrial judge dismissed plaintiff's claims of negligence, breach of contract and breach of the implied covenant of good faith and fair dealing. The pretrial judge declined to dismiss the remaining claim based upon the alleged failure to disclose the wire transfers to the police or to adult protective services, ruling that the statute created a cause of action if plaintiff could prove that the bank acted in bad faith.

A two-day bench trial was held. Thereafter, the trial judge that the case turned on whether N.J.S.A. 17:16T–1 to –4 imposed a duty on a financial institution to notify the authorities of a suspected scam. If so, then plaintiff could assert a claim against the bank for the failure to notify the appropriate authorizes.

After reading the legislature's statement of purpose in conjunction with the statute, the trial court concluded that the statute does not require a financial institution to report to the police or adult protective services when the institution suspects a senior or vulnerable customer is the subject of a scam. Rather, the court found that the statute encourages disclosure, but does not require disclosure. Consequently, because N.J.S.A. 17:16T–1 to –4 creates no statutory duty on the bank to report suspected abuse, the court found that plaintiff had no private cause of action against the bank. As a result, the court dismissed plaintiff's remaining claim based upon the alleged failure to disclose the wire transfers to the police or to adult protective services.

The Lucca case is annexed here – Lucca v. Wells Fargo Bank N.A., 441 N.J. Super 301 (Law Div. Jan. 28, 2015)

For additional information concerning elder abuse actions, visit: http://vanarellilaw.com/will-contests-probate-litigation-elder-abuse-actions-2/#viiieaa

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