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Elderly Laws Lawyer, Lawyers, Attorney, Attorneys, Law, Legal Court Cases
What is Elder Law?
A specialty in legal practice, covering estate planning, wills, trusts, arrangements for care, social security and retirement benefits, protection against elder abuse (physical, emotional and financial), and other concerns of older people.
There are many organizations that specialize in representing Senior Citizens and Elders in legal matters.
What is Elder abuse?
Elder abuse is a single or repeated act or lack of appropriate action, occurring within any relationship where there is an expectation of trust, which causes harm or distress to an older person.
There are five main types:
* Physical: e.g. hitting, slapping, burning, pushing, restraining or giving too much medication or the wrong medication
* Psychological: e.g. shouting, swearing, frightening, blaming, ignoring or humiliating a person
* Financial: e.g. illegal or unauthorized use of a person’s property, money, pension book or other valuables
* Sexual: e.g. forcing a person to take part in any sexual activity without his or her consent
* Neglect: e.g. where a person is deprived of food, heat, clothing or comfort or essential medication
Perpetrators of this type of abuse can include anyone in a position of control or authority, whether that is within a family or institutional situation. This can include a partner, child or other relation, a friend or neighbor, volunteer worker, or a health, social care or other worker.
A specialty in legal practice, covering estate planning, wills, trusts, arrangements for care, social security and retirement benefits, protection against elder abuse (physical, emotional and financial), and other concerns of older people.
There are many organizations that specialize in representing Senior Citizens and Elders in legal matters.
What is Nursing Home abuse?
What can you do if you or your loved one was abused or neglected at a nursing home?
If you feel your loved one is in immediate danger, call your local police or 911, or hospital emergency department. If your family member lives in another state call 1 (800) 677-1116. This is the Eldercare Locator hotline and the staff will help you find help. Here is a directory of state ombudsmen offices, state elder protection agencies, quality review boards for nursing homes:
http://www.ltcombudsman.org/static_pages/help.cfm
The Nursing Home Reform Act of 1987 allows all residents of nursing homes to receive quality care and live in a place that maintains or even improves their wellness. This act includes freedom from abuse or neglect and misuse of funds. Residents should be aware that abuse and neglect in nursing homes are criminal acts when they happen inside the nursing home or on the premises of the nursing home.
Nursing Home Neglect can be characterized as the following:
(this is not a legal statement)
* Neglect is a failure to help when reasonable in a way which would avoid a resident pain or harm usually in the long-term. Lack of assistance in walking which results in a lack of mobility, seldom showering or bathing which results in deprived hygiene and indignity, lack of assistance in toileting or change of disposable briefs which results in obvious discomfort, indignity, decreased movement, skin conditions and indignity, ignoring calls for help or assistance that is often initiated with bells, incorrect hand washing which can lead to infection and bacterial diseases, poor body positioning which might cause the skin to breakdown, no assistance in drinking or eating, and others.
Nursing Home Abuse can be characterized as the following:
(this is not a legal statement)
* Abuse can be both physical, sexual, psychological, and verbal and usually means intentionally causing harm or pain. This can be done by putting the elder in intentional seclusion. Some physical acts that can qualify as abuse include punching, slapping, pushing, spitting, feeding with force and even pinching. Ignoring, threatening, making fun of a resident can be categorized as psychological abuse. Unwanted touching and sexual acts would be categorized as sexual abuse.
Legal action against Nursing Home Abuse or Neglect
The most reasonable solution appears in fighting nursing home abuse is to seek legal action in state court against the people involved in the abuse. The most common lawsuits seek monetary compensation for a wrongful death or neglect and these types of lawsuits fall in the state civil litigation category. Not just any attorney will be able to help out with this type of nursing home abuse lawsuit. You will need a specialized attorney with previous experience in these types of lawsuits. There are usually many local reform activists who will direct you to the right attorney.
What should you look for when selecting a nursing home to avoid nursing home neglect?
Here are a few guidelines:
* First remember that the actual cost of the nursing home is not an indicator of the quality of care you or your loved one will receive. Any nursing home facility should be further investigated. There are many pricy nursing homes where the staff is barely accessible. Even if the nursing home is licensed it will require further review. You will need to verify that the nursing home is certified by both Medicare and Medicaid. You should get the most recent state inspection report and verify your source in obtaining this report to make sure it's legitimate. Check what the staff to patient ration is. The more staff the better as the patients will receive more attention and care.
* Remember to check the quality of meals being offered. Just because the food looks good doesn't mean it's decent. Most nursing homes should let you order a meal before you sign up a loved one. Go and visit the kitchen and observe if it's clean or not. Also, verify that residents actually receive their meals when it's time to eat. Many elders will require assistance in opening their cartons or feeding themselves.
* Visit several nursing homes. Many people make the mistake of visiting to few places. Keep a checklist of what you see and how clean the nursing homes are, but remember looks can be deceiving as just because a nursing home looks clean doesn't mean it's a quality home.
An attorney for patients rights recently seeked out a court order which would deny managers of some of the biggest nursing homes to settle accusations of patient abuse by receiving insurance expenditure reimbursements. On July 22 Russel Balisok filed this suit with the Los Angeles Superior Court. He claimed that the payouts for legal claims allowed many nursing homes charged with abuse to not only stay operational but also to continue nursing home abuse and neglect. Balisok stated that "It's still cheaper to give bad care because the taxpayers are paying the cost." However, this suit didn't sit well with managers of nursing homes as well as with supporters for patients' rights.
The biggest complaint was that nursing home abuse lawyers wouldn't take on cases of nursing home neglect because there would be no payout from insurance companies. Also there were worries that decent nursing homes would be shut down by just one suit.
Pat McGinns who is the director of California Advocates for Nursing Home Reform stated: "There may be some bad nursing homes that will close. There may be some not-so-bad nursing homes that will close. I don't know if that is a good thing," He also voiced his opinion about the lack of legal help abused nursing home residents will have.
Three nursing homes that were named in this lawsuit were Beverly Enterprises Inc., and Ensign Group Inc. and Covenant Care Inc. Beverly reprehensive spoke on how this lawsuit has no value and is based mostly on theory. An owner of 44 nursing homes in various states commented. "No question what he does is second to none, but I don't think anything that prevents nursing homes from spreading the risk will be beneficial to families, health care providers or the people who rely on them"
The lawsuit can be appealed even in the event that it holds. Many operators already dropped insurance after the premiums rose last few years. Currently a manager who has past accounts of abuse or neglect is forced to pay higher premiums than they might receive from an insurance payout. There has been indications that the nursing home industry is in trouble. The following statistics might explain why:
* There are 250 000 elders being nursed at only 1,400 nursing homes
* Medi-Cal pays $115 per day for care, food, and other associated costs
* 1 out of 3 nursing homes in the nation was cited by regulators for having the potential to abuse or neglect residents.
What is Medicare?
Medicare is a program of health insurance for the elderly and disabled in the USA. It was first passed on July 30, 1965 as amendments to Social Security legislation.
Medicare is partially financed by a tax of 2.9% (1.45% withheld from the worker and a matching 1.45% paid by the employer) on wages or self-employed income to a specified maximum (currently there is no maximum).
Generally, Medicare is available for people age 65 or older, younger people with disabilities, and people with End Stage Renal Disease (permanent kidney failure requiring dialysis or transplant). People under 65 and disabled must be receiving disability benefits from either Social Security or the Railroad Retirement Board for at least 24 months before automatic enrollment occurs.
Medicare has two parts: Part A (Hospital Insurance), and Part B (Medicare Insurance, helps cover doctors' services, outpatient hospital care, and some other medical services that Part A does not cover). Neither Part A nor Part B pays for all of a covered person's medical costs. The program contains deductibles and co-pays (payments due from the covered individual). Certain medical needs such as prescriptions (until 2006) are excluded. Part A is paid from the U.S. Government's general fund. Part B is paid for by the general fund and by contributions from the covered persons by way of a deduction from their monthly social security check.
In 2003, Medicare provides health care coverage for 40 million Americans. Enrollment is expected to reach 77 million by 2031, when the Baby Boom generation is fully enrolled.
It is administered by the Centers for Medicare and Medicaid Services (CMS) (formerly the Health Care Financing Administration) in the United States Department of Health and Human Services.
With regard to physicians, Medicare uses the Resource-Based Relative Value Scale (RBRVS) to determine how much money each doctor should earn, although it is criticized for not paying doctors enough because of the low conversion factor. Because of the nature of RBRVS, it is possible to pay all doctors more or less depending on how much money the person paying (CMS in this case) is willing to pay.
For institutional care such as hospital and nursing home care, Medicare uses prospective payment systems. A prospective payment system is one in which the health care provider receives a set amount of money for each episode of care provided to a patient, regardless of the actual amount of care used.
A prescription drug coverage was added in 2003 to take effect in 2006. Medicare also covers medical devices, such as scooters and powerchairs for those with mobility impairments.
Like all health systems, whether funded and managed by governments or privately, Medicare faces continuing severe financing issues. In the United States, health care is a matter of intense continuing public debate.
Part of the cost of Medicare is fraud (See insurance fraud), which Medicare estimates costs it billions of dollars a year.
Legislation
* 1960 PL 86-778 Social Security Amendments (Kerr-Mill aid)
* 1965 PL 89-97 Medicare
* 1988 PL 100-360 Medicare Catastrophic Coverage Act
* 2003 HR 1 Medicare Prescription Drug, Improvement, and Modernization Act
What is Medicaid?
Medicaid in the United States is a program managed by the states and funded jointly by the states and federal government to provide health insurance for the indigent (that is, it pays for medical assistance for certain individuals and families with low incomes and resources). Medicaid is the largest source of funding for medical and health-related services for people with limited income. Among the groups of people served by Medicaid are eligible low-income parents, children, seniors, and people with disabilities.
Medicaid was created on July 30, 1965 through Title XIX of the Social Security Act. Each state administers its own Medicaid program while the federal Centers for Medicare and Medicaid Services (CMS) (formerly the Health Care Financing Administration) in the United States Department of Health and Human Services monitors the state-run programs and establishes requirements for service delivery, quality, funding, and eligibility standards.
Medicaid policies for eligibility, services, and payment are complex and vary considerably, even among states of similar size or geographic proximity. Thus, a person who is eligible for Medicaid in one state may not be eligible in another state, and the services provided by one state may differ considerably in amount, duration, or scope from services provided in a similar or neighboring State. In addition, state legislatures may change Medicaid eligibility, services, and/or reimbursement during the year.
State participation in Medicaid is voluntary; however, all states have participated since 1982. In some states Medicaid pays private health insurance companies that contract with the state Medicaid program, while other states pay providers (i.e., doctors, clinics and hospitals) directly to ensure that individuals receive proper medical attention. The State Children's Health Insurance Program (SCHIP) was established in 1997.
In addition, other programs may exist in some localities that are funded by the states or their political subdivisions to provide health coverage for indigents and minors. There is also general confusion about the differences between Medicaid and Medicare (United States), which is an entirely federal health insurance program available for people age 65 or older, younger people with disabilities, and a few other groups. While Medicaid and Medicare cover similar groups, they are entirely different programs. For example, Medicaid covers a wider range of health care services than Medicare and does not have premiums or deductibles like Medicare. About 6.5 million Americans are enrolled in both Medicare and Medicaid.
Medicaid has become a major budgetary issue for many states over the last few years, with the program, on average, taking up a quarter of each state's budget. Medicaid currently covers 53 million Americans, paying for nearly 60 percent of all nursing home residents and about 37 percent of all births in the United States.
In 2005, Medicaid became a major focus of lawmakers, as Congress debated funding cuts for the program. The budget reforms called for $10 billion in cuts over five years.
Important legislation
* 1965 PL 89-97 Medicaid
* 1997 PL 105-33 Balanced Budget Act (Children’s Health Insurance Program)
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