Feb 22, 2018

Fines Reduced for Many Nursing Home Violations: What It May Mean For Your Loved One

In keeping with its goal of reducing bureaucracy and eliminating unnecessary regulations, the Trump Administration over several months has scaled back penalties levied on federally funded nursing homes that violate certain safety and quality standards.  It has also made it more difficult to deny payments to nursing homes for such violations. Violations are not rare. A 2017 Kaiser Health New report states that since 2013, four out of ten nursing homes have been found guilty of at least one serious violation. The most common violations include mistreatment, failure to protect residents from avoidable accidents, neglect, and bedsores. 

Predictably, these new policies from the Centers for Medicare and Medicaid Services (CMS) have been met with opposition and approval from different quarters. One thing is certain: It more important than ever to thoroughly research facilities when placing a loved one. At the end of this post I will point you to several resources for evaluating nursing homes. But first, let's discuss the new policies.  

New Policies and Fines 

  • Pre-Arbitration Clause Now Permitted. The Obama Administration introduced a new rule prohibiting pre-arbitration clauses in nursing home admissions contracts. The rule, not implemented due to a court challenge, would have guaranteed residents and families the right to sue nursing homes in court for fraud, abuse, neglect, etc. That rule is now officially rescinded and pre-arbitration clauses are permitted in nursing home admission agreements. 

  • Daily Fines Not Recommended For Violations Occurring Pre-Inspection. The Centers for Medicare and Medicaid Services now encourages state authorities to refrain from imposing daily fines for violations that occurred prior to the inspection and instead, levy one-time fines. Industry groups had argued that retroactive daily fines for violations that had already been fixed upon inspection date were pointless. Others argue that the new policy could end up shielding nursing homes from fines for egregious mistakes, above the maximum per-incident fine of  $20,965. The CMS still suggests daily fines for major violations discovered during inspection.

  • Fines Discouraged For One-Time Mistakes. CMS' current policy is that while intentional disregard of patient health and safety justifies fines, one-time errors, even for serious violations, are not necessarily appropriate.

  • 18-Month Exemption for Drug-Related Safety Rules. In November 2017, nursing homes were granted an 18-month exemption from fines for violations related to several new rules intended to reduce the number of residents being given various psychotropic drugs.

Advocates and Critics

Advocates for the nursing home industry applaud the changes. Seema Verma, head of the Centers for Medicare and Medicaid Services, notes that reducing paperwork will increase the quality time staff can spend with residents. And the American Health Care Association, the industry's main trade organization, claims that prior rules were more focused on catching wrongdoing than helping nursing homes to improve. “It is critical that we have relief,” Mark Parkinson, the group’s president, wrote in a December 2016 letter to the president-elect.

On the other hand, patient advocates argue that loosening of penalties endangers vulnerable residents. This month, Senators Amy Klobuchar and Richard Blumenthal sent a letter to CMS requesting that it reconsider the above changes. They write: “It is abundantly clear that when health or safety is compromised, when errors occur, or in the worst cases, when patients are harmed, there must be a wide range of strong enforcement actions available to ensure that these adverse events are not repeated, precious federal dollars are not wasted, and most importantly, lives are not lost.” And a senior attorney at the Center for Medicare Advocacy, Toby Edelman, claims that CMS is “not seeing their responsibility as helping to assure the health and welfare of residents. They’re working to please their customers, the nursing homes.”

What You Should Do Now: Research and Monitor!

The relaxed fines make it more important than ever for you to thoroughly research nursing homes in which you are considering placing a loved one - and to continuously monitor your loved one's welfare once he/she is there. 

  • Visit. It is imperative to actually visit the facility, especially on weekends and evenings. Ask questions of nursing staff, administrators, residents and residents' family members. Try the food. Ask about use of restraints, psychotropic drugs, staff ratios, staff turnover. Is there special care for those with dementia? How does the place look and smell? Is the facility within a reasonable distance so that family and friends can visit?   

  • Check Out Nursing Home Compare. Also check out the Medicare Nursing Home Compare. While the 5-star ratings will be "frozen" for 12 months to allow criteria to be updated, serious deficiencies will still be reported.  

  • Be Careful About Signing Admissions Agreements. Since pre-arbitration clauses are still legal in admissions contracts, know that signing such a clause means you are giving up your right to sue if your loved one suffers injury or neglect. Make sure you read the paperwork carefully. For guidance on what to look for when you are signing admissions paperwork, see my prior post. 

  • More Information. Additional detailed guidelines on how to find a good nursing home can be found here:

Feb 8, 2018

New Medicare Cards Are Coming (And Bringing Along New Scams, Of Course)

Starting in April 2018, new Medicare cards will be mailed to 60 million Medicare beneficiaries. Mandated by the Medicare Access and Chip Reauthorization Act of 2015, the new cards will no longer display your Social Security number. Instead, your card will display a randomly generated, 11-character beneficiary identification unique to you. It is expected that this new format will reduce identity theft.

Here's are some other facts to know about the new card and the rollout:

  • The cards will be mailed out in phases. Sorry, Floridians, you will not be among the first. The first recipients will be the mid-Atlantic states, along with California, Oregon, Alaska and Hawaii. 
  • People living in the same state may not get their cards on the same date. So if your neighbor receives the new card before you receive yours, don't worry.
  • All your benefits will remain the same. 
  • The roll-out process is expected to be completed in 2019.
  • Beginning Jan. 1, 2020 health care providers will no longer accept the old cards.
  • When you get your new card, destroy the old one by shredding it or otherwise destroying it. Remember, it still has your Social Security number on it!
  • Even though your new card doesn't show your Social Security number, the information on it is private and valuable. Keep the card secure.
  • You do not need to do anything to get the card. It will be sent to you automatically.
  • Not surprisingly, scammers are already seizing on the issuance of new cards as an opportunity to fleece the public. There have been reports of Medicare beneficiaries receiving calls in which they are told they must pay a fee to secure the new card, or provide their Social Security number to the caller. If you get a call like this, hang up and call 1-800-MEDICARE to report it.

Feb 6, 2018

The Step-Up in Basis Remains, For Now

There was talk last year in Congress about doing away with the step-up in basis for inherited assets. My office has recently received several inquiries regarding whether the Tax Cuts and Jobs Act eliminated the step-up. Happily, it did not. And that's good news for anyone who wants to pass along highly appreciated assets to your loved ones. 

If you're wondering how the step-up works, here's a primer:

When you give away a highly appreciated asset, the recipient must pay capital gains taxes on the asset when he/she sells it. (No income tax is due on the gift, however). If you give it away during your lifetime, the recipient will owe capital gains tax based on the original cost basis. For example, let's say you bought stock in Company XYZ  in 1970 for $200 and now you transfer it to your son. If he then sells the stock for $1,000, he will owe capital gains tax on  $800 (the difference between the sales price and the original cost basis: $1,000 - $200).

If on the other hand your son inherits the stock from you at your death, the stock gets a step-up in basis. This means that for tax purposes, the value of the gift is pegged to its value on the date of death, not on its original cost basis. So, if the stock is worth $900 when he inherits it and when he sells it is is worth $1,000, capital gains will be due on only the $100 difference (the difference between the sales price and the step up in basis: $1,000 - $900).

You can see why we generally advise clients who wish to pass along highly appreciated capital assets to loved ones to avoid doing so during their lifetimes and instead, leave the asset to loved ones through their estate plan. Of course, every situation is different and you should consult with your own estate planning attorney as to the best option for your circumstances. 

Another reason one must be very careful about giving gifts during one's lifetime is the possible negative impact on Medicaid eligibility. 

Contact the Karp Law Firm for advice on how to handle these issues!

Jan 28, 2018

New federal law addresses increasing incidence of elder abuse by court-appointed guardians

The Elder Abuse Prevention and Prosecution Act became law in October, 2017. The result of rarely-seen bipartisan cooperation in Washington, the law seeks to stem the growing tide of elder abuse and fraud by court-appointed guardians, as well as curb other forms of elder exploitation.

As I noted in a prior post, there is growing concern about elder abuse perpetrated by guardians appointed by the court to handle incapacitated persons' affairs. With lax oversight, an unethical guardian can too easily neglect a ward or plunder his/her assets. Fortunately, most court-appointed guardians are good souls trying to best serve their wards. But, as reports from around the country reveal, not all court-appointed guardians are well-intended, and the problem is getting worse as the population ages.

Florida has introduced some new regulations to better supervise court-appointed guardians. Now, with the Elder Abuse Prevention and Prosecution Act, the federal government is stepping up to the plate, too. The law designates federal resources to help monitor and prosecute elder abuse and exploitation cases. Some of its key provisions are:

  • The Justice Department will assign a minimum of one U.S. assistant attorney (an "elder justice coordinator") to every federal judicial district. The individual will have the authority to investigate complaints about wrongdoing by court-appointed guardians, prosecute cases, and train and bring in FBI agents to recognize, investigate and pursue such cases.   
  • The Federal Trade Commission will also appoint an Elder Justice Coordinator responsible for "coordinating and supporting the enforcement and consumer education efforts and policy activities of the Federal Trade Commission on elder justice issues." The FTC will be required to submit an annual report to Congress regarding all the cases of elder fraud it handled that year.
  • The Department of Justice will post cases of elder abuse handled by the federal law enforcement and publish them on its website.
  • To crack down on scammers preying on the elderly, more severe penalties are introduced. These enhanced penalties will apply to cases in which  the victim is over age 55; defrauding is done by telemarketing, email, text message, or instant electronic message; and the scam gets the victim to participate in a business opportunity, commit to a loan, or participate in a medical study. Enhanced penalties include mandatory forfeiture of property or assets the perpetrator has acquired, as well as property the perpetrator used to defraud the victim.

Of course, the best way to avoid being victimized by an unethical court-appointed guardian is to make legal plans so that you never become the subject of a court-ordered guardianship. At the very least, a well-crafted durable power of attorney and medical surrogate are needed. These plans must be made before incapacity strikes. Check out The Karp Law Firm website for strategies to avoid guardianship.

Read the text of the new law here.

Jan 12, 2018

Teen hearthrob David Cassidy cuts out daughter, leaves everything to son

Another legend gone too soon. The Partridge Family heartthrob and Fort Lauderdale resident David Cassidy died on November 21, 2017 as a result of liver and kidney failure. He was 67. As noted in a 2017 post, Cassidy was diagnosed in 2015 with dementia. Both his father and mother, actors Jack Cassidy and Evelyn Ward, suffered from dementia. He had ceased performing a few years earlier, no longer able to remember the lyrics to his songs.

Cassidy's will cuts out his oldest child, Katie. He and her mother never married. Cassidy did not participate in her upbringing, although they reportedly had somewhat more contact in recent years. His will bequeaths his music memorabilia to his three half brothers, Patrick, Ryan and Shaun. The rest of his estate - estimated at a surprisingly modest $150,000 considering his earlier fame – goes to his son, Beau, 26.

Cassidy had financial difficulties, along with longtime drug and alcohol problems. He had declared bankruptcy in 2015 and was forced to sell his waterfront Ft. Lauderdale home for $1.85 million. At the time of his death, he still owed about $103,000 to his lawyers. Therefore, it's doubtful that Beau will see much of anything from his father's estate. Estate creditors must be paid before anything is distributed to beneficiaries. 

A sad end for someone who delivered so much happiness to others during his career.

Jan 6, 2018

Is A Tattoo a Valid DNRO?

By law and training, doctors and emergency medical technicians must do all they can to save lives. That includes administering CPR in the event of cardiac or pulmonary medical emergency. CPR can be withheld only if medical personnel can verify that the patient has a valid Do Not Resuscitate Order (DNRO).

DNRO's are kept in medical charts and by bedsides in hospitals, nursing homes and other medical facilities. When emergency medical personnel are summoned to homes, they look for it on refrigerators or at bedsides. If there's any doubt that a valid DNRO exists, they will err on the side of caution and provide resuscitation.

But what happens if there is no document - just a tattoo?  This is precisely what happened in a case recently reported in the New England Journal of Medicine: 

An unconscious 70-year-old man was brought into a Florida emergency room, unaccompanied by family or friends. He had pulmonary failure, and an elevated alcohol blood level. He had the words Do Not Resuscitate, and his signature, tattooed across his chest. The physicians now faced a perplexing ethical quandary. The tattoo is not a legally binding document; but presumably, this man had wanted the tattoo applied. Even so, did the tattoo reflect the patient's current wishes? Might he have changed his mind and just failed to have the tattoo removed? Erring on the side of caution, the physicians went ahead a treated him with antibiotics and other life-saving measures.

Later, the hospital’s social work department delivered the definitive answer. Through the Florida Department of Health, they were able to confirm that the patient had a DNRO. The physicians ceased treatment, and the patient passed on.

That was a case in which a tattoo accurately reflected an individual's wishes. But another curious incident demonstrates that's not always the case. "DNR Tattoos: A Cautionary Tale," published in the Journal of General Internal Medicine in 2012, describes a 59-year-old man admitted to the hospital for a leg amputation. He suffered from diabetes and chronic non-healing wounds. During the admission process he insisted he wanted CPR in the event of cardiac or pulmonary arrest. But here's the curious part: he also had the letters "DNR" tattooed on his chest. When puzzled staff inquired about it, the patient explained he'd gotten the tattoo years ago as a result of losing a bet in poker game. Medical staff suggested he have it removed, but the patient declined. He insisted the tattoo was obviously a joke and no one would ever take it seriously.

If you are one of the many millions of Americans who would prefer to avoid CPR under certain circumstances, or if you are the health care surrogate or proxy for someone who would want to avoid such measures, no need for a tattoo. What you do need is a Do Not Resuscitate Order. Here are some specifics you will need to know about this important document:
  • The Florida Department of Health DNRO form (#1896) may be downloaded, or call the department to request a form at 800-226-1911 or 850-245-4440, ext. 2795.
  • The form must be signed by you and your physician (but it does not need to be notarized). 
  • To be valid, the form must be printed on YELLOW paper.
  • At the bottom of the form is a “Patient Identification Device” which may be detached from the form, laminated and worn around your neck, clipped to clothing or bed, etc., so it is always with you.

For more information on the DNRO, check out the Florida Department of Health's frequently asked questions about DNRO's.

For information on all types of medical advance directives, click here. 

Jan 1, 2018

Tax Reform Bill Presents Challenges For Clients

Effective January 1, 2018, a comprehensive tax reform bill took effect. It is the most sweeping change to the tax code in 30 years, since the 1986 tax reform legislation under President Reagan.

Will this new law have the same longevity as Reagan's law? Most experts think not, because unlike the 1986 legislation, the new law lacks bipartisan support. Therefore, any planning done relative to the new law should be approached cautiously. You should not assume the new law is a safe or permanent guideline on which to base your estate planning.

The new estate tax and gift tax exemption is doubled from $5.6 million per individual, to $11.2 million. But don't be lulled into a sense of false security. While history shows us that no tax law is permanent, this new law presents two specific issues to keep in mind and prepare for:  
  • After the congressional election of 2018, and the presidential and congressional elections of 2020, there could be a substantive overhaul of the new law.     
  • Even if there is no substantive change as a result of the 2018 and 2020 elections, the new law mandates that in 2026, the estate tax exclusion will revert back to its 2017 level: $5.6 per individual, along with inflationary adjustments.

Here are just two examples of what might occur as a result of these issues:
  • Someone gives $11.2 million as an exempt gift in 2018 and passes away in 2026, when the 2017 exemption is again in effect. The government may "claw back" the $11.2 million gift, include it in the decedent's estate, and tax $5.6 million of the previously gifted funds ($11.2 million minus $5.6 million). 
  • A married couple believes that is highly unlikely that they will have a combined estate of $11.2 million. They do not  realize that in 2026, the lower estate tax exemption is again in effect. If they do no estate tax planning, they may inadvertently leave their estate vulnerable to estate taxes in the future.

What to do now?  
My recommendation is that you have your estate plan reviewed so that it has all of the flexibility and necessary protections that you and your family need for an uncertain future. Plan defensively and do not be lulled into complacency.

Our attorneys continue to analyze how the new law may affect your legal and financial planning going forward. Be sure to check this blog, our website, like our facebook page, and subscribe to our twitter feed to keep up with developments. If you don't already receive it, you can also sign up for our monthly e-newsletter. 

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Dec 11, 2017

Nursing Home Abuse and Neglect A Growing Problem: Here's How to Prevent It, Spot It, Report It

This post on nursing home abuse and neglect is contributed by Attorney Michael Brevda of the Senior Justice Law Firm.
If you have a possible case of nursing home abuse and neglect, please call the The Karp Law Firm to discuss your case, at 800-893-9911.

As America’s population lives longer than ever before, nursing homes and assisted living facilities are enjoying record-breaking occupancy rates. Unfortunately, over-packed and understaffed facilities lead to nursing home abuse and neglect injuries. Arming yourself with knowledge is your best weapon in combating this growing trend of elder neglect.

What is Considered ‘Nursing Home Abuse and Neglect’?

For many, nursing home abuse and neglect evokes horrifying images of physical abuse by a caretaker. It’s important to note that physical abuse only accounts for a small percentage of nursing home abuse and neglect cases. 

Nursing home abuse and neglect is defined by The National Center on Elder Abuse (NCEA) as “failures by a caregiver to satisfy the elder’s basic needs or to protect the elder from harm.” This means nursing home abuse includes:
  • Bedsore development because staff did not move the patient in bed. 
  • Fractures from falls that could have been prevented
  • Unexplained broken bones. 
  • Medication mistakes by an overworked or undertrained nurse. 
  • Dehydration or malnutrition when facility staff ignores a patient’s food/water intake. 
  • Wrongful death caused by staff neglect of a resident’s deteriorating condition.

Startling Statistics

An NCEA research brief cites the following startling statistics:
  • Only 1 in 14 cases of nursing home neglect gets reported;
  • 1 in 3 nursing homes were cited for deficiencies;
  • 95% of sampled residents either were neglected themselves or they witnessed another resident suffer abuse/neglect;
  • More than half of the nursing home staff sampled admitted to neglecting or abusing residents in the past year.

Stopping Neglect Before an Injury 

If your loved one resides in a nursing home or assisted living facility, take the following steps to prevent them from being neglected:   
  • ETA: Unknown (and unexpected!). Visit often and at random times. Do not announce your visits.
  • Q and A, every day. Speak with staff and ask questions. Keep a care journal of who you spoke with. Make sure the staff knows you are following up on prior questions and concerns.
  • The squeaky wheel gets the grease. If something doesn’t seem right, make sure you express your concerns to the CNAs, the Director of Nursing and the facility doctor. If your family member has not been showered since you saw them last, bring this to the staff’s attention. If they have a new bruise on their leg, make sure that makes it into the chart. Accountability creates action from facility nurses. 
  • Bribe them with sugar. Place a bowl of candy in your family members room. This sounds silly, but the nurses will come in and eat the candy throughout their shift. This ensures the staff will check on your family member often while you are not there.

Steps to Take After a Loved One is Injured in a Nursing Home 

The cycle of nursing home abuse can only be stopped by taking action and reporting the incident. If you do not report it, you are allowing it to happen to the next resident. The Administration on Aging recommends the following steps if you suspect your family member was abused or neglected in a nursing home:
  • Call 911 if your family member is in immediate danger or has suffered a severe injury. 
  • Next, contact your local Adult Protective Services state agency. Here in Florida, you can call 1-800-96-ABUSE to report elder neglect inside a nursing home or ALF.
  •  Have your loved one checked out by an outside doctor who has no relationship with the negligent nursing home. 
  • Speak with a nursing home abuse attorney who can gather your records and help you get answers on why the incident occurred. 

Dec 5, 2017

Singer Glen Campbell's estate plan cuts out three of his children

When country music legend Glen Campbell was living, his family feuded over control of his money. Now that he’s gone, they are likely to continue feuding over it - just on a new front.  Considering the singer had eight children from four different marriages, and leaves behind an estate estimated at $50 million, the infighting is not exactly a surprise.

The Rhinestone Cowboy was diagnosed with Alzheimer’s Disease in 2011. But he and his fourth wife, Kim, 22 years his junior who he married in 1982, did not shrink from the public eye. On the contrary. Campbell released a final album, “Ghost on the Canvas,” went on a “Goodbye Tour,” and participated in a documentary, "I'll Be Me," about his and his family's journey through Alzheimer's. Campbell entered a memory care facility in 2014, but Kim continued to keep the public updated on his status. On August 8, 2017, Campbell died, age 81.

The family infighting started when Campbell entered the memory facility. Two of his children, Travis and Debby, alleged that their stepmother Kim was mishandling their father's assets, not visiting him or providing him with necessary items such as clothing and toiletries, and that it was inappropriate for Kim to allow their father to be filmed while in the late stages of Alzheimer’s. They requested the court assign a guardian to handle his medical and financial affairs. 
Kim addressed those allegations in a recent People interview. “They said I was withholding basic necessities like a toothbrush," she told the magazine. "The reality was he had plenty of toothbrushes but we kept them locked away because he didn’t know what it was and would rinse them in the toilet. They never asked. They only attacked. To be slandered while he was dying was beyond the pale. It was very painful.”

Travis and Debby also alleged that Kim prevented them from seeing their father and “participating in his care and/or treatment.” On this point they scored a legal victory, as it prompted Tennessee’s governor to sign the Campbell/Falk Law on May 2016. Under the law, family and close friends must be permitted contact with their loved with Alzheimer’s or dementia, regardless of the guardian’s wishes.

Now to the newest battlefront. The Tennessean reports that Campbell’s will was recently filed in Nashville probate court. Executed in September 2006, it specifically excludes Kelli, William and Wesley, the three children from his second marriage. They are cut out of his estate and are not beneficiaries either under the will or a related family trust. Kim is named as executor, and half of her bequest will go to the family trust. 

The court will hold a hearing on January 18 regarding the contents of the will, but don’t expect Kelli, William and Wesley to leave Campbell’s estate plan unchallenged. The family bickering will likely go on for some time.

Dec 2, 2017

Late RMD from your IRA? Uncle Sam MIGHT Forgive You

Uncle Sam wants you to take your required minimum distributions (RMD) from your Individual Retirement Account at just the right time. Not too early. Not too late.

If you make a withdrawal too early - before age 59 1/2 - you'll face a 10% penalty. But that's mild compared to what happens if you fail to take your RMD by the year following the year you turn 70 1/2. That violates the RMD rules, and will get you a whopping 50% penalty. For example, if your RMD was supposed to be $5,000 and you miss the deadline, you'll owe the IRS an additional $2,500 on top of the taxes you would ordinarily pay on the distribution. Uncle Sam doesn't fool around.

The administrator of your IRA should alert you that an RMD is due, but the buck - and the penalties - stop with you, so it's wise to stay on top of the deadlines.

There have been some cases in which the IRS has waived the penalty for a late RMD. If you find you've missed the deadline, you should take the RMD as soon as possible. Submit it, along with IRS Form 5329 (Additional Taxes on Qualified Plans). Attach a letter to the filing explaining why you were late - lost paperwork, health issues, family crisis, hurricane, etc. Also indicate what steps you have taken to ensure your future RMDs will be timely. 

The IRS is not known for being "warm and fuzzy," but it doesn't hurt to try appealing to its softer side.
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