Written by Jill Roamer, J.D.
Dean and Patricia were married for more than 50 years. In early 2017, Dean entered a nursing home. Patricia, acting as Dean’s authorized representative, executed the residency agreement with the nursing home. About six months later, Patricia filed an application for Medicaid benefits on Dean’s behalf. It was denied and several more applications were submitted before one was eventually accepted.
Dean died about 3 months later. The nursing home filed suit against Patricia, seeking Dean’s unpaid balance and alleging breach of contract, unjust enrichment, and responsibility under Iowa Code Section 597.14. The trial court found for the nursing home under Section 597.14 and rejected all other claims from both sides. Patricia appealed and now we have the instant ruling out of the Court of Appeals of Iowa.
Iowa Code Section 597.14: “The reasonable and necessary expenses of the family and the education of the children are chargeable upon the property of both husband and wife, or either of them, and in relation thereto they may be sued jointly or separately.”
Patricia argued that nursing home expenses are not “reasonable and necessary expenses of the family.” The court here quoted a case that is more than 100 years old, McDaniels v. McClure, 120 N.W. 1031, 1032 (Iowa 1909), which stated: “The term ‘family expense’ has not been very clearly defined in our cases, and perhaps no definition should be attempted. Generally speaking, the only criterion which the statute furnishes is that the account must be for items of goods furnished for and on account of the family, and to be used therein. No limitation is put upon the expenditures, and it need not appear that they be ‘necessaries,’ as that term is generally used. It has been held that a cook stove and fixtures, wardrobes, bureaus, bedsteads, organs, watches, and other jewelry, medical services, wearing apparel, etc., are family expenses. It is essential, of course, that the expenditures be for property which was used or kept for use in the family. But a reaping machine or other agricultural implements, used by the husband in the prosecution of his business of farming, rent of a farm, medical assistance to a husband away from home, or money borrowed to pay for goods furnished the family, are not properly chargeable as family expenses.”
Subsequent case law cited by the nursing home reiterated that medical and hospital expenses are necessary family expenses and thus are recoverable. In turn, Patricia argued that part of the nursing home charges were for non-medical things, such as living quarters, cable, laundry, and maintenance. Of course, the nursing home responded that these other things were necessary to provide medical care to Dean. Patricia lost the argument and the appeals court rules that Dean’s nursing home expenses were reasonable and necessary family expenses. As such, Patricia is liable for the bill under Iowa Code Section 597.14.
As an attorney whose seen a lot of cases in California, its common that a lot of families will try and argue that medicaid expenses should be paid for my healthcare providers. These are very hard to justify and I'm not surprised by the various court rulings.
This is also why it's very important to figure out medicaid and long term health care expenses way before the time comes. Estate plans can help set everything up so that last minute decisions aren't necessary. The Nickerson Law Office can help look over old estate plans to see if they can still be used and even create a new one if needed. Click on the tab below for more information.
Written by Jill Roamer J.D.
Even in the beginning stages of the pandemic, advocates for nursing homes and other care facilities warned of staff shortages. And their trepidations have come true. Just last month, AARP reported that 30% of nursing homes they surveyed were experiencing staff shortages. Sadly, the report also showed that there were more than 4,000 deaths of residents from COVID-19 spanning the two months prior to mid-October. And there are seemingly endless news reports of staff shortages for companies who provide home health aide and in other care facilities, such as those for folks with intellectual or developmental disabilities.
What is causing the staff shortages? Some employees feared contracting the virus, and so found employment in places with less associated risk. Some facilities require employees to receive the vaccine and some employees didn’t want to comply. For many, it was a domino effect – the staff shortages caused the remaining employees to work even longer shifts and the employees got burned out. But probably the most significant contributing factor is the low wages in the industry. Salary.com reports that the average salary for a home health aide is $13/hour; payscale.com reports the average salary at only $11.84/hour. Payscale.com also reports the average pay for a Personal Care Assistant with disability support skills is only $11.91 per hour.
The staff shortages have become such an issue that the Wisconsin National Guard was called in to help staff four state facilities that provide care to people with disabilities. These particular facilities house people with behavioral health conditions. Some residents have been found not guilty of crimes based on their mental illness. While the service men and women will undergo 16 hours of Temporary Nursing Aid Training and a 59-hour CNA course, some advocates worry about the helpers keeping track of medications and participating in a seclusion and restraint processes. A seclusion and restraint tactic is invoked when a patient becomes beyond control. The aide worker locks the patient in a room and monitors their behavior. If the patient calms down, they are let out of the room. If the patient starts to harm themselves, they are restrained by their wrists and feet. This restraining process can be tricky, with potential harm to the staff or patient.
While there has been some legislation passed that aimed to prevent staff shortages and ensure vulnerable populations receive needed care, such as the American Rescue Plan Act, where is the end of the rabbit hole? With the pandemic lingering on, staff shortages may rise even further.
Written by Jill Roamer J.D.
Ride-share companies, such as Uber, have boomed in recent years. Anyone needing a ride can simply make a few clicks on their smartphone or computer and a car shows up to take them to their destination. Very convenient!
Folks with disabilities have also benefited from Uber’s services. A customer can order an Uber WAV and a wheelchair-accessible vehicle will be provided. The price of the Uber WAV vehicle is comparable to the cost for a basic ride option. The driver of an Uber WAV has undergone training to help the rider enter and exit the vehicle. Finally, Uber is an equal opportunity employer, and those with disabilities (with a valid driver’s license) can drive and make some cash. Uber purports that “Drivers who are deaf have collectively earned tens of millions of dollars—all by helping people get around their communities.”
However, Uber has come under fire and earlier this month was sued by the Department of Justice. The Compliant alleges that Uber has violated the Americans with Disabilities Act, which “prohibits discrimination based on disability by a private entity that is primarily engaged in the business of transporting people and whose operations affect commerce. 42 U.S.C. § 12184(a)”.
Back in 2016, Uber instituted a policy that charges passengers more if the time it took between the car’s arrival and the ride to start exceeded two minutes. The driver does not have discretion when starting the two-minute clock; the clock starts when GPS determines that the driver has arrived at the specified pick-up location. The issue is that passengers with disabilities may take longer than the allotted two minutes, as they may need to deal with wheelchairs, walkers, or other gear. Or, the disabled passenger may simply need more time to get from their home to the waiting car.
The suit alleges that Uber has failed to ensure that customers with disabilities have adequate time to board the vehicle without being charged unfairly. The suit cites two cases where a disabled person was charged for the extra time needed to get safely in the Uber vehicle. The first person is a quadriplegic and was taking Uber ten times per week to take her to and from rehabilitation appointments. She finally noticed that Uber had been charging her the time limit fee approximately ten times per week for almost a year and a half. She contacted Uber to request a refund of these fees and she was denied.
The second passenger was a man with cerebral palsy who uses a manual wheelchair. Unlike the first person, Uber actually refunded this man for some of the time limit fees but eventually stopped doing so. Declaratory relief, injunctive relief, monetary damages, and civil penalties are being sought.
It'll be intresting to see how this case goes. Our office is experienced in special needs trusts and in estate plans that ensures a smooth transition. We also provide families with a variety of resources that connects them with a larger community. Contact our office for more information is your interested.
Written by Robert T. Nickerson
The public notion on those with special needs that also have service animals is continuously evolving. Many businesses and even mobile apps like uber have become more friendly towards those that need a service animal with them at all times. The downside is that with more attention also leads to more confusion.
Let’s start at the Americans with Disabilities Act. Under the current law, it reads “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition.”. Many examples are animals that notify their owners if their deaf, being the seeing eyes for blind individuals or even as comfort animals in the event of anxiety attacks. Like many things related to disabilities, these animals need to be trained and certified to become service animals.
Under the Americans with Disabilities Act, any government or business (both profit and nonprofit) are required to accommodate for this, therefore allowing the use of service animals. The only times when exceptions can be made is if the animal shows to be hostile or if the addition of an animal prevents a safe operation of the business. This doesn’t apply on health codes in restaurants, so they can be allowed in as long as the dogs are leashed and tethered to the owner or someone with the owner.
If the animal does become a burden, the staff do have the right to ask about the animal; what it is and what he’s doing to accommodate a specific disability. What the staff CANNOT ask is about the person’s disability, require medical documentation, require a special identification card or training documentation for the dog, or ask that the dog demonstrate its ability to perform the work or task.
Travel with a service animal can be tough, but improvement has been made. On December 2 2020, the US Department of Transportation signed in new rules regarding airlines. First, I gave clear definition in which a service animal, “is a dog that is individually trained to do work or perform tasks for the benefit of a person with a disability and go further to require that the airlines, in most cases, allow the service animal to travel with the disabled individual”. In order to ensure that however, the animal now has a required form that shows certification, along with its health and behavior history.
What about emotional support animals? The rules have become stricter due to people whose have abused the system to bring aboard various animals regardless if they were even support animals. The airlines are under no obligation to allow a passenger to travel with an emotional support animal unless the passenger provides documentation one year old or less on letterhead of a licensed mental health professional, which states: (1) the passenger has a mental or emotional disability recognized by the DSM IV, (2) needs the emotional support animal as an accommodation for either the airline travel or an activity at the destination, (3) is under the care of the mental health professional, and (4) the professional licenses and the jurisdiction under which the license was granted.
Housing is another issue. While there are a lot of places that are welcoming to animals, many others are not, and that includes low income housing. The Fair Housing Act requires a housing provider to make a reasonable accommodation for an assistance animal where (1) a request is made by or for a person with a disability, (2) the request is supported by reliable disability-related information if the need is not readily apparent, and (3) there is no undue hardship on the housing provider such that it would impose an undue financial/administrative burden, alter the essential nature of the operations, pose a threat to health and safety of residents, or result in significant damage to the property. If someone believes that they have been denied an accommodation unreasonably they can file a complaint with HUD here.
There’s a large number of resources to turn to about service animals. This link here, which is very disabled friendly, has a wealth of information including legal rules and a network of links. Some include where and how to get an animal certified, acquiring a dog that’s already certified and even local divisions within your state.
Jeffrey C. Nickerson - Estate Planning Attorney - My Passion is Special Needs Planning!