My 12/20/2010 Blog set out law regarding the Nursing Home Reform Act. This law forbids a nursing home from billing a third party for care provided a resident.

There is an exception to this rule, however.  The Act permists a nursing home to require a person who has access to the resident's resources to sign a contract which obliges that person to provide payment from those resources for the resident's nursing home care.

So, if you are the one controlling the nursing home resident's money, you must use that money to pay the resident's bills.  If you are the one responsible for applying for Medicaid for the nursing home resident, you must do so in a timely manner.  

If you do not do so, the nursing home can successfully sue you.

Take note.  The money you control as Agent, Guardian, Conservator, Representative Payee is not money you control for your benefit.  You control it for the benefit of the person you have been entrusted to serve.  

This is called fiduciary duty.

So serve dutifully.
 



 
 
 
    Recently, I learned that after a person (not my client)  had finalized his Advance Medical Directives, he had not discussed them with his family, distributed them to his agents or filed them in  the Virginia Online Registry.

    His Medical Directives had specifically stated that if medical treatment would not lead to recovery, he did not want life support.  Yet, after suffering a stroke, he was given CPR, a feeding tube and oxygen.

    It has been months, there is no hope of recovery and he remains on life support.  His family now has his directives, but with the lapse of time they cannot bring themselves to release him from life support.

    If you do not have Advance Directives, or if you have not seen to it that they are in the hands of your agents and filed on the Virginia Online Registry, this blog is for you.

WHAT IS AN ADVANCE DIRECTIVE?
    
    There are two types of Advance Directives.  A Medical Advance Directive allows you to state your healthcare decisions.  A Medical Power of Attorney allows you to name someone to carry out the instructions you have set out in your Medical Advance Directive.  Both come into play if a medical emergency renders you incapable of speaking.  

MEDICAL ADVANCE DIRECTIVE

    This is sometimes called a Living Will.  It allows you to state your healthcare desires should you become incapable of expressing them.
   
     For example:
            
            It can specify the level of treatment you want should death be imminent;
            It can document your anatomical gifts;
            It can state your values with regard to medical care;
            It allows you to direct psychiatric treatment.

MEDICAL POWER OF ATTORNEY

    This document allows you to appoint another person to be your "agent"
 or "proxy" to carry out the instructions set out in your Medical Advance Directive if you cannot do so.

    For example:
        
            It can allow your agent to consent to or refuse life support;
            It can allow your agent access to medical  records;
            It can authorize your agent to employ and discharge health care providers.

HOW TO ACQUIRE THESE DOCUMENTS

    The lawyers at EDWARD ZETLIN LAW usually draft the following 3 documents as a package: 

            A Medical Directive
            A Medical Power of Attorney
            A General Power of Attorney

    A General Power of Attorney allows an agent access to and powers over personal and financial matters that are not health related should you become incapacitated.

ONCE THE MEDICAL DIRECTIVES ARE FINALIZED

    Whether we at Edward Zetlin Law have finalized your Directives or not, we strongly recommend that you distribute them to your agents, family members and medical providers.  

     We also recommend that you enter them into Virginia's Health Care registry at www.VirginiaRegistry.org.    This secure tool ensures that medical providers, emergency responders, family members and anyone else you grant access to will honor the wishes you have expressed in your medical  directives.






  



 
 
Recently a client ask me what is the purpose of a Guardian ad litem.  I was in the process of drafting a petition of guardianship for her adult disabled son and I had to explain that part of the court process was to appoint a Guardian ad litem in the case.   My client naturally wanted to know what does the Guardian ad litem do and what is the cost.   This is a common question and I thought I would post an explanation so others could read and understand.  Virginia courts can appoint Guardian ad litems in several different kinds of cases but I want to address the appointment of a Guardian ad litem in a petition for guardianship and conservatorship over an alleged incapacitated person.  

 In every petition for guardianship and conservatorship, Virginia law requires the appointment of an attorney to serve as Guardian ad litem in the case.  The Guardian ad litem is an independent attorney who acts on behalf of the court.  The purpose of the Guardian ad litem is to investigate the matter for the court.  Specifically, the Guardian ad litem must advise the court whether the alleged incapacitated person is incapacitated under Virginia law and if incapacitated whether the suggested guardian and or conservatator is appropriate.  The Guardian ad litem must visit and interview the alleged incapacitated person as well as interview the proposed guardian(s) and conservator(s).  The Guardian ad litem must assure that the alleged incapacitated person is advised of all legal rights.   Often we ask the Guardian ad litem to actually serve the petition and the notice of the hearing on the alleged incapacitated person.     

Finally, the Guardian ad litem must submit a written report to the court recommending whether or not the person is incapacitated and whether a guardian and conservator is needed to protect the person.   If the Guardian ad litem thinks it is appropriate he or she can ask the court to appoint legal counsel to represent the interests of the alleged incapacitated person.  The Guardian ad litem must be present at all court hearings.  The court in the end makes the decision of whether the person is incapacitated and in need of a guardian and or conservator and who should be appointed. 

If an attorney wants to be selected as a Guardian ad litem there is a certification process with training that is required.  Usually, the Guardian ad litem is paid from the assets of the incapacitated person.  In those cases where the incapacitated person has no assets the Commonwealth of Virginia has a special fee program that provides the Guardian ad litem payment but at a low rate.    

     
 
 
A settlement agreement has been reached between the U.S. Dept. of Justice (DOJ) and the Commonwealth of Virginia that requires the closing of a number of training centers and the issueance new ID and DD Waiver slots.  The U.S. Dept of Justice brought suit against the Commonwealth based on the 1999 Supreme Court Olmstead decision interpreting the American with Disabilities Act (ADA) which requires that individuals be served in the most integrated settings approriate to meet their needs consistent with their choice.  In March 2011 Virginia and the DOJ entered into negotiations and on January 26, 2012 they reached a settlement.  The agreement resolves DOJ's investigation of Virginia's training centers and community programs and the Commonwealth's compliance with the ADA and Olmstead.  

The agreement targets a specific population: Any individuals with a developmental disability who meet any of the following criteria: (1) Currently reside at any of the training centers, (2) Meet the criteria for the Intellectual Disability (ID) waiver or Developmental Disability (DD) waiver wait lists, or (3) Currently reside in a nursing home or ICF.   

The Agreement requires the following:

1.    Virginia will create 4,170 Waiver slots for the target population by June 30, 2021 according to a detailed timetable.
2.    Virginia will create an individual family support program for individuals in the target population who are not receiving services through the ID or DD waiver.
3.    Virginia will develop a statewide crisis system for individuals with intellectual and developmental disabilities.
4.    An employment first policy that targets employment for the disabled in the  work force will be developed in Virginia.  
5.    Virginia will develop a plan to incease independent living options for the target population.  A one time fund of $800.000 will provide rental assistance.
 
In addition, Virginia has decided to close 4 of the 5 training centers and regional support teams, one for each trainng center, will oversee and monitor the discharge process.  

Stay tuned for additional explanations on each of these new initiatives.    
 
 
 
 
When I arrived home similing broadly after last year's Art's For Autism Gala my teenager did not forgive me for not taking her.  This year I brought my daughter, Elizabeth.  The fashion show, the models, the beautiful clothes were right up her alley.  The autistic kids taking the stage to perform blew us both away.  It is a fundraiser like no other.  What a great event for the Northern Virginia Autism Society.  Next year, Elizabeth wants to be a model at the program.  

For parents and others navigating the education maze, on November 3, Attorney Pete Wright and Dr. Ruth Heitin are teaching a full day seminar on the ins and outs of the IEP process at George Mason University, Fairfax Campus.  Registration information and directions can be found on www.asnv.org.  Your day with Wright and Heitin includes a Continental Breakfast, Lunch, two Books and two CD Roms, all focused on advocating for and educating special needs children.   

On the legilsative front, Governor McDonnell signed the Autism Insurance Reform Bill into law on May 6, 2011.  The bill will cover children diagnosed with autism from ages 2-6 (but can continue after age 6), for an annual maximum benefit of $35,000.  Amendments that the Governor placed on the bill will add a licensure of Board Cerftified Behavior Analysts (BCBA) in Virginia by the Board of Medicine.    

The Autism Society of Virginia is sponsoring free workshops on this legislation.  The focus will be on how families can respond, and beat, a denial letter.  Call The Autism Society of Northern Virginia at 703-495-8444 for more information. 
 
 
Yesterday, those with a pre-existing condition, were out of luck when it came to health insurance.  Today, there is a Pre-Existing Condition Insurance Plan (PCIP).

PCIP is an alternative for those who have a pre-existing condition or have been denied coverage because of poor health.  Government sponsored, it is limited to US Citizens, or those living here legally.  Applicants must be without health coverage for at least six months prior to applying.  The plan offers individual coverage only, so a spouse and children must apply individually.

PCIP enrolless can choose from three plan options with different levels of premiums, calendar year deductibles, prescription deductibles and prescription co-pays.  There is also an option in which an enrollee can open a tax exempt Health Savings Account where funds can be deposited and then withdrawn for medical expenses.

All three PCIP options pay for preventative care at 100%, so there is no deductible for routine preventative care which includes physicals, flu shots, mammograms and cancer screenings.  For other medical services, there is a reasonable deductible.  After reaching one of the deductibles offered in the three plans, members pay 20% of medical costs in network.  The maximum members pay out of pocket for covered expenses is $5,950 in network and $7,000 out of network.  There is no lifetime maximum cap on the amount the plan pays for member care.

I recently discovered this plan when I became guardian for someone who had been without health insurance for many years.  She was in the hospital with cancer.  No regular health insurance plan would cover her.  The PCIP program must cover her so long as she pays the monthly premium.  In comparison to many individual plans, the monthly premium is reasonable.

To lear more about theis Pre-Existing Condition Plan call 1-800-220-7898.  For information on the internet type: www.healthcare.gov or www.pciplan.com.


 
 
 
Recently, a disabled adult's mother came to my office with a question: What difference does it make when my son was diagnosed as Intellectually Disabled?  He is, was and always will be disabled.

Medicaid had ruled that her son had to be diagnosed as Intellectually Disabled before turning 18 years old in order to qualify for the MR/ID (Mentally Retarded/Intellecutally Disabled) Waiver benefit program.  Medicaid stated that since her son had missed this arbitrary 18 years old deadline, he would be denied a MR/ID Waiver.

What was a mother to do?  And now, as lawyer of record, what was I to do?  Allow me to elaborate:

When her son was 10 years old, he scored 71, in the borderline range of intellectual functioning on the Stanford-Binet Intelligence Test.  When he reached 18 years and 1 month, he was re-tested and scored 54.  This score officially classified him as Intellectually Disabled.

Score in hand, his primary caregivers, his Parents, applied for an MR/ID Waiver.  the MR/ID Waiver is a Medicaid program that supplies residential, day, and pre-vocational support to the Intellectually Disabled.  The Waiver is designed to be an alternative to institutionalization.  The Waiver provides housing to eligible individuals.  

His parents fully expected their Waiver Application to be processed quickly since their ages qualified them as Urgent Applicants.  Instead, Medicaid noted that it wasn't until their son was 18 years and 1 month old, that he scored Intellectually Disabled. The prior, 10 year old test, found their son as borderline intellectual functioning.  Medicaid ruled that that the Waiver Program was designed to serve those who became Intellectually Disabled prior  to turning 18, so the late-occurring intellectual disablity disqualified him for the Waiver Program.

His mother insisted that her son's Intellectual Disability was not late ocurrring.  Her son's Vocational Rehabilitation Counselor agreed.  She stated that he did not suddenly lose the 17 points on turning 18, but had a gradually decreasing IQ, losing about 2 IQ points a year. 

I filed an argument in Circuit Court stating that Medicaid law did not restrict Mediciad from using the IQ test results after the age of 18.  The judge agreed.   The Court required Medicaid to use all IQ test results when making its consideration.  Medicaid could not use an arbitrary diagnosis date to deny my client's son a Medicaid Waiver. 
With this instruction from the Court, Medicaid quickly found my client's son eligible for the MR/ID Waiver. 

It is unknown how many other applicants have been unfairly denied this Waiver based on this Medicaid interpretation of the law.  But if they have been so denied they should apply again and if denied appeal the decision. 
 
 
Recently, I was appointed by the Court to represent two young adults with Down's Syndrome.  The cases related to their parents' guardianship petitions.  If the petitions were granted, their parents would be able to make decisions for these adult children even though they are chronologically adults.

Both were remarkably poised and articulate.  One sopke Spanish and English, the other was gainfully employed.  They and their parents attributed this in part to Paul VI Catholic School's Options Program.  This tweaked my curiosity.  I made an appointment with the school to learn more.

Paul VI calls the program Options, since this is what parents of disabled children seek for their children's educations; integration into the community and jobs.  There are now 10 Options student enrolled at Paul VI.  Their educational abilities are addressed, social and vocational skills are stressed, but Options students are very much a part of the close-knit Paul VI community.  The school's homerooms, electives and gymn integrate them into the regular school program.  This year's graduating seniors overwhelmingly elected Options' students for prom King and Queen.

Paul VI students with intellecutal disabilities become integral members of a school that would otherwise be closed to them.  Students who have had no experience with intellecutally disabled peers are afforded opportunities as well.  Some later go on to become Special Olympic volunteers, start a Best Buddies, get degrees in special education.

Paul VI gets the idea of integrating disabled students into the community.  The program is a win-win for everyone.
 
 
Many of my clients, parents of special needs children, are searching for summer programs for their sons and daughters.

May I suggest Camp Shalom, a Fairfax camp for children with communications disorder such as high-functioning autism, Asperger's Syndrome and ADD/ADHD.

The Camp's mission is to improve campers' abilities to build and maintain positive relationships with peers in a relaxed, fun and creative environment.  Skills taught and reinforced include listening, taking turns, sharing and teamwork.      

Camp Shalom is sponsored by JCC of Northern Virginia, The Jewish Social Services Agency and Fairfax County.  It is open to both Jews and non-Jews.

I have heard nothing but good things about the JCC of Northern Virginia's programs for children with special needs.

For more information, please contact:

Becca Winner
703-537-3031
RebeccaW@jccnv.org
www.jcc.org