Elder Law Blog

If you think Medicaid is confusing, you have some good company. A number of federal judges have arrived at the same conclusion. The following quote appears in Cherry v. Magnant, 832 F. Supp. 1271 (S.D. Ind. 1993):

The federal and state Medicaid statutes have been described as the regulatory equivalent of the "Serbonian bog." See John Milton, Paradise Lost, bk. 2, 1.592 ("A gulf profound, as that Serbonian bog Betwixt Damiata and Mount Casius old, Where armies whole have been sunk."). These regulations have also been characterized as "almost unintelligible to the uninitiated," Friedman v. Berger, 547 F.2d 724, 727 n.7 (2nd Cir. 1976) (Friendly, J.), cert denied, 430 U.S. 984, 52 L. Ed. 2d 378, 97 S. Ct. 1681 (1977); as an "aggravated assault on the English language, resistance to attempts to understand it"; Friedman v. Berger, 409 F. Supp. 1225, 1225-26 (S.D.N.Y. 1976); and by this circuit as "labyrinthinan." Roloff v. Sullivan, 975 F.2d 333, 340, n. 12 (7th Cir. 1992).

If you are searching for answers regarding health reform, otherwise known as Obamacare, one of the best places to look is on the Kaiser Family Foundation website. At their Frequently asked questions page (http://kff.org/health-reform/faq/health-reform-frequently-asked-questions/), KFF answers questions such as "Can I be charged more if I have a pre-existing condition?" (http://kff.org/health-reform/faq/health-reform-frequently-asked-questions/#question-can-i-be-charged-more-if-i-have-a-pre-existing-condition). Other more general information is available at http://kff.org/health-reform/.

The official government website tp find information regarding marketplace health plans is https://www.healthcare.gov/. A great place to start is the Quick Guide to the marketplace, at https://www.healthcare.gov/quick-guide/.

Certain individuals are required to report elder abuse, or abuse of an at-risk disabled adult. In that regard, Georgia law provides as follows:

O.C.G.A. § 30-5-4.  Reporting of need for protective services; manner and contents of report; immunity from civil or criminal liability; privileged communications

Self-neglect is characterized as the behaviors of an elderly person that threaten his/her own health or safety. Self-neglect generally manifests itself in an older person's refusal or failure to provide himself/herself with adequate food, water, clothing, shelter, safety, personal hygiene, and medication (when indicated). For the purpose of this study, the definition of self-neglect excludes a situation in which a mentally competent older person (who understands the consequences of his/her decisions) makes a conscious and voluntary decision to engage in acts that threaten his/her health or safety.

Signs and Symptoms of self-neglect

Neglect is the refusal or failure to fulfill any part of a person's obligations or duties to an elder. Neglect may also include a refusal or failure by a person who has fiduciary responsibilities to provide care for an elder (e.g., failure to pay for necessary home care service, or the failure on the part of an in-home service provider to provide necessary care). Neglect typically means the refusal or failure to provide an elderly person with such life necessities as food, water, clothing, shelter, personal hygiene, medicine, comfort, personal safety, and other essentials included as a responsibility or an agreement.

Georgia law defines neglect as the absence or omission of essential services to the degree that it harms or threatens with harm the physical or emotional health of a disabled adult or elder person."Essential services" means social, medical, psychiatric, or legal services necessary to safeguard the disabled adult's or elder person's rights and resources and to maintain the physical and mental well-being of such person. These services shall include, but not be limited to, the provision of medical care for physical and mental health needs, assistance in personal hygiene, food, clothing, adequately heated and ventilated shelter, and protection from health and safety hazards but shall not include the taking into physical custody of a disabled adult or elder person without that person's consent.

Abandonment is the desertion of an elderly person by an individual who has assumed responsibility for providing care or by a person with physical custody of an elder.

Signs and Symptoms of abandonment

Financial or material exploitation is the illegal or improper use of an elder's funds, property, or assets. Examples include but are not limited to cashing checks without authorization or permission; forging an older person's signature; misusing or stealing an older person's money or possessions; coercing or deceiving an older person into signing a document (e.g., contracts or a will); and the improper use of conservatorship, guardianship, or power of attorney.

Georgia law defines exploitation as the illegal or improper use of a disabled adult or elder person or that person's resources through undue influence, coercion, harassment, duress, deception, false representation, false pretense, or other similar means for one's own or another's profit or advantage.

Emotional or psychological abuse is the infliction of anguish, emotional pain, or distress. Emotional or psychological abuse includes but is not limited to verbal assaults, insults, threats, intimidation, humiliation, and harassment. In addition, treating an older person like an infant; isolating an elderly person from family, friends, or regular activities; giving an older person a "silent treatment"; and enforced social isolation also are examples of emotional or psychological abuse.

Signs and Symptoms of emotional or psychological abuse

Sexual abuse is nonconsensual sexual contact of any kind with an elderly person. Sexual contact with any person incapable of giving consent also is considered sexual abuse; it includes but is not limited to unwanted touching, all types of sexual assault or battery such as rape, sodomy, coerced nudity, and sexually explicit photographing.

Georgia law defines sexual abuse of an at-risk adult as: the coercion for the purpose of self-gratification by a guardian or other person supervising the welfare or having immediate charge, control, or custody of a disabled adult or elder person to engage in any of the following conduct:

Physical abuse is the use of physical force that may result in bodily injury, physical pain, or impairment. Physical abuse may include but is not limited to such acts of violence as striking (with or without an object), hitting, beating, pushing, shoving, shaking, slapping, kicking, pinching, and burning.The unwarranted administration of drugs and physical restraints, force-feeding, and physical punishment of any kind also are examples of physical abuse.

Signs and Symptoms of physical abuse 

Abuse of disabled adult or person is 65 years of age or older occurs when someone intentionally causes harm or puts someone at risk for harm.  Neglect occurs when someone intentionally or unknowingly withholds basic necessities or care. Self-neglect refers to a person’s inability to provide care and support to himself or herself. At-risk adult abuse can take several forms, including:

Physical abuse - using physical force to coerce or to inflict bodily harm. It often, but not always, causes physical discomfort, pain or injury. It may include the willful deprivation of essential services, such as medical care, food or water.

On October 16, 2015, USA Today reported (see link below) that nursing home care could run as high as $730,000. It told the story of Randy and Mary Kaump, who care for Randy's 97 year old monther, Janis. Janis has been a nursing home resident for four years, paying $13,000 per month. So far, she has depleted her savings, with Randy and Mary chipping in an additional $100,000 of their own money. In Georgia, the cost of care is hovering around $7,000 per month, so the bills are lower. Unfortunately, for most families $7,000 per month isn't nearly low enough.

Stories like this are all too common, but even more common is the story of a spouse depleting his or her savings to pay for a sick spouse's care. Although there is nothing wrong with paying for your own care, most people don't have that much to fall back on so paying for care could mean the healthy spouse has nothing to use for his or her own retirement needs. Would it make a difference if you knew there's help out there?

Social Security recently announced that you can use your online account to get a replacement Medicare card if your card is lost or damaged. You can also get statements from Social Security regarding your earnings, and estimate regarding future benefits.

Among other things you can do, you can get a letter with proof of your benefits. You can manage your account, change your address, start or change your direct deposit, and get a replacement SSA-1099 or SSA-1042S for your taxes.

In hindsight, people might have acted differently. That could be the case with the participants litigating Colonial Park Care Center, LLC v. Dep’t of Public Works, 2015 Pa. Commw. LEXIS 406 (July 21, 2015).

In March, 2012, John Matjasic was admitted to Colonial Park, a nursing home. John was 77 years old at the time. In 2007, John had a stroke, after which he resided with his wife and daughter. Although the facts in the case are less than clear, it appears like John and his wife were separated prior to the stroke. In 2012, John had a seizure, which led to the nursing home admission.