Hospital’s Failure to apply for charity care for psychiatric emergency patient leaves hospital holding the bag

DRAFT   MUST REWRITE    text from daily briefingHEALTH CARE LAW

New Jersey has a Charity Care program which pays for hospital care for uninsured individuals who meet the stringent income and asset requirements and also file an application. If an eligible individual enters the hospital as an emergency room admission, the hospital is required to prepare and submit the application and to take measures to obtain the necessary verifications. If an individual is admitted to the hospital without first going through the emergency room, on the other hand, the individual bears that responsibility. The application can be filed by the individual or a responsible party and the hospital, at its discretion, can accept the application up to two years after discharge, which is also the deadline for a hospital to submit the claim to the state program for processing. The regulations are found at N.J.A.C. 10:51-11. This issue was addressed in the recent Appellate Division decision of Newton Med. Ctr. v. D.B.

The patient had been  involuntarily committed to the hospital’s short-term care facility on an emergent basis when the county PESS determined that he was a danger to himself and others. He met the financial qualifications for charity care, and filled out an application. However, due to his condition, he did not submit all the needed documentation within the required time period, and evidently did not seek the help of another person to gather and submit the required verifications. The hospital eventually sued him for the substantial unpaid bill. He argued that the hospital had a duty to submit the application on his behalf because his emergency psychiatric hospitalization placed him in the same category as a medical patient coming in through the emergency room. Although the trial court ruled against him, the Appellate Division reversed.

In a decision which discusses in depth the history and purpose of the Charity Care Program, the court held that the statute did not explicitly limit the category of emergency room hospitalizations  to medical needs as opposed to  psychiatric need, and that the Legislature intended that all patients in such desperate straits who enter a hospital for emergency treatment be relieved of the responsibility to submit their own applications. The Court placed the responsibility upon the hospital staff to follow the procedures mandated in the regulations for all such patients, and dismissed the collections action.

Admission to any hospital  raises the need for a patient to have an advocate and assistant watching out for his or her interests. Careful planning with powers of attorney, records release authorizations, HIPPA authorizations and health care proxies, including psychiatric health care proxies, can add a layer of protection for an individual in the throes of severe illness.

Call us for advice on elder & disability issues … 732-382-6070

Homemade Powers of Attorney can create expensive legal problems

I ran into a situation recently that I thought I’d share with my readers since it’s the type of thing that happens over and over again. The Elder person is living in New Jersey but owns real estate in another state that needs to be listed or sold because he is applying for Medicaid to pay for his nursing home. The person has Alzheimers Disease and no longer has capacity to sign legal documents. The person who takes care of everything for him up here in New Jersey holds a power of attorney that they made using an “internet form.” It is titled “General Durable Power of Attorney Effective Upon Execution,” and was signed by the elder a few years ago in front of witnesses and a notary.

It sounds like this document gave authority to the agent right away, right? The problem is that the very first paragraph then says ” I ____ designate ____ to act for me, if I should become disabled or legally incapacitated. This document shall become effective upon the date of my disability or legal incapacity and shall not otherwise be affected by my disability or incapacity.” The first sentence creates a Springing Power of Attorney. The second sentence is a mixture of language from Durable Power of Attorney and Springing Power of Attorney, an obvious conflict.

The named agent found that they had to produce current doctors’ opinion reports attesting to the elder’s incapacity. The agent has lost weeks and weeks of time gathering this evidence and submitting it to insurance companies, banks etc. for legal review.

And there is another problem: in the state where the property is located,  springing powers of attorney are not valid. The agent learned this when they hired the real estate attorney there. So in order to sell the property, it will probably be necessary to file a guardianship action. And generally speaking, you can’t initiate a guardianship action in one state if the individual is permanently residing in another state …. you initiate it where the individual resides and then have to go through a separate set of proceedings in the other state. Needless to say this has all created a complicated and potentially expensive legal tangle that involves two states and two lawyers and substantial delay.

As I like to say, careful planning [with legal advice] can prevent a crisis.

Call us for advice on estate planning and long-term care planning … 732-382-6070.

Family caregivers and decisionmakers in the complex care of dementia patients

Tha AARP and the National Alliance for Caregiving report that there are 40 million Americans taking care of family members with dementia such as Alzheimer’s Disease, cancer, and other debilitating chronic diseases, or physical disabilities, and that 25% of the caregivers are under 35 years old. The medical issues can be complex. There can be myriad medications to manage and the side effects can impact the patient’s cognitive ability, response time and behaviors. The family caregiver needs to be companion, advocate, assessor of unusual clinical responses, emergency manager, monitor of symptoms, transportation provider, and assistant for decision-making. They may or may not have received specific training in the care the patient requires. Should the caregiver also have authority to actually make decisions on behalf of the patient? Maybe yes, maybe no. It depends on the circumstances.

The line between the work of caregiving and the authority for decisions can get blurry. It’s important to discuss this subject when preparing powers of attorney.  At times, one child is given authority as Power of Attorney and Health Care Representative, and then also moves in and becomes the 24/7 caregiver when the parent can no longer safely live on their own. If the same person is responsible for all caregiving and all financial matters, it can be truly overwhelming and there could be a loss of objectivity.When a person requires 24/7 care and a devoted family member is the full-time caregiver, expanding the team and  dividing up the responsibilities can go a long way to make the job more manageable, and assure that the whole picture is being seen. Perhaps one person should have authority over the assets, income, bills and contracts, and another person should have responsibility for health care decision-making. Sometimes the person providing the live-in care should be the health care decision-maker, but not necessarily.

To guarantee broader input and communication, a patient may want to divide up the roles. But again, this is simply not always possible. The family may be small, or most of the family may be far away, or there may be other family dynamics in play.

There are ways to ensure collaboration between caregiver and the designated agents. For example, the financial Power of Attorney and the health care proxy or advance directive documents documents can obligate each designated agent to  share information  with the other and to consult with each other. The person who is the general agent under the power of attorney could be given the authority to delegate some power to the person who is the live-in caregiver so that they can manage some reasonable size bank account on a day to day basis in case there’s a need to buy things. Or they can be given authority to utilize  a debit card on the patient’s bank account with a certain limit.

Another idea is that the financial power of attorney document can expressly allow a family member to be hired as a live-in caregiver, and can direct the Agent to pay a wage that’s in line with similar occupations. When caregiving is paid for, it eases the economic pressures on the care giver, but it does raise other issues such as wage & hour laws and potential Medicaid scrutiny if the parent runs out of money within 5 years and applies for Medicaid benefits.

No matter what, either the patient or their authorized agent may want to sign HIPPA release forms for certain purposes so that the caregiver can access the relevant health care information that’s needed for them to do their job.

For legal advice on elder care planning, caregiver employment, and estate planning, call us at … 732-382-6070.

Power of Attorney isn’t just a “form”

I’ve been thinking a lot about Power of Attorney issues lately because of a variety of problems my clients have encountered. A power of attorney is a document that reflects a relationship created between one person and another person in which the principal person appoints the other person as their “Agent and attorney-in-fact” with power to carry out different kinds of transactions for the principal.  This is a fiduciary relationship in which one person trusts the other to act on their behalf. The document spells out the limits of the powers given. New Jersey has a power of attorney statute, N.J.S.A. 2B:46-1 et seq. Many states have their own laws. A document signed in another state should be usable in New Jersey, but it may be met with confusion or suspicion by the business which is being asked to accept it.

One of my clients was trying to assist her family member, who at the time was a patient in New York. She found a New York power of attorney form on line. New York, unlike New Jersey, has a “statutory POA” in a prescribed form. The family member signed it in front of a notary. Later, the patient came to New Jersey. When my client took the document to the bank in NJ in order to have her name listed as “POA” to write checks, the bank refused to accept it because it turned out the form was a very old form that had been replaced by the State of New York some years ago, so it wasn’t valid on the day it was signed.

In another situation, the agent showed me a power of attorney which allowed banking transactions and sale of real estate, but that was all. He didn’t have authority to hire people for her, sign contracts, deal with her annuities and stocks, and many other tasks.

There are also cases where the principal signs a banking power of attorney on a form provided by their bank, which lists the account numbers. Well that authorization isn’t good for anything other than transactions on the listed accounts.

Other clients have brought in powers of attorney that require two agents to act together, yet one of them is out of state or is fighting with the other so now nothing can get done. Or the document isn’t notarized, which means it will not be accepted by the county clerk if the agent is selling the property. Of course, if the document doesn’t allow gift transfers, the agent cannot do gifting. Another issue is that some POAs are not “durable” — they only are usable while the principal is of sound mind. Or they may be “springing” and only become effective once the doctor certifies (to the satisfaction of the third party) that the principal is incapacitated.

If you want someone such as your child to be able to fully assist you with elder care planning when the time comes, it is vital that you sign a comprehensive general durable general power of attorney which is properly witnessed and notarized. The advice of an attorney will help ensure that you establish the POA relationship that will fully serve your needs.

Call us for advice on power of attorney, trusts, estate and elder care planning … 732-382-6070