Nursing home residents have rights and protections under the law in New York state. Nursing homes must list and give all new residents a copy of these rights. Some of these rights include:

• The right to be treated with dignity and respect.
• The right to be informed in writing about services and fees before you enter the nursing home.
• The right to manage your own money or to choose someone else you trust to do this for you.
• The right to privacy, and to keep and use your personal belongings and property as long as it doesn’t interfere with the rights, health, or safety of others.
• The right to be informed about your medical condition, medications, and to see your own doctor. You also have the right to refuse medications and treatments.
• The right to have a choice over your schedule (for example, when you get up and go to sleep), your activities and other preferences that are important to you.
• The right to an environment more like a home that maximizes your comfort and provides you with assistance to be as independent as possible.

Many purchasers of long term care insurance are unaware of how the coverage compares to the actual cost of skilled nursing, rehabilitation, or custodial care. A new disclosure law goes into effect on January 1, 2009. Prior to or at the sale of New York long term care insurance, the insured must be informed of:

(A) The maximum daily and lifetime benefit levels, if applicable, provided by the policy or certificate for home care services and nursing home services;

(B) The percentage of coverage provided for home care services and nursing home services, if applicable, and an explanation of the methodology on which the reasonable charge used in conjunction with such percentage amount is based;

(C) A description of any inflation protection feature included in or available for purchase under the policy or certificate and the additional premium required to purchase such option or options; and

(D) The actual daily private pay rates for four rehabilitation facilities within the county.

It is not too late to preserve assets after a patient is admitted to a nursing home. Promissory notes can be used to protect the assets of patients who are currently in nursing homes.

STEP ONE: Do not take any action without first consulting with an attorney. Medicaid laws are constantly changing and subject to various interpretations.

STEP TWO: The patient makes a gift of half of his or her assets.

STEP THREE: The patient simultaneously lends the excess resources (those above $13,050) in return for a promissory note which will produce an income stream. The patient is now eligible for Medicaid, but for the gift. Fair hearing decisions have approved the use of promissory notes in establishing Medicaid eligibility as a transfer for value, not a gift if four requirements are met.

First, the promissory note must be actuarially sound. The repayment term of the loan must not last longer than the life expectancy of the lender.

Second, payments must be made in equal amounts during the term of the loan with no deferral of payments and no balloon payments.

Third, the note can not be cancelable upon the death of the lender.

And Fourth, it must be non-negotiable.

STEP FOUR: The patient files a Medicaid application.

STEP FIVE: The Medicaid application is denied solely on the basis of this uncompensated transfer. The denial is official notification that the penalty period has commenced. The penalty period begins when three conditions are met:

(1) a gift is made;

(2) the patient is in need of long term care services and;

(3) He or she is determined to be “otherwise eligible” (the Medicaid application would have been approved except for the uncompensated transfer.) To be eligible for Medicaid, the patient’s resources must be no greater than $13,050 and the monthly private pay cost of the nursing home must exceed his or her income. The number of months of ineligibility (the penalty period) is calculated by dividing the value of the gift by the average monthly cost of nursing home care at the “regional rate.”

STEP SIX: The monthly repayments under the note are used to pay for the cost of the nursing home during the penalty period.

STEP SEVEN: When the penalty period expires, the applicant can file a second Medicaid application that should be approved.

The Erie County, New York Department of Social Services approved two Medicaid applications in June 2008 that used a promissory note as a planning technique. The applicants were able to preserve approximately one-half of their assets.  Here are those two examples.

Application # 1: $153,775 was gifted in February 2008 and $167,700 was exchanged in return for a promissory note dated February 29, 2008 payable over a period of twenty-three months at an interest rate of 6%. The $153,775 gift resulted in an ineligibility period of 21.76 months, with eligibility established as of 12/1/09.

Application # 2: $32,094.61 was gifted in January 2008; $34,700 was exchanged in return for a promissory note dated January 30, 2008 payable over a five month period at an interest rate of 6%. The $32,094.61 gift resulted in a period of ineligibility of 4.54 months, with eligibility established as of June 1, 2008.

The typical elder abuse victim is a widow who is socially isolated, physically and/or cognitively impaired and denies or is reluctant to report abuse. The typical abuser is a family member caregiver with drug, alcohol or mental health problems, a controlling personality and/or ineffective coping skills who is under financial, emotional or marital stress.

However, elder abuse occurs in every racial, social and economic group. Most common types of elder abuse are neglect, emotional/psychological, financial/ sexual exploitation and physical abuse.

The following are possible symptoms of elder abuse:

1. Physical Abuse: Unexplained bruises, falls, fractures, grip marks, pain, swelling or welts.
2. Neglect: Malnourishment, bedsores, soiled clothes, over sedation, or lack of medical attention or equipment despite available funds.
3. Emotional /Verbal Abuse: Depressed, hopeless, appears shamed, withdrawn, passive, loss of self-determination, invalid guilt, threatened, called names, or fearful.
4. Financial Exploitation: Illegal use of elder’s money, possessions, or resources for another’s gain. Examples: elder has no money for food or clothes, is victimized by con artists, has a caregiver who is totally financially dependent upon him, is forced to sign over control or a power of attorney and has unexplained bills, charge card or banking activity.

The legal options for the victim are an order of protection, having the perpetrator arrested under the domestic violence law or a guardianship to stop financial exploitation. The order of protection may or may not include the expulsion of the perpetrator from the home.

A person is eligible to go to Family Court for an order of protection if he or she is married to an abuser, formerly married to an abuser, has a child in common with the abuser or is related by blood or marriage to an abuser.

An order of protection can be obtained in town, city or village court if a criminal charge has been filed by a police officer or the victim.

The police must arrest for domestic violence when:

• A felony, other than grand larceny crimes, has been committed against a member of the same family or household.
• There is a violation of the Stay Away provision of an order of protection or a family offense is committed in violation of an order of protection; Family offenses include harassment (first and second degree), aggravated harassment, disorderly conduct, reckless endangerment (first and second degree), menacing (first and second degree), and assault.
• A misdemeanor constituting a family offense is committed against another family or household member, unless the victim requests otherwise. However, the officer shall not ask the victim whether he seeks the arrest of the perpetrator. Even if the victim requests no arrest, the officer can use his own discretion as to whether an arrest should be made.

Family or criminal courts can order the abusive behavior to stop (no offensive contact order); the abuser to have no contact with the victim (stay away order); and the abuser to leave the residence (vacate). Victims of elder abuse should contact an attorney, their local District Attorney’s office or Adult Protective Services to pursue criminal or civil remedies.