Life Happens

May 13th, 2023

Episode Transcript

(00:00):
Good morning, everyone, and welcometo Life Happens Radio, your weekly radio
broadcast that brings you ideas, thoughts, and plans to put in place for
you and your family. We tryto make the lifestyle that you want to
live a reality. How do wedo things for our families and for ourselves,
for our loved ones to make itright and to prevent things from happening

(00:25):
that are going to happen that wouldthen roll over and have impacts that we
can prevent. So, how doyou plan for disability? How do you
plan to have your assets managed properlyif you become incapacitated. How do you
plan upon death to make sure thateverything goes according to plan and that your
legacy is intact for your children andyour loved ones. How do you get

(00:49):
the right products insurance products? Howdo you access medicaid? All of these
are topics that we cover here.We try to bring you excellent guests on
a regular basis to talk about thethings relevant to us in New York State.
And today we're going to talk aboutsomething that happened here in New York
State on Thursday, and it wasthe Elder Law Forum. The Older Law

(01:11):
Forum is something Piero connoran Strauss putson it's something I started twenty eight years
ago and this was our twenty eighthannual. So going back to nineteen ninety
five, we've been doing this forumand it has grown to the point where
we had over one thousand, fourhundred that's right, one thousand, four
hundred people registered for the forum threeseventy five. We're live at the Desmond.

(01:34):
About a thousand or a little morethan a thousand were online. We
did it virtually and these were professionalsin the area of long term care and
disability planning. We had legislators there. We had Assemblyman John McDonald and we
had other legislators. We had thehead of the State Office for Aging,

(01:56):
Greg Olsen, the Department of Health, head of the Governor's Master Plan on
Aging, Adam Herbst. We hadadvocates from different areas. We had long
term care insurance, we had healthInsurance MVPCDPHP, Saint Peter's Hospital, you
get the idea. We had alot of speakers. We had over twenty
five speakers and in attendance fourteen hundredpeople who were professionals in the areas of

(02:20):
healthcare and long term care. Andwhy were all these people interested in attending
this elder law forum. They're interestedbecause the way we are providing care to
individuals in particular, and we're goingto focus on two specific groups in particular,
to seniors and people with disabilities.The way that we provide that care

(02:43):
has just gone and spiraled out ofcontrol in terms of cost and complexity.
So the speakers, the panelists,the audience were in this game, in
this world. And I can tellyou, folks from the speakers, we
have a lot of work to doto prepare ourselves for the population aging,

(03:07):
the needs of that aging population,caring for disabled individuals. And when we
say people with disabilities, a lotof us think of children who are disabled.
But one phenomena that's occurring right nowis a burgeoning population of senior disabled
individuals. And in our firm,we're Piero conran Strauss and I'm Lou Pierro,

(03:29):
your host for this morning, andone of the partners at the firm.
When we have seniors coming in whoare eighty five, and they come
in, they say, well,my son is sixty or sixty five and
he's been living with us his entirelife, and now the parents are eighty
five and ninety and they're making plansfor themselves for their estates, but now
they have to make plans for achild who has a disability and can't fend

(03:53):
for themselves. And all of thiswas discussed on Thursday at the Elder Law
Forum, and you can access theElder Forum. It will be published on
our website coming up once it's editeddown. So if you have interest in
this area, I highly recommend itto you. But we're lucky today that
in studio with me, I havetwo of the attorneys that practiced in these

(04:14):
areas, one of whom was onthe panel at the Elder Law Forum,
the other who does work with peoplewith disabilities, and they are none other
than our senior associate, Frank Hemming. Good morning, Frank, Good morning,
Lou. And our associate Jacob verserOut, Good morning, Jacob,
Good morning, Lou and Frank.I want to turn to you because you
are you are the Medicaid attorney atPierre O'Connor Strouse at this point, and

(04:41):
you handle most of our Medicaid casesfor clients. The Medicaid system is let's
just say fragged at this point.Oh that's what you took away from the
forum. Yeah, well we knewthat anyway. Yeah, yeah, we're
trying to find solutions to that.Yeah, it's the Forum's always a really
interesting time for me. It's soI've been with the firm eight years.
It was my seventh forum, justbecause once I think I was on vacation.

(05:04):
But I've been lucky to be atattendance at all the others. At
the first one or two, Ididn't actually do anything other than attend,
and since that time, I'm usuallyon a panel or a group of panels,
And it's always really interesting to lookback on because I feel like,
in a lot of respects, wecome to the same conclusion every year and
we're just not very good at this. But the positive is when you have

(05:26):
that many people that are in thatroom and now watching virtually, so many
people are trying to do better thatat least I feel like I do come
away hopeful every year that it's truethat maybe we're not doing so good right
now, but it doesn't mean thatwe're not trying to do better. And
if we're trying that hard, atsome point, hopefully we're going to make
this work, or at least we'regoing to do a heck of a lot
better than what we're doing now.So, just for context, Medicaid is

(05:48):
the pay or of last resort,they call it, but it has been
the only payer for several years thatis taking on the heavy burden of long
term care, and that puts stresson the system. So what are the
things that you found out at theforum that are being experienced not just in
our office but across New York Statewith regard to long term care and mitigate

(06:12):
financing. I mean a lot ofit's just, you know, it's we're
seeing, we're seeing interesting things withthe state. And typically when I'm on
here we talk about how we haveincome rules, we have asset rules.
And it's been really really nice tobe able to say for the whole five
months so far of this year thatincome limits are up, asset limits are
up. Right. That means thatthe state has recognized that people need help,

(06:35):
they need services, and they shouldn'thave to be as impoverished to get
them. And that is a greattrend in the right direction. I say
all the time. Right, ifyou want Medicaid and you don't live in
New York State, your asset limitis generally two thousand dollars. So while
it's thirty thousand and one hundred andeighty two dollars here, that's not a
lot of money, but it's somuch more than two thousand where it is

(06:57):
in other places. Now you haveto let that sync in because in New
York started out at two thousand,many many many years ago, and then
it doubled to four thousand, andthen they've just been popping it up,
went to eleven thousand and now thirtythousand. Yeah, when I started with
the firm, it was in likethe fourteen seven fifty range. It was
definitely less than fifteen thousand. Sobetween roughly two thousand and fifteen until just

(07:21):
last year, it had gone fromfourteen in change to not even seventeen thousand,
So we'd seen a little bit ofbump up every year, and then
suddenly overnight, going from December thirtyfirst of last year to January first,
the asset limit almost doubled from sixteenthousand then twenty eight thousand, and then
it was subsequently increased over thirty thousand. Once the federal Poverty divers came out

(07:43):
in January, and we had representativeson at the forum speaking from the nursing
homes. We had representative from ShakerPlace, who which is the Albany County
nursing home. We had representative ofSaint Peter's Hospital, which does home healthcare
and has the visiting nurse service.And so those individuals are talking about things
from a provider perspective. The ensurerssome of them were there, But Medicaid

(08:07):
is a system and a program thatfills a huge void for people, and
just put it in context. Whatdoes Medicaid pay for and why is it
necessary? So the way that Ilook at it, and it's not the
only way to look at it,but the way that I look at it
where where we're counseling clients is we'reeither talking about it's going to provide for
your medical care in your house,so those home health aids to come in

(08:31):
to help with your activities of dailyliving. Or we're talking in select cases
a assisted living if they are aprovider that accepts Medicaid. And again to
be clear that we just don't havemany of those in the Capitol district,
but there are many throughout New YorkState. Or we're talking about nursing home
where they're actually paying your nursing homecosts. There are other things that come
with it. It'll cover your copays, it will help cover your prescriptions

(08:52):
because if you think of it,you know, essentially to get Medicaid you
have to be impoverished, or atleast you have to appear to be impoverished.
They know that you can't really havea lot of money to pay for
your other medical costs as somebody hasto foot the bill, and as you
said, Lou, it's they're typicallythe last payer, so Medicare gets the
first crack at it. If youhave a Medicare supplement, they get to

(09:13):
take kind of the middle ground.And if neither of those payment sources cover
it, then Medicaid should cover itat the back end. And Medicaid is
the only program folks that covers longterm care. Medicare a lot of people
think is going to cover some homehealthcare, It's going to cover some assisted
living care. No, there areAnd one of the things that we learned

(09:35):
from the local insurers we had bothCDPHP and MVP on panels at the forum,
was that there is some innovation goingon and there are some bright spots
and Medicare advantage plans was one ofthat, and they have now benefits in
Medicare advantage that are not in traditionalmedicare. So there is a huge movement

(09:58):
from traditional medicare to medic your advantageplans all across the country, but in
particular right here in this region,and both MVP and CDPHP have special benefits,
some companion care, some online technology, digital telemedicine, all those kinds
of things are percolating. But whenit comes time to hire a home health

(10:18):
aid because you need to be inyour home, want to be in your
home, and you need help gettingup and getting dressed in the morning,
getting breakfast, getting showered, allthe things you need to function in the
course of a day. You wantto be at home doing that. The
elephant in the room is the shortageof home health aids and healthcare workers in

(10:39):
general, and that's something that ourclients struggle with every day, and that
was a major topic at the forum. Yeah, I mean it has to
be right because I mean I cantell you even now, even with the
shortage, even with everything that's goneon since the pandemic in the past year,
in the past two years, howeverlong you learn to look back,
people still have not changed and they'rethinking of I do not want to go

(11:01):
to a nursing home. That hasbeen the constant in my eight years with
the firm. It's people don't wantto go to a nursing home. They
didn't want you eight years ago,they don't want you now. The problem
now, much more so than ithas ever been before, is well,
we understand that that's not what youwant, or that's not what you want
for your loved one. What happensif there just isn't a person or a

(11:22):
group of people that are there tocome in to provide the care in your
house where you want to be right, You can want to be in your
house as much as you want,but if you actually need hands to come
into your house to help you dothe everyday things that you need to do
and they aren't there, well thenyou cannot want it all you want,
but there aren't really any alternatives.But then the problem then becomes like and
then it balloons on itself because thenyou're seeing not only the shortage of health

(11:46):
of home healthcare workers affecting things,there's also a shortage of people working in
the nursing homes right right, we'renow hearing much more so than we ever
did. That people are having troublebeing placed into a nursing home, and
it's not that they want to bethere, it's that there aren't any other
alternatives or whatever the reason is.But now sometimes people are being turned away
from nursing homes because they have wingsthat are closed off, because they literally

(12:09):
don't have staff to work to keepproviding the care to the people in the
beds. And that backs up thehospitals because they now have people who should
be discharged sitting in beds that theycan't get fully reimbursed for. And hospitals,
if you notice, if you readthe papers, are all in the
red right now because of some ofthese factors that inadequate reimbursements and the inability

(12:31):
to do the things that they makemoney at, which is elective surgeries.
Well, if you have one hundredbeds full of seniors waging discharge and you
can't use those hundred beds to doelective surgeries, your revenue stream is going
to take a huge hit and you'reunable to balance the books because you're losing
money for patient instead of having thebalancing act of having patients that are in

(12:54):
the hospital with good reimbursements that aregetting the surgeries and the things that do
pay. So when we look athome healthcare, and this applies to both
seniors and people with disabilities, thecost of care is what has driven this
through the roof and put people betweena rock and a hard place, because
in order to get Medicaid you haveto be impoverished, and if you pay

(13:16):
privately, you'll be improverished soon enough. Because nursing homes now we are seeing
the escalation of nursing home costs,part of that being because Medicaid pays for
most of the beds and doesn't paymuch, so they have to balance on
the backs of the private payers.What do you say, in Frank,
of the clients coming in to seeyou to talk about nursing home care,

(13:37):
average costs would be in the Capitoldistrict somewhere between fifteen to seventeen thousand a
month roughly. Yeah, do themath, folks, fifteen to seventeen thousand
a month. You're up at away over two hundred thousand dollars a year.
And people say, well, Idon't want to be in a nursing
home, gotcha either. But ifyou want to stay at home and you

(14:00):
do the numbers a home healthcare company. If you hire a private home healthcare
agency and you hire privately through thatagency and you pay those aids through the
agency, you're paying thirty five dollarsan hour. And if you do thirty
five dollars an hour and you happento need twenty four hour care, it's
the highest level of care. Butlet's say that you do it's thirty five

(14:20):
dollars times twenty four hours times threesixty five. That number is three hundred
and six thousand dollars a year.These are real cost folks. And so
the room full of fourteen hundred peoplegrappling with these costs, grappling with the
reimbursement systems, knowing that Medicare doesnot pay in this area, knowing that

(14:41):
Medicaid does. But the budget,and we just heard from our legislators the
bludget is a butt bloody process.And the budget came in this year at
two hundred and twenty nine billion dollars, about forty percent of that is Medicaid.
Because of the costs and the needsin these areas, and Jacob,
you work more with people with disabilitiesand the disabled population that applies equally to

(15:07):
them as well. Yeah. Absolutely. Um, you know, we see
a lot of this crossover into supplementalneeds trusts and people coming to us uh,
you know, trying to give theimage of course that the would otherwise
qualify for Medicaid and other government benefitswhile still maintaining the ability to uh benefit

(15:31):
from other sources of income which wecan you know, put into uh supplemental
needs trusts for them and otherwise qualifythem for Medicaid benefits that that would otherwise
be coming out of their pocket tocover these nursing home costs and such.
And so we're gonna take a shortbreak, and when we come back,

(15:52):
I want to unravel some of thesemysteries the panels that we had, really
laid it out in a concrete wayas to what the current issues are.
And Frank, I'm going to turnto you to talk about the new assessment
process and changes in the rules thatare impending and coming our way in the
Medicaid system. And Jacob, we'regoing to talk about how people with disabilities

(16:15):
can get the services they need andas you mentioned, planning to get those
services using specific types of vehicles liketrusts that are called special needs trusts and
Frank, you're going to talk aboutMedicaid asset protection trusts and when we come
back, we're gonna unravel some moreof this and talk a little bit more
about the twenty eighth Annual Elder LawForum that just happened at the Desmond on

(16:37):
this past Thursday. I'm Loupierro instudio with Frank Hemming and Jacob Vershaar are
legal Eagles. We will be backafter this short break. Welcome back the
life Happens. Thanks for listening today. I hope you're having a good Saturday
and enjoying the weather. But we'retalking today about what happened on Thursday,

(17:02):
because sometimes we got to go backin time, and what happened Thursday in
our world was the twenty eighth AnnualElder Law Forum. I mentioned at the
top of the show that you willbe able to view the forum. We
will have it edited and on ourwebsite, and that website has a great
deal of content and you can accessall of that content at pierolaw dot com.

(17:23):
It's pie r r olaw dot comand one of the things that you'll
find on there are Medicaid Mondays.We talked about Medicaid, and it's a
big player in what we do becausewhen we have clients who are elderly and
we are an elder law firm,When we have clients who have disabilities and

(17:45):
we are a special needs firm,the only program that's covering the majority of
the things that those people need isMedicaid. Private health insurance Medicare doesn't cover
it. Private long term care insurancedoes cover it, but so few people
have purchased it and it's getting harderto find. So Medicaid is what's the

(18:07):
fallback position. We do Medicaid Mondaysthe second Monday of every month and it's
twelve to twelve thirty. We havefour of them in the can which are
available on our website, and we'vecovered home care, nursing, home care,
Medicaid trusts, the assessment process.You can listen to all of those
things. Our next Medicaid Monday,we invite you to join us live.

(18:29):
I love to have you join uson June twelfth, that's the second Monday
in June, and this one isgoing to be what if your Medicaid is
denied? What rights do you have? And we're going to talk about this
with Frank in just a moment,but we're going to flesh this out in
great detail June twelfth, from twelveto twelve thirty. You're right to Medicaid,
what happens if you're denied? Andagain you can sign up for Medicaid

(18:51):
Monday webinars. You can watch thepast four if you have interest in any
one of those specific topics, there'llbe a catalog for you right on the
website. You can live on Junetwelve, twelve to twelve thirty, and
you can sign up for any ofthe events that we run on our website
at pierolaw dot com. Go toevents to sign up for the upcoming programs,
go to resources to get the videosof the programs that we have already

(19:17):
done. And Frank, I wantto turn back to you because we talk
about Medicaid, we talk about thecost of long term care, nursing homes,
home healthcare, and the fact thatyou have all of these eligibility rules
and you were on a panel thatdid a case study it was drawn from
an amalgamation of cases that we've handledin our law firm, and just kind

(19:38):
of walk through for our audience whatthe process is. Because this process folks,
is daunting. You don't want tohave to go through this unless you
have to. But if you haveto go through this, you want Frank
doing the application for you. Sojust walk through the case study a little
bit for us and talk about thepanelists and what everybody brought to the table.
Yeah. So if I get alittle long winded here, Loo,

(20:00):
you just you just tell me.So we started with our guy. His
name is Stan, and Stan cameto us wanted to do some planning and
he knew he needed some help athome. He had been privately paying for
some healthcare. He knew that wasn'tgoing to be a long term solution for
him, so he contacted our firm, originally having some assets. He had
a house, he had some cashand some other things. So ultimately the

(20:23):
first part of his plan wasn't evendoing medicaid at first. First it was
doing a trust and getting everything inplace. And so we did a trust
for him. We put his assetsin and then we applied for medicaid to
his local county Department of Social Services. We got an approval, which was
great. We also set him upwith something called a pool trust, which
if you've heard me on the show. I'm sure you've heard of it.

(20:45):
We also talked about it specifically inone of our past Medicaid mondays. So
if you have questions specifically about pooltrust, that would be a good place
to educate yourselves. I did itwith Sarah Grimes, who was a good
friend of ours from the sark So. Anyway, so he set to stand
up with his irrevocabal trust for hisassets and his pool trust for his income,
and then we get into kind ofthe the new not so great medical

(21:08):
piece of Medicaid. So essentially whathappened was um Stan then had to be
assessed. He was assessed by thestate and they came back and they said,
Stan, you you look like youneed a lot of help, so
we're going to give you some help. And then he had to enroll with
a local managed long term care plan. Now there are several that that service

(21:29):
the Capital District. I won't saywhich one, but he had to enroll
with them. They did their ownassessment and then they came back and they
said, Stan, we're going tooffer you five hours a day of care.
And that was going to be aproblem Stan was in need of.
I believe it was eighteen hours aday. So he then said, you

(21:51):
know that's not that's not going towork for me. What do we do?
And so how common is that,Frank, when when people need eighteen
hours a day? How I mean, it's an interesting question. Um,
I know, I think, Iknow you're good at this right now,
your first time? Um, theanswer, I think that has actually been

(22:12):
changing, right. I feel likeas time has gone on, the hour
determinations are getting stingier, instantier.Would it have been would it have been
within the realm of possibility previously thathe would have gotten all eighteen right when
he first asked, of course,is it possible he would get it now?
Still? Yes? Technically, Um, would he have been more likely

(22:32):
to get it several years ago?I think that answer is yes, the
likelihood of him getting it now givenwhat we know, Unfortunately, I don't
think that's very likely, especially becauseyou know, again Stan is, if
you knew the particulars about his casephysically and what he deals with, this
was not a question whether that waswhether six hours a day or anything was
going to be sufficient for him.My experience in today's medicaid application world is

(22:56):
that this is the routine, Thisis the stand now it's much more common
than not that people are going toget reduced hours, And they basically built
a system that prevents people from rationallyapplying with the support of their medical team
who know them and can diagnose themand can say what they need. New

(23:18):
York has this new independent assessor process. Just walk through that really quickly.
In folks, you couldn't build thissystem in your wildest dreams with anything but
one purpose, and that is todeny care. That's how your system is
built. So Frank, just walkus through it. Yeah, So after
you get that Medicaid approval, thenyour next step is you call the Medicaid

(23:41):
Independent Assessor and they schedule you attime and a nurse gets on. I
think it's still being done virtually mostof the time with zoom. So you'll
have a virtual visit with a nurseright from the New York Independent Assessor's office.
Now, this is an eighty eightyear old person who is severely disabled
and chronically ill that's getting this virtualvisit at home. What if they can't

(24:03):
don't have virtual capability? Oh seeagain you're asking the good questions right because
they set it up again thinking thus, oh, like, what's the big
deal. They'll just jump on theiPad, or they'll they'll jump on their
phone, or they'll jump on theirlaptop. I mean my grandparents, I
mean they're they're in their nineties andstuff. Like my grandfather, if he
was sitting here, would tell youhe's never turned a computer on, let
alone used one. So so thatthat's getting to a different crux of the

(24:26):
same issue here. It's they're settingthe system up to not be usable for
a large portion of the population thatthey have to serve, or at least
that they're supposed to be assessments.So you have this random nurse that's doing
an assessment. They typically take sometime. Isn't a five minute no,
it's typically it's right around three hours. So they ask a lot of questions,
right, They're they're thorough. I'llgive them that. They're they're thorough.

(24:48):
They ask a lot of questions.It's a good thing that the person's
doctor can write an affidavit and aphysician's statement to make sure that their real
medical condition is known. Right.Oh yeah, see that's the thing.
Then. One of the nice thingsabout this system too is we used to
previous to this, we would relyheavily on the doctor that's been treating that
person to outline this is their conditions, this is the level of care they

(25:11):
need, this is what they thisis what they need. Hold that thought.
Yeah, and we're gonna take ashort break for the news and we're
gonna come right back, Okay,and we're gonna unravel all this folks,
because it's bad. There is somehope at the end of the day.
But stay with us and you're gonnalearn a lot more. We'll be right
back after the news. All right, Welcome back till life happens. I'm

(25:41):
Lou Pierro, your host for thismorning here in studio at w g Y
with Frank Hemming and Jacob Vercherau.We are all from Piero, O'Connor and
Strauss. We are all attorneys.We all practice a state planning elder law.
Jacob does more litigation than Frank orIHI also has a niche in special
needs, in special education, andtoday we're talking about issues pertinent to people

(26:04):
who are aging, people who areliving with disabilities, who need care,
who need service, and the hurdlesthat you have to go through to find
and access that care. I talkedabout some of our educational programs or webinars
before the break, and I justwant to give you another heads up Medicaid
Mondays. We have the next oneJune twelfth, from noon to twelve thirty.

(26:26):
We have prior Medicaid Mondays that youcan access and watch the videos,
thirty minute videos on a variety ofMedicaid issues, trusts and Medicaid applications,
homecare, nursing, home care.You can do all that on our website
at perilaw dot com. And Iwant to give you a heads up on
one more upcoming program because we doa lot of programs our marketing department,
Beth Workman and Tim Flynn crank itout and crush it and they're doing a

(26:51):
great job. So but we doa trust Administration workshop for people who have
trusts and want to know exactly howto file a tax return, how to
account to manage their trust, andfor people who before they jump into that
water, want to know how thetrust is going to work before they sign
on the dotted line. And theTrust Administration Workshop we do three or four
times a year for clients and prospectiveclients. The next one is July eighteenth.

(27:15):
It's a little ways away, butput it in the book. July
eighteenth, from twelve to one thirtyThis is an hour and a half of
intense training on trusts, taxes,accountings, how trusts work, pop open
the hoods, see how the engineruns. That's the Trust Administration Workshop July
eighteenth from noon to one thirty pmand we hold it at the Capital Region

(27:36):
Chamber of Commerce right here in Colony. So again you can find that at
pyrolaw dot com. And Frank,I want to come back to our conversation.
We're talking about care, aging care, disabled care and the Medicaid program
that finances it, whether it beindividual independent apartments or independent homes, your
own home or into nursing homes andwhat it takes to get home care.

(28:02):
Today that was your panel. Itwas a home care case. And we're
talking about the elder Law forum thatoccurred May eleventh, this past Thursday,
and we have a gentleman who needscare. We talked about the fact that
he's going through a three hour virtualassessment. Imagine that three hours of virtual
assent. What do they ask inthree hours? Virtually they're not even there
to say, they're certainly not seeingprobably very much now. And then I

(28:27):
put a question up that was obviouslya loaded question, and that is can
your own doctor help you in thissituation? And you were about to give
the answer before the news, solet's take it from there. Yeah,
So the answer ultimately is no,or at least not nearly as much as
they are not anymore. They tookthis away from you. So before we
would rely heavily on the doctor toput a statement in an affidavit together and

(28:48):
say this is what this person needsif it was questioned as to their level
of care. But now because wehave the New York Independent Assessor, the
idea here is that we want independentpeople. We don't want people have been
working with these people m and tryingto you know, maybe result in unnecessary
hours of care being given. Soso in in Stand's case, you know,

(29:08):
he has this virtual assessment um andthen once the virtual assessment's over,
then he has to schedule a secondappointment with an independent doctor that then is
going to assess him. Uh does. It can also be like a physician's
assistant or you know, other medicalpeople, but again being chosen by New
York, it doesn't know the's anindependent person at the end of the day,
regardless of who the medical indefficsually is, they're independent. They're going into

(29:32):
the doctor's office and they're going tohave you know, hands on care and
have the readings done and you know, turn your head and cough that kind
of stuff. No. Still virtualstill so virtual medical appointment yep, with
somebody that doesn't know you and thenm assuming that they both come back um
saying that you need care. Soif they you assess properly and the medical

(29:52):
professional agrees that you need care,then you're instructed that you have to enroll
with an insurance company, which againstand did all these things. So he
enrolls with insure company, and thatis what type of insurance company. Managed
long term care and a managed longterm care company and they're out to help
manage the care and take care ofthe patient, right, I mean,
that's part of it. But they'realso a business and they're in the business

(30:14):
to make money at the end ofthe day. So, Lou, I
know, I've learned a ton aboutthis from you. And the you know,
the thing that that kind of doesn'treally make sense with this whole system
is that New York State cuts acheck to the insurance company for the same
amount of money per enrowly that theyget into their program, regardless of the
level of care that that person needs. It's called a capitated system. There
you go. So if you havea high needs person, you lose money

(30:37):
on that person because ultimately the amountof care that you then have to provide
for them is going to be morethan the payment that you got from the
New York State to actually provide thecare. If you have a low hours
person, well then you get tomake money because if they don't have to
get a lot of care provided tothem, it's money that comes in,
goes in your bank account as yourcompany, you pay out for the care,
and then whatever's left that's your profit. So it's incentivized to these companies

(31:02):
to give low hours determinations because themore low hours people they have, the
more money that they can make forthemselves and their business. And they're bad
actors everywhere, folks, and thatincludes in the healthcare system, the long
term care system, and the insurancesystem. Thomas di Napoli, who was
our controller, who I think doesa pretty good job as a New York
State controller, did a study andpublished the study and reported that managed long

(31:25):
term care companies took two point eightbillion with a B two point eight billion
dollars out of the system that theycollected that did not go toward patient care.
So the state inserted this middleman middleperson to manage not the care.
They don't do any care management.Now, they're managing the billing and they're

(31:48):
contracting with home health aids and homehealth providers so that they can get the
service in the home. They paythat service, and they're making a profit
on top of the dollars that,in my mind should go to patient care.
But this is the system that wascreated as part of the state's managed
long term care program, which camethrough something called the Medicaid Redesign Team a

(32:09):
number of years ago, which whenthey announced it and we studied it at
our Elder Law forum eight years ago, we said, this is a problem.
This is two freight trains just collidingbecause you have increased needs that people
have in the home and you havean incentive for the mltcason not to provide
it. Yeah, and then theother part of this is they are also

(32:30):
the ultimate deciders of how much hoursyou get. Right, So it's not
only they're not only getting the money, but then they're then making a determination
of all, how much money dowe actually want to pay out for this
person. So the budget is atough thing and it just came through and
we had our legislators there talking aboutthe budget session and it gets bloody and
there are a lot of things goingon, and we won't get into the

(32:51):
political aspects of this, but let'sjust say that there is not enough money
to pay for all the care thatpeople need. And this is a way
that the state has devised to rationcare. They're not going to say that.
Nobody's going to say that, butValerie Bogart and she was on your
panel. And so at this forum, at the Older Law Forum, we
have the people who are making thepolicy, and the people who are implementing

(33:13):
the policy, and then the peoplewho are representing consumers and advocating for the
consumers who are being impacted by thepolicy. And Valerie is that person.
She speaks every year at our OlderLaw Forum, does a phenomenal job and
really brings reality, a reality checkto what all of these things mean to
you folks, the listeners that arestill with us out there. This is

(33:34):
what's impacting you. So, Frank, that panel did a great job tracking
the process right through two appeals,because you have a right if you don't
get the hours you need to appeal, which a lot of people don't know,
right And that's ultimately what happened withour case here is I had to
go to fair hearing for him overI think it was roughly about two weeks
ago. So we are waiting decisionon that because ultimately he did not get

(33:57):
the hours of care that we believehe was should be entitled to. And
now we're hoping that the decision comesback and he gets everything that he rightly
needs and deserves. And I willmention just just because I think it's important
to show. Part of the evidentiarypacket that we put together when we went
to hearing was a statement by hisdoctor saying what he needs. So even
though they cut the doctor out fromthe first part of the process, we

(34:20):
were able to actually get his doctoredaway in Ultimately, it's just it's unfortunate
it took us all the way toget to hearing to have to bring that
medical professional back in, but itcertainly I think did hold some weight with
our case, and we're going tosee how it turns out. So what
the what the forum has taught meover twenty eight years is there are a
lot of well meaning people in thesystem, and fourteen hundred people didn't tune

(34:42):
in for nothing right there. Theywant to make this system better, but
the difficulty is that it's money driven, and there are billions of dollars being
spent one hundred billion dollars being spenton Medicaid in New York State. That's
a lot of money going out tovarious party all of whom have lobbyists.
Again, I don't want to gettoo political, but this is how the

(35:05):
money gets gets distributed, and theconsumer is the last person thought about in
this system and now for nothing.But how many times have we've said it
for the past several years. Thebaby boomers are aging into a place where
they're starting to need longer term careand things like exactly what we're talking about,
home care and nursing, home care, you know, help with their
activities of daily living. So it'sunfortunate, but more and more and more

(35:30):
and more and more people are goingto have to go under this system as
they get older because of the risinghealthcare costs that we talked about right at
the first part of the of theshow today, right, because at the
end of the day, no onecan really afford to pay between fifteen to
seventeen thousand for a nursing home,or up to three hundred thousand dollars privately
to privately pay for aids to stayin your house. Are very long until

(35:52):
you don't have anything, and thenif you don't have anything, you're going
to wind up back on Medicaid anyway, because that's the only option you have
at that point. It's a overcomplicatedsystem for a reason. Systems get built
like this to keep people from gettingthe rights enforced that they have as part
of the system. And that's becausepeople just don't have the knowledge, or

(36:13):
the wherewithal or the staying power toadvocate for themselves. And what you have
to do in many cases is litigatethe issue in order to get the hours
that you're supposed to get out ofthe system. So the National Academy of
Elder l Attorneys, New York LegalAssistance Group Valories Group NILAG, wonderful organization,

(36:36):
they did a study several years agocalled Mismanaged Long Term Care, and
what they found was when you wentto hearing, when you actually went to
fair hearing, you went through allof your administrative appeals, ninety nine percent
of the determinations made at the initialassessment level were overturned and hours were added
to those awards. And so Iwant to turn over to Jacob as our

(36:59):
litigate and we you do the fairhearings Frank on the Medicaid side and Jacob
does some litigation. But one ofthe other panelists, and she was actually
on the last panel, was someonefrom Living Resources. And Living Resources is
a wonderful local organization that services peoplewith developmental disabilities, and they're in this

(37:20):
Medicaid system too. It's operated notthrough the Department of Health, but through
another department called OPW d D.And so just talk a little bit about
how people would disabilities get the serviceand what they're in for because they're in
the same system. Yeah, absolutely, So I actually was dealing with Living
Resources just this week. We hada situation of developmentally disabled adult who is

(37:49):
struggling currently placed into a hospital psychiatricunit just like you mentioned earlier, but
shouldn't be unfortunately, due to theunavailableity of resources and alternative living arrangements that
would provide the level of assistance andsupport that this man needs. Uh,
you know where the family is findingthemselves really in a bind. So OPWDD

(38:15):
is a great agency. And whatdoes that stand for? So it's the
Office for People with Developmental Disabilities.And when we talk about developmental disabilities,
we can you know, as arange. But that is the qualifying factor
for applicants. When you're applying forOPWDD services. One of the big questions

(38:35):
that gets considered is whether the applicantsto disability does in fact qualify as a
developmental disability. So we look atintellectual functioning, uh, you know,
IQ and cognitive functioning. We lookfor diagnoses such as cerebral palsy and autism
and other similar types of disabilities.And also, of course we're looking to
see that these are people whose disabilityis so severe that they can't you earn

(39:02):
an income on their own and otherwiseneed an intensive level of support on their
day to day life and living resourcesruns residences, they manage care in independent
living arrangements and group homes you know, small quads and things and group homes.
But they staff those cases, theymanage those cases, and they're one

(39:27):
of a number of groups that wework with. But they have a great
history. Fred earlier, who wasthe founder and CEO for forty plus years,
Who's who's a great pioneer in thisarea, and it's now Elizabeth Martin
who is the CEO. But theyprovide us some tremendous level of service and
the families of the people with disabilities, and this gets back to the aging

(39:50):
individuals with disabilities. Their main concernis that their loved one have a safe,
secure, independent place to live.And I think the key there,
uh you know, and is independent, right, Um, The focus is
always on inclusion. These are individualswith disabilities, but we want them to
be as independent as possible that theirskills and strengths will allow. So there's

(40:22):
various levels to the residential uh youknow, aspects of this and the assisted
living, the amount of support thatcan be provided. Right So, there
are some individuals who are going toneed around the clock twenty four seven supervision
and support. But there's others whoare encouraged to go out and have internships,
have vocational training or jobs, goout and visit with families and members

(40:46):
and things like that. They actuallyhave a campus at Saint Rose where they
have people going to school. Absolutelyabsolutely, and that's encouraged to the maximum
degree that that individual strengths will willallow. For now, this isn't hasn't
always been the case. And ifwe go back in time, there was

(41:07):
a facility that became a news storyand it was called Willowbrook. And you're
probably too young to remember Willowbrook.I've heard the horror stories. But there
were people with disabilities who were beingwarehoused and just horror, horror of how

(41:27):
they were being kept and fed andnot clothed properly, not sanitized properly,
and being just herded into rooms.And so when that hit the news,
there was a tremendous outcry across theboard. And of course the government jumps
on when there's a crisis and somethinglike that, an incident like that.

(41:47):
There were cases and there was litigation, and one case in particular that we
all learned and I learned it onthe fly, you probably learned in law
school, which was litigated up tothe US Preme Court called the Olmstead case.
And Olmstead is the seminal case thatsaid that government must provide care to

(42:08):
individuals in the most independent setting possible. And President Bush, not the first
but the second w signed something calledthe Olmstead Act, which codified or put
into law the Olmstead case, andOlmsted still stands both as a case and

(42:30):
as a statute, so that thereis a mandate that the government provide care
to people in the most independent settingpossible. And that's something that it takes
litigation to enforce in certain cases becauseit's cheaper, not too so it's something
that is a constant, dynamic anda force that needs to be pushed back

(42:51):
against, which is the government's tendencyto retrench to the least costly, most
easily admits process. And that's notnecessarily an independent department, right. And
it's also when we talk about,you know, the government, it's not
necessarily the government who was providing theseservices, but rather government decisions, meaning

(43:13):
as well as the court when theyissue decisions for example guardianships. It is
still this concept of of you know, providing the least restrictive programming for the
particular individual, which goes directly againstthe old school version, which was exclusion.
Right. Previously, if an individualshowed uh, you know, signs

(43:37):
of aging, dementia, whether itwas a developmental disability, they were excluded.
They were placed into places on theirown to you know, encouraged to
avoid being out in the community.Cases like the Olmstead case and other similar
cases have changed modern day approach tothat. We see it in Guardianships Article

(44:00):
eighty ones, for example, thecourts will insist that the guardian essentially swear
that they will provide and as independentliving arrangements as possible give the incapacitated person
as much control over their medical decisionmaking and their financial decision making as they're

(44:22):
able to. Right and organizations aretaking this challenge, and again there are
dedicated people that are in this world. Thank God for them because they are
fighting the fight to make sure thatpeople get the care they need, that
they have the services. And we'regoing to come back after a short break
and talk about some innovation in caringfor people both elder and with disabilities,

(44:45):
and something that Living Resources is pioneeringright here in Schenectady County. So stay
with us. You're listening The LifeHappens every Saturday morning on talk radio WGY
eight ten am one oh three oneFM. We'll be right back after this
short break. I'm just a poorboy. My story sound tonsistence, a

(45:19):
pocket full of We are back.Thanks for listening this morning the Life Happens
Radio. I'm Lou Pierro and I'mhere now talking to Jacob Vercherau, associate
with piero'connor and Strauss, and we'retalking about caring for our loved ones and
in particular people who have special needsor other abilities, as sometimes we say.

(45:40):
I went to a National Academy ofElder Law attorney's meeting last week and
they had a speaker there. Oneof their keynote speakers was an attorney in
a wheelchair who is a professor,a law professor who advocates for people with
disabilities, and she was talking aboutsomething she called able, which is a

(46:01):
prejudice towards people with disabilities in theworkplace and in society. And that is
something, as we talked about inthe last segment, Jacob, that has
been very pervasive until somewhat recently andthe almost dead case in the other cases
have opened the door to resources likeLiving Resources, the group that we're talking

(46:22):
about, which is a provider righthere in the Capital region, and I'm
going to talk about something they're doinginnovatively, but you work with the families
and talk a little bit about becauseMedicaid pays OPWDD two. So are the
people with disabilities working with the samerules for Medicaid eligibility To some degree,

(46:42):
they're going to have to you know, apply and qualify for Medicaid. But
you know, thankfully we do haveagencies like Living Resources and other similar agencies
that will work directly with these applicants. Often they start out as clients with
us, whether it's the children ofour client or the clients our clients themselves.
Frank mentioned the nice Art Pool Trustearlier. Arcs are major organizations across

(47:08):
the country that provides services to peoplewith disabilities as well, and there are
a number of those other providers locally. Living Resources happens to be one that
was on the panel at the forumon Thursday. Yeah, and we work
with them a lot. And butthe you know, working through the application
process, like the Medicaid process,and like a lot of the stuff that

(47:31):
we help our clients with, itcan be daunting and the assets and income
rules still apply correct, So youknow, we are constantly doing our best
to to ensure that any any clientsthat could you know, walk the threshold
so to speak, to qualifying orbeing disqualified. Any actions that we can

(47:54):
take from the legal perspective to ensurethat they'll qualify for these benefits that are
absolutely necessary and critical for these people'slives. You know, we will will
take over and do some of thatfor them. So what are some of
the ways, Because I know thatpeople with disabilities have some special opportunities,

(48:15):
let's call them to plan and truststhat are applicable to them that are not
applicable to people without disabilities. Youmentioned them earlier. Just tell our listeners
a little bit about how those trustswork and how you can get down to
the income and asset levels to qualifyfor medigaid and still have other resources available
to you. Sure, So,Supplemental needs trusts also known as special needs

(48:38):
trusts, are a very valuable mechanismthat can be used by the families of
individuals who you know, whether theyhave children or family members who are disabled
and rely very heavily on their governmentbenefits. The place I think that I
see them a lot is in theform of when legal settlements come through.

(49:02):
Right, so there's a personal injurycase somebody with a disability who receives government
benefits gets into an automobile accident,or you know, we see some pretty
egregious stuff happen, but regardless ofthe circumstances, they then are the recipients
of a legal settlement. Of course, the other place, and probably more

(49:22):
common, is family inheritance. Sothese are people who applicants who have to
continue to qualify under these strict Medicaidrequirements, these income requirements, and that
means that if, for example,these legal settlements or these family inheritance were
to go directly to these individuals,they would lose their government benefits and in

(49:45):
exchange, they would be required topay for them privately and lose those numbers
that you you know, provided earlier. We're talking anywhere between two and three
hundred thousand dollars a year potentially forsome of them. Absolutely for the residential
care. It's at least that exactly. So you know, we may have
somebody who may have need at leastten, fifteen, twenty more years receiving

(50:07):
these government benefits, their entire legalsettlement or family inheritance would be exhausted well
before you know, the end oftheir life. So when people inherit the
money into their own name, wherethey get a personal injury settlement that's in
the name of the disabled individual thatrequires a particular type of trust. How

(50:29):
does that work? Correct? Sowe form supplemental needs trusts, which essentially
takes the control away from our client, right, the disabled individual. Instead
of the money flowing to him orher personally, it flows into the trust.
The trust is designed so that allof the income and principle of the

(50:51):
trust can be used to supplement thegovernment benefits that this individual may be receiving
without ever flowing directly to that individual. Right. So it's not a loophole,
right, it's it's more than that, it's very much statutory. This
is a you know, anybody who'snot taking advantage of a supplemental needs trust

(51:12):
is doing themselves a disfavor. Right. But it allows the money the legal
settlement or the family inheritance that i'veyou know, explained earlier. It allows
the individual to continue to benefit fromthat without exhausting it down to zero,
while the government and the Medicaid benefitswill continue to pay for whatever it may
be, right, respite services,vocational training, home healthcare aids, and

(51:38):
you name it. When we're dealingwith parents of people with disabilities, and
they're creating, we're creating their willsand trusts and revocable trusts or medicaid trusts.
Creating a special needs trust there isdifferent because that's quality third party trust
and it has different provisions. Thetrust that you described first, the trust

(51:58):
with your own settlement has to goback to the state for what you make
what you received in medicaid. Butwhen you do a third party trust,
when the parent does it in thewill or the trust for the child,
there is no payback provision as theycall it. So that's the preferred method,
right, But the fallback is thefirst party sint, which can be
used for assets or income of thedisabled individual. Right. But you're bringing

(52:22):
up a good point as well,which is, you know, I think
a standard provision in our wills thesedays is we have to anticipate the possibility
that your children could become disabled,even if they aren't. Now we see
it every day. Unfortunately in ourworld. A provision that can be added
into anybody's will is that in theevent that somebody you know, your child
becomes disabled and qualifies for government benefits, if you want them to still be

(52:47):
able to benefit from the family inheritancewhile still benefiting from the governmental you know,
medicaid benefits, and such. Thenone way to do that is adding
in a provisions of the will thatwould create an SNT for that individ jewel
upon your death. Well said,and well said. As the last word,
Living Resources is using technology. Imentioned that they had a special program
up in Saratoga County in independent living. Technology was talked about a lot at

(53:10):
the Elder Law Forum and it isthe future, and the future for us
is next week here on WGY ateleven am. We hope you can join
us. Then, thanks for listeningtoday. We'll see you next week.