AUGUST 22, 1994 VOLUME 2, NUMBER 7
Some recent court cases of note to those caring for or working with elders:
Assaultive Resident Can Not be Moved from Nursing Home
“E.R.” is a demented patient residing in a Washington State nursing home, Park West. E.R. sufered a stroke in 1991 which reduced his ability to control sexual impulses. E.R. repeatedly engaged in sexually assaultive behavior. Park West placed him on a “15-minute alert”, which required that staff members physically view E.R. at least every fifteen minutes. E.R. was also moved to a private room.
Nevertheless, E.R.’s behavior continued. Finally, Park West served E.R.’s guardian with a notice intended to require the guardian to find a new placement for E.R. The notice purported to require the guardian to move E.R. to another facility. It noted that E.R.’s needs could not be met at Park West, and that his conduct endangered the safety of other residents.
E.R.’s guardian opposed the transfer and requested an administrative hearing. The Administrative Law Judge ultimately ruled that Park West could not force the guardian to make the move. The ALJ ruled that E.R. had rights pursuant to OBRA93, the Fair Housing Amendments Act and the American’s with Disabilities Act, and that Park West did not have authority to order his removal unless he posed a danger to other residents that could not be eliminated by a plan of care. The Administrative Law Judge specifically found that E.R.’s supervision was “intermittent and inconsistently applied.” E.R. was permitted to remain at Park West and the facility required to develop and implement a care plan to deal with his actions. In re E.R., Washington State Office of Hearings and Appeals, DSHS, March 16, 1994. [Note that the result might well have been different if E.R. had lived in Arizona.]
Trust Available to Medicaid Applicant
When Pennsylvanian Louis Rosenberg died in January, 1976, his Will left $65,000 in a trust for his wife Mary. The trust required provided for income to be used for Mary, and also permitted use of principal for her medical and surgical expenses and other “unusual” needs.
In 1992, Mary Rosenberg (by then living in a nursing home) exhausted her personal assets. Her son (who was also one of the trustees of the trust) applied for Medicaid long-term benefits on her behalf. The state Medicaid agency denied eligibility, finding that the trust principal was “available” to Mary. Her son appealed on her behalf unsuccessfully.
Mary died shortly thereafter, and her estate sought judicial review of the denial. The court agreed with the Medicaid agency, finding that Louis had intended to make the funds available to pay for Mary’s medical bills, including nursing care. Rosenberg v. Dep’t. of Public Welfare, Penn. Commonwealth Court, June 13, 1994. [This case, with its unsurprising result, points out the importance of knowledgeable drafting of estate planning documents when long-term care is anticipated.]