Continuum The

Issue 2 Summer 2015

If someone you love is a nursing

home resident, you may have won-

dered what rights they have under

the law. Fortunately, residents are

protected under federal and state

laws that help ensure they get the

care and services they need. These

rights can vary by state.

The nursing home must provide the

resident with a written description of

his legal rights. It’s always a good

idea to keep the information your

loved one receives about rights,

admission and transfer policies, and

other topics in case you need to

access it later.

Medicare beneficiaries have certain

guaranteed rights and protections.

In addition, federal law specifies

that nursing home residents also

have the following rights:

Freedom from discrimination

Nursing homes don't have to accept

all applicants, but they must comply

with Civil Rights laws that don't

allow discrimination based on race,

color, national origin, disability, age,

or religion under certain conditions.

If you believe that your loved one

has been discriminated against,

contact the Department of Health

and Human Services, Office for

Civil Rights at (800) 368-1019.

Respect

Your loved one has the right to be

treated with dignity and respect. As

long as it fits your love one’s care

plan, he has the right to make deci-

sions about his daily schedule,

including when to go to bed, get up

in the morning, and eat meals. Your

loved one also has the right to

choose the activities he wants to

participate in.

Freedom from abuse & neglect

Your loved one has the right to be

free from verbal, sexual, physical,

and mental abuse, involuntary

seclusion, and misappropriation of

property. This includes, but isn't lim-

ited to, staff, other residents, con-

sultants, volunteers, staff from other

agencies, family members or legal

guardians, friends, or other individu-

als. If you believe that your loved

one’s needs haven’t been met or

that he has been abused or neglect-

ed, report this to the facility, your

family, your local Long-Term Care

Ombudsman, or your State Survey

Agency. It may be appropriate to

report the incident of abuse to local

law enforcement or the Medicaid

Fraud Control Unit (their phone num-

ber should be posted in the nursing

home).

Freedom from restraints

Physical restraints are any manual

method or physical or mechanical

device, material, or equipment

attached to or near a resident’s body

so that he or she can't remove the

restraint easily. Physical restraints

prevent freedom of movement or

normal access to one's own body.

A chemical restraint is a drug that's

used for discipline or convenience

and isn't needed to treat medical

symptoms.

It's against the law for a nursing

home to use physical or chemical

restraints, unless it's necessary to

treat medical symptoms. Restraints

may not be used to punish or for the

convenience of the staff. Your loved

>> TURN TO PAGE TWO

Know Your Loved One’s Rights

Elder Law Practice of Timothy L. Takacs 201 Walton Ferry Road, Hendersonville, TN

Federal and State Laws Protect Residents of Nursing Homes

P3 / Read a review of

Being Mortal, a best-

seller about the state

of end-of-life care in

the U.S.

P5/ Caregiver guilt

can be overcome.

These simple tips

can make all the

difference.

P6 / Don’t fall for the

Grandparent Scam,

the latest in a long

line of financial fraud

targeting seniors.

P4 / Toffee Bars are

an Elder Law Prac-

tice staff favorite and

the ultimate Takacs

Tidbit.

The Continuum / Page 2

Know Your Loved One’s Rights >> FROM PAGE ONE

one has the right to refuse restraint

use except if he is at risk of harming

himself or others.

Information on services & fees

You and your loved one must be

informed in writing about services

and fees before your loved one

moves into the nursing home. The

nursing home can't require a mini-

mum entrance fee as a condition of

residence.

Money

Your loved one has the right to

manage his own money or to

choose a trusted person to manage

these affairs. If your loved one

wants the nursing home to manage

personal funds, he must sign a writ-

ten statement that allows the nurs-

ing home to do so. However, the

nursing home must allow your loved

one to access bank accounts, cash,

and other financial records. Your

loved one’s money (over $50) must

be placed by the nursing home in an

account that will provide interest.

They must provide quarterly state-

ments. The nursing home must pro-

tect funds from any loss by buying a

bond or providing other similar pro-

tections.

Privacy, property, & living

arrangements

Your loved one has the right to pri-

vacy, and to keep and use personal

belongings and property as long as

they don't interfere with the rights,

health, or safety of others. Nursing

home staff should never open your

loved one’s mail unless he allows it.

Your loved one has the right to use

a phone and talk privately. The

nursing home must protect your

loved one’s property from theft.

This may include a safe in the

facility or cabinets with locked

doors in resident rooms. If your

loved one and his spouse live in the

same nursing home, they are enti-

tled to share a room (if they both

agree to do so).

Medical care

Your loved one has the right to be

informed about his medical condi-

tion, medications, and to see his or

own doctor. Your loved one also

has the right to refuse medications

and treatments and to take part in

the development of his care plan.

Your loved one has the right to

view his medical records and

reports.

Visitors

Your loved one has the right to

spend private time with visitors at

any reasonable hour. The nursing

home must permit family to visit at

any time, as long as your loved one

wants to see them. Your loved one

doesn't have to see any visitor he

doesn't want to see. Any person

who helps your loved one with

health or legal services may see

him at any reasonable time. This

includes doctors, representatives

from the health department, and a

Long-Term Care Ombudsman,

among others.

Social services

The nursing home must provide

your loved one with any needed

medically-related social services,

including counseling, help solving

problems with other residents, help

in contacting legal and financial pro-

fessionals, and discharge planning.

Complaints

Your loved one has the right to make

a complaint to the staff of the nurs-

ing home, or any other person, with-

out fear of punishment. The nursing

home must resolve the issue

promptly.

Protection against unfair transfer

or discharge

Your loved one can't be sent to

another nursing home or made to

leave the nursing home unless it's

necessary for his own welfare,

health, or safety, or that of others,

his health has declined to the point

that the nursing home can't meet the

care needs, his health has improved

to the point that nursing home care

is no longer necessary, services

haven’t been paid for, or the nursing

home closes. A nursing home can't

make your loved one leave if he or

she is waiting to get Medicaid. The

nursing home should work with other

state agencies to get payment if a

family member or other individual is

holding your loved one’s money.

Your family & friends

Family members and legal guardi-

ans may meet with the families of

other residents and may participate

in family councils. If you are your

loved one’s legal guardian, you have

the right to look at all medical rec-

ords about your loved one. You have

the right to make important decisions

on his or her behalf. You can play a

major role in making sure your loved

one gets good quality care.~

The Continuum / Page 3

In Being Mortal: Medicine and What

Matters in the End, author Atul

Gawande looks at the problems of

the aging population and inevitability

of death. He points out that many

physicians are so hell-bent on pre-

serving life that they cause horrible

and unnecessary suffering.

Gawande goes on to say that some-

times in striving to give a patient

health and survival, their well-being

is neglected. He looks at the "Dying

Role" as the end approaches de-

scribing it as the patient's ability to

"share memories, pass on wisdom

Book Review: Being Mortal and keepsakes, settle relationships,

establish legacies and

make peace with their

God. They want to end

their stories on their own

terms." He feels that if

people are denied their

role, out of obtuseness

and neglect, it is cause for

everlasting shame.

Gawande provides the

reader with an understand-

ing that though end of life care is

inevitable, there are ways to

humanize the process. The

patients, their families and medical

professionals are coming

to terms with how to better

face the decision making

processes that will be, in

many cases, the last deci-

sion. The subject matter is

complex and sensitive but

the moral of the book is

that "The End Matters."~

Excerpted from a book

review by Barbara Geach

posted on Amazon.com, September

26, 2014. Reprinted by permission.

Free Starter Kit Simplifies End-of-Life Talks Too many people are dying in a way

they wouldn’t choose, and too many

of their loved ones are left feeling

bereaved, guilty, and uncertain.

The Conversation Project seeks to

change that by providing tools, tips

and resources that make it easier for

people to talk about their wishes for

end-of-life care. The goal is to make

sure that our own wishes and those

of our loved ones are expressed

and respected.

Launched in 2010 by syndicated

columnist Ellen Goodman and oth-

ers, the Conversation Project aims

to transform our culture so we shift

from not talking about dying to talk-

ing about it. The founders believe

it’s time to share the way we want

to live at the end of our lives. And

Life’s all about having a plan B

Advance Directives and how to use them

it’s time to communicate about the

kind of care we want and don’t want

for ourselves. The place for this to

begin is at the kitchen table—not in

the intensive care unit—with the

people we love, before it’s too late.

To access the Starter Kit, visit http://

theconversationproject.org/starter-

kit/intro/.~

Looking for an interesting presentation for your civic

club or community group? Elder Law Practice staff

members are equipped to speak on a variety of topics

related to elder law, elder care, public benefits and

much more. In one of our newest presentations, Life’s

all about having a plan B, Associate Attorney Barbara

Boone McGinnis offers straight talk about Advance

Directives, what they are and how to develop them.

Contact the Elder Law Practice office at(615) 824-2571

to schedule your presentation.~

Speaker ’s Bureau Offers Free Presentations

The Continuum / Page 4

TennCare CHOICES is a program

for adults (age 21 and older) with a

physical disability and seniors (age

65 and older) that offers access to

home and community-based ser-

vices (HCBS). There are three

CHOICES groups:

Group 1 is for people of all ages

who receive nursing home care.

Group 2 is for adults with a physical

disability and seniors who qualify to

receive nursing home care, but

choose to receive HCBS instead.

Group 3 is for adults with a disabil-

ity and seniors who don’t qualify for

nursing home care, but need a

more moderate package of HCBS

to delay or prevent the need for

nursing home care.

CHOICES: A Brief Review

Toffee Squares

Oven: 325 F

Ingredients

1 cup butter 1 cup light brown sugar 1 egg yolk 1 teaspoon vanilla extract 2 cups all-purpose flour 1/2 teaspoon salt 1 large bar Hershey’s chocolate 1 cup pecans

Directions

Cream butter and sugar thoroughly.

Add egg yolk and vanilla. Add flour and salt. Mix well.

Spread batter evenly in ungreased 10 x 15 inch pan.

Bake for 20 minutes. Remove from oven and put chocolate bar on at once. As it melts, spread and sprin-kle with nuts. Cut into bars while slightly warm.

TAKACS TIDBIT

Many Elder Law Practice staff mem-

bers are accomplished cooks who

enjoy sharing their creations with

others. One favorite recipe, Toffee

Squares, comes from Helen Powley,

Tim Takacs’ maternal grandmother.

Though no one knows where Grand-

ma Powley got the recipe, everyone

knows that Toffee Squares are

really, really, really good.

To qualify for and remain in

CHOICES, a person must need the

level of care provided in a nursing

home; OR be "at risk" of needing the

level of care provided in a nursing

home; AND qualify for Medicaid long

-term services and supports.

To qualify for Medicaid long-term

services and supports: (1) The indi-

vidual’s income can't be more than

$2,199 per month (if it is, a Qualify-

ing Income Trust may be estab-

lished); (2) The total value of things

the person owns can't be more than

$2,000 (excluding the current resi-

dence) AND (3) The person can not

have given away or sold anything for

less than what it's worth in the last

five (5) years.~

Caring for a person with Alzhei-

mer’s disease at home is a difficult

task and can become overwhelm-

ing at times. Each day brings new

challenges as the caregiver copes

with changing levels of ability and

new patterns of behavior. Research

has shown that caregivers them-

selves often are at increased risk

for depression and illness, espe-

cially if they do not receive ade-

quate support from family, friends,

and the community.

The Alzheimer’s Caregiver Guide

published by the National Institute

on Aging offers valuable guidance

for family members caring for loved

ones with the disease. Download a

free copy of the guide at http://

www.nia.nih.gov/sites/default/files/

alzheimers_caregiver_guide.pdf.~

Alzheimer’s Guide Offers Helpful Tips

THIS ISSUE: Tim Takacs introduces a new series of

videos about Trusts. To watch the first video in the

series, scan the QR code on the right or go to

https://youtu.be/sCv6TlpcVyc.

Check out the Elder Law Practice YouTube Channel Did You Know?

The Continuum is now offered elec-

tronically. The email version contains

additional links and resources. To

receive future issues of the newslet-

ter via email, call (615) 824-2571 or

email continuum@tn-elderlaw.com.~

The Continuum / Page 5

Q What is TennCare (Medicaid)

estate recovery?

A Estate recovery is the pro-

gram required by the State of

Tennessee that seeks to recover

certain funds paid by TennCare

(Medicaid) after the person is

deceased. States must pursue

recovery of costs for medical assis-

tance consisting of nursing home

or other long-term institutional ser-

vices; home and community-based

services, including home health

and private duty nursing; hospital

and prescription drug services pro-

vided while the person was receiv-

ing nursing home or home and

community-based services; and

other items covered by the Medi-

caid State Plan.

Q My mother was recently

awarded a VA Death Pension.

Will she be audited in the future?

A Pension recipients and/or

their Fiduciary Agents may be

asked to complete a periodic Eligi-

bility Verification Report (EVR) ver-

ifying any changes in income, net

worth and medical expenses. Fail-

ure to return a properly completed

EVR, if requested to do so by VA,

will result in termination of a pay-

ee's income-based benefits. To

view the EVR online, visit http://

www.vba.va.gov/pubs/forms/VBA-

21-0516-1-ARE.pdf.

Q My father will soon be moving

to Tennessee from another

state. Will the Advance Directive he

drafted in that state be honored in

Tennessee?

A Laws differ somewhat from

state to state, but in general, a

patient’s expressed wishes will be

honored.

Q My mother is on Medicare and

needs surgery. I would like for

her to get a second opinion. Does

Medicare Part B pay for second

opinions?

A Medicare Part B helps pay for

a second opinion before sur-

gery provided that the surgery is

medically necessary and meets

certain criteria. To find a doctor for

a second opinion, visit medi-

care.gov/physiciancompare, call

(800) 633-4227 or ask your doctor

for the name of another doctor to

see for a second opinion. Members

of Medicare Advantage Plans

should ask their specific plan or

refer to their Evidence of Coverage

booklet for instructions.~

For many caregivers, guilt is a con-

stant companion. Some worry that

they aren’t doing enough. Others

may experience guilt for feeling

trapped, tired, angry or irritable.

Caregivers may also experience

guilt when they take time to care for

themselves.

Painful feelings — such as guilt,

sadness and anger — are like any

other pain. It’s the body’s way of

saying, “Pay attention.” Just as the

pain of a burned finger pulls your

hand from the stove, so, too, guilt

can guide your actions. Though

caregiver guilt can be instructive, it

can also be destructive. Guilt can

slow the normal grief process as it

drains the energy needed to work

through the loss.

How can you manage caregiver

guilt?

Be compassionate with yourself.

Discuss concerns with family,

friends or support group.

Ask neighbors for help.

Reach out to community organi-

zations.

Look for the higher purpose in

caregiving

Take action to meet your needs.

Instead of berating yourself, you can

alleviate guilt by remembering that

your efforts have made a difference

in your loved one’s final days.~

OVERCOMING

Caregiver Guilt

The Continuum / Page 6 The Continuum / Page 6

The Grandparent Scam is so sim-

ple and so devious because it

preys upon one of older adults’

most reliable assets: their hearts.

Scammers will place a call to an

older person and when the mark

picks up, they will say something

along the lines of: “Hi Grandma, do

you know who this is?” When the

unsuspecting grandparent guesses

the name of the grandchild the

scammer most sounds like, the

scammer has established a fake

identity without having done a lick

of background research.

Once “in,” the fake grandchild will

usually ask for money to solve

some unexpected financial prob-

lem (overdue rent, payment for car

repairs, etc.), to be paid via West-

July 2: Coffee Connections for Elder Law Practice cli-ents. Educational gathering for spouses of clients who are living in long-term care facilities. 2:00 p.m.—3:00 p.m. 201 Walton Ferry Road, Hendersonville. RSVP requested. (615) 824-2571.

July 21: Quarterly Caregiver Children Meeting. Educational gathering for children whose parents are Elder Law Practice clients. 6 p.m. - 7 p.m. Loca-tion to be announced. RSVP requested. (615) 824-2571.

July 28: Surviving Spouse Group. Educational gathering for surviving spouses of Elder Law Practice clients. 12 p.m. - 1 p.m. 201 Walton Ferry Road, Hendersonville. RSVP requested. (615) 824-2571.

July 30: Game Changing Approaches to Dementia Care. Educational work-shop for family caregivers. 5:00 p.m.—7:00 p.m. Bluegrass Yacht and Country Club, Hendersonville. Register at www.dementiawise.com.

FREE Monthly Memory Screenings. First Friday of each month at 11:00 a.m. 1522 Wilson Pike, Brentwood. (615) 285-3455.

Alzheimer's Association Support Groups: Call (800) 272-3900 or (615) 315-5880 for dates, times and locations closest to you.

For more events, visit TN-ElderLaw.com or ElderLawEducation.com. ~

Beware the Grandparent Scam

On the Calendar

ern Union or MoneyGram, which

don’t always require identification to

collect.

At the same time, the scam artist will

beg the grandparent “please don’t

tell my parents, they would kill me.”

While the sums from such a scam

are likely to be in the hundreds, the

very fact that no research is needed

makes this a scam that can be per-

petrated over and over at very little

cost to the scammer.

If you suspect you or someone you

love has been the victim, call the

local police, your bank (if money has

been taken from your accounts),

and Adult Protective Services via

the Eldercare Locator at (800) 677-

1116 or www.eldercare.gov.~ Sometimes asking for help is the most

meaningful example of self-reliance.

― Unknown

The Continuum / Page 7

Guest Column

There’s no place like home, espe-

cially when it comes to creating a

healing environment during an ill-

ness or after a surgery. Most people

recover faster and the cost is usually

much less than lengthy hospital

stays.

WHAT is homecare? Homecare is

defined as skilled care delivered on

an intermittent basis outside a hos-

pital setting. Examples include nurs-

ing services; home health aid assis-

tance; and medical social services.

In order to be eligible for Medicare

reimbursement, homecare must be

intermittent and the patient must

meet all “homebound” criteria. In

addition to Medicare reimbursed

services, homecare companies can

provide nurses or caregivers that

stay from 2 to 24 hours shifts under

private duty. Some agencies also

provide non-skilled care or custodial

care, which consists of housekeep-

ing, shopping, etc. This type of care

is not covered by Medicare.

WHERE is homecare performed?

It can be most anywhere you call

home—from a single family dwell-

ing, apartment or assisted living

facility to a homeless shelter as long

the patient is consistently there for

visits from providers.

HOW do you get homecare? It

starts with a call and possibly a visit

to your doctor. Let him or her know

that you want homecare service.

Your doctor will contact a homecare

agency with orders. Keep in mind

that you and your loved one have

the right to choose the homecare

provider. If you choose someone

other than the one you were

referred to, make your wishes

known to your physician. The

homecare provider will then visit

the patient and develop a pro-

posed care plan with input from

both the patient and caregiver. The

physician must be willing to over-

see treatment and sign off on the

plan of care, which may be

renewed if certain criteria are met.

WHO pays for homecare?

Homecare expenses can be paid

by state and federally funded pro-

grams like Medicaid and Medicare,

private insurance, HMOs and

PPOs, or long-term care insur-

ance. Some patients pay for their

own care.

WHEN might homecare be

helpful? Homecare may be appro-

priate after a hospitalization, to

manage pain, to teach caregivers

about disease, to address gait or

balance issues, for medication

management, and to manage

behaviors and dementia.

Homecare agencies differ widely in

their capabilities and skill.

Research all your options and

choose a homecare provider as

carefully as you would choose a

surgeon or a

hospital.

Carol Keopf,

R.N. is Nurse

Liaison for Van-

derbilt Home

Care Services

Inc. Contact

Carol at (615) 936-0336 or at

carol.keopf@vanderbilt.edu.~

It’s not the load that breaks you down.

It’s the way you carry it.

― Lena Horne

The Who, What & Where of Home Care

Information contained herein may contain general explanations of

laws. It should not be considered as legal advice. Please seek counsel

from an attorney regarding legal planning.

Copyright 2015

The Continuum is a quarterly newsletter designed to

enhance the service Elder Law Practice of Timothy

L. Takacs provides to clients. Please direct feed-

back, questions and comments to continuum@tn-

elderlaw.com.

Phone: (615) 824-2571

Fax: (615) 824-8772

Toll-Free (866) 222-3127

Family Education Website:

www.tn-elderlaw.com

Professional Education Website:

www.elderlaweducation.com.

201 Walton Ferry Road

Hendersonville, TN 37075

*** NOTE: If you did not receive this issue by mail but would

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call (615) 824-2571. ***

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NASHVILLE, TN

PERMIT NO. 3731

Tim Takacs, CELA

Certified as an Elder Law Attorney by the

National Elder Law Foundation

Certified as an Elder Law Specialist in Tennessee

Barbara Boone McGinnis, JD Associate Attorney

Lisa Proctor, Office Manager

Emily McCord, LMFT, Elder Care Coordinator

Debra King, LMSW, Elder Care Coordinator

Bonnie Woodard, Medicare Specialist

Ann Elise Walston, Legal Assistant

Chelle Guidry, Legal Assistant

Bo Siler, Office Assistant