Here in our office in Grand Ledge, we were happy to learn about federal rulemaking that will eliminate most arbitration provisions in nursing home contracts.
Nursing home provider contracts have typically used a “take-it-or-leave-it” approach. A family or person entering the nursing home typically signs a many page contract with the home, and binding private arbitration is often included in the contract. Folks signed away their rights to have a trial or jury trial or even to consider a trial (some folks might like arbitration if it was an even playing field, but this was not typical of the nursing home admission contracts).
Unlike some business-to-business contracts where the parties have more freedom and time to negotiate the contract, most people needing a nursing home contract are not negotiating much of anything, and they in fact, are often in a very “rushed” situation. You know, the hospital discharge planner says they are releasing grandma tomorrow afternoon, or the caregiving spouse of a person with Alzheimer’s just fell and broke their own hip, and now we need a place for the parent with Alzheimers. And so on. You can picture the stress and rush that goes with most nursing home admissions.
In such tight, almost “pressure cooker” situations, virtually no consumer could argue about the arbitration provision. And that meant, for at least some folks, a real injustice was done.
On top of this, there had been a bit of confusion about who really could bind a nursing home resident to a contract. If they were mentally sharp but just physically frail, upon entry, one might argue, such provisions were not too different than other “standard” contracts and the nursing home resident/patient/person involved could have tried another place, or tried negotiation. They can sign the contract themselves, after all. So such contracts likely were binding on the nursing home resident.
But what of the person with Alzheimers who is actually signed in by a spouse? Is the spouse’s signature binding on the nursing home resident or patient? Under what authority? What if signed by an agent under a durable power of attorney? Or signed by a guardian but not a conservator?
So this idea of eliminating many of these arbitration provisions in most homes, is a good thing–we’ll see how the issue sorts itself out in the coming months.
You can learn more about this development from Modern Healthcare News here: http://www.modernhealthcare.com/article/20160928/NEWS/160929906 and if you have the courage to wade through this regulation and others, and wonder how much fun it would be to skim 700 some pages of regs, you can go here: https://s3.amazonaws.com/public-inspection.federalregister.gov/2016-23503.pdf
Other aspects of these new federal regulations or rules make improvements in regards to some other tough nursing home issues, that faced consumers. These include such things as the right of nursing home residents to have visitors, tighter restrictions against involuntary transfers, a different view or approach to care planning, and tougher rules for nursing homes refusing to readmit a nursing home patient after they have been hospitalized. The regs apply to homes that accept federal payment sources (such as Medicare or Medicaid) and that means most nursing homes will fall under the new rules/regs. The rules actually emerged from the federal Centers for Medicare & Medicaid Services.
And remember, if you need help qualifying for assistance to pay for a long term care stay, or if you have issues with a nursing home, you can call our firm to see how we might help.
Brad Vauter Grand Ledge, MI Elder Law
Sometimes you can learn a bit more about an area of law by attending a presentation of some kind. We give presentations at times usually while working with others. Sometimes we sponsor the presentation ourselves.
No matter how you pick up information on topics like this, remember to be careful. Legal presentations and seminars can usually only provide a general overview of the law and topics, and that is particularly true if the presentation is pretty short as almost no legal topic is stone cold simple.
Once in a while too, a presentation that seems neutral on its face is one given with a hidden agenda–to sell something. This doesn’t mean not to go to seminars sponsored by financial groups or investment groups or the like. But it does mean, that if you feel pressured to act immediately, you should trust your instincts and wait a bit or even seek counsel elsewhere.
A recent lunch-time presentation we gave to members of the Ingham County Bar Association Probate Section, in regards to gay marriage issues, is one example of a presentation we’ve given recently. Later this week we are giving another presentation on long term care costs (like nursing homes) and possible help with those costs via Medicaid or Medicare of both, to area seniors.
But for the quick thoughts on same sex marriage issues and probate after the Obergefell and Windsor decisions?
See that presentation here: http://bradvauterlaw.com/wp-content/uploads/2016/06/ingham-county-probate-presentation-2016.pdf
A while back the folks and staff at the State Board of Education in Michigan announced proposed guidelines (not legislation and nothing requiring actions by local school boards) for public schools addressing and working with LGBT students. (Lesbian Gay Bi-sexual Transgender–LGBT)
The Board of Education develops these suggestions in order to help school districts around the state. In fact, last year and this winter the Board and others worked on Special Education issues, and a little about that effort can be found here: http://www.michigan.gov/snyder/0,4668,7-277-73341-376468–,00.html
More recently the Board worked on issues surrounding the LGBT students found in our schools around the state and I think their draft report was a good step to help as schools and families and the public struggle with such issues, and I thought most of the suggestions made good sense. The draft guidelines took steps to make the students safer and to allow more expression for the students, in a safe way.
Not everyone thought the guidelines were smart though. There was quite a bit of push back. from some, and so the Board extended the comment period. Some of the objections from others seem to stem from their religious beliefs, which I think should have a limited role, at best, in public schools–for once you go down that road the obvious question is: which belief? And some seemed to have misunderstood the nature of the guidelines, since it is not legislation nor is it required.
Another big objection among some commentators seems to spring in part from concerns about letting minors do things or seek guidance, without much (if any) input from their parents–and this may seem troubling of course.
But in several areas of the law, including emancipation, treatment for sexually transmitted disease (STD), homeless youth, counseling, and a few other areas, we carve out small islands to let minors deal with some issues with professionals and others, without absolutely requiring mom or dad get involved.
While often enough mom or dad do eventually get involved, there have been enough cases around where mom or dad was the problem, or at least mom and dad had a heck of a time initially digesting what their child had to say. LGBT youth are still, studies find, more likely to be booted out from their homes, compared to others, and seem to have a higher suicide rate too. While less common that in the past, such youth are sometimes still ‘disowned’ by family.
Just as our decades of experience working with youth concerned about STD’s has shown, a smart approach to sensitive topics and issues, which can include working with others and not automatically assuming “father knows best” may have value too.
We commented, on the 11th on our firm’s letterhead. We think working with LGBT members of the community is worthwhile–and we’ve done that since we started. Likewise, we’ve worked with Special Education issues since we started. Not everyone has a chance to speak up–sometimes we can.
Our letter is below:
May 11, 2016
Kim Kovalchick, Supervisor
Michigan Department of Education
Coordinated School Health and Safety Programs unit
P.O. Box 30008
Lansing, MI 48909
Re: State Board of Education Statement and Guidance on Safe and Supportive Learning Environments for Lesbian, Gay, Bisexual, Transgender, and Questioning (LGBTQ) Students
To whom this may concern:
I write in support of the above named draft guidelines and think it is appropriate, and important for the Board to address the issues involved and to make suggestions for schools around the state that are trying to come to grips with the needs facing the transgendered individuals we find in our school systems, as well as the needs of teachers, communities and other staff working on education for all.
By way of introduction I am an attorney in private practice, and served a few years ago as chair of the elder law and disability rights section of the state bar of Michigan. Our practice includes elder law, lgbt work, estate planning and special education and disability representation.
I think the draft recommendations provide a pretty good snapshot of current thinking in the field and would offer a few other observations based on comments I’ve seen from others coupled with my own experiences.
First, it is important to note these are suggestions and not legislation, and giving weight to commentators thinking otherwise probably isn’t required.
Second, as to “bathroom safety” as some have suggested, we know already that little in these suggestions make bathrooms less safe, and that indeed, just last month at the Howard High School of Technology a girl was assaulted and died, in a traditional girls only bathroom, and her death was laid at the foot of the other girl’s action. But we have every reason to think these suggestions could make bathrooms a bit safer for those students who are transgendered.
Third, I note many suggestions are made by those who quote various religious texts, which I think may color their perception of the role of the Board and our public schools in these matters. As Article VIII of our Michigan Constitution makes clear, while religion and morality and knowledge generally are cited for a foundation of good government and support of education, we are not permitted really, nor should we countenance, specific religious texts of certain religions, quoted only in part and out of context. The Board should not create policy based on someone’s interpretation of portions of religious texts in a secular system such as we have, nor should the board give any weight to those making religious arguments against the proposal guidelines.
Fourth, I think it prudent to allow children to turn to others for guidance or at least information and research in a safe environment—and yes, I mean, without consulting or “telling” their parents. Again, many commentators suggested this bothered them a good deal—and at first blush they might seem to have a point. However, we know from legislation and public policy in this state, at least a few decades old, that there is support for the proposition that minors in sensitive areas, such as treatment of STD’s for instance (Seen MCL 333.5127 as amended, for example) may do so without parental consent. The safety and welfare of the individual, and the possibility that a shocked or dismayed parent might over-react and perhaps hurt a student with unwelcome news, is a basis for these sort of carve-outs from complete parental control. And as national statistics and materials cited in your own policies imply, lgbt youth, especially trans youth, face a delicate path forward, and more often are homeless, assaulted, or harmed in other ways, than non-lgbt youth. Why on earth would some commentators suggest that we put their life more at risk?
Fifth, although treated or labeled now as a Dysphoria in DSM 5, rather than the Disorder in DSM 4 the diagnosis of a person with the condition makes me think an intelligent and thoughtful and non judgmental and religion free approach is the best way to help students and staff coming to grips with the small per cent of students involved.
Sixth, as the Department of Justice and the Civil Rights office have already noted, their policy seems to indicate, at present, that gender disorder and trans discrimination complaints may well be treated as sex discrimination cases. As such, and until that policy is withdrawn by the feds or struck down by the US Supreme Court, a Michigan policy that discriminates against transgendered individuals might well be a costly and losing endeavor for the state, and as a taxpayer and as a general supporter of everyone’s human rights, I’d hope you would not make the policies discriminatory.
Bradley A. Vauter, J.D.
P.S. one of the earlier stories covering the draft guidelines can be found on the Education World website: http://www.educationworld.com/a_news/new-guidance-michigan-board-education-pushes-state-schools-allow-students-pick-gender
From time to time we hear about the aging population and the growth of our older citizens. But when we think of it, we don’t often think all that much of reaching 100. Perhaps we should, since some say the centenarian population world wide is slated to increase eight-fold by 2050.
Here is some information from the Pew Research Center which you might find of interest: http://www.pewresearch.org/fact-tank/2016/04/21/worlds-centenarian-population-projected-to-grow-eightfold-by-2050/
Elder law firms, like ours, can sometimes help with some of the legal issues that crop up for the elderly, in terms of care, long term care, finances, and legal planning. It might be smart to see an elder law attorney if you are quite old to see if your planning is up to snuff.
Name changes are not terribly difficult but some hoop jumping is usually involved.
Under the old common law, a person could change their name simply by common and constant use of the new name in place of the old (and so long as they didn’t do it to defraud, etc.).
But we live in a sort of “official document” world today, and so name changes on our various I.D. cards and the like often require some sort of proof or affidavit or court order. We can help you in Michigan, if you are working on a name change and find yourself confused a bit by the process, or want our professional help in making the name change.
A national group though, the National Center for Transgender Equality, has added a link about name change requirements with state by state postings on the laws involved, and you may want to look there for more info: http://www.transequality.org/documents
In Michigan the ACLU filed a case regarding some challenges to Michigan last spring, and in November, although the state of Michigan asked that the suit be dismissed, the Court denied the request, and the case continues. See more here: http://www.clearinghouse.net/chDocs/public/PB-MI-0010-0001.pdf and also here: http://www.aclumich.org/article/judge-permits-aclu-lawsuit-challenging-michigans-id-policy-move-forward