This anecdote comes from a local Arizona Dept. of Developmental Disabilities (DDD) case worker’s decision to refuse to continue attendant care benefits to a wheelchair bound person suffering from Cerebral Palsy (CP). I learned about it from an advocate for the family involved.
Everyone is already aware that funding for the disabled in Arizona has been slashed as a result of the economic downturn (and the utter failure of state government to put aside funds during Arizona’s real-estate bubble heyday for the inevitable downturn—every penny from property taxes was spent before it was even collected, thanks Janet Napolitano!). Across the board reductions in certain programs and the complete elimination of others explain how some of the cuts were achieved, but here is an example of the dirty underbelly of the state system which very much resembles what I reported on a few months ago from an Ohio case.
A few months ago a DDD case worker was doing the annual review of her CP client, and without warning suddenly announced that she was cutting 100% of the family’s Medicaid funding for “attendant care”. This person requires assistance with virtually all of her life skills, including bathing, dressing, brushing hair and teeth, etc. Attendant care is the funding which enables a family to obtain assistance for such care. This person had been receiving approximately 180 hours a month in attendant care ever since she began receiving Medicaid. No explanation was given to the family, which then sought the assistance of an attorney.
The attorney pursued the matter through the 2 levels of administrative appeal (inside DDD’s own organization), where appeals are routinely turned down. This forced the attorney to file suit in Superior Court for denial of the person’s rights guaranteed under federal and state law. DDD filed an Answer denying that the family’s rights had been violated and the case was scheduled for trial. What happened next puts Arizona right next to Ohio on the Wall of Shame.
The attorney for the state rushed over to the family’s attorney with a settlement agreement in his hand moments before the trial was to begin. As in the Ohio case (see my Nov 28, 2012 post), the key issue for the state of Arizona, whose bluff had been called by a family willing to bear the costs and mental anguish of the litigation process, was to prevent the case from being publicized. The family got all of their attendant care benefits restored retroactively, but were barred from speaking about the matter forever. Obviously the state is afraid that if it becomes known that they are using intimidation and the internal appeals process (where the family always loses) to deny legal rights to persons with disabilities they will face a deluge of litigation which they can not win.
Families receiving government benefits for a disabled family member need to be aware of these unscrupulous tactics.
Not infrequently I learn of parents who neglect to obtain guardianship of their disabled children after the child becomes an adult, typically because they are unaware of the fact that they have lost all legal rights to make decisions for their child. A recent court decision in Kentucky (cited in the NAELA eBulletin) involves a case where the parents attempted to execute a Power of Attorney on behalf of their child, to no avail.
The lesson is, if your child is not competent to make decisions concerning their own best interests then a guardian should most likely be appointed (whether that guardian is a family member or someone else is a different issue).
Parents of Disabled Adult Child Could Not Appoint Attorney-in-Fact for Adult Child (Ky. App.)
Deborah Rowe was mentally incompetent from birth, and her parents cared and provided for Deborah well into her adulthood. They never obtained an order of guardianship. In 2001, the parents executed a document entitled “Power of Attorney,” by which they purported to appoint Nancy Meadows as Deborah’s attorney-in-fact. Nancy began overseeing Deborah’s affairs and decided in 2007 that the best place for Deborah to live would be a nursing home. Nancy signed Deborah’s admission papers, including an arbitration agreement, as “PoA.” After Deborah died, her brothers, as co-administrators of her estate, brought a wrongful death action against the nursing home.
The defendant sought dismissal due to the arbitration agreement. The trial court denied the motion asserting that Nancy lacked authority to enter into the agreement and also denied the argument that the estate was estopped from denying the validity of the agreement. Defendant identified no law which permitted parents, on the basis of custody alone, to enter into contracts on behalf of a child, particularly one who was an incompetent adult. Additionally, Nancy did not have authority because the “Power of Attorney” executed by the parents did not make her attorney-in-fact for Deborah. Deborah’s parents could no more name Nancy attorney-in-fact for Deborah than they could name Nancy attorney-in-fact for each other. There was no apparent authority.
GGNSC Stanford, LLC v. Rowe, 2012 WL 4208924 (September 21, 2012)
What follows is an email which I received from an attorney friend who knew that I practiced elder law and thought that my clients would appreciate this warning. (The names have been changed.)
“On Thursday morning Aunt Betsy died in Cleveland. I went over to help my Mom with funeral arrangements and will be there on Monday for the memorial service.
A CAUTIONARY TALE: You may recall that 3 weeks ago I went to Cleveland to help Mom get Betsy’s papers in order. Included among them were her healthcare power of attorney and her Living Will. When everything was in order I came home. A few days later Betsy was moved to another facility. They had her sign a new packet of admission papers, which included new directives calling for what is known as “Full Code“, not “Do Not Resuscitate” as she had previously directed. How mentally competent Betsy was at that point is a good question, but what she signed authorized the new hospital to do whatever they deemed necessary to keep the body alive. This usually entails breaking ribs to get at the heart, inserting tubes where ever, and, as far as I am concerned, massive abuse. This is one of the prices we pay for living in such a litigious society. Fortunately one of Betsy’s friends noticed the directive change and demanded that the doctor in charge come to Betsy’s room and explain the procedures. Betsy could only nod ‘No’ to each and was only capable of making an ‘x’, but she was allowed to execute a new Living Will and thus to die in relative peace.
The lesson is, make sure that your medical directives reflect your wishes and are constantly monitored at each medical facility. The default procedure is “Full Code”.