County: Harrison
Age: 82
Our client contacted us after receiving a letter from her local Water Board that a complaint was made regarding her water meters. According to the complaint she has two water meters on her property in violation of the West Virginia Code of Sate Rules. My client had this arrangrment for more than 18 years with the authorization of the Water Board. Apparently she arranged it that way so her disabled son could reside in an adjoining trailer on her property. The letter my client recieved requested that she respond by the end of the month. I contacted the Public Service Commission and the Water Board. Under the Rules, the Water Board can make an exception. Because our client's son is disabled and the second water meter was previously authorized, the complaint will be dismissed. My client does not need to take further action and may keep both water meters.
Monday, December 19, 2005
Friday, December 16, 2005
Case of the Week: 12/16/05
County: Randolph
Age: 62
This client contacted us when he received a bill from a health care provider that was 2 years old. The bill was for $1496. He recieved a summary from Medicare explaining the claim was made too late and he was only responsible for 20% of what Medicare would have paid had the claim been made properly. Working with a SHINE conselor, we were able to obtain a letter from CMS confirming that had the claim been submitted on time our client would have only been responsible for $110.22. Furthermore, the letter reiterated that my client is only responsible for the $110.22 eventhough Medicare never made a payment.
Age: 62
This client contacted us when he received a bill from a health care provider that was 2 years old. The bill was for $1496. He recieved a summary from Medicare explaining the claim was made too late and he was only responsible for 20% of what Medicare would have paid had the claim been made properly. Working with a SHINE conselor, we were able to obtain a letter from CMS confirming that had the claim been submitted on time our client would have only been responsible for $110.22. Furthermore, the letter reiterated that my client is only responsible for the $110.22 eventhough Medicare never made a payment.
Monday, December 12, 2005
Case of the Week: 12/9/05
County: Harrison
Age: 73
This client contacted us because she was having trouble collecting on a life insurance policy for her deceased husband. I contacted the insurance company on my client's behalf to check on the status of the claim and to provide information on where to find my client's deceased husband's medical records. The company acted quickly and reviewed my client's claim. After reviewing the claim it was determine that due to an error the policy was null and viod; however, the insurance company refunded the $700 her husband paid into the policy.
Age: 73
This client contacted us because she was having trouble collecting on a life insurance policy for her deceased husband. I contacted the insurance company on my client's behalf to check on the status of the claim and to provide information on where to find my client's deceased husband's medical records. The company acted quickly and reviewed my client's claim. After reviewing the claim it was determine that due to an error the policy was null and viod; however, the insurance company refunded the $700 her husband paid into the policy.
Friday, December 02, 2005
Case of the Week: 11/18/05
County: Hardy
Age: 76
This client is the legal guardian for her adult mentally disabled daughter. A doctor recommended sterilization for the daughter; however, declined to perform it without prior court authorization. My client felt that as a guardian she should be able to make this decision on her daughter's behalf. After researching the West Virginia Guardianship and Conservator Act I explained that some actions, like terminating parental rights, require prior court authorization. It is possible that since the procedure will render her daughter childless, prior court authorization is required. I also provided her with a copy of the relevant statute.
Age: 76
This client is the legal guardian for her adult mentally disabled daughter. A doctor recommended sterilization for the daughter; however, declined to perform it without prior court authorization. My client felt that as a guardian she should be able to make this decision on her daughter's behalf. After researching the West Virginia Guardianship and Conservator Act I explained that some actions, like terminating parental rights, require prior court authorization. It is possible that since the procedure will render her daughter childless, prior court authorization is required. I also provided her with a copy of the relevant statute.
Case of the Week: 11/11/12
County: Fayette
Age: 77
This client is the subject of predatory lending. She contacted us regarding her mortgage which she had fallen behind on. I reviewed the notice of foreclosing she received and the terms of her loan. One aspect of this case that hinted at predatory lending concerns insurance. Apparently the Mortgagor was charging the client for insurance even though she had her own. Also, the Mortgagor was very uncooperative about providing for a workout option for the client. I referred the client to Mountain State Justice. Interestingly, Mountain State Justice currently has other cases against the same Morgator who is a predatory lending.
Age: 77
This client is the subject of predatory lending. She contacted us regarding her mortgage which she had fallen behind on. I reviewed the notice of foreclosing she received and the terms of her loan. One aspect of this case that hinted at predatory lending concerns insurance. Apparently the Mortgagor was charging the client for insurance even though she had her own. Also, the Mortgagor was very uncooperative about providing for a workout option for the client. I referred the client to Mountain State Justice. Interestingly, Mountain State Justice currently has other cases against the same Morgator who is a predatory lending.
Case of the Week: 11/4/05
County: Berkeley
Age: 61
Client contacted us regarding bankruptcy. After determining that he is not judgment proof, I explained the changes in the new bankruptcy law and the differences in Chapter 7 and Chapter 13. He was mostly concerned about his car. I explained that under Chapter 7 his car can be reaffirmed or if below $2,400, can be completely exempted. Under Chapter 13 all property can be kept; however, since the only asset the client had was his car, Chapter 7 was recommended.
Age: 61
Client contacted us regarding bankruptcy. After determining that he is not judgment proof, I explained the changes in the new bankruptcy law and the differences in Chapter 7 and Chapter 13. He was mostly concerned about his car. I explained that under Chapter 7 his car can be reaffirmed or if below $2,400, can be completely exempted. Under Chapter 13 all property can be kept; however, since the only asset the client had was his car, Chapter 7 was recommended.
Case of the Week: 12/2/05
County: Mineral
Age: 77
This client contacted us after an energy company put power lines up over his property to an adjoining lot. He lives in a housing development and his understanding of the convenants and provisions is that an easement exits only for water, sewage, and drainage. I reviewed the Restrictive Covenants and Provisions and determined that although the provision in questions include water, sewage, and drainage, it does not specifically exclude electric. A reasonable reading of the document is that the energy company has an easement to the adjoining property. I explained a court may give it a different interpretation. Generally, when there is a difference of opinion on a term or provision in a document, the court can make a determination to end the conflict.
Age: 77
This client contacted us after an energy company put power lines up over his property to an adjoining lot. He lives in a housing development and his understanding of the convenants and provisions is that an easement exits only for water, sewage, and drainage. I reviewed the Restrictive Covenants and Provisions and determined that although the provision in questions include water, sewage, and drainage, it does not specifically exclude electric. A reasonable reading of the document is that the energy company has an easement to the adjoining property. I explained a court may give it a different interpretation. Generally, when there is a difference of opinion on a term or provision in a document, the court can make a determination to end the conflict.
Monday, October 31, 2005
Case of the Week: 10/28/2005
County: Cabell
Age: 62
Our client needed to know what sort of planning she needs to do to ensure that her adopted daughter will be cared for by her aunt should our client become unable to do so. I researched the West Virginia Code for available planning tools. Explained to the client that she can appoint a designated standby guardian should she become unable to care for her daughter. Explained the process for designating a standby guardian and sent her information about Conservatorship/Guardianship.
Age: 62
Our client needed to know what sort of planning she needs to do to ensure that her adopted daughter will be cared for by her aunt should our client become unable to do so. I researched the West Virginia Code for available planning tools. Explained to the client that she can appoint a designated standby guardian should she become unable to care for her daughter. Explained the process for designating a standby guardian and sent her information about Conservatorship/Guardianship.
Wednesday, October 19, 2005
Governor Signs Executive Order to Implement Olmstead Plan
On October 12, 2005 Governor Manchin signed Executive Order 11-05 requiring the implementation of the state's Olmstead Plan, Building Inclusing Communities: Keeping the Promise. This has been a long time coming. An Executive Order by then-Governor Wise in September 2000 created our state's Olmstead Task Force, which was to create a comprehensive plan by June 2001. The deadline was extended to December, and though a plan was completed and delivered to Governor Wise, it languished on his desk and was never signed. The Task Force was later resurrected, the plan revised, and finally now will be implemented.
Though most advocates feel that this is progress toward inclusion in West Virginia, one potential negative outcome is that the state may be able to use the existence of the plan as a defense to an Olmstead lawsuit. In other words, if a person sued the state for his institutionalization caused by the failure to provide appropriate community services, the state might be able to win claiming it had an effective comprehensive plan that unfortunately the services needed were not part of because of cost.
Though most advocates feel that this is progress toward inclusion in West Virginia, one potential negative outcome is that the state may be able to use the existence of the plan as a defense to an Olmstead lawsuit. In other words, if a person sued the state for his institutionalization caused by the failure to provide appropriate community services, the state might be able to win claiming it had an effective comprehensive plan that unfortunately the services needed were not part of because of cost.
Monday, October 17, 2005
Case of the Week: 10/14/05
County: Taylor
Age: 72
Client contacted us because significant sum of money was taken from her account after she gave personal information out over the phone. The person soliciting her convinced her he was associated with her bank and was trying to update her informaiton. However, he was located in Peru with an outfit that scams people. Our client immediately filed a police report and contacted us. I explained what identity theft is, steps she can take to protect herself from further theft, and provided her with an ID Theft Affidavit to dispute the unauthorized withdraw from her account. Before she contacted us her bank was unwilling to get the money back or close her account. Armed with the ID Theft Affidavit, she got her account closed. Her bank also assured her that they are working to get her money back.
Age: 72
Client contacted us because significant sum of money was taken from her account after she gave personal information out over the phone. The person soliciting her convinced her he was associated with her bank and was trying to update her informaiton. However, he was located in Peru with an outfit that scams people. Our client immediately filed a police report and contacted us. I explained what identity theft is, steps she can take to protect herself from further theft, and provided her with an ID Theft Affidavit to dispute the unauthorized withdraw from her account. Before she contacted us her bank was unwilling to get the money back or close her account. Armed with the ID Theft Affidavit, she got her account closed. Her bank also assured her that they are working to get her money back.
Tuesday, October 11, 2005
Case of the Week: 10/7/05
County: Wood
Age: 82
The client needed to know if her deed creates a right of survivorship with her daughter. I reviewed her deed and researched the relevant code provisions and case law. I explained that while West Virginia has done away with the assumption that joint tenancies create right of survivorship, her deed states that the relationship is as joint tenants and not as tenants in common. Arguably, this creates a right of survivorship.
Age: 82
The client needed to know if her deed creates a right of survivorship with her daughter. I reviewed her deed and researched the relevant code provisions and case law. I explained that while West Virginia has done away with the assumption that joint tenancies create right of survivorship, her deed states that the relationship is as joint tenants and not as tenants in common. Arguably, this creates a right of survivorship.
Wednesday, October 05, 2005
Case of the Week: 9/30/05
County: Jackson
Age: 61
Client contacted us regarding his rights to an undivided interest in property he inherited. The co-tenants have been removing hay from the property and he needed legal counsel. After researching the WV Code and case law, I explained that he may have a right to an accounting to see if the co-tenants have committed waste; however, for hay, co-tenants have lawful authority to remove. Also explained the client may ask the court to partition the property if the dispute persists.
Age: 61
Client contacted us regarding his rights to an undivided interest in property he inherited. The co-tenants have been removing hay from the property and he needed legal counsel. After researching the WV Code and case law, I explained that he may have a right to an accounting to see if the co-tenants have committed waste; however, for hay, co-tenants have lawful authority to remove. Also explained the client may ask the court to partition the property if the dispute persists.
Thursday, September 29, 2005
Case of the Week: 9/19/05
County: McDowell
Age: 66
Our client contracted to have various projects done on her home. The contractor failed to provide a new furnace as per the contract and to perform other tasks as promised. I reviewed the contract and explained that she is still within the statute of limitations to bring a cause of action against the contractor for breach of contract. If damages exceed $5,000, then she will need to file her claim in Circuit Court. However, if her damages are less than $5,000 she may file in the Magistrate Court without the assistance of a lawyer. Explained to the client how to bring a claim for damages under a breach of contract theory in Magistrate Court.
Age: 66
Our client contracted to have various projects done on her home. The contractor failed to provide a new furnace as per the contract and to perform other tasks as promised. I reviewed the contract and explained that she is still within the statute of limitations to bring a cause of action against the contractor for breach of contract. If damages exceed $5,000, then she will need to file her claim in Circuit Court. However, if her damages are less than $5,000 she may file in the Magistrate Court without the assistance of a lawyer. Explained to the client how to bring a claim for damages under a breach of contract theory in Magistrate Court.
Friday, September 09, 2005
Case of the Week: 9/5/05
County: Preston
Age: 61
Client received a charge on her credit card statement for MBNA's Privacy Assistance Program. She never activated this program. I contacted MBNA and requested that she be disenrolled from the program and refunded what she paid toward it. MBNA reviewed her account, disenrolled her from the program, and happily refunded her money.
Age: 61
Client received a charge on her credit card statement for MBNA's Privacy Assistance Program. She never activated this program. I contacted MBNA and requested that she be disenrolled from the program and refunded what she paid toward it. MBNA reviewed her account, disenrolled her from the program, and happily refunded her money.
Friday, September 02, 2005
Case of the Week: 8/19/05
County: Mineral
Age: 83
Our client had to leave her residence to live in an apartment complex that could meet her health needs. She was assured by management that since her move was due to medical necessity, she would not face any penalties. She provided the apartment management with the appropriate notice, including a letter from her physician stating she requires 24 hour assistance. However, after moving, she received a letter from the apartment management that she owed back rent, a penalty fee for early termination, and charges for repairs. I contacted the managing company and provided them with the letter she got from her doctor. The managing company reviewed her case, recognized their error, and dropped the charges for the early termination and back rent. The client recognizes the need to pay for the repairs.
Age: 83
Our client had to leave her residence to live in an apartment complex that could meet her health needs. She was assured by management that since her move was due to medical necessity, she would not face any penalties. She provided the apartment management with the appropriate notice, including a letter from her physician stating she requires 24 hour assistance. However, after moving, she received a letter from the apartment management that she owed back rent, a penalty fee for early termination, and charges for repairs. I contacted the managing company and provided them with the letter she got from her doctor. The managing company reviewed her case, recognized their error, and dropped the charges for the early termination and back rent. The client recognizes the need to pay for the repairs.
Case of the Week: 8/12/05
County: Morgan
Age: 70
Client contacted us after the DMV gave him notice to turn in his license plate. I reviewed the summons he recieved and researched the law. I explained that all motorists must maintain insurance and carry proof of insurance in West Virginia. I further explained that in his situation, under the West Virginia State Code, he will get his registration reinstated once he gets insurance and can show proof of insurance.
Age: 70
Client contacted us after the DMV gave him notice to turn in his license plate. I reviewed the summons he recieved and researched the law. I explained that all motorists must maintain insurance and carry proof of insurance in West Virginia. I further explained that in his situation, under the West Virginia State Code, he will get his registration reinstated once he gets insurance and can show proof of insurance.
Case of the Week: 7/29/05
County: Kanawha
Age: 74
Client contacted us regarding an overpayment Social Secuirty claims she recieved under Supplemental Security Insurance for failure to report changes in her income. After reviewing a letter from Social Security noting the overpayment and her financial situation, I determined that she might be qualified for a waiver; however, I explained to her that all participants have a duty to report changes in their income and resources. I explained how she should proceed with her request and provided her with an overpayment waiver form.
Age: 74
Client contacted us regarding an overpayment Social Secuirty claims she recieved under Supplemental Security Insurance for failure to report changes in her income. After reviewing a letter from Social Security noting the overpayment and her financial situation, I determined that she might be qualified for a waiver; however, I explained to her that all participants have a duty to report changes in their income and resources. I explained how she should proceed with her request and provided her with an overpayment waiver form.
Saturday, August 20, 2005
Aged & Disabled Waiver Frozen
According to an article in the Charleston Gazette on August 19th, the A/D waiver is frozen again. I received a phone call from a concerned provider on Tuesday that this appeared to be happening, though there had been no communications about it from waiver administrative staff to providers, waitlisted applicants, or advocacy organizations. As far as we know, there still has been no such communication to any of these interested parties regarding when the freeze will end, whether new applications are still being taken, how long the waitlisted people (some who have waited 6 months already) should expect to continue to wait, and how we can best help the vulnerable population at this time.
Advocates are presuming that the freeze was prompted by the administration's presumption that the program's waiver renewal application to CMS will be approved. As far as we know, it has not been approved yet, though again there has been no communication about it. The 5 yr renewal application included a drastic reduction of slots from current 5,400 to 3,900 in the first year and down to 3,450 in the second year. Perhaps administration will freeze the waiver for a year, since there are probably already over 3,900 active waiver slots being used now (I've been told but haven't been able to verify that there are approximately 4,000 on right now). If that's the approach they're taking, it would mean those folks who've already been on the waitlist for 6 months might have to be on the waitlist for a year and a half total.
Another unsettling figure I heard, but haven't been able to verify, is that only 5,200 slots were filled in FY04, 200 less than the 5,400 available according to the waiver approved by CMS. Why did the waiver renewal propose to cut this valuable program to serve 2,000 fewer people annually? Why has there been a 6 month waitlist, which is not a waitlist in the true sense of waiting for an available slot, but rather just a standard 6 month wait for every single applicant? Why didn't 200 more people who were waitlisted when slots were available get served in FY04? Money, of course. The state spends less money by serving fewer people total, and by making people wait so long some will die, get placed in a nursing home, or give up trying during that 6 months of sometimes desperate waiting. Though we can all understand that fiscal times are hard (though didn't we actually have both a total state budget surplus, and a Medicaid surplus last year?), and that to balance a budget without additional revenue you have to cut spending. But these are some of our state's neediest people, and for them this program means the difference between institutionalization, inadequate care, or at worst abuse and neglect, and getting to continue to live well at home. How can anyone say there's absolutely no other spending in our state budget, even in the state Medicaid budget, that can't be cut to save these services.
These cuts and freezes of the A/D waiver certainly take us backward in our state's efforts to uphold its obligation under the Olmstead doctrine to provide services in the most community-integrated setting reasonably possible. And the lack of open dialogue, or even one-way communication from the administrators of the program about what's happening, are harming these vulnerable West Virginians further. It is outrageous that people actually on the waitlist would have to learn about this freeze from the newspaper.
Advocates are presuming that the freeze was prompted by the administration's presumption that the program's waiver renewal application to CMS will be approved. As far as we know, it has not been approved yet, though again there has been no communication about it. The 5 yr renewal application included a drastic reduction of slots from current 5,400 to 3,900 in the first year and down to 3,450 in the second year. Perhaps administration will freeze the waiver for a year, since there are probably already over 3,900 active waiver slots being used now (I've been told but haven't been able to verify that there are approximately 4,000 on right now). If that's the approach they're taking, it would mean those folks who've already been on the waitlist for 6 months might have to be on the waitlist for a year and a half total.
Another unsettling figure I heard, but haven't been able to verify, is that only 5,200 slots were filled in FY04, 200 less than the 5,400 available according to the waiver approved by CMS. Why did the waiver renewal propose to cut this valuable program to serve 2,000 fewer people annually? Why has there been a 6 month waitlist, which is not a waitlist in the true sense of waiting for an available slot, but rather just a standard 6 month wait for every single applicant? Why didn't 200 more people who were waitlisted when slots were available get served in FY04? Money, of course. The state spends less money by serving fewer people total, and by making people wait so long some will die, get placed in a nursing home, or give up trying during that 6 months of sometimes desperate waiting. Though we can all understand that fiscal times are hard (though didn't we actually have both a total state budget surplus, and a Medicaid surplus last year?), and that to balance a budget without additional revenue you have to cut spending. But these are some of our state's neediest people, and for them this program means the difference between institutionalization, inadequate care, or at worst abuse and neglect, and getting to continue to live well at home. How can anyone say there's absolutely no other spending in our state budget, even in the state Medicaid budget, that can't be cut to save these services.
These cuts and freezes of the A/D waiver certainly take us backward in our state's efforts to uphold its obligation under the Olmstead doctrine to provide services in the most community-integrated setting reasonably possible. And the lack of open dialogue, or even one-way communication from the administrators of the program about what's happening, are harming these vulnerable West Virginians further. It is outrageous that people actually on the waitlist would have to learn about this freeze from the newspaper.
Friday, July 22, 2005
Case of the Week: 7/22/05
County: Wetzel
Age: 64
Client's Social Security was garnished for past due child support. Because his income is very low and my client is in poor health, I sent Child Protective Services a letter explaining that the garnishment creates an undue hardship for my client, who needs the income to keep up with medical expenses. After reviewing my client's case and his circumstances, Child Protective Services reduced the amount of garnishment to $20 per month.
Age: 64
Client's Social Security was garnished for past due child support. Because his income is very low and my client is in poor health, I sent Child Protective Services a letter explaining that the garnishment creates an undue hardship for my client, who needs the income to keep up with medical expenses. After reviewing my client's case and his circumstances, Child Protective Services reduced the amount of garnishment to $20 per month.
Thursday, July 14, 2005
Change in WV M'caid Estate Recovery Practice?
An article by Sarah Lueck appeared June 24, 2005 in the Pittsburgh Post-Gazette (apparently a reprint from the Wall Street Journal) about Medicaid Estate Recovery. Specifically the article focuses on how states are more aggressively pursuing estate recovery as one way to offset increasing Medicaid budgets. www.post-gazette.com/pg/05175/528036.stm
The article claims that "West Virginia has made a notable about-face" from our 2000 Attorney General's lawsuit challenging the recovery mandate and the practice of only pursuing recovery in estates valued at $50,000 or more, to now going after estates as small as $5,000.
Though federal and state law in West Virginia have permitted recovery in estates valued between $5,000 and $50,000, the state Medicaid entity (the Bureau of Medical Services) has maintained a practice of not pursuing estates under $50,000. The state contracts with a Boston-based firm to handle recoveries of $50,000+ estates. If the article is correct in its assertion that the practice is changing, seniors who benefit from long-term care Medicaid (either in a nursing home or through home-based services) whose estates are between $5,000 and $50,000 need to be aware of the increased likelihood of recovery against their estates.
AARP's Public Policy Institute recently released a report which studies estate recovery practices across the nation. An article about the report appears in the Sumemr 2005 issue of the West Virginia Elder Advocacy Quarterly, available online at www.seniorlegalaid.org/newsletter_detail.cfm?H=297&E=25
Senior West Virginians age 60 and over may speak to an attorney at West Virginia Senior Legal Aid about long-term care Medicaid eligibility, transfers of assets, estate recovery, and planning generally by calling 1-800-229-5068.
The article claims that "West Virginia has made a notable about-face" from our 2000 Attorney General's lawsuit challenging the recovery mandate and the practice of only pursuing recovery in estates valued at $50,000 or more, to now going after estates as small as $5,000.
Though federal and state law in West Virginia have permitted recovery in estates valued between $5,000 and $50,000, the state Medicaid entity (the Bureau of Medical Services) has maintained a practice of not pursuing estates under $50,000. The state contracts with a Boston-based firm to handle recoveries of $50,000+ estates. If the article is correct in its assertion that the practice is changing, seniors who benefit from long-term care Medicaid (either in a nursing home or through home-based services) whose estates are between $5,000 and $50,000 need to be aware of the increased likelihood of recovery against their estates.
AARP's Public Policy Institute recently released a report which studies estate recovery practices across the nation. An article about the report appears in the Sumemr 2005 issue of the West Virginia Elder Advocacy Quarterly, available online at www.seniorlegalaid.org/newsletter_detail.cfm?H=297&E=25
Senior West Virginians age 60 and over may speak to an attorney at West Virginia Senior Legal Aid about long-term care Medicaid eligibility, transfers of assets, estate recovery, and planning generally by calling 1-800-229-5068.
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