North Carolina's First Elder Law Firm

How to Handicap the American Dream

           

            Today, most Americans participate in reaching for the American Dream.  It is a mindset that allows them to live happily, working to achieve their level of desired success.  Although this dream is reached by many, it is often out of reach for the incapacitated members of our society.  Those suffering from physical and mental handicaps have a greater struggle to attain this life than the average American.  They must work harder and prove themselves better than the stereotypes attached to their disabilities.  There is a hidden problem, however, that is made clear when the incapacitated work more than they are “supposed to”, as designated by the government.

 

            The only choice for many mentally handicap people, in order to keep their healthcare without losing their income-generating potential, is to be put on Medicare and allowed access to Social Security Disability (SSD) benefits.  This allows these individuals to minimize the assistance needed from government and family, and eventually live in a long-term care facility.  Some handicap individuals, however, are able and eager to work part-time jobs in their communities.  This is actually a problem.  If the individual begins making “too much money”, as defined by the Social Security Administration, they will be forced to work less (likely, less than 15 hours per week) or the administration will terminate the individual’s SSD and Medicare benefits.  An example would be an individual who is able to make $12,000 a year working only a part-time job, due to their handicap.  After paying FICA taxes, state taxes, and health care insurance, they would be lucky to make $7,000 annually, which is less than what they would make if covered by SSD and Medicare benefits. 

 

This should not happen.  Our State and Federal governments should not be discouraging independence and financially penalizing individuals who want to contribute to our society.  Appropriate legislation would allow individuals to “buy-in” to the Medicare Program and work full-time or several part-time jobs and actually purchase their own insurance.  This would allow these individuals to purchase their benefits through the Medicaid Program and receive pro-active health care, allowing them to retain their independence and contribution to our society.  This type of legislation has been considered before and needs to be reconsidered and accepted in the near future.

 

 

Many of the concepts and opinions developed in these blogs have their origins in Eye on Elder Issues, a continuing publication of the National Academy of Elder Law Attorneys. Visit the academy website at www.naela.org 

 

Thinking of Freedom and Independence with a Twist

It is right to think of our freedom and independence on this Fourth of July weekend. We wave flags, shoot fireworks and join friends and relatives at neighborhood picnics and community celebrations. Rightly, our thoughts are with those serving our country, especially those in harms way. Included in our celebration is the remembrance of wars past and the veterans, living and not, that helped keep our democracy what it is today. The Greatest Generation (those parents and grandparents serving in World War II and Korea) we herald as the very best of them all.     

Sadly, too many of the Greatest Generation are being denied those very freedoms and the independence we cherish. They languish in nursing institutions (while the industry euphemistically calls them homes, that is an absurdity and corrupts everything good about home and what was eulogized in the Wizard of Oz by Dorothy's longing cry, "I want to go Home Toto!"), forced to stay not because of their mental infirmities or physical disabilities, but because many states restrict where Medicaid recipients live and what they want to do. Too many of these profit driven corporate institutional systems operate no differently than a regimented, confining and stinking gulag (a penal system of the Union of Soviet Socialist Republics consisting of a network of labor camps. http://www.merriam-webster.com/dictionary/gulag; see also Pierre Tristam, American Gulag: Nursing Home Profiteers ( Candide's Notebook, September 24, 2007 http://www.pierretristam.com/Bobst/07/cn092407.htm)

Ripe for attack, these gulags are the basis of litigation currently being fought in Florida by a cadre of legal advocacy groups including the AARP Foundation. (See Emily Sachar, Your AARP: The Law, (AARP Bulletin, June 2008). While the argument is that state elected officials and policy makers should not be second-guessed when making choices about medically necessary services, too often those choices are dictated by the nursing institution industry, with its powerful lobbying forces in every state and Congress. Consider that nursing institution confinement is often the most expensive for taxpayers, while other more appropriate residences run at significantly lower costs. If our democratic society declared a mandate of "least restrictive alternative" that must be implemented, it would probably send shock waves through the nursing institution industry, driving the stock value of for-profit companies through the floor. This is exactly what the nursing institution lobby has been able to block.    

What is disappointing (but understandable - the target seems to have been narrowed to achieve the best results under the framework of the Americans with Disabilities Act) about the litigation in Florida is that it is being asserted primarily by persons with disabilities on Medicaid and being forced to reside in nursing institutions. While the plaintiff class may include some of our elders, it does not embrace all of our elders confined in these gulags. These elders, so many of the Greatest Generation, are languishing in nursing institution confinement not by reasoned quality of life determinations, but more often by indiscriminate, even arbitrary dictates. A more cynical, even sinister view is that these decisions are intentional, orchestrated by the unholy alliance of the medical, health care and nursing institution industries.   

Those elders of the Greatest Generation, caught in inappropriate restricted confines of nursing institution gulags, have lost their freedoms and independence. These elders are forced to obey the institutional, medical model regimens that dictate when to get up, what to eat, when to bathe, when to go out and where, and who to see and not see. In too many states, those under confinement are handled and manhandled by untrained staff being paid at the lowest level. Turnover is constant, criminals and sex-offenders are hired without background checks, theft is rampant, and neglect and abuse is documented at alarming rates, even with systemic cover-up.

Many states do little or nothing, listening to the well-planned approach of the nursing institutional lobby that makes sure elected officials are supported in their election campaigns and government and agency officials are promised and given lucrative industry positions and lobbying contracts when they leave so-called public service. Some will whine that everything is within the bounds of law, but it is surely not moral or ethical. It is only within the bounds of law because the nursing institution industry has paid their lobbyists to keep it legal even when it is not for the good of the people, but good only for the for-profit nursing institution industry.

Contact your elected representatives to fight for the freedom and independence of our Greatest Generation, assuring that they are provided the least restricted environment in which to live their remaining days.