Law Office of Donald D. Vanarelli Blog

According to a recent study published in the June 2009 edition of the New Media & Society journal entitled doing-the-right-thing-online-a-survey-of-bloggers-beliefs-and-practices, bloggers share a group of ethical principals. This first large-scale survey of blogging ethics identified four underlying ethical principles important to bloggers: truth telling, accountability, minimizing harm and attribution.

Truth-telling involves honesty, fairness and completeness in reporting. Accountability involves being answerable to the public, bearing the consequences of one’s actions and revealing conflicts of interest. The ethical principle of minimizing harm (done to others) underlies issues involving privacy, confidentiality, reputational harm, consideration of others’ feelings, and respecting diversity and underprivileged groups. Attribution involves issues such as avoiding plagiarism, honoring intellectual property rights and giving sources proper credit.

Among bloggers, the study found that attribution was most valued (with truth-telling a close second), and accountability least valued. The strong value placed on attribution may be due to the fact that, in blogging, attribution serves a community building function. Accountability was valued and practiced least, possibly because most bloggers surveyed did not believe that people could sue them for blog content. (The freedom from defamation lawsuits may be changing, however, at least in New Jersey. The star-ledger newspaper recently reported that a judge in Freehold ruled that a blogger was not covered by the shield laws that protect newspaper reporters and can be sued for defamation.)

To be frank, the conclusion that bloggers share any type of ethical code or common blogging principals seems a bit far-fetched, given the extremely large and diverse population of active bloggers who have, at best, only informal connections with each other. (The blog tracking site Technorati was tracking about 113 million blogs in 2008.) Do readers believe that bloggers share an ethical code?

According to the U.S. Department of Labor, unemployment among people with disabilities reached its highest rate in June since the government began tracking such data.

The rate of unemployment grew to 14.3% in June for people with disabilities. That’s the highest unemployment rate since the government began keeping disability specific employment records. The unemployment rate for the disabled was 14% in February of this year, while in May 2009 unemployment was at 13.7% for this population. The data covers people with disabilities over the age of 16 who do not live in institutions.

Unemployment also rose in June among the rest of the population, reaching 9.5%, a 26-year high.

Source: disabilityscoop

The following excerpt is taken from a discussion between elderlaw attorneys recently posted on a listserv (or electronic bulletin board) in New Jersey:

Q. - Is there a law that mandates that a disabled child maintain his/her eligibility for Medicaid when the child loses eligibility for Supplemental Security Income (SSI) benefits as a result of the child’s receipt of Social Security disability (SSD) benefits on a parent’s work record, putting the child over the income limit for SSI?

A. – The Social Security Act, §1642(c), says that a disabled adult child who loses SSI due to obtaining SSD shall continue to qualify for Medicaid as if the child still received SSI. In other words, the excess of SSD over SSI is not Medicaid disqualifying. Social Security Act §1642(c) (42 U.S.C. §1383c(c)) follows:

c) Loss of benefits upon entitlement to child’s insurance benefits based on disability. If any individual who has attained the age of 18 and is receiving benefits under this subchapter on the basis of blindness or a disability which began before he or she attained the age of 22- (1) becomes entitled, on or after the effective date of this subsection [July 1, 1987], to child’s insurance benefits which are payable under section 402 (d) of this title [Social Security Act §202(d), 42 U.S.C.§402(d), Exhibit 4] on the basis of such disability or to an increase in the amount of the child’s insurance benefits which are so payable, and (2) ceases to be eligible for benefits under this subchapter because of such child’s insurance benefits or because of the increase in such child’s insurance benefits, such individual shall be treated for purposes of subchapter XIX of this chapter [Medicaid] as receiving benefits under this subchapter so long as he or she would be eligible for benefits under this subchapter in the absence of such child’s insurance benefits or such increase. [Items in brackets have been added for convenience of the reader and do not appear in the statute.]

There is also a regulation in the Program Operations Manual System (POMS) governing this situation:

POMS §SI 01715.015 Special Groups of Former SSI Recipients

A. BACKGROUND

Categorical Medicaid eligibility for the aged, blind and disabled is directly related to receipt of SSI in most States. Loss of SSI payments can result in loss of Medicaid coverage.

To preserve Medicaid coverage for certain groups of individuals who lose SSI payments, Congress enacted special Medicaid continuation provisions. These provisions require the State Medicaid agencies to continue to consider specified groups of former SSI beneficiaries as SSI beneficiaries for Medicaid purposes, as long as they would otherwise be eligible for SSI payments. In addition, Medicaid agencies are required to determine if the individual would be eligible for Medicaid under any other group.

B. POLICY - CONTINUATION GROUPS
….
4. Disabled Adult Children (Childhood Disability Beneficiaries) Section 1634(c) of the Act requires States to consider Title II childhood disability beneficiaries (also known as disabled adult children, DACs, or childhood disability beneficiaries, CDBs) who lose SSI eligibility as if they were still SSI recipients for Medicaid purposes so long as they would have remained otherwise eligible for SSI benefits but for their entitlement to (or increase in) title II benefits on or after July 1, 1987.

In a landmark opinion that recognizes a new category of lawsuits, the 3rd U.S. Circuit Court of Appeals ruled yesterday that the Federal Nursing Home Reform Amendments (FNHRA), 42 U.S.C. § 1396r et seq, gives residents of county-run nursing homes the right to bring civil rights claims to challenge the quality of their treatment. grammar-v-john-j-kane-regional-centers, No. 06-cv-00781, W. D. PA.,  June 30, 2009).

Melviteen Daniels, was a resident of the John J. Kane Regional Center in Pittsburgh, Pennsylvania. The Kane Center is a residential skilled nursing care and rehabilitation center operated by Allegheny County. After Mrs. Daniels died while a resident of the Kane Center, Mrs. Daniels daughter, Sarah Daniels, was appointed administratrix of her estate and filed a lawsuit against the facility which alleged that her mother’s death was caused by the Kane Center’s failure to provide proper care. Grammer brought a claim under 42 U.S.C. §1983 for wrongful death, among other claims, and alleged that the Kane Center deprived Mrs. Daniels of her civil rights by breaching a duty to ensure quality care under the FNHRA. The Kane Center filed a motion to dismiss, arguing that the FNHRA does not provide a right that is enforceable through §1983. The Kane Center maintained that the statute merely set forth requirements a nursing facility must comply with to receive federal Medicaid funds. The District Court dismissed the case, finding no private right of action under the statute.

On appeal, the Third Circuit Court of Appeals reversed. The Court held that the language used throughout the FNHRA is “explicitly and unambiguously rights-creating.” The Court found that the provisions of the law “make clear that nursing homes must provide a basic level of service and care for residents and Medicaid patients,”

Under the law, the Court wrote, nursing homes “are required to care for residents in a manner promoting quality of life, provide services and activities to maintain the highest practicable physical, mental and psychosocial well-being of residents, and conduct comprehensive assessments of their functional abilities.” The FNHRA “specifically guarantees nursing home residents the right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for the purposes of discipline or convenience and not required to treat their medical symptoms.” As a result, the Court concluded that Congress intended to create a private right of action, enforceable through §1983.

One judge dissented from the majority’s opinion. According to the dissent, “Congress did not speak with a ‘clear voice’ or manifest an ‘unambiguous intent’ to provide a basis for private enforcement of funding requirements under Section 1983.”

Donald D. Vanarelli, Esq. is honored to have received accreditation by the Department of Veterans Affairs (“VA”) to prepare, present and prosecute claims for veterans before the VA.

Accreditation refers to the authority granted by the VA to those attorneys who meet the standards established by the VA. The VA’s stated purpose in requiring attorney accreditation is to ensure that claimants for VA benefits receive “qualified assistance in preparing and presenting their claims.”

To receive accreditation, federal law requires an agent to pass a written examination while an attorney must prove that he or she is in good standing with the State Bar, and to complete continuing legal education covering, at a minimum, the following topics: VA representation, disability compensation, dependency and indemnity compensation and pension benefits, claim procedures, eligibility requirements, and appeal rights. An attorney must also establish that he or she is of good character and reputation.

The privilege of accreditation carries with it the responsibility to maintain specified standards of conduct and comply with the laws that govern VA representations, as set forth in the United States Code and the Code of Federal Regulations.

According to federal law, attorneys who do not receive VA accreditation are prohibited from assisting claimants in the preparation, presentation and prosecution of VA claims, regardless of whether or not the attorney charges legal fees for those services. Unaccredited attorneys may only provide limited services to veterans, such as providing general information about VA benefits, and may not assist veterans in the preparation, presentation, and prosecution of their claims.

The VA also regulates the fees that may be charged by accredited attorneys. In general, an attorney cannot charge a VA claimant for assistance in filing an eligibility verification report (“EVR”); in order to charge legal fees for representation before VA, the agency must have issued an adverse decision on a VA claim for benefits, and the claimant must have filed a notice of disagreement (NOD), or an appeal, with respect to that adverse decision.

The VA accreditation system is designed to ensure that lawyers who represent VA claimants have a thorough understanding of the VA health and benefit systems, so that they may provide quality assistance in the preparation, presentation and prosecution of those claims.

In addition to being accredited as a VA attorney, Mr. Vanarelli is also certified as an elder law attorney by the National Elder Law Foundation, accredited by the American Bar Association. Elder law is the legal practice of representing older or disabled persons and their representatives in various matters including financing long-term medical care, nursing home issues, qualifying for Medicare, Medicaid and other public benefits, estate planning and administration, trust creation and administration, probate, retirement benefit disputes, estate litigation and guardianships. These combined distinctions allow Mr. Vanarelli to provide veterans and their families with advice on complex areas of law concerning long-term care planning, including VA pension benefits and the related issue of Medicaid benefits.

Mr. Vanarelli is proud to be one of the few attorneys in New Jersey accredited by the Department of Veteran Affairs to assist veterans who have served our country obtain the benefits they deserve.

According to a recent study published in the June 22, 2009 edition of the Archives of Internal Medicine , less frequent participation in social activity among older adults is associated with a more rapid rate of motor function decline.

Although the loss of motor function is a common consequence of aging, with older persons displaying a wide spectrum of loss of motor abilities ranging from mild decreased muscle strength and bulk with reduced speed and dexterity to overt motor impairment with concomitant disability, little is known about the factors that predict motor decline. The objective of the study was to test the hypothesis that late-life social activity is related to the rate of change in motor function in old age.

Researchers examined 906 older adults from 1997 to 2008. Participants’ grip and pinch strength was evaluated, as well as and their ability to stand on one leg and then on their toes, to walk in line in a heel-to-toe manner, place pegs on a board in 30 seconds and tap index fingers for 10 seconds bilaterally. Participants also completed a health and social activity survey.

Test results demonstrated that a lower frequency of participation in social activity was associated with a more rapid rate of motor function decline. Each 1-point decrease in social activity on the test results was associated with approximately a 33% more rapid rate of decline in motor function. Also, each 1-point decrease in the social activity score was the same as being approximately 5 years older. Furthermore, this amount of motor decline per year was associated with a more than 40% increased risk of death and a 65% increased risk of disability.

The association of social activity with the rate of global motor decline did not vary along demographic lines and was unchanged after controlling for late-life physical and cognitive activity, disability, global cognition depressive symptoms, body composition, and chronic medical conditions.

The Wall Street Journal published an article today discussing the increasing number of couples separating and divorcing as a result of financial hardship brought on by the recession. Yet, according to the Journal, the recession also is causing some unhappy couples to rethink their marital situation, since a costly divorce would only further deplete already-shrunken assets.

The Journal advised couples in financial hardship to put off divorcing for as long as possible, to get some form of legal help if you do decide to divorce even if it’s just a consultation, and to be cooperative and realistic in seeking compromise with your soon-to-be ex-spouse.

Mediation was suggested by the Journal as a money-saving option in a divorce:

The cheapest way to divorce is to be cooperative with each other… [In a mediation,] couples reach an agreement with the help of a divorce mediator. A lawyer then writes up the agreement for the couple to sign and take to court… A cooperative divorce likely will result in smaller legal fees — and it allows for more creative solutions regarding the division of assets and child or spousal support.

The Wall Street Journal article can be found here - keeping-finances-afloat-during-a-divorce

The Office of Disability Adjudication and Review (ODAR) administers the hearings and appeals program for the Social Security Administration (SSA). The ODAR has ten regional offices, 141 hearing offices, a national hearing center, and five satellite offices. There are approximately 1,100 Administrative Law Judges and 4,900 support staff in the field organization. New Jersey, along with New York, the Commonwealth of Puerto Rico and the U.S. Virgin Islands, make up Region 2, or the New York Region. There are 15 hearing offices in Region 2. The hearing office for New Jersey is located at 1100 Raymond Blvd., in Newark.

Recently, the ODAR issued a list of what the agency called the “best practices for SSA claimants’ representatives.” The “best practices” are suggestions made by agency personnel to attorneys and others who represent applicants for Social Security and Supplemental Security Income (SSI) benefits which the agency believes will facilitate timely service and enhance the quality of claims. According to the ODAR, “adopting these practices will greatly assist [the agency] in preparing cases for hearing, providing timely, legally sufficient decisions to claimants.” A summary of the agency’s suggested “best practices” follow:

• Whenever possible, obtain a medical source statement from a treating source which identifies the limitations imposed by the claimant’s impairments. This will greatly assist an administrative law judge (ALJ) in reaching a decision.
• Submit evidence as far in advance of the hearing as possible.
• Submit a cover letter with the evidence identifying what is being submitted, how the new evidence relates to the evidence previously submitted and on the record and the date of the new evidence.
• Deal with employment (substantial gainful activity, unsuccessful work attempts, sheltered workshop environments, etc.) or earnings issues in a pre-hearing memorandum or at the hearing.
• Deal with workers’ compensation issues in a pre-hearing memorandum or at the hearing.
• Submit concise pre-hearing briefs whenever possible. Cite to the record. Include the page numbers of exhibits. This assists an ALJ in preparing for the hearing.
• Do not request postponements unless essential.
• Avoid submitting voluminous evidence at the last minute.
• Medical and non-medical documents should be submitted separately.
• Submit post-hearing evidence as soon as possible, along with a written brief identifying how the evidence supports a favorable decision.

Burial benefits from the Veterans Administration (VA) are payable only under certain conditions (see below from the excellent website maintained by the VA).

You may be eligible for a VA burial allowance if:

• you paid for a veteran’s burial or funeral, AND
• you have not been reimbursed by another government agency or some other source, such as the deceased veteran’s employer, AND
• the veteran was discharged under conditions other than dishonorable.

In addition, at least one of the following conditions must be met:

• the veteran died because of a service-related disability, OR
• the veteran was receiving VA pension or compensation at the time of death,  OR
• the veteran was entitled to receive VA pension or compensation, but decided not to reduce his/her military retirement or disability pay, OR
• the veteran died while hospitalized by VA, or while receiving care under VA contract at a non-VA facility,  OR
• the veteran died while traveling under proper authorization and at VA expense to or from a specified place for the purpose of examination, treatment, or care, OR
• the veteran had an original or reopened claim pending at the time of death and has been found entitled to compensation or pension from a date prior to the date or death,  OR
• the veteran died on or after October 9, 1996, while a patient at a VA-approved state nursing home.

In a case pitting the family of a special needs high school student against the school district that had been ordered to pay the student’s hefty private school tuition, the U.S. Supreme Court ruled that, when schools do not appropriately identify and provide services to students with disabilities who require special education and related services, the student may be placed in a private school to meet the special education needs, and the school district may be responsible for reimbursing parents and legal guardians for the tuition to attend these schools. However, such reimbursement is not guaranteed; families still have to prove that reimbursement is an equitable remedy and fulfill other conditions. Forest Grove School District v. T.A., No. 08-305 (June 22, 2009).

T.A. attended public schools in the Forest Grove School District from the time he was in kindergarten through the winter of his junior year of high school. From kindergarten through eighth grade, T.A.’s teachers observed that he had trouble paying attention in class and completing his assignments. When T.A. entered high school, his difficulties increased. T.A. was evaluated by a school psychologist who, after interviewing him, examining his school records, and administering cognitive ability tests, concluded that T.A. did not need further testing for any learning disabilities or other health impairments, including attention deficit hyperactivity disorder (ADHD). T.A.’s parents did not seek review of that decision, although a hearing examiner later found that the school district’s evaluation was legally inadequate because it failed to address all areas of suspected disability, including ADHD.

T.A.’s parents sought private professional advice. As a result, T.A. was diagnosed with ADHD and a number of disabilities related to learning and memory. Advised by the private specialist that T.A. would do best in a structured, residential learning environment, T.A.’s parents enrolled him at a private academy that focused on educating children with special needs. T.A.’s parents later sought reimbursement of the private academy’s charges from the school district. The school district refused to reimburse T.A.’s parents. The school district claimed that reimbursement of private school tuition was required under the Individuals with Disabilities Education Act (IDEA) only when a student received special education services in a public school which were later proven to be inadequate to meet the student’s needs. Since he had never been classified as needing special education (although the school district’s evaluation was later proven to be incorrect), T.A. had never received special education through the public schools. As a result, the school district argued that reimbursement was not required.

An administrative law judge ruled for the parents and ordered reimbursement, holding that the school district failed to provide an appropriate learning program for T.A. After the school district sought judicial review, a federal district court set aside the reimbursement award after finding that the IDEA categorically bars reimbursement of private school tuition for students who have not “previously received special education and related services under the authority of a public agency.” T.A.’s parents appealed. The Court of Appeals for the Ninth Circuit reversed, holding that the IDEA does not impose a categorical bar to reimbursement when a parent unilaterally places in private school a child who has not previously received special-education services through the public school.

The Supreme Court affirmed. The high court ruled that the IDEA permits tuition reimbursement even when the student had not been previously receiving special education services by the school district. The Court found that school districts are required to (1) appropriately identify students with disabilities that may be in need of special education and other services under the IDEA, and (2) provide education and services adequate to address the disabled student’s needs. Since the Forest Grove School District failed to identify T.A. as disabled because of a flawed evaluation which resulted in the district’s failure to provide needed special education services, the school district could not avoid the tuition reimbursement requirement under the IDEA by claiming that T.A. had never participated in the school district’s special education program.

An article in the June 24th edition of the Press of Atlantic City reported that advocates for disabled students in New Jersey said that the Supreme Court ruling will have very limited effect statewide because few parents can afford the cost of the private school while they litigate with the district. Private schools for the disabled can cost more than $50,000 a year in New Jersey.

About 13,000 New Jersey students, or 1 percent of all students, were placed in private schools for the disabled in 2008, according to state Department of Education data. But those placements are approved and funded by local school districts. Most of New Jersey’s more than 215,000 students with disabilities receive services in their local public school.