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1 1.How many people think that a Caremanager, a.k.a, Casemanager, is a licensed profession, i.e., regulated by the State of Illinois? 2.If the correct.

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Presentation on theme: "1 1.How many people think that a Caremanager, a.k.a, Casemanager, is a licensed profession, i.e., regulated by the State of Illinois? 2.If the correct."— Presentation transcript:

1 1 1.How many people think that a Caremanager, a.k.a, Casemanager, is a licensed profession, i.e., regulated by the State of Illinois? 2.If the correct answer is “No….it is not”; and, I talk about the subject for the next hour, will you still be receiving 1 hour of CLE?

2 DECONSTRUCTING THE ROLE OF A CAREMANAGER Howard Berk, Esq. Executive Director Illinois Disability Pooled Trust & Website: 2

3 IDA/CVLS Collaboration CVLS and the IDA, both non-profit associations, have partnered to offer a series of Continuing Legal Education seminars on guardianships with a focus on persons with disabilities. This series is part of a new collaboration between CVLS and the IDA to expand and enhance pro bono services to low-income persons with disabilities and their guardians. 3

4 IDA/CVLS Collaboration SEMINAR SERIES Deconstructing the Role of a "CareManager:" January 21, 2015 (presented by Howard Berk, Executive Director) Deconstructing the Role of a "CareManager:" A Closer Look at the Role of the Guardian ad Litem: February 18, 2015 (presented by Vida Cruz, IDA Staff Attorney) A Closer Look at the Role of the Guardian ad Litem: Special Needs Trusts: March 18, 2015 (presented by Eileen Durkin, IDA Staff Attorney) Special Needs Trusts: POA Abuse: April 22, 2015 (presented by Kerry Peck, IDA Board of Directors Member) POA Abuse: 4

5 WHAT IS THE ILLINOIS DISABILITY POOLED TRUST? The Illinois Disability Association serves as co- trustee with The Private Bank of the Illinois Disability Pooled Trust (“IDPT”). 5

6 WHAT IS THE ILLINOIS DISABILITY POOLED TRUST? The IDPT serves as trustee of both self-settled special needs trusts (for example, when the person with disabilities receives funds through a personal injury suit, medical malpractice suit, or inheritance) and third-party-funded special needs trusts (for example, a parent funding a trust for a child with disabilities.) 6

7 WHAT IS THE ILLINOIS DISABILITY POOLED TRUST? The IDPT currently manages over 80 million dollars in assets and has served over 1,300 persons with disabilities representing a broad spectrum of race and ethnicity that is Chicago, Cook County and the State of Illinois. 7

8 One of the benefits of having a SNT is the ability to hire a sophisticated advocate My proposition is: Caremanagers, a.k.a., casemanagers, can be important to the “successful” management of a case; What are “caremanagers”? When is it appropriate to hire a caremanager? What is a qualified caremanger? 8

9 What is a Caremanager? Nebulous No legal definition in Illinois. Under the “Illinois Family Case Management Act”, the term “qualified case manager" is not defined (410 ILCS 212) in contrast to (210 ILCS 55) Home Health, Home Services, and Home Nursing Agency Licensing Act, which establishes licensing standards for custodial care agencies. No Licensing 9

10 Caremanager – function is defined, not qualifications Administrative Code Title 89 Section (§ Provisional Case Manager -Brain Injuries) 410 ILCS 212/15 (Illinois Family Case Management Act) 20 ILCS 505/5 (Children and Family Services Act.)Children and Family Services Act. Ostensibly, Caremanagers are non-licensed professionals with training and/or experience in a variety of disciplines including nursing, social work, physical therapy, and mental health. 10

11 What is a Caremanager’s function? A Caremanager provides a means for achieving client wellness and autonomy through collaboration, advocacy, communication, education, and identification of service resources and service facilitation. 11

12 Why should Guardians and Trustees consider hiring a caremanager? Understanding and meeting the needs and wants of your ward/beneficiary may best be accomplished by hiring a Caremanager Guardian – statutory duty to advance the ward’s best interests under the Illinois Probate Act (755 ILCS 5/11a-18). Trustee – Duty of prudent investment under the Illinois Trust and Trustees Act inherently implies that the trustee needs to know the beneficiary’s needs in order to invest trust assets to provide for those needs (760 ILCS 5/5) 12

13 When is the involvement of a Caremanager appropriate? Caremanagers often work in collaboration with GALs, Guardians, Attorneys and Trust Officers to: – Resolve immediate crisis – Expedite the provision of services – Identify resources – Perform assessments for services or other intervention 13

14 When is the involvement of a Caremanager appropriate? Cont. – Develop care plans – Apply for government benefits – Remain involved to maintain a stable environment – Make purchases for the benefit of the beneficiary & socialization – Four Illustrations – see appendix 14

15 How to select a Caremanager? Qualifications (noting there are no licensing of care managers) Education License, e.g., clinical social worker On-going training 15

16 How to select a Caremanager? Practical experience/expertise with certain populations and in what settings – Community versus institutional – Mental illness – Developmental delay – Brain trauma – Drug dependency – Sexual abuse, financial exploitation, physical & emotional abuse/neglect – Minors – Elderly – Non responsive or unsophisticated guardians 16

17 Additional considerations when hiring a Caremanager – Experience working within a court setting Drafting reports to the court Testifying – Time frame/immediacy? When is the CM able to start What is the anticipated time frame to complete the tasks Does this timeframe meet the needs/reality of this case – Liability insurance – Costs 17

18 Additional considerations when hiring a Caremanager (continued) Depth of bench, a.k.a., number of employees/colleagues that can step-in if need be Languages spoken Gender 18

19 CHALLENGES WITH HIRING A CAREMANAGER – Prejudices against Caremanagers: assumptions by judges, GALS, attorneys, and litigants assuming that they themselves have the necessary skill sets and therefore CM is not needed – Family members bias: I am the Guardian not the Court – Caremanager bias: preserving the guardian’s careplan; tendency to maintain the relationship with the guardian and not rock the boat; difficulty toggling back and forth b/t general advocacy and making it work, for example, w/in the limits of the snt rules or properly calibrating expectations (minor's vs. family’s money) 19

20 CHALLENGES WITH HIRING A CAREMANAGER – Costs – Third parties cooperating/recognizing HIPAA releases in favor the CM (guardian of the person’s agent?) – Experience working within the guidelines of a Special Needs Trust, e.g., SSI and the trust not paying for food and shelter 20

21 So, how does this work within a COURT SETTING? Considerations for a Court order to hire CM Is the Caremanager independent of the guardian or trustee and operating at the behest of the court? and is the estate merely responsible for paying for their services? Does the Caremanager need to consent to the jurisdiction of the court via some type of waiver? Should the order anticipate that third parties will require either the guardian to sign a release or the court to authorize specific authorities, e.g., HIPAA, guardian needs to sign medical consents 21

22 WORKING WITHIN A COURT SETTING CONT. Explicit and implicit mandates/Reporting requirements: To whom is the Caremanager to report? The court directly? The GAL? The guardian of the person? The guardian of the estate? Specifying the content of the reporting…what does judge want to seen in the report? 22

23 WORKING WITHIN A COURT SETTING cont. CM is given a specific mandate of “X”, e.g., apply for SSI, and the Y event occurs, e.g., the case manager identifies that there is no food in the house. The expectations regarding the scope and nature of the reporting should that be spelled out in the agreement or court order, i.e., “hereby authorized to hire CM for the following purposes (X); however, the court further requires to the extent that the CM identifies matters of concern in carrying out his/her functions pursuant to this court order, that CM shall have a requirement of candor to this court and report said concerns.” 23

24 SUGGESTED FIXES – (never seen in Cook County) Make CM a GAL – by doing so, the court has an opportunity to set eligibility standards for what the court’s expectations are and who it would consider to be a resource (noting that a CM is an otherwise undefined term) 755 ILCS 5/11a-10 – Clarify in a court order whether the guardian/trustee is authorized to hire CM (or merely the payor) or whether the CM is court- appointed and required to report directly back to the court? 24

25 SUGGESTED FIXES Incorporate an overview of Caremanagement services into the court’s comprehensive training of guardians ad litem. 25

26 FIXES – ALL IT TAKES IS A COURT ORDER – Sample court order (See Appendix): Suggested standardized language describing the care management agency’s areas of strength and experience. This language can assist the probate judges by providing details that will be of use when appointing a CM, and selecting a well-matched provider when care management is needed. 26

27 FIXES – COURT ORDER THEMES TO BE ADDRESSED Include issue of HIPAA, CM consenting to court jurisdiction Costs Mandate – implicit and explicit Reporting requirements: to whom and expected content 27

28 Ultimate Considerations 1. Elevate the mundane to the sacred 2. “Trust but verify “ CONTACT INFO: Website: 28

29 Appendix: FOUR CAREMANAGER ILLUSTRATIONS Case examples where case managers have been appointed illustrate the diverse roles and interventions by case managers that achieve positive outcomes for wards of the court The complexity of these case examples illustrates the importance of selecting a case management agency with the expertise and training to assure the best outcomes in terms of quality of life and preservation of resources for the ward. 29

30 Appendix: CAREMANAGER ILLUSTRATIONS – Stabilizing Careplan CareManager (CM) was appointed to assist a ward’s family when the trust officer was concerned about the family’s ongoing requests for funds and apparent needs. CM discovered that the ward’s extended family was residing in the ward’s home without a financial contribution. The disabled child was not receiving the medical care or educational services needed. CM raised the need for extended family to contribute financially or to relocate. CM also discussed with the family why they were residing in the home and assessed whether family members were contributing to the ward’s care. CM arranged for doctor appointments and transportation to same, arranged for a visit to the minor’s school and for transportation to and from school, monitored the family for stability, and placed services as needed including respite care. CM’s primary contributions were to stabilize the ward’s residence and assist the ward’s family to meet educational and medical needs. 30

31 Appendix: CAREMANAGER ILLUSTRATIONS – Stop Abuse/Neglect CM was appointed to intervene when the trust officer was concerned that a cognitively impaired older adult may be the victim of undue influence and financial exploitation by a paid care giver. CM worked with the ward’s out-of-state family to provide care giver agency resources in order to keep the ward in the home, arranged for specialty care doctors, monitored the care giver agency services once in place, and continued communication with the family. When the ward’s needs changed, CM advised the family regarding additional in-home services and options for placement in a long- term care facility. CM’s primary contributions were to provide supervision of the ward such that the ward was no longer a target for exploitation, and to provide the ward’s family with information and local monitoring of the ward’s status. 31

32 Appendix: CAREMANAGER ILLUSTRATIONS – Helping the Guardian effect her responsibilities Caremanager (CM) was appointed to assist the family of a disabled adult. The trust officer was concerned that the ward’s primary care provider was unable to express the ward’s needs, to return calls, to respond to the trust officer’s inquiries, and to keep scheduled appointments. CM investigated and determined that the care provider had unmet mental health needs which impeded his ability to care for the ward. CM worked with the care provider to accept a mental health diagnosis and to participate in treatment. CM made sure that the care provider had ongoing resources and services that assisted with the ward’s care, such as respite care, transportation and home visits by a social worker. CM’s primary contributions were to enhance the care provider’s ability to meet his responsibilities to the ward effectively and thereby allow the ward to remain in a familiar, safe environment. 32

33 Appendix: CAREMANAGER ILLUSTRATIONS – A Minor CM was appointed to assist the ward’s family in relocating to a safer environment. CM evaluated the housing needs of the disabled minor and the family, located appropriate housing, arranged for a new school placement with special education services, found medical providers and therapies, and found durable medical equipment providers to service the minor in the new home. CM also investigated and advised the court regarding the need and eligibility for an OBRA / Special Needs Trust and potential entitlements to government benefits for the ward. CM’s primary contributions were to facilitate the minor’s move to safe, appropriate housing, to secure all necessary services in the new location, and to advise regarding maximizing potential benefits. 33

34 Appendix-Don’t Become a Fiduciary De Facto Found to exist by the facts NOT by the relationship Trust is reposed on one side and results in superiority and influence on the other side Proof must be by clear and convincing Long v. Lyon 311 Ill. App. 3d 959, 726 N.E. 2d ILCS 5/4a-10 “Presumption of void transfer” (transferee is a caregiver and exceeds $20,000) CM maybe distinguished (statute not applicable) if not providing ADLs 34

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38 Who is Howard Berk The Federal Government’s Consumer Financial Protection Bureau’s Illinois point person and expert drafter of the soon to be published “Lay Fiduciary Guide” (current) Innovated and drafted the first court ordered self-settled special needs trusts in the State of Illinois and created the Illinois Disability Pooled Trust having had more than 1300 disabled beneficiaries and managing over 140 million dollars in assets (1999 to present) Chair of F.L.A.G – a task force comprising of financial institutions, law enforcement and government agencies in Cook County to share and develop strategies to combat financial exploitation (2003) Chair of the Chicago Bar Association’s committee to draft and effect legislative changes to the Illinois statutory power of attorney acts so as to afford greater protections to the disabled principal against exploitation by the agent ( ) Supervising attorney for the Cook County Public Guardian responsible for disabled estate management and litigation against third-parties for breach of their fiduciary responsibilities ( ) 38


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