Real D&I: It’s Time to Put Up or Shut Up

  
    Diversity.  Inclusion. These terms have become “buzzwords” that we often hear in common parlance.  At first blush, they appear benevolent, hopeful, good-natured, and, dare I say, heartwarming. Well, if you ask me, those are the reactions these words used to invoke.  Nowadays, if I am being honest, when I am presented with Diversity and Inclusion (or “D &I”), especially within the context of an organization not particularly lauded for advancements in this space, my initial reaction is a bit of skepticism.  Those who know me well will quickly tell you that I am far from cynical and highly optimistic at my core.  So my reaction is not rooted in a general disbelief that people and their respective institutions are incapable or unwilling to meaningfully implement D&I initiatives.  Rather, my visceral response and immediate eyebrow raise is based on the fact that, in many cases, “we’ve heard this all before.”

    To that end, during the ABA Midyear Meeting in Austin, Texas, one particular program stood out among the rest to candidly tackle the “walk the talk” concept unlike any other I have experienced before.  At Midyear, the ABA Young Lawyers Division routinely holds its Diversity Dialogue Breakfast.  This year, the program was entitled “Moving Beyond Lip Service: A Conversation with Don Prophete”; the event took the form of a fireside chat.  This experience cultivated a transparent, no holds barred conversation with Don, whom I have the pleasure of calling a mentor and friend, regarding diversity and inclusion efforts within the legal profession. I also had the distinct honor of moderating the dialogue.

    Our chat focused on the importance of the legal industry’s commitment to genuine diversity and inclusion efforts.  The endeavor was for attendees to gain an insider’s perspective on various topics, such as: maintaining a grit mindset, advocating for sincere accountability in the diversity and inclusion realm, the importance of allyship, and how the failure to be an ally can leave persons of color out in the cold and perpetuate the already staggering rates of attrition within our legal profession.  But this conversation largely centered on insights from Don.  So, who is he?  And why does it matter? 

    To call Don Prophete an industry leader, it would be a gross understatement.  He is a trial lawyer and partner at Constangy, Brooks, Smith, and Prophete LLP based in Kansas City, Mo., who excels at representing large clients in complex and multi-plaintiff race employment discrimination cases.   If you stop there, it sounds like hundreds of lawyer bios you have perused before.  Don has another tremendous accomplishment of note - when he joined his firm, he became the first (and still the only) black name partner at an Am Law 250 firm.  Let that one sink in for a moment.  Here, in 2020, to our knowledge, there is still in history only one such individual to have their name on the masthead of a firm in this category.  Further, in 2019, Prophete penned an open letter, responding to the legal profession, calling for an end to empty notions and challenging the profession to put action to words.  Needless to say, he was well qualified to receive our attention for the hour.

    Unsurprisingly, gauging his monumental milestones to date, Don has quite the reputation for speaking his mind.  And that he did.  Throughout the discourse, he peppered in real life examples, powerful anecdotes and a few lighthearted quips to add some levity to an otherwise heavy subject.  To be clear, our chat did not focus on shaming those who were not living up the bar of true D&I (or standards they have set for their own organizations).  Instead, we geared the conversation to first shine light on the stark realities that still exist in the profession.  Once we all agree that, proportionally, things have not dramatically changed over the last several decades in the legal field, then we can talk about what we are and are not doing. 

    For starters, and to the original position of this piece, we have to stop talking and start executing.  Almost every group of considerable magnitude has a diversity mission statement or somewhere in their bylaws, practices, etc. guidelines about how to be more inclusive.  We have the data.  We have the initiatives and plans.  And, of course, we have the flowery words and manifestos.  In 2020, as Don shared with us, the only way we move the needle forward is to cease the babbling and take action.  As you might expect, Don lives up to this model of execution in a big way.  The personal team of attorneys (some 30+ lawyers) that he brought to his firm and “feeds” with his work is comprised of individuals who are racially, ethnically, and culturally diverse.  He regularly refers to his crew, and others similarly situated, as “Brilliant Brown Lawyers.”

    So what does all of this mean for us?  Well, following in Don’s footsteps is certainly ambitious.  However, what I will recommend is that each of us look in the mirror first and then at the organizations we call home second, and ask ourselves: “Do I walk the talk?  Does my workplace move beyond lip service?”  If the answers are yes, then great.  Keep going.  If the answers are no, then stop talking, start listening, and take the first step.

Jerome Crawford

MAHLE Industries, Incorporated

Novi, MI

Appealing a Decision Under Michigan's Local Historic Districts Act

In 1970, Michigan's Legislature enacted the Local Historic Districts Act (the "Act")^[1] as a way to preserve historic resources throughout the state.  A "historic resource" is defined as "a publicly or privately owned building, structure, site, object, feature, or open space that is significant in the history, architecture, archaeology, engineering, or culture of this state or a community within this state, or of the United States"^[2]. Thus, almost any property, whether it's a single-family home or a commercial parking lot, is subject to the restrictions of the Act if it is within a local historic district. 

While the Act benefits communities in many ways, it can be difficult to maneuver as a property owner.  The most significant obstacle for property owners is the requirement that a permit be obtained for any work to be performed on the exterior of the property. ^[3]  To do so, the owner must apply for a permit from the local authority (usually the local historic district commission).  The application will then be considered by the local historic district commission at a public meeting, where they will determine whether the work will adversely affect the exterior of the resource.  If the commission denies the application, the property owner has the option to appeal that decision to the state historic preservation review board (the "Review Board")^[4].

An appeal to the Review Board must be made within 60 days after the local historic district commission's decision has been furnished to the applicant.  The Review Board will consider the appeal at its next regularly scheduled meeting.  It will decide whether to affirm, modify, or set aside the commission's decision.  If the applicant is not satisfied with the Review Board's decision, they may appeal it to the circuit court that has jurisdiction over the local historic district commission whose decision was initially appealed.

^[1] 1970 PA 169, § 5, MCL 399.

^[2] 1970 PA 169, § 5, MCL 399.201a

^[3] 1970 PA 169, § 5, MCL 399.205.

^[4] 1970 PA 169, § 5, MCL 399.209.

Kara Hart-Negrich

Michigan State Housing Development Authority

Lansing, MI

www.michigan.gov/mshda/

A Loved One Needs Long-Term Care: What to Expect When You’re Expecting (Part 2)

We ended last time in the middle of the “What do we do now?” question for a family whose loved one is in need of long-term care (LTC). I’d like to continue that discussion below with some more information we typically provide to our clients, but first, I want to reiterate one thing as just yesterday I ran into the same issue with a client in a nursing facility: The Long-Term Care/Skilled Nursing facility is not going to push your loved one out the door. In fact, the nursing facilities are often happy to hear that a family is working with an elder law attorney and trying to get Medicaid coverage going. If your family is in this situation, (a) don’t panic, (b) read below:

• Always keep in mind that nursing facilities are businesses, too. This is certainly not to say that skilled nursing homes do not have your loved one’s best interest at heart. The vast majority of them do. However, they also have to keep the lights on. And, in our experience, families are often met by a confusing and stressful billing process from the LTC facility when the insurance coverage is coming to an end. The facility informs the family that the loved one’s rehab is ending on a certain date or that they are being “discharged” then follow that up with an invoice for the first month’s rent/living expenses and ask, or demand, that it be paid up front, in full, otherwise risk the loved one having to leave the facility. This is often the point when a family will reach out to an elder law attorney. Please keep in mind, the facility is not and cannot push your loved one out the door the day after rehab ends. They also cannot predicate care on someone’s financial circumstances. What you need to do is inform the facility that you are consulting with an attorney regarding LTC Medicaid and if the facility has any questions or concerns, direct them to the attorney’s office.
• Note- the sooner you reach out to an attorney in a situation like this the better. The ideal scenario is that the attorney is contacted when the loved one is still in the hospital or at least still under insurance coverage at the facility. This allows us more time to get the LTC Medicaid plan rolling.
• Once the facility is aware that the loved one is pursuing LTC Medicaid, some other determinations will be made. First (or what should come first), the facility will inform the family as to whether or not they have any long-term care beds available. If the answer is no and they tell you there is a waiting list then keep looking for facilities with LTC bed availability. And in the meantime, if it’s a place you like, call them every two days and see if a bed has opened up. Be persistent, it helps. The facility, typically the social worker, also should be helping you find other skilled nursing facilities that have availability; however, just because the LTC facility recommends another facility to you that does NOT mean you have to accept that recommendation. Do your own recon and find the places you are most comfortable with…who also accept LTC Medicaid. (Reminder- only LTC skilled nursing facilities, aka nursing homes, can accept LTC Medicaid).
• If the facility tells you yes, they do have LTC bed availability for your loved one and it’s a place you are comfortable with, then that’s great. Our next step will be to discuss how to get the loved one Medicaid eligible as quickly as possible. This varies based on every person’s financial situation and marital status.
• Always keep in mind, nursing homes are businesses. It’s so important I am mentioning it again. The facility is concerned that someone is going to remain at their facility without a pay source and then, upon leaving, never pay their bill. This is why the facility is very comfortable with your loved one being there during the Medicare/insurance coverage and then not so comfortable when the insurance stops. They want to know how you plan to pay for the care. What a lot of LTC facilities don’t understand though is that in order for a patient to qualify for LTC Medicaid they CANNOT pay the nursing home for the upcoming month. This payment counts as “cash on hand” for the Medicaid applicant and will actually disqualify them for Medicaid for that month. If you find yourself in this situation, please feel free to cite the following from the State of Michigan Bridges Eligibility Manual, which governs the Medicaid application and approval process:
• BEM 405, page 13 of 23 (as of 7-1-2019)
  • Note: An individual is not eligible for MA in a month they have prepaid for LTC. Because federal law directs a resident in a nursing facility must have access to all monies held by the facility for the resident, count the money held by a nursing facility as cash.

As you can imagine, there is still more to cover when it comes to LTC Medicaid, even after two somewhat lengthy (you be the judge?) blog posts. Perhaps we will cover some of the other intricacies of the LTC Medicaid process in the near future, but if you’re reading this (thanks mom!) and would like to continue the discussion, please respond to this post. As I’ve mentioned previously, your questions often overlap with someone else’s and the more interaction we have the more useful the information is that we are providing. Of course, if you’d rather discuss things privately, please feel free to contact our office as well.

Until next time, 

Ryan

Ryan Reck

Woods Law Office PLLC

Shelby Township, MI

www.woodselderlaw.com

A Loved One Needs Long-Term Care: What to Expect When You’re Expecting (Part 1)

   
    In my inaugural post, I decided to borrow this aptly used title from the infamous book “What to Expect When You’re Expecting” by Heidi Murkoff and Sharon Mazel. Originally published in 1984, the book offers advice to soon-to-be first-time parents on, you guessed it, what they can expect when they’re expecting the birth of their first child. I think it makes for a fitting sub-title here, because while all of this planning is done for the beginning of our children’s lives, we rarely have the same kinds of plans in place for our own parents or other loved ones as they, and we, approach the latter stages of our lives. So, our goal in these posts is to provide a little insight based on our experience and the time we’ve spent both assisting and observing families as they navigate through the unfamiliar and often times confusing world of long-term-care. If you have any questions, feel free to respond to the posts or reach out to our office directly. We are here to help.

    While there are varying levels and types of care, from living at home independently to in-home care to independent living to true assisted living or memory care facilities, among others, when a loved one needs 24/7 care and/or supervision, i.e. they cannot be left unattended, more often than not that loved one is going to need to reside in a long-term care (LTC) skilled nursing facility. And if that is the case, unless the individual/family has the means to pay upwards of $10,000/month out-of-pocket for care, long-term care Medicaid is on the horizon. When a family in this situation first comes into our office, the vast majority of the time the loved one is either (a) about to be or has been discharged from a hospital into a skilled nursing facility for rehab (most LTC facilities double as short-term rehab facilities) with Medicare/supplemental insurance covering them for a period of time (20-100 days depending how the rehab goes), or (b) is already in the skilled nursing facility and the insurance-covered rehab days are about to end. The question on that family’s mind is always the same: “What do we do now?”

    Our response typically starts with the following:

    First, your loved one’s overall health and care needs are going to dictate everything else we are doing. Some families already have the answer to this when they come into our office, but others will need to check with the physical therapists, doctors, nurses or other medical personnel and see what level of care, if any, that the medical professionals suggest for the loved one once rehab ends. I’ve already mentioned some of the various types of care/care facilities out there. What, if any, benefits are available to help curb some of the costs for that care vary based on the type of care or care facility your loved one needs. For today, we are focusing on individuals who need that 24/7 level of care. And when it comes to a LTC nursing facility, the benefit we seek is Long-term Care Medicaid.

    I think this would be a good place to stop today’s post. There is a LOT more to cover when it comes to LTC Medicaid, but I’ve got work to do! We will continue this discussion next time, with some more tips on what to expect when your loved one needs long-term care. For now, please take solace in the fact that, should you or a loved one find yourself in the situation described above, the LTC facility is not going to push you/them out the door. In fact, the nursing facilities are often happy to hear that a family is working with an elder law attorney and trying to get Medicaid coverage going. Medicaid, after all, keeps their lights on. Just a reminder, should you have any questions or concerns please respond to this post, your questions often overlap with someone else’s and the more interaction we have the more useful the information is that we are providing. Of course, if you’d rather discuss things privately, please feel free to contact our office as well.

Until next time,

Ryan

Ryan Reck

Woods Law Office PLLC

Shelby Township, MI

www.woodselderlaw.com

 

Forward Thinking Law: It’s Time to Embrace Technology

    None of us could have anticipated the windfall of problems that came with the onset of the COVID-19 pandemic. Industry and society as we know it has been flipped upside down- and the view is not pretty. With necessary social distancing mandates in place and limits to court access apart from minimal exceptions, we are finding ourselves in uncharted territory in our practice of law, or rather our inability to practice law. The widespread slowdown could have been avoided, or at least minimized, had we been taking advantage of available technology before the fact. This is not an issue exclusive to the legal world, as countless industries alongside ours are scrambling to equip themselves with tools to continue conducting business remotely. The question becomes, what are we, as young attorneys and future leaders of our community, going to do about it? I have a few thoughts.  

    As we are all aware, the community’s need for access to the legal system does not stop with an order to stay at home or courts closing their doors to non-essential matters. The services provided by the court system are essential as they directly, and often intimately, impact the lives of those involved. The fact that most cases have now come to a standstill, awaiting rescheduling once the stay at home order is lifted, is concerning for many of us and our clients. Life has not stopped, and an inability to attain court dispositions is only adding to the hardships of those who turned to the courts for help. Now, it should not go unacknowledged that the high courts, some local courts and communities are doing their best to leverage technology to help alleviate the fallout and provide access to the legal system remotely. However, as I am learning firsthand, working at a firm that embraces technology can only go so far to keep things moving when faced with courts and colleagues not equipped to do the same. Therefore, technology initiatives must be emphasized and used as examples to build on because when this is all over, the consequences will remain, and the legal system will need sustainable support and resources to get back on track.         

    It is easy to get bogged down in focusing on what could have been or should have been done to have avoided this but, instead of concentrating on the negatives, it is our responsibility to take this opportunity to focus the legal community on committing to growing and developing the technological infrastructure of our firms and our courts. We can become leaders in innovating remote access as a means to continue conducting business and pursuing justice.  We need to take initiative now. The legal community cannot shirk away from technology. It is time for us all to embrace the advancements we can achieve by implementing the tools offered by our modern-day world. 

    These are the changes that need to be made: First and foremost, the time for uniform implementation of e-filing is now. Second, all courts statewide must work to improve their websites and include access to updated information, forms, and a free and easily accessible register of actions (one that provides attorneys of record digital access to filed documents would be a game changer). Third, we need to expand our use of virtual courtrooms. The technology is available but only used in a limited capacity. It needs to be available to all. For example, simple matters that involve scheduling or updating the court on the status of a case should be handled remotely, with the judicial attorney through video or telephone without necessitating a time-consuming trip to the courthouse. For firms, utilizing video conferencing would also be conveniently advantageous for consultations, mediations, negotiations- the possibilities are endless. Additionally, switching to a paperless office would not only ensure that attorneys and staff have access to full digital files remotely but also nicely complement widespread e-filing and prove to save a few trees in the process. There are an abundance of great apps and online services that provide help to digitize office processes that can make us more efficient and accessible. Hiding from technology would be a great disservice to the people and communities we serve.

    I know none of this is going to change overnight but it is our responsibility to keep the momentum going while everyone is thinking about it. We need to act. Whatever costs and growing pains that are sure to come along will be well worth it especially in ensuring that we can maintain our community’s access to the legal system even when physical access is not possible. With all of us finding a little more time on our hands we can research ways to harness technology, reach out to administrators at firms and courts who are already implementing such tools, and draft up proposals of how to effectuate these much-needed changes. We have a responsibility to keep our cases moving forward and doing everything in our power to help settle matters to alleviate the court’s backlog once it reopens. Together, we will get through this and with effort and ingenuity the legal community will come out stronger on the other side.  

Miriam M. Saffo

Nichols, Sacks, Slank, Sendelbach,

Buiteweg & Solomon, P.C.

Ann Arbor  

Nsssb.com