Q:       I have good reason to believe my mother has been neglected by staff at the nursing home where she lives. Is there a law against this?

A:        Yes. In Ohio, it is a crime for anyone who owns, operates, administers, is employed by, or is an agent of a care facility (such as a nursing home, group home, residential care facility, assisted living facility, adult care facility or hospital long-term care unit) to abuse or neglect a resident of that facility.

Q:       What constitutes abuse according to Ohio law?

A:        According to Ohio law, “abuse” includes “knowingly causing physical harm or recklessly causing serious physical harm” to a person through physical contact or the inappropriate use of physical or chemical restraint, medication or isolation. Care facility staff is not allowed to use restraint, medication or isolation to punish a patient or for staff convenience. Staff also cannot use restraint, medication or isolation in excess, as a substitute for treatment, or in ways that hinder rehabilitation or treatment.

Q:       How does Ohio law define neglect?

A:        Ohio law defines “neglect” as recklessly failing to provide a person with the treatment, care, goods or services necessary to maintain health or safety, resulting in serious physical harm to the patient.

Q:       My mother was recently missing some cash and gift cards, and I suspect a staff member of the theft. What does Ohio law say about the financial exploitation of patients?

A:        The Ohio Attorney General’s Medicaid Fraud Control Unit investigates crimes against care facility residents. The Ohio General Assembly authorized the Attorney General to create and oversee the Ohio Medicaid Fraud Control Unit in 1978. The unit is made up of more than 60 special agents, analysts and attorneys, and Ohio law gives this unit original criminal jurisdiction to investigate and prosecute crimes against care facility residents statewide. When elderly or disabled adults are victimized, Ohio law allows for stiffer penalties for offenses such as theft, unauthorized use of property, misuse of credit cards and forgery. 

Q:       What can I do to make sure my mother isn’t neglected, abused or financially exploited while she’s in the nursing home?

A:        Educate yourself about how to recognize and report abuse, neglect and exploitation. Listen to your mother and her caregivers and intervene if you suspect that something is wrong. If you have direct knowledge that your mother is being abused, neglected or exploited, you can contact the Ohio Attorney General’s Office at 614/466-0722 or 800-282-0515, or send a fax to 614-644-9973, or visit www.OhioAttorneyGeneral.gov/ReportPatientAbuse. 

Q:       What does the Ohio Attorney General’s Office do about these problems?

A:        The Ohio Attorney General’s Office helps to protect patients from abuse, neglect and exploitation through the Office’s Medicaid Fraud Control Unit, which investigates allegations of patient abuse and neglect, and, in cooperation with local county prosecutors, prosecutes those responsible.

This “Law You Can Use” column was provided by the Ohio Attorney General’s Office and prepared by the Ohio State Bar Association. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

Q:       What laws protect employees who serve as caregivers?

A:        Title VII, the Americans with Disabilities Act (ADA), and the Family and Medical Leave Act (FMLA) each may protect certain employees who must take time from work to care for family members.  It is important to note that caregiver status by itself is not a protected class, but discriminatory treatment of employees who serve as caregivers because of membership in a protected class or stereotypes is unlawful.

Q:       What does the ADA say about caregiver issues?

A:        The ADA prohibits “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.” 

Q:       What kinds of ADA claims might employees have?

A:        Courts generally classify these ADA-related “association” claims into three different categories:  expense; disability by association; and distraction.

1) A scenario in the “expense” category might involve an employee who is fired (or otherwise penalized) because a relative, who is covered by the employee’s health plan, has a costly disability.

2)  In a “disability by association” scenario, the employer might fear the employee will contract his or her relative’s contagious disease or have the same genetic condition.

3)  The “distraction” category has to do with the employee’s inattentiveness at work due to a family member’s disability that requires enough attention that the employee would need an accommodation (such as shorter work hours) to perform satisfactorily in the workplace.

Q:       Does the ADA require an employer to reasonably accommodate an employee’s wish to attend to caregiving obligations?

A:        No.

Q:       What does the FMLA say about caregiver issues?

A:        For employers with 50 or more employees within 75 miles, the FMLA provides 12 weeks of unpaid leave to accommodate the birth of an employee’s child and to care for an immediate family member with a serious health condition.

Q:       What does the law say about how my employer should address caregiver needs in the workplace?

A:        The Equal Employment Opportunity Commission (EEOC) cautions against the unlawful disparate treatment of workers who have caregiving responsibility in a publication it distributes to employers. It warns specifically against:

1) sex-based disparate treatment of women caregivers (such as failing to hire or promote women with children because they are presumed to be less committed to the job);

2) pregnancy discrimination (such as assuming pregnant women cannot perform certain physical tasks); 3) discrimination against male caregivers (such as denying caregiving leave that would be given to a woman);

4) discrimination against women of color (such as allowing caregiving leave for a white woman, but not for an African American or Latina woman);

5) unlawful stereotyping under the ADA (such as refusing to hire someone under the assumption that the applicant will need leave to care for a child with a disability); and

6) creation of a hostile work environment (such as offensive comments made by the employer or other employees about an employee’s caregiving responsibilities).

Q:       What are some guidelines the EEOC has recommended to avoid liability under Title VII or the ADA for discrimination related to caregiving?

A:        The EEOC recommends that employers:

1)  be aware of, and train managers about, the legal obligations that may impact decisions about treatment of workers with caregiving responsibilities;

2)  develop, disseminate and enforce a strong non-discrimination and anti-harassment policy;

3)  ensure that managers at all levels are aware of, and comply with, the organization’s work-life policies; 4)  respond to complaints of caregiver discrimination efficiently and effectively; and

5)  protect against retaliation.

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Columbus attorney Amy Ruth Ita of Barnes & Thornburg LLP. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

Q:       What is a judgment debtor exam?

A:        A judgment debtor exam is a court-ordered meeting between you and a creditor held after that creditor already has a judgment against you. At this post-trial meeting, the creditor can ask you a wide variety of questions about your assets (i.e., cars, homes, job, bank accounts, etc.) and you must take an oath and give truthful answers. If the case against you is not over and there is no judgment, the creditor is not entitled to a judgment debtor exam, but be aware that the creditor may have other ways of getting relevant information.

Q:       Do I have to attend the judgment debtor exam?

A:        Yes! Although it may seem pointless, especially if you know you have no assets or ability to pay the judgment, you must attend the judgment debtor exam. Because it is a court-ordered proceeding, it is wise to show up, even if you don’t have much to tell the creditor. If you cannot make the scheduled exam, try to contact the creditor’s lawyer to reschedule. If that doesn’t work, contact the court and ask for a continuance.

Q:       What happens if I don’t attend the exam?

A:        If you fail to show up, you may be summoned to appear before the judge and explain your reason for missing the scheduled exam. Even worse, the judge might issue a “capias” letter (similar to a warrant) for your arrest. This means that if you are stopped by the police for any reason in the future, the warrant will show up in the police department’s system and you could be arrested and detained until the exam is completed. You could also be fined and held in contempt of court for failing to appear.

Q:       What happens at the exam?

A:        Usually, you will arrive at the courthouse at the scheduled time and meet briefly with the creditor’s attorney. After this introduction, you will take an oath. In most instances, you will then go to a private conference room where the examination will be conducted. At this private meeting, the creditor’s attorney can ask you about anything related to your ability to pay the judgment. This includes questions about your bank accounts, job, house, cars, jewelry, tools, insurance policies, retirement savings and any other personal property. Keep in mind, if the judgment against you is solely for a personal debt, the creditor usually cannot ask you about business assets.

Q:       Do I have to answer every question?

A:        Yes, and you must abide by your oath to tell the truth during the exam. Just as you wouldn’t lie on the witness stand, you shouldn’t lie at the debtor exam. If you are caught lying, you could be charged with criminal perjury. If you refuse to answer a question, you could be held in contempt. If you think that a question is improper, you can ask the magistrate to rule on the appropriateness of the question before you answer. Keep in mind, however, that the magistrate cannot give you legal advice.

Q:       I am worried about my privacy. Will other people hear my answers?

A:        No. Generally only you, the creditor/creditor’s attorney, and possibly a magistrate or judge will hear your answers. Also, your answers will not be part of the public record and the creditor is still subject to privacy laws regarding how your information may be used. Because this is a private meeting where your answers will not be shared with the public, don’t be afraid to give account information.

Q:       Is there anything else I need to know?

A:        As long as you are truthful with the creditor’s attorney, it should be a fairly harmless process. You may even wish to use the judgment debtor exam meeting time to work out a payment plan with the creditor so you don’t have to worry about an untimely or unexpected wage or bank garnishment. Most creditors are willing to work out a payment plan, and the worst they can do is say no.

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Columbus attorney Mark A. Glumac of Wiles, Boyle, Burkholder, & Bringardner Co., L.P.A. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

Q:       What happens if the property I’m renting is in foreclosure?

A:        You probably make monthly rent payments to your landlord, while your landlord makes mortgage payments to a lender. If your landlord stops making payments, the lender may foreclose on your landlord, which will also affect you. In Ohio, the lender must file a foreclosure complaint before legally taking a house or apartment away from the landlord (owner). Your landlord still owns the property until a court grants a foreclosure judgment and approves a sheriff’s sale.

Q:       How will I know if a foreclosure has been filed against my landlord?

A:        Generally, the lender (“plaintiff”) will name you as a tenant in the foreclosure complaint, but may only list you as “Jane or John Doe” or “unknown tenant at [your address].” You are unlikely to get a copy of the foreclosure judgment, but keep any notification you receive so you can find out how the case is progressing or get legal advice, if necessary.

Q:       How can I find out about the status of the foreclosure case?

A:        Check with your local clerk of courts for your county’s Court of Common Pleas. Many clerks have case information online (http://www.occaohio.com/countylist.aspx?qname=All). You may need to provide your landlord’s name to get information about the foreclosure, which is a civil lawsuit.

Q:       Can I stop paying rent if a foreclosure lawsuit is filed against my landlord?

A:        NO. Your landlord still owns the property until there is a judgment and sale, and if you stop paying your rent, your landlord could file an eviction action in court, even during a foreclosure action.

Q:       Can I break my lease if a foreclosure lawsuit is filed against my landlord?

A:        Generally, a foreclosure filing doesn’t allow you to break your lease unless your lease agreement says otherwise. If you do so, your landlord could sue you for money damages. If you decide to move, you may want to negotiate with your landlord to terminate your lease early. If you reach an agreement, make sure it’s in writing and signed by your landlord, yourself and anyone else on the lease.

Q:       Must my landlord maintain the property while it goes through foreclosure?

A:        YES. Until the court approves the sale, your landlord must still fulfill all obligations, such as making repairs, just as you must continue to pay rent.

Q:       Can my landlord still collect rent after the court issues a foreclosure judgment and approves the property sale?

A:        NO. Once a “confirmation of sale” has been filed with the court, it cuts off all the owner/landlord’s rights, including the right to collect rent, but you should continue to set aside rent payment so you can pay the new owner. Whoever purchased the property at the sheriff’s sale will become your new landlord, because the lease survives the foreclosure sale. The new owner should tell you where to make your rental payment, and the amount should not change. Also, the new owner must make any repairs that the lease or Ohio law would have required the old owner to make.

Q:       Can I stay in my apartment once the foreclosure process is completed?

A:        YES, for at least 90 days. Under the federal Protecting Tenants at Foreclosure Act (PTFA), which applies to anyone who bought a property on or after May 20, 2009 as the result of a foreclosure, the new owner generally must keep you as a tenant. Usually, the new owner is the lender (plaintiff), who buys the property back from the landlord at the sheriff’s sale, so the lending company may become your new landlord.

Q:       Can the new owner force me to move out?

A:        Possibly, but you should receive at least 90 days’ notice before the new owner can make you leave. If you are a “bona fide tenant” with a “bona fide lease,” then you have the right to stay in your home until your current lease ends. If, however, the new owner intends to live on the property, you must receive at least 90 days’ advance notice to move out. The new owner can evict you if you do not leave after being properly notified. (Note: You must meet certain criteria to be a “bona fide” tenant with a “bona fide” lease. Consult an attorney if you are unsure about your tenancy status.)

Q:       Can the court evict me through the foreclosure action?

A:        NO. If you are a “bona fide tenant” with a “bona fide lease agreement,” then the new owner must give you a 90-day eviction notice. If you do not move within 90 days, the new owner must: 1) serve you with a three-day Notice to Leave Premises and 2) file an eviction action. Under the PTFA, you may have the right to stay through the end of your lease.

Q:       Where can I get more information or legal help?

A:        Go to http://www.ohiolegalservices.org/programs  or call 1-866-LAW-OHIO (1-866-529-6446) to locate the legal aid program in your area. You must be financially eligible to receive services, including advice, from a legal aid program.

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by attorney Joe Maskovyak of the Ohio Poverty Law Center in Columbus. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

Q:       Is using credit cards for holiday spending a good or bad idea?
A:        Using credit cards for holiday spending is neither good nor bad. If you do not pay off your monthly balance in full, then it is no different from borrowing money at any other time of year. The danger is that it is very easy to overextend yourself and incur more debt than you can afford to repay.

Q:       Why do credit card companies seem so willing to extend me credit?
A:        Extending credit is profitable. Each time you use a credit card, you are getting a loan from the credit card issuer. Credit card issuers earn interest on the money they loan you when you do not pay off the entire balance of your credit cards each month.  The rate of interest charged by credit card issuers varies, but it is usually higher than the standard “market” rate.  Credit card issuers earn the most interest when you make only the minimum payment shown on your bills.

Q:       What are the advantages of using credit cards for my holiday purchases?
A:        The first and most obvious advantage of using a credit card is that it allows you to purchase goods and services without having to pay for them immediately.  Most credit cards allow a grace period within which you may pay for goods and services purchased on a card without paying any interest charges. This feature allows you to defer payment for your purchases, keep your funds in your savings account for an additional 30 days, and thereby earn interest on money that otherwise would have gone to purchase goods and services. In this way, purchases in December can be paid in January without costing any interest.

Q:       Are there any disadvantages in using credit cards for holiday purchases?
A:        Yes. If you do not pay off your credit card balance in full within the grace period, you are charged interest from the purchase date until the day you pay off your balance. Also, the interest rate on credit cards is greater than the market rate, so if you make only the minimum payment on your outstanding balances, you pay the maximum in interest while not greatly reducing the principal amount of your debt. If you make only minimum payments, you could still be paying for this year’s holiday when the next holiday season rolls around.

Q:       What happens if I can’t make the minimum monthly payment or pay off my credit cards?
A:        If you have charged beyond your ability to pay, the credit card issuer will take action to collect the debt. The action may be limited to reporting the debt to credit bureaus, increasing your interest rate to an even higher penalty rate, or it may involve taking legal action. If you have incurred debt, you must realize that you cannot simply ignore the problem.
            Most credit card issuers offer an option to make a “minimum monthly payment” on credit card purchases.  As long as you make the minimum monthly payment on time, and you have not exceeded your credit limit, the issuer cannot take legal action to collect the amount due.
            If, however, you cannot make the minimum monthly payment on a given credit card, or you have made late payments or have exceeded your credit limit, your options are limited. A good first step is to contact creditors directly to try to work out a payment plan. Another alternative if you have multiple credit cards is to seek help from a credit counseling service. A credit counseling service will try to help you devise a plan to pay off the debt and to budget your resources, typically for a small fee.
            If consumer credit counseling cannot solve the problem, then it may be time to consult an attorney to determine whether or not bankruptcy is an appropriate solution. You should not take this option lightly. Many attorneys will conduct an initial consultation with you to determine for no charge whether or not you are a candidate for bankruptcy.

Q:  If I charge something on a store credit card and don’t pay the bill, can the store take back what I bought?
A:  This can happen. A creditor (such as a department store, jewelry store, hardware store or electronics store) can enforce a security interest on credit card purchases. For example, if you charge goods with a store credit card but fail to pay for them, the creditor (department store, jewelry store, hardware store or electronics store) may be able to take back the goods.

Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association. This article was originally prepared by Canton attorney Anthony J. DeGirolamo and Robert M. Stefancin, a principal in the Cleveland office of Ice Miller LLP. It was updated by Anthony J. DeGirolamo. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.