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        I’m Comparing Nursing Homes for My Mother and Don’t Know What to Look for in the Contracts

        150 150 Clifford Horwitz

        Question:

        I’m comparing nursing homes for my mother and don’t know what to look for in the contracts. Do you have any suggestions?

        Answer:

        Recently, a study of the admission contracts collected from two hundred nursing homes in the state of Missouri exposed violations of the Nursing Home Reform Law – resident rights – on multiple levels, including, but not limited to areas of financial responsibility and visitation rights.  Such violations, however, are not exclusive to nursing home admissions contracts in Missouri. They can be found within admission contracts throughout the nation, including the state of Illinois.

        Why are these violations of rights allowed to exist, and why have they become as common as coffee in the morning? Because state inspections fail to evaluate them routinely, and the public is deceived into thinking that that such violations, as well as misplaced responsibility for care, is “the norm”.

        If questions arise, residents, family members and other resident representatives are quick to be told that such policies are standard and required as a condition of admission. In many cases, such “conditions of admission” requirements are not only outrageous, but also illegal.

        The admission personnel would be correct in as much as the characterization of many of these “requirements” may be standard within the industry, however, there’s a huge difference between industry standard and “legal”, certainly any interpretation supported by federal law itself. With limited choices of placement facilities, fear of rejection, and a general hesitation on the part of consumers to question an implied authority, such illegal characterizations or departures from the law prevails.

        If you’re thinking of placing a loved one into a nursing home (long-term care or assisted living) please be sure to review the admission contract carefully. Here are some issues that we’ve seen while evaluating cases of abuse or neglect that were also included in the Missouri report:

        • A nursing home resident has the right to be visited by a family member at any time.  42 U.S.C.§§ 1395i-3(c)(3)(B), 1396r(c)(3)(B); 42 C.F.R. § 483.10(j)(1).  Statements such as: “Regular daily visiting hours for the facility have been established and posted,” or, “The facility reserves the right to limit any or all visitors” is a violation of the federal Nursing Home Reform Law. Some admission contracts will reference “extended visitation is permitted under certain circumstances, typically when approved by a physician”, which implies that there are standard limitations, such as the illegal posted hours of 10 am – 8 pm. Again, an industry standard perhaps, but a clear violation of the law.
        • A nursing home “may not require residents to deposit their personal funds with the facility.”  42U.S.C. §§ 1395i-3(c)(6)(A)(i), 1396r(c)(6)(A)(i); 42 C.F.R. § 483.10(c)(1).  Statements such as: “I authorize Facility to request and be named Payor on my Social Security checks,” or “it is the policy of the facility to complete a Representative Payee form to the Social Security Administration requesting the resident’s Social Security income be directly sent to the facility” are illegal as a condition of admission.
        • The Nursing Home Reform Law prohibits a nursing home from requiring a third party guarantor as a condition of a resident’s admission or continued stay.  42 U.S.C. §§ 1395i-3(c)(5)(A)(ii), 1396r(c)(5)(A)(ii); 42 C.F.R. § 483.12(d)(2).  Family members or other resident representatives (friends, neighbors, etc, when family members are not present) will often sign contracts citing “Responsible Party” as an emergency contact, not realizing (because of obscure language and the friendly smiles of administrative representatives) that they have just voluntarily accepted full financial responsibility for the resident. Should services be denied by Medicare or Medicaid due to conflicts, or as a result of a billing blunder, the “Responsible Party” is often “illegally” held liable by the nursing home for tens of thousands of dollars in care provided.
          • This federal regulation applies to any nursing home that accepts Medicare or Medicaid residents, regardless of whether the family member or friend you’re assisting is covered by either Medicare or Medicaid, or paying through private resources.
          • A common example of this violation would include language pertaining to the resident and/or their appointed representative, stating, “… do each, jointly and severally, guarantee the full, timely, and complete performance of the Resident’s responsibilities, obligations, duties, and agreements under this Agreement and do each, jointly and severally, guarantee the payment of the sums due [facility] under this Agreement” as a condition of admission.
        • The Nursing Home Reform Law requires a facility to provide the care necessary for a resident to “attain or maintain the highest practicable physical, mental, and psychosocial well-being.”  42U.S.C. §§ 1395i-3(b)(2), 1396r(b)(2); 42 C.F.R. § 483.25.

        There are many ways that a facility will imply or coerce a future resident, and/or their family and representatives into believing that while reasonable care is a daily goal of the facility, staffing levels and other conditions beyond their control sometimes interfere with care. In fact, they prepare those considering placement with the notion that falls, bedsores, weight loss, depression and declining health conditions should be expected, as though they are common in the delivery of care to the aging and frail regardless the effort.

        The language of such contracts go as far as to immune the facility for lack of staffing, quality food, safe environmental conditions and more, which is absolutely a departure from the law, and should red-flag any individual to reconsider admission to that facility.

        As with any form of healthcare delivery today, consumers must educate themselves and be ever vigilant when reviewing contracts for admission. Ask questions and be suspect of any explanation that’s referred to as “industry standard”.

        The only acceptable standard is the wording found in the Nursing Home Reform Act. You can request a copy to be mailed to you by the Illinois Department of Health and Human Services, or find it online at: www.ltcombudsman.org/

        Clifford Horwitz
        AUTHOR

        Clifford Horwitz

        As Principal Partner and lead trial lawyer of Horwitz, Horwitz & Associates, Cliff has devoted his entire career to achieving justice for those who have been victimized by corporate negligence. He has won numerous record-setting jury verdicts and settlements, as well as what was the largest personal injury verdict in Illinois for an individual.

        All stories by: Clifford Horwitz