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 Rockland
- Marylou’s mom had a stroke and lost the use of one side of
her body. Marylou wanted her mom to be moved to the nursing
home in her neighborhood so she could visit her daily. She
was told that they had a bed available, but that she would
need to sign the Admission Agreement and some other
documents right away, and to agree to pay privately for at
least six months. Marylou obliged, and promptly signed all
the documents that she was presented by the nursing home
administrator.
It was not until two years later, after her mom had passed
away, that the nursing home threatened to sue Marylou for an
unpaid balance for her mother’s care. Marylou discovered
that one of the documents she signed was an agreement to
guarantee payment for her mother’s care. Marylou’s mom was
on MassHealth for most of her stay, and her income was paid
to the nursing home each month. If Marylou had not provided
a personal guarantee for payment, she would not be facing a
lawsuit.
Just recently I met with Tom, whose mother suffered
significant injuries from an accident in a nursing home. Tom
was inquiring about a potential lawsuit against the
facility, but a review of the Admissions Agreement that Tom
signed on his mother’s behalf revealed that he waived that
right before she even moved into the facility. One of the
provisions in the contract was an agreement to submit any
dispute to arbitration rather than to a court of law.
Nursing homes are specifically prohibited from requiring
residents to agree to arbitration or requiring a third party
to guarantee payment for a resident’s care, but they can
seek such guarantees on a “voluntary” basis. The problem is
that people usually do not realize the significance of what
they are “voluntarily” signing.
Had Marylou or Tom consulted an attorney before they
signed the Admissions Agreement, they would have known their
rights and ensured that any objectionable provisions were
removed from the Agreements.
The message here is not that nursing homes are bad. In fact,
most facilities train their staffs to properly disclose
prospective residents’ rights. You must advocate for your
own rights, however, and in order to do that you must first
understand that you need independent review and
representation in the nursing home admission process.
Nursing home residents are protected under federal and state
laws. The Nursing Home Reform Law (known as OBRA ’87)
promoted individualized care and protection for residents of
any nursing home that participates in Medicare or Medicaid,
regardless of their source of payment. Massachusetts nursing
home residents are further protected by the consumer
protection statutes enacted by the Attorney General (AG).
The AG regulations provide that any violation of OBRA ’87
and similar laws intended to protect nursing home residents
is a violation of the consumer protection statute, and the
resident may be able to collect attorney’s fees and costs in
addition to multiple damages.
Here are some of the protections these laws provide:
*Potential residents may not be forced to waive important
rights or agree to unfair terms (such as an agreement to
provide a third-party guarantee for payment or to submit any
dispute to arbitration). The reality, however, is that folks
are overwhelmed and want the available bed for their loved
one, so they sign whatever they are asked to.
* Nursing homes are prohibited from discriminating against
potential residents based on source of payment. They can
ensure that they will get paid, but they can not
discriminate against someone who will need to apply for
Medicaid (MassHealth). The reality is that some nursing
homes do give preference to potential residents who have the
ability to pay privately. Some facilities will even request
a guarantee from the resident or the resident’s family that
they will privately pay for a certain period of time – say
six months.
* Discharge of a resident for behavior or mental health
problems is quite common and it is accomplished by a
practice known as “dumping” where the facility sends the
resident out for a psychiatric “evaluation,” and then
refuses to readmit the resident. In reality, families do not
know that the refusal to readmit is a violation of the law
and triggers their rights to an appeal.
* A proposed transfer from one room to a non-Medicare
certified bed requires 30 days written notice and the
resident has the right to appeal and refuse the transfer. In
reality, when Medicare coverage ends nursing homes
frequently claim that certain beds are non-Medicaid rooms
and for private pay only. In some cases, no written notice
is issued and the family does not know that one should have
been issued, much less that there is a right to appeal.
* For rehabilitation therapies, Medicare reimbursement rules
do not require “progress.” The resident must need “skilled
nursing services” or “skilled rehabilitation services” and
even if the resident is not making progress, the facility
has the obligation to provide services to “maintain” the
resident’s condition and ensure that the resident’s ability
to perform Activities of Daily Living does not diminish.
The reality is that residents are frequently terminated from
this benefit because they are not making progress, and the
families do not know that they have the right to appeal.
These are just a few of the common issues. If you are faced
with the need to place a loved one in a nursing home, be
sure to have the contracts reviewed by an Elder Law Attorney
before you sign to ensure that you and your loved one are
properly protected.
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