New Protections for Nursing Home Residents

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New Obama-era rules designed to give nursing home residents more control of their care are gradually going into effect. The rules give residents more options regarding meals and visitation as well as make changes to discharge and grievance procedures.

The Centers for Medicare and Medicaid finalized the rules — the first comprehensive update to nursing home regulations since 1991 — in November 2016. The first group of new rules took effect in November; the rest will be phased in over the next two years.

Here are some of the new rules now in effect:

  • Visitors. The new rules allow residents to have visitors of the resident’s choosing and at the time the resident wants, meaning the facility cannot impose visiting hours. There are also rules about who must have immediate access to a resident, including a resident’s representative. For more information, click here.
  • Meals. Nursing homes must make meals and snacks available when residents want to eat, not just at designated meal times.
  • Roommates. Residents can choose their roommate as long as both parties agree.
  • Grievances. Each nursing home must designate a grievance official whose job it is to make sure grievances are properly resolved. In addition, residents must be free from the fear of discrimination for filing a grievance. The nursing home also has to put grievance decisions in writing. For more information, click here.
  • Transfer and Discharge. The new rules require more documentation from a resident’s physician before the nursing home can transfer or discharge a resident based on an inability to meet the resident’s needs. The nursing home also cannot discharge a patient for nonpayment if Medicaid is considering a payment claim. For more information, click here.

CMS also enacted a rule forbidding nursing homes from entering into binding arbitration agreements with residents or their representatives before a dispute arises.  However,a nursing home association sued to block the new rule and a U.S. district court has granted an injunction temporarily preventing CMS from implementing it.  The Trump Administration is reportedly planning to lift this ban on nursing home arbitration clauses.

In November 2017, rules regarding facility assessment, psychotropic drugs and medication review, and care plans, among others, will go into effect. The final set of regulations covering infection control and ethics programs will take effect in November 2019.

To read the rules, click here.

How To Look Out for a Relative in a Nursing Home

The best ways to make sure your loved one gets the care that was promised.

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Finally, after ticking off the last item on a lengthy list of must-haves, you think you’ve found the best nursing home for your mom. The staff seems caring and professional. It’s comfortable, homey, and Mom is OK with it. She might even come to like her new life.

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But your work isn’t over. You want to make sure Mom gets the care you were told she’d receive—and the care she deserves. “The resident’s needs should be met by the facility, rather than having the patient meet the facility’s needs,” says Barbara Messinger-Rapport, director of the Cleveland Clinic‘s Center for Geriatric Medicine.

How do you make that happen?

What to ask
Start with your loved one. Isn’t Dad going to be your best source of information on his own care? “Ask the questions you would want to be asked if the roles were reversed,” says Cornelia Poer, a social worker in the Geriatric Evaluation and Treatment Clinic at Duke University Medical Center in Durham, N.C. Questions such as:

  • Are you comfortable?
  • Is anything worrying you?
  • Do you feel safe?
  • Do you feel respected?
  • If you need help and you push the call button, how long before somebody comes?
  • Have you gotten to know any of the other residents?
  •  Do you like the staff—and any staff member in particular?

That last point may seem small, but whether your loved one clicks with a specific caregiver is important, says David A. Nace, chief of medical affairs for UPMC Senior Communities, a long-term care network in western Pennsylvania that is part of UPMC-University of Pittsburgh Medical Center. It shows he’s making connections, growing in new social relationships. The trust that develops may also mean Dad takes his medication more reliably, or if behavioral issues stemming from dementia are a concern, it may be easier for one nurse than for another to manage them, says Nace.

Show interest and concern and identify major problems, but don’t go overboard. “Inquiries are important, but try to avoid turning every visit into an interrogation,” Poer says. “You will be able to determine if there are areas of concern in normal, everyday conversation.”

[Read: 9 Warning Signs of Bad Care.]

Some questions will be better directed at staff members, particularly if your loved one has a cognition problem such as dementia or Alzheimer’s disease. In the first days and weeks, the focus should be on the initial adjustment. Do Mom’s nurses see any signs of depression? Does she appear to be making the transition smoothly? If not, what, specifically, is being done to help her?

Then drill down to her day-to-day routine:

  • When is she up?
  • Are her meals appropriately prepared—soft or pureed food if she has trouble chewing, low in fat and salt if she has a heart condition?
  • Is she taking her medications when and as often as she should? (The timing of each medication should be documented.) If there’s been a consistent problem, how is that being addressed?
  • Is there a reason to change any of her medications?
  • Is she exercising or participating in other physical activities?
  • Is she social?

“I like to see if the patients are usually in their rooms,” says Susan Leonard, a geriatrician at Ronald Reagan UCLA Medical Center. “Not being in their rooms means they are participating in activities, dining, or in the hallway socializing with others, which may suggest a better social environment for residents.” But you’ll want to see for yourself whether empty rooms might only mean residents are parked on sofas and in wheelchairs elsewhere in front of TVs.

Don’t be afraid to broach more sensitive topics. If you were recently alerted of a behavioral issue or medical emergency, talk to both Mom and the staff to figure out whether it was handled properly. You want to know what the staff did and what changes in care they’ve made.

It’s helpful to have a main point of contact during the day’s various shifts. You should feel like you can call at any time, but Nace observes that it’s good to know up front what the best times are for getting general updates. And don’t settle for less than you need to know. If you don’t get an answer, head up the chain of command to a unit supervisor, assistant director, or director.

What to inspect
Getting a feel on your own for the overall environment goes a long way, says Audrey Chun, associate professor of geriatrics and palliative medicine at Mount Sinai Medical Center in New York. Are common areas, rooms, and residents’ clothes clean? What about lighting and temperature? These are especially important to older adults, says Poer. Does the room feel homelike? If you send cards, are they hanging on a bulletin board in the room?  If cards and drawings are up and Mom couldn’t put them up herself, that’s a great sign. “It means the staff took the time to do it for the resident,” Nace says. “The staff cared enough to do this.”

Look around. Do you see any safety hazards—a hanging TV that isn’t strapped down or blocked exits? What about bruises, such as on the upper arms where staff may have handled Dad too roughly? Watch the staff—are they affectionate, genuine, and helpful?

Use your nose. Are there odors in the hallways and rooms? “Yes, bowel movements happen—this is a long-established fact of life—but it should not be the thing that greets you every time you are in the hall,” says Nace.

Listen. Do you hear birds, music, laughter? Or do you hear creaky floors and clanging pipes? Constant small annoyances can affect a person’s mood and eventually her day-to-day demeanor.

How often to check in—and what to do if you can’t
Some homes have a “care conference” shortly after admission and then quarterly to give you and your loved one a regular time to talk with staff, says Nace. But stopping by on various days and at various times is smart. You can ensure Mom or Dad isn’t “overmedicated or spending time sitting in front of the TV,” says Messinger-Rapport. When you do check in, swing by the nurses’ station to signal to the staff that you’re actively involved in Dad’s care.  If distance keeps you apart, staff might be able to send you photos or videos of Dad or set up a videoconference with Dad and his caregivers. If you’re abroad, staff might be able to print out an email for Mom if she doesn’t have a computer, Nace says.

Better still, says Poer, “having someone on the ground to be your eyes and ears can be very useful.” Enlist a local family member or close friend. Or consider a case manager or ombudsperson to advocate for you and Mom.

What the staff needs from you
Make sure the home’s staff has a number where they can receive a prompt response if necessary. And while staff has a professional responsibility, your appreciation—particularly if someone worked with you to resolve a concern, and even if it meant you had to compromise—will go far. “Be respectful of the staff and their time; their job is very demanding,” Poer says.  Let the nurses and other caregivers into your and your loved one’s lives by sharing personality quirks, interests, preferences. But above all, stay optimistic about Dad’s future and his ability to accept and adjust to his new life. Flycasting for bass on the Susquehanna River, Nace’s dad’s longtime passion, faded into a treasured memory after he moved into a nursing home, traded in for newfound pastimes: baking and painting.

[See our other posts on legal issues and nursing homes]

Regards,

Brian

http://www.RaphanLaw.com

Medicaid’s Gift to Children Who Help Parents Postpone Nursing Home Care:

In most states, transferring your house to your children (or someone else) may lead to a Medicaid penalty period, which would make you ineligible for Medicaid for a period of time. However, there are circumstances in which transferring a house will not result in a penalty period.

One of those circumstances is if the Medicaid applicant transfers the house to a “caretaker child.”  This is defined as a child of the applicant who lived in the house for at least two years prior to the applicant’s entering a nursing home and who during that period provided care that allowed the applicant to avoid a nursing home stay.  In such cases, the Medicaid applicant may freely transfer a home to the child without triggering a transfer penalty.  Note that the exception applies only to a child, not a grandchild or other relative.

Each state Medicaid agency has its own rules for proof that the child has lived with the parent and provided the necessary level of care, making it doubly important to consult with your elder law attorney before making this (or any other) kind of transfer.

Others to whom a home may be transferred without Medicaid’s usual penalty are:

  • Your spouse
  • A child who is under age 21 or who is blind or disabled
  • Into a trust for the sole benefit of a disabled individual under age 65 (even if the trust is for the benefit of the Medicaid applicant, under certain circumstances)
  • A sibling who has lived in the home during the year preceding the applicant’s institutionalization and who already holds an equity interest in the home

For more on Medicaid’s asset transfer rules, click here.

The Rights of Nursing Home Residents

While residents of nursing homes have no fewer rights than anyone else, the combination of an institutional setting and the disability that put the person in the facility in the first place often results in a loss of dignity and the absence of proper care.

As a result, in 1987 Congress enacted the Nursing Home Reform Law that has since been incorporated into the Medicare and Medicaid regulations. In its broadest terms, it requires that every nursing home resident be given whatever services are necessary to function at the highest level possible. The law gives residents a number of specific rights:

  • Residents have the right to be free of unnecessary physical or chemical restraints. Vests, hand mitts, seat belts and other physical restraints, and antipsychotic drugs, sedatives, and other chemical restraints are impermissible, except when authorized by a physician, in writing, for a specified and limited period of time. 
  • To assist residents, facilities must inform them of the name, specialty, and means of contacting the physician responsible for the resident’s care. Residents have the right to participate in care planning meetings. 
  • When a resident experiences any deterioration in health, or when a physician wishes to change the resident’s treatment, the facility must inform the resident, and the resident’s physician, legal representative or interested family member. 
  • The resident has the right to gain access to all his or her records within one business day, and a right to copies of those records at a cost that is reasonable in that community. The facility must explain how to examine these records, or how to transfer the authority to obtain records to another person. 
  • The facility must provide a written description of legal rights, explaining state laws regarding living wills, durable powers of attorney for health care and other advance directives, along with the facility’s policy on carrying out these directives. 
  • At the time of admission and during the stay, nursing homes must fully inform residents of the services available in the facility, and of related charges. Nursing homes may charge for services and items in addition to the basic daily rate, but only if they already have disclosed which services and items will incur an additional charge, and how much that charge will be. 
  • The resident has a right to privacy, which is a right that extends to all aspects of care, including care for personal needs, visits with family and friends, and communication with others through telephone and mail. Residents thus must have areas for receiving private calls or visitors so that no one may intrude and to preserve the privacy of their roommates 
  • Residents have the right to share a room with a spouse, gather with other residents without staff present, and meet state and local nursing home ombudspersons or any other agency representatives. They may leave the nursing home, or belong to any church or social group. Within the home, residents have a right to manage their own financial affairs, free of any requirement that they deposit personal funds with the facility. 
  • Residents also can get up and go to bed when they choose, eat a variety of snacks outside of meal times, decide what to wear, choose activities, and decide how to spend their time. The nursing home must offer a choice at main meals, because individual tastes and needs vary. Residents, not staff, determine their hours of sleep and visits to the bathroom. Residents may self-administer medication. 
  • Residents may bring personal possessions to the nursing home such as clothing, furnishings and jewelry. Residents may expect staff to take responsibility for assisting in the protection of items or locating lost items, and should inquire about facility policies for replacing missing items. Residents should expect kind, courteous, and professional behavior from staff. Staff should treat residents like adults. 
  • Nursing home residents may not be moved to a different room, a different nursing home, a hospital, back home or anywhere else without advance notice, an opportunity for appeal and a showing that such a move is in the best interest of the resident or necessary for the health of other nursing home residents. 
  • The resident has a right to be free of interference, coercion, discrimination, and reprisal in exercising his or her rights. Being assertive and identifying problems usually brings good results, and nursing homes have a responsibility not only to assist residents in raising individual concerns, but also to respond promptly to those concerns.

Nursing Home Myths and Realities

Myth

Reality

Medicaid does not pay for the service you want.

Medicaid residents are entitled to the same service as other residents.

Only staff can determine the care you receive.

Residents and family have the right to participate in developing a care plan.

Staff cannot accommodate individual schedules.

A nursing home must make reasonable adjustments to honor residents’ needs and preferences.

You need to hire private help.

A nursing home must provide all necessary care.

Restraints are required to prevent the resident from wandering away.

Restraints cannot be used for the nursing home’s convenience or as a form of discipline.

Family visiting hours are restricted.

Family members can visit at any time of day or night.

Therapy must be discontinued because the resident is not progressing.

Therapy may be appropriate even if resident is not progressing; Medicare may pay even without current progress.

You must pay any amount set by the nursing home for extra charges.

A nursing home may only require extra charges authorized in the admission agreement.

The nursing home has no available space for residents or family members to meet.

A nursing home must provide a private space for resident or family councils.

The resident can be evicted because he or she is difficult or is refusing medical treatment.

Being difficult or refusing treatment does not justify eviction.

Heir Liable for Reimbursement of Mother’s Medicaid Expenses

medicare denialA California appeals court rules that the heir of an estate who sold her interest in her mother’s house to her brother is liable to the state for reimbursement of her mother’s Medicaid expensesEstate of Mays (Cal. App., 3d, No. C070568, June 30, 2014).

Medi-Cal (Medicaid) recipient Merver Mays died, leaving her house as her only asset. Ms. Mays’ daughter, Betty Bedford, petitioned the court to be appointed administrator of the estate, but she was never formally appointed because she didn’t pay the surety bond. The state filed a creditor’s claim against the estate for reimbursement of Medi-Cal expenses, and the court determined the claim was valid.  A dispute arose between Ms. Bedford and her brother, Roy Flemons, over ownership of the house. After the court determined Mr. Flemons owned a one-half interest in the property, Ms. Bedford and Mr. Flemons entered into an agreement in which Mr. Flemons paid Ms. Bedford $75,000 and transferred the house to his name.

The state petitioned the court for an order requiring Ms. Bedford to account for her administration of Ms. Mays’s estate. The court determined Ms. Bedford was liable to the state for the amount she received from Mr. Flemons because although she wasn’t formally appointed administrator, she was acting as administrator. Ms. Bedford appealed.

The California Court of Appeal, 3rd Appellate District, affirms on different grounds. The court rules that Ms. Bedford cannot be held liable due to her failure as administrator of the estate because she was never formally appointed administrator. However, the court holds that Ms. Bedford is liable as an heir of the estate who received estate property. According to the court, Ms. Bedford’s settlement with Mr. Flemons was “essentially an end-run around the creditor’s claim and the estate process” and “the $75,000 payment represented proceeds of the estate that would otherwise be available to satisfy creditors’ claims.”

Planning wisely, accurate and legally is key in Medicaid Planning. Make sure you use an attorney with experience, knowledge and is extremely familiar with rules in your state. Read 8 Medicaid Planning Mistakes to Avoid by clicking here.  You can also download a FREE GUIDE to Medicaid’s Asset Transfer Rules on the right hand column of this page on my website.

If you have any questions regarding Medicaid Planning feel free to give me a call.

Regards, Brian

212-268-8200  www.RaphanLaw.com

Can you sue a hospital if you develop bedsores?

Bedsores are often a sign of neglect and can be the result of hospital malpractice, nurse malpractice or nursing home negligence. It is simply not acceptable that they should happen while a person is at a facility in the care of professionals. Sadly, bedsores are the underlying cause of death for several thousand Americans each year. They are not the fault of the patient. The patient is a victim. A bedsore lawsuit is a way to seek justice for the pain and suffering and also a get a financial award for the victim or family of a deceased victim.

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Click for online Bedsore Lawsuit Evaluation.

Bedsores can develop quickly, progress rapidly and are often difficult to heal. Caring for them can cost into the tens of thousand of dollars. Often, due to the lower staffing in nursing homes, patients are forced to wait longer for care, such as simply being turned in a bed, or the changing of soiled linens and clothes. One example of how they can happen is if a patient cannot change themselves then they are forced to sit or lay in their own urine until a caregiver arrives. While the patient waits, their skin is being weakened by the moisture making them susceptible to bedsores. Health experts agree that bedsores do not have to occur. Preventive measures from a nursing home, hospital or health care provider are your legal right. It is the duty of a nursing home or hospital to follow proper procedures to prevent them.

Click here for information on treatment.

Click here for BedsoreHotline.com…Your hotline to legal information, treatment information, and to see if you have a lawsuit. Learn the importance of a dedicated bedsore legal team.

If you want further information on this subject, feel free to email or call me. bedsores@RaphanLaw.com. All conversations are confidential.

Regards,

Brian

212-268-8200

Bedsores & Nursing Home Obligations

Waiting – And – Waiting On The Nursing Home Inspector

This KHN story was produced in collaboration by Kaiser Health News

Mary Chiu was shocked by the bed sores on her 85-year-old mother.

One on her backside was so deep it exposed the bone; others formed on her left leg, heel and big toe. Half a dozen times, Sui Mee Chiu had to receive hospital treatment for the sores and bacterial infections.

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The wounds persisted for months, until the day she died in April 2012 of respiratory failure.

“She suffered,” Mary Chiu, 56, said. “I don’t wish that on anybody.”

In September 2011, Mary Chiu sent a 7-page complaint to Los Angeles County public health officials requesting a thorough investigation of the nursing home where her mother had lived for nearly two years. That December, she sued the home, Arcadia Health Care Center.

The lawsuit is over: An arbitrator ruled that Sui Mee Chiu had been a victim of elder abuse, negligence and wrongful death and awarded her daughter more than half a million dollars. The public health department, however, still hasn’t finished its investigation. As a result, when consumers check public records on nursing home quality, they won’t find any report of Chiu’s case at Arcadia.

“The investigation is still in process and Public Health is inquiring into the circumstances behind the delay in the final report and closure of this case,” according to a statement last week from the Los Angeles County Public Health Department. “Public Health regrets the delay and is working to reduce the time from initiation of investigations until closure.”

The case is just one example of hundreds in Los Angeles County and thousands statewide in which investigations by nursing home regulators have remained incomplete for months, sometimes years. There were 3,044 open cases in the county as of mid-March, 945 of which date back two years or more, according to an audit released last week by the Los Angeles County Auditor-Controller.

Chiu’s attorney, Michael Moran, called the department’s delayed handling of her mother’s case by the public health department a “wholesale failure.”   “It is all about accountability,” he said.

In cases like Chiu’s, there is no information on state or federal websites about the complaint or inspectors’ findings. Consumers can see, however, that in 2011, while Chiu was living at the Arcadia nursing home, inspectors found some residents didn’t receive proper treatment to prevent new pressure sores or heal existing ones, according to federal documents.

But until a reporter called last week, the Arcadia Health Care Center website was highlighting its status as a five-star facility, the maximum possible rating on a U.S. official government database. Its actual rating is three stars. The claim has since been taken down.

Thomas Collins, Arcadia Health Care Center’s attorney, said he believed the rating was changed after the last inspection.

In a written statement, he said that the judge’s ruling in the Chiu case was “unwarranted and not supported by the evidence.”

“We were and remain extremely disappointed by the ruling,” he said.

Chu had a number of underlying conditions, and the nursing home successfully managed them,  he  said, adding that the family “always expressed their satisfaction with the care.”

The arbitrator’s ruling cannot be appealed. 

BEDSORE FACTS AND YOUR LEGAL RIGHTS>

Systemic delays

Statewide, delays in nursing home inspections have been a persistent problem. At a January hearing, legislators demanded more accountability and efficiency. A state Assembly bill would require investigations of mistreatment or abuse to be completed within 40 days.

The problem is particularly acute in Los Angeles County, which has a third of the state’s nursing homes. The county oversees nursing homes on behalf of the California Department of Public Health and the federal Centers for Medicare & Medicaid Services. Last month, Kaiser Health News and the Los Angeles News Group reported that L.A. County officials had attempted to clear their backlog in part by instructing inspectors to close cases without fully investigating them. Jonathan Fielding, who heads the county public health department, says all cases have been investigated but not all have been written up. Under questioning by Los Angeles County supervisors last month, Fielding said that the department does not have adequate funding or staffing to meet all federal and state requirements. The division has an annual budget of $26 million but needs $33.5 million, he said.

Supervisors ordered an audit, which was issued last week. It found a lack of central oversight over inspections, noting that the department did not set or track timelines for investigations. The department also didn’t properly manage its funding, leaving about $4 million in its budget unspent over the last two fiscal years, the audit reported.

These problems concern Molly Davies, coordinator of the WISE & Healthy Aging Long-Term Care Ombudsman Program for L.A. County, whose position is partially funded by the state and federal governments. She said she has recently come across seemingly egregious cases in which the investigations took too long.

Among the cases, as described in records:

*The county received a report in November 2009 alleging that a woman with diabetes and bipolar disorder had been sexually abused by a staff member at a Palos Verdes nursing home. An investigator visited the facility a few weeks later but didn’t issue a fine until October 2013. *A Culver City nursing home reported in March 2011 that an 87-year-old woman died after being given a narcotic at a dose 10 times higher than prescribed. Three years later, a fine of $20,000 was issued.

*In 2010, the department investigated an allegation that a certified nursing assistant at a Torrance facility was videotaped abusing a partially paralyzed man with brain damage. The case was not completed until this year, when a $20,000 citation was issued.

‘DPH was not doing their job’

Mary Chiu’s mother, a Chinese immigrant, loved to cook traditional food and watch Chinese soap operas. As she aged, she developed dementia, Parkinson’s disease and depression. Chiu decided her mother would be best taken care of in a nursing home. She said the Arcadia Health Care Center had five stars and was around the corner. Sui Mee Chiu moved there in May 2009. In late 2010, during a meeting with staff at the home, Chiu heard her mother had an infected bed sore, according to her September 2011 compliant. A few months later, the wound was so severe she had to be transferred to a hospital. Chiu then confronted the staff, who blamed her mother for being “non-compliant” and her father for interfering with the care during his visits, according to the arbitrator’s ruling.

Her father, now deceased, was then 89 and had a history of strokes. But he visited the facility twice daily, staying a total of about four hours.

“My parents have been married for almost 60 years and my father’s only concern is to make sure my mother is comfortable,” Chiu said in her complaint.

Chiu received a letter in October 2011 from the public health department acknowledging the complaint and saying an investigator had been assigned. In July 2012, after her mother had died, Chiu sent another letter and photos of the ulcers. She said she didn’t get any response until this week, after a reporter and she separately called the department.

According to the department’s recent statement, an inspector began the investigation in October 2011, within the 10 days required by law.  An inspector observed residents with similar medical conditions at the Arcadia Health Care Center, conducted interviews and reviewed records, the department said. Officials said they were not able to interview Sui Mee Chiu, who had been transferred by her daughter to a Monrovia facility after a hospital visit in April 2011.

No questions were raised about the care provided in Monrovia by Chiu or the arbitrator.

The  arbitrator, retired Superior Court Judge James Alfano, ruled in October 2013 that the nursing home was reckless in its care of Chiu, leading to the severe ulcer that contributed to her death. Her immune system was weakened by antibiotics for treatment of the pressure sore, he wrote. Among other things, he found that the older woman had not been turned properly, nor had she received proper wound care .

“The documentation presented in this case reflects a complete failure of the nursing staff to comply with their own guidelines,” he wrote. Chiu said that she was glad the nursing home had to take responsibility for its actions. But she wishes the public health department would, as well.

“At the end of the day, you have a duty to do your job,” she said. “DPH was not doing their job.”

This article was produced by Kaiser Health News with support from The SCAN Foundation.

How to Use Medicare to Pay for In-Home Care

350xIt’s not easy to get Medicare coverage for in-home care, and when you do it’s strictly limited. That said, it can be a godsend when you’re faced with a sudden medical crisis or downturn in your loved one’s condition. Medicare coverage is most common when your loved one is being discharged from the hospital or a rehabilitation facility. You’ll contract through a Medicare-certified agency for a period of skilled nursing care and therapy that’s tied to a certain period of expected recovery.

The good news is that Medicare coverage is easier to get than it used to be, and it should become easier still.
Read full article…

Hold on…Should you sign that Nursing Home Admissions Agreement??? Not so fast…

nursing home
“Read the agreement carefully before signing. Nursing Home Agreements can be complicated and confusing”

Admitting a loved one to a nursing home can be very stressful. In addition to dealing with a sick family member and managing all the details involved with the move, you must decide whether to sign all the papers the nursing home is giving you. Nursing home admission agreements can be complicated and confusing, so what do you do?

It is important not to rush, but rather to read. If possible, have your attorney review the agreement before signing it. Read the agreement carefully because it could contain illegal or misleading provisions. Try not to sign the agreement until after the resident has moved into the facility. Once a resident has moved in, you will have much more leverage. But even if you have to sign the agreement before the resident moves in, you should still request that the nursing home delete any illegal or unfair terms.

Two items commonly found in these agreements that you need to pay close attention to are a requirement that you be liable for the resident’s expenses and a binding arbitration agreement.

Responsible party
A nursing home may try to get you to sign the agreement as the “responsible party.” It is very important that you do not agree to this. Nursing homes are prohibited from requiring third parties to guarantee payment of nursing home bills, but many try to get family members to voluntarily agree to pay the bills.

If possible, the resident should sign the agreement him- or herself. If the resident is incapacitated, you may sign the agreement, but be clear you are signing as the resident’s agent. Signing the agreement as a responsible party may obligate you to pay the nursing home if the nursing resident is unable to. Look over the agreement for the term “responsible party,” “guarantor,” “financial agent,” or anything similar. Before signing, cross out any terms that indicate you will be responsible for payment and clearly indicate that you are only agreeing to use the resident’s income and resources to pay.

Arbitration provision
Many nursing home admission agreements contain a provision stating that all disputes regarding the resident’s care will be decided through arbitration. An arbitration provision is not illegal, but by signing it, you are giving up your right to go to court to resolve a dispute with the facility. The nursing home cannot require you to sign an arbitration provision, and you should cross out the arbitration language before signing.

Other provisions
The following are some other provisions to look out for in a nursing home admission agreement.

Private pay requirement. It is illegal for the nursing home to require a Medicare or Medicaid recipient to pay the private rate for a period of time. The nursing home also cannot require a resident to affirm that he or she is not eligible for Medicare or Medicaid.
Eviction procedures. It is illegal for the nursing home to authorize eviction for any reason other than the following: the nursing home cannot meet the resident’s needs, the resident’s heath has improved, the resident’s presence is endangering other residents, the resident has not paid, or the nursing home is ceasing operations.
Waiver of rights. Any provision that waives the nursing home’s liability for lost or stolen personal items is illegal. It is also illegal for the nursing home to waive liability for the resident’s health.

This article comes from my December Elder Law Answers Newsletter, you can get it free here: Free Elder Law Newsletter

For more information regarding this article feel free to contact me.

Regards, Brian
Brian A. Raphan, P.C.
7 Penn Plaza   |   7th Ave/31st Street   |   New York, NY 10001
212-268-8200
http://www.raphanlaw.com

CareGround.com: A new online resource for caregivers:

Being a caregiver not takes a lot of time and energy. And to be successful at it you need resources you can count on. With you at the center, you can more easily take control of your caregiving with the proper support in place around you. Checkout http://www.careground.com.

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CareGround provides caregivers an online database of premier service providers focused on geriatrics and dementia care. CareGround listings include physicians, elder care attorneys, trust and estate planners, CCRC’s (Continuing Care Retirement Communities), and virtually all other providers of related services.

This database is a collection of listings for elder care with search options including desired professional specialty and location. In addition, specialists in CareGround’s database are reviewed by CareGround members, so that other CareGround users can make more informed decisions regarding which service providers to utilize.

Beyond listings, CareGround delivers informative periodic newsletters, smart editorial features and a vibrant community via help forums. Searched content, community contacts and personalized notes can be saved within the member’s individual profile, referred to as ‘My CareGround’.

Membership is recommended and is entirely free.