Pause Before You Sign that Nursing Home Contract

 

Suppose your mother can no longer make decisions for herself and she now needs nursing-home care. You are stressed and anxious. The nursing home puts a twenty-page, single-spaced contract in front of you. You wish you could flip straight to the last page and sign then and there, just to get it over with.

Do not do this. You could be agreeing to pay, out of your own pocket, many thousands of dollars for your mother’s care.

Try to get your mother admitted and then, before you sign the contract, bring it to us for our review and guidance. Once your mother has moved in, she can’t be evicted just because you want to negotiate the contract.

But if that is not feasible, then sit down and take a few deep breaths. Read the contract carefully. Make a list of questions and ask a facility representative to explain. Ideally, that person would sit with you as you go through the document. Don’t sign until you understand.

Here is what to watch out for.

You should not use your own money to pay

* Do not sign the contract if it requires you to obligate yourself to pay with your own money. Carefully scrutinize any language referring to you as the “responsible party” or “resident representative” or “agent.”  

The suspect buzz-words are “co-signor,” “guarantor,” “personally guarantee,” “personally liable,” “private-pay guarantor,” “surety,” “individual capacity,” or any such language. Words like these obligate you, personally, to pay if your mother doesn’t have the money. Don’t sign even if there are no buzz-words, but the language looks something like this: “If the resident does not or cannot pay, I will pay the amount owed for residency charges, services, equipment, supplies, medication, and other charges.”

Please understand that it is legal for the facility to require you, if you hold financial power of attorney or are guardian, to pay nursing-home bills from your mother’s money and assets. It is legal to require you to spend her money on her care and not for any other purpose. It is not legal to condition your mother’s admission on your agreeing to pay her bills with your own money, which is what the above buzz-words mean in plain English. The nursing home can ask you to agree – and if they ask, refuse – but you cannot be forced to agree to pay with your own money.

If your mother lacks the money, the next step is to apply for Medicaid assistance, not to go digging into your pocket.

Sometimes the contract is confusing. For instance, one nursing-home agreement says that the representative “personally guarantees continuity of payment.” This alarming language is properly followed by an italicized statement that the representative is “not required to pay for Resident’s care from his/her own personal funds.” The agreement proceeds, though, to use the phrase “personally guarantee” in other contexts. Ambiguity like this is why we recommend that you first bring the agreement to us. We can ensure, on your behalf, that the facility clarifies such language and does not misapply it.

Everyone in need has the right to apply for Medicaid

*           The nursing-home contract must not require your mother to waive – give up – her right to seek government assistance like Medicare or Medicaid, nor can it ask her or you to sign any statement that she is ineligible for those benefits.

*           If your mother has no money to pay for care, a Medicaid application will be required. The contract may seek your permission to apply for Medicaid for you. You have the right to decline that option and, instead, seek legal counsel to help you apply. We have seen some facilities mishandle Medicaid applications, which wound up being denied when they should not have been.

In any case, though, whoever files for Medicaid, you must cooperate by immediately providing all records necessary for that application.

If your mother is eligible for Medicaid, Medicaid pays

*          If your mother does get Medicaid, the nursing home must not require an additional payment over and above that designated by the Medicaid scheme in your State. 

*           The nursing home must not demand that your mother receive additional services not covered by Medicaid and then, if your mother declines those services, evict her. It should ask, in advance, whether those services are desired at specified additional cost.

*           The nursing home must not require additional donations to a charity as a condition of admittance.

Do not agree to arbitration

*           The contract may seek your consent to arbitration. If you agree, you will be giving up your right to a jury trial if a dispute arises. The rules are in flux at the moment, but, generally, you should decline such a provision.

The nursing home must protect property reasonably

*           The nursing-home contract may try to fudge its responsibility to take care of your mother’s property, but the bottom line is that it is obligated to care for your mother’s property during her stay. You should, however, use good judgment to safeguard her valuable property like fine jewelry by keeping it elsewhere.

Protect yourself. Cross out, and sign the right way

*           Cross out provisions in the contract that you decline, and put your initials by the strike-outs. 

*           Be sure to sign the contract only as your mother’s agent. Your signature should read: “[Mother’s name], by [your name], her agent.” 

To be fair to nursing homes, they are entitled to be paid and they often have difficulty collecting on legitimate debts. Facilities are forbidden from suing to take a resident’s Social Security or pension income. They must comply with strict federal consumer-protection restrictions. Despite these payment hurdles, they must still protect frail and vulnerable people from all manner of harm. They also suffer public hostility, thanks to the misconduct of some bad actors. We always urge cooperation with nursing-home personnel if feasible, because their job is a difficult one.

On the other hand, you and your family have the right to be protected from the excesses of bad actors – or from the imperfections, for example, of the facility mentioned above that misuses the “personally liable” language. Thus, no matter how reputable the facility, it is good judgment to consult an attorney before you sign an admission contract. If that’s not possible, then take care and time to study the contract, get facility staff to explain it to you, and strike out the objectionable provisions as advised above.

A few moments of care, even despite the stressful circumstances you are surely in at the time, can save you a lot of difficulties later. Please feel free to reach out if you have questions or need assistance by calling us at 1.800.660.7564 or by emailing us at info@covertlaw.com.

Does Home and Community Based Care Reduce Hospitalizations?

The US Department of Health and Human Services (HHS) projects the number of Americans in need of long-term care (LTC) by 2020 to be roughly 12 million with nearly half those seniors exhibiting some form of dementia. According to Forbes.com, about half of all long-term care insurance claims are from policyholders living with dementia. The federally run program Medicaid is the primary financing mechanism of LTC where most of the monies are spent on institutional care settings which are ill-equipped to handle an increasingly large and longer living elderly population. Federal initiatives have been incentivizing States to utilize Medicaid home and community-based services (HCBS) waiver programs to address the growing long-term care needs of aging Americans. This shift to home and community-based services is often seen as having an obvious benefit. HCBS is seen as an easy fix to offset the increasing demands for long-term care. Evaluation of health outcomes, social equality, and the costs of both settings is necessary to create the most beneficial and efficient systems to care for the aging.

Compounding the complexity in evaluating HCBS versus institutional long-term care is the statistical breakdown of racial and minority ethnic groups, as well as people living with dementia. Racial and minority ethnic groups and dementia sufferers as a whole use these Medicaid services more than non-minority groups. Regardless of the group, people living with dementia tend to need the highest-intensity care. While hospitalization rates for HCBS and nursing facility residents remain similar, nursing facility residents were, in general, older and sicker than their HCBS counterparts. 

If home and community-based care does not lessen rates of hospitalizations and may create potential implications for inequality in access to high-quality nursing care facilities, policymakers may need to reconsider the full costs and benefits of shifting care. In nursing facilities, even elderly, dual-eligible Medicaid beneficiaries who tend to be older and have more chronic health conditions are not more likely to require hospitalization than those in home and community-based care. Therefore, since sicker nursing facility residents with more serious health issues and their home care counterparts have similar hospitalization rates, it would seem that HCBS is not lowering the rates of hospitalizations. 

McKnight’s.com reports a group of researchers at the University of Chicago are citing why hospitalization rates do not decline under home and community-based care. The majority of home care residents receive help at the hands of untrained caregivers in non-facility settings. Even with appropriate tools available untrained caregiving leads to more undesirable health outcomes. Unsurprisingly, patients living with dementia, who generally require the most intense care, had higher hospitalization rates due in part to living in an unsecured facility and the inability for a caregiver to provide non-stop oversight which is a hallmark need of a person living with dementia.  

Medicaid long-term care expenditure is reflecting this shift to home and community-based care, with nearly 60 percent of spending for HCBS. Because hospitalization rates do not substantially decline and inequitable health care for minorities increases while the majority of the budget is expended in the HCBS program it is time to rethink the quality of care and health outcomes and efficiencies of the program. Skilled nursing providers in a facility setting provide better care for all regardless of level and type of sickness, and racial and ethnic groups.

Education and expertise in industries, whether medical, legal, or health care occurs because each field requires a unique skill set to drive optimal outcomes. Understanding how long-term care needs affect an individual’s retirement plan under Medicaid or dual-eligible status Medicare/Medicaid, is pertinent for both positive health outcomes and financial well-being. Please don’t hesitate to contact us to discuss your needs and how to plan for long term care by calling us at 1.800.660.7546 or by emailing us at info@covertlaw.com.

Long Term Care Myths

According to the U.S. Department of Health and Human Services, someone turning age 65 today will have a 70 percent chance of requiring some long-term care (LTC) service and support during the remainder of their life. In the case of women, the typical LTC need will last about 3.7 years compared to men who will need about 2.2 years of care. While approximately one-third of today’s 65-year-olds may not ever need long-term care 20 percent of those who do will require it for more than five years. 

The statistics are clear; older Americans should be carrying a long-term care insurance policy to protect their future but only about 7.2 million Americans 65 years or older currently own a traditional long term care policy, and this number has held steady for the last seven years. While LTC insurance is overall considered expensive and finding the right plan for you in the myriad of insurance products available can be confusing and vary from state to state. According to A Place for Mom, there are seven myths about long term care that anyone age 50 or more should understand. 

One myth is that a person has to get rid of all of their assets to receive Medicaid which will qualify them for federally available LTC benefits. In general, the rule is a person is not allowed to keep more than $2,000 in countable assets to be eligible for Medicaid. Exemptions in some states can include your home (if a spouse, minor or disabled child still lives there), assets that cannot be converted to cash, and burial plots or spaces. Also, personal property, one vehicle, and prepaid funerals generally qualify as exemptions. The Community Spouse Resource Allowance rules permit the non-applicant spouse to keep a portion of the couple’s countable assets to prevent them from becoming destitute. Before making any attempt to spend down assets to qualify for Medicaid speak to an elder law attorney as the federal five year “lookback” rules have penalties and exceptions. 

No, Medicare will not pay for long term care expenses except in the most specific and narrow of circumstances. Medicare will cover skilled in-home care from a nurse, occupational therapist, physical therapist, speech therapist or social worker for up to 21 days if ordered by a physician. In the case of a skilled nursing facility, Medicare pays for the first 20 days with no co-pays but if the stay is between 21 to 100 days, Medicare only pays a portion, and the beneficiary must pay the balance.  

Another myth is that a person thinks they are too young to think about long term care insurance let alone the need to pay for it. The truth is that even under the age of 65 if the person has a chronic illness like diabetes or high blood pressure or in the event of an accident, long term in-home or residential care services may be needed. According to the US Department of Health and Human Services on average, about 8 percent of people age 40 to 50 have a disability that may require long term care services.

Relying on the hope that family will take care of a long term care need is often a myth. While many older Americans are successfully aging in place, in part due to the benefits of technology, unpaid family member caregivers and community organizations are typically not willing and available for long term, intensive caregiving. A family discussion is needed if there is an expectation that a family member is willing and able to take on a long term caregiver role. While many family members are eager to provide oversight through the use of technology, the intensive requirements of long term care are usually more than they are willing to accept.  

Most health insurance policies will not cover long term care expenses to any meaningful degree. Some plans will have minimal home care and skilled nursing benefits; however the nature of the plan is short term and is intended to produce recovery and rehabilitation while long term care is generally custodial in nature for the safety, maintenance and well being of a person with a chronic condition. Even some long term care insurance policies will not cover all long term care expenses. There are elimination periods which function as a deductible or after a policy benefit has been exhausted. Specific coverage in long term care varies widely from policy to policy.

Finally, many aging Americans feel that their retirement savings will cover the costs of their long term care. The website A Place for Mom has a financial calculator to help individuals understand their specific needs to cover long-term care costs. Currently, the average US national median long term health care cost is about $50,000 for a home health aide which is above and beyond all other living costs. In many situations, in particular with residential care, costs can run hundreds of thousands of dollars over a few short years. Unless a person is independently wealthy, most retirement savings will be spent down very quickly.

Chances are you will need long term care during your lifetime. Being educated about what is best suited to meet your personal financial and health background needs is a significant first step. Next, understand what legal options are available to help you in the event you need significant long term care and may run out of money trying to pay for it. We are here to help. Contact our office today and schedule an appointment to discuss how we can help you with your planning by calling us at 1.800.660.7564 or by emailing us at info@covertlaw.com.

Memory Care and the Epidemic of Alzheimer’s

Alzheimer’s is a chronic neurodegenerative disease typically with a long pre-clinical phase which gradually worsens. Initial symptoms are often mistaken for normal aging and include problems with language, mood swings, disorientation, loss of motivation, poor self-care and behavioral issues. There are no treatments to stop or reverse the disease progression. Alzheimer’s accounts for 60 to 70 percent of dementia cases and is one of the most financially costly diseases. Usually, the disease onset occurs in seniors over the age of 65, and the average life expectancy is 3 to 9 years though the speed of the disease’s progression can vary. 

Estimates are that more than 14 million Americans will be diagnosed with Alzheimer’s disease by the year 2050 and the financial cost to the United States will total more than 1.1 trillion dollars. Memory and medical care for those who have Alzheimer’s will also create challenges for their families starting with the most basic of questions about memory care, understanding what it is, and what it entails. 

Currently, memory care for seniors with advanced Alzheimer’s is best provided in state-licensed assisted living residences or nursing homes with a secure unit designed specifically for memory patients. The unit may be a floor or separate building with security and other cueing devices to help prevent a patient from wandering. Memory care facilities offer programs that are designed to keep executive brain function active and engaged and also offer cognitive behavioral therapies designed specifically for those with memory challenges. However, these facilities are expensive, and with the Alzheimer’s survival rate of 3 to 9 years post diagnosis, many families are not able to pay the associated costs of memory care.

Because of these costs, many families become unpaid caregivers to their loved ones. In the earlier stages of the disease progression it is a workable situation, but before long this selfless act and huge undertaking can take a toll on the caregiver leading to inadequate care for the patient. It is during this family caregiver stage that exploring the longer term options for memory care becomes critical as there will come a time professional memory care will become necessary. There are several options to consider regarding paying for memory care which on average costs nearly 5 times more than seniors who do not require memory care.  

Is your loved one a US Veteran? Research about the Aid & Attendance benefits available to them. Not a veteran? Then explore options for long term care health insurance. Another option is to learn how to spend down assets to qualify for Medicaid. However this must be done very carefully and with the understanding that even with Medicaid there are, and will continue to be, long waiting lists to get into memory care facilities. If you are fortunate enough to be able to private pay for memory care, it is still important to investigate options to identify the right facility for your loved one.

How will you know when professional memory care is needed? Some of the more common indicators are when someone who has Alzheimer’s forgets to take their medication or forgets the codes to alarms or neglects to lock doors. When a person living with dementia forgets their basic house chores or forgets to eat meals, shower, change clothes or groom themselves that is a sign that memory care may be in order. Finally, psychological changes occur such as consistent feelings of anger or confusion, withdrawal or depression, even personality changes such as mistrusting others are indicators that professional memory care is needed.

All people living with dementia should make plans with their family and attorney in the early stages of disease progression as to how they want to be handled medically in the advanced stages of Alzheimer’s. It is much better to have this discussion very early on as it can provide a sense of relief to the patient knowing things will proceed as documented. 

In the absence of a cure for Alzheimer’s all seniors should proactively plan with their family and a trusted elder law attorney to create a plan in the event memory care becomes necessary. Contact our office today and schedule an appointment to discuss how we can help you with your planning by calling us at 1.800.660.7564 or by emailing us at info@covertlaw.com.