This material has been developed by and is presented by The Sandwich Generation (r)
What You Need to Know
About Those Ilegal Clauses
in Nursing Home Contracts
by Carol Abaya, M.A.
When a person has to go into a nursing home as the result of a sudden illness or as a result of over-time deterioration, family members are usually emotionally stressed out.
The decision to place has been a difficult one -- although most often a necessary one.
Placement during a time of emotional stress and crisis is not a good time to have to read the fine print in a nursing home contract.Ý But everyone should be aware that many nursing home contracts contain clauses that are illegal (by federal and/or state law) or unenforceable.
Many contracts give the impression that the patient and family have less rights than they really have.
ÝFederal regulations, state law, state regulations and court case law govern nursing homes.Ý Some laws and regulations, such as OBRA ë87, cover only Medicare and Medicaid situations.Ý While others, especially state laws, may be broader.ÝÝ Laws and regulations vary from state to state, and what may be illegal and/or unenforceable in one state may be legal in another.Ý In addition, court case law has also deemed certain practices illegal.
Federal law and/or the law/regulationÝ in many states make it illegal for nursing homes to contain a number of clauses that are still used.Ý Many have not updated their contract. Some of the most widely abused ones include the following.
CAUTIONÝ ISÝ THEÝ KEYÝ INÝ ALL CONTRACTS
These two scenarios point out common problems when family members look for nursing home placement.Ý Both of these criteria for admission are illegal and unenforceable.
Scenario 1: Two sisters are sitting in the Admissions office of a nursing home (SNF). Their father is in a nearby hospital as a result of a stroke.Ý The hospital is releasing the father in two days, and the doctors recommended he be moved to a nursing home for therapy.Ý He has Medicare.
The sisters have been presented a multi-page contract and have been asked to guarantee payment as a private pay patient for 12 months.
It is an emotional time for the family as the father was never ill until the recent stroke.
Scenario 2: A couple is sitting in the Admissions office of a nursing home.Ý The wifeís mother has been living with the couple and their children for two years.Ý The wife is now unable to continue caring for her mother because of severe dementia and incontinency problems.Ý The couple is looking for a nursing home nearby so they can visit often and that would provide the kind of care they want for the mother.
The Admissions director is saying ìYou have to give us a deposit of $20,000 and turn over your motherís social security and other assets to us.Ý Then we will admit her.î
In spite of laws and regulations, both federal and state, many nursing homes still have clauses in their contracts that are illegal and unenforceable.
The Federal Nursing Home Reform Act (OBRA ë87) has some interesting protection for all patients in Medicare and Medicaid - certified nursing homes.Ý The rights apply to private pay as well as Medicare and Medicaid patients.
ÝBut the families faced with such contracts as noted above have to make a decision.Ý In Scenario 1, the time frame is critical.Ý In Scenario 2, the time frame is not as critical, but the emotional elements are reaching a breaking point.
In Scenario 1: If the nursing home is Medicare certified it cannot refuse to accept a Medicare patient unless there is absolutely no bed available.Ý Second, it cannot ask the family to promise to pay as a private pay patient as Medicare pays full or part of the cost for the first 100 days.Ý Even if the Home does not know how it will be paid after Medicare benefits are used up, it cannot refuse to accept the patient or require a promise from children to pay.Ý If the patient has no assets and/or sufficient income after Medicare benefits are used up, then it is the Homeís responsibility to help the familyÝ apply for Medicaid.
The law backs up family rights.Ý You donít have to promise to pay for a parentís care nor do you have to turn over any assets to a nursing home.
In Scenario 2: A large lump sum entrance fee is illegal under federal law.Ý A month or two deposit can be requested (similar to the one you put down on an apartment or house rental), but whatever is left after the patient leaves the home must be returned to the family with interest.
Second, it is also illegal for a Home to ask for/require the turning over of income and or/assets to the Home as a condition for placement.Ý No family has to turn over assets.Ý Have the Home bill the patient/family, and pay bills as they come in.
What To Do
Nursing home patient advocatesÝ say, ìOften SNFs keep working on the fears of families that their loved one will not be admitted if they ask too many questions or that quality care will not be given.Ý However, if families donít question illegal clauses or practices, they are buying into the continuing financial and psychological abuse.î
Advice: Open up communications and establish a dialogue with the nursing home staff.Ý Ask questions, and do not be afraid to do so.
Advice:Ý If you donít understand a clause, diplomatically ask for an explanation.Ý If you know the clauses are illegal or unenforceable, say nicely, ëI understand such a clause is illegal, and I would like to cross it out.íÝ Initial the crossed out clause and have the SNF representative also do so.
One nursing home advocate suggests that ìIf the SNF representative insists on the clause, do not sign.Ý You might say, ë I think I would like to check this out with the State (health department) to make sure.î
AnotherÝ advocateÝ says a family has a number of choices of how to handle potentially ìproblemî contracts.Ý First she recommends that a family member never sign a contract in the admission office without taking it home and reading it in a less emotionally charged atmosphere.Ý When there are clauses that are illegal or unenforceable, a sandwich generationer can cross it out, initial it and have the nursing home representative initial it.Ý Before crossing out such a clause, question it.ÝÝ It is the responsibility of relatives to challenge illegal clauses.Ý You can ask for a new contract.î
If there is a time pressure factor such as in Scenario 1,Ý the following is suggested.Ý Sign the contract, but after the family member is in the nursing home, write a letter to the administrator.Ý Say, ì I have been surprised to learn that _____ clause is illegal (or unenforceable).Ý I am hereby putting you on notice and would like those clauses crossed out (or want a new contract).
ÝThere are political pressures to get relatives to be more financially responsible and the current laws may change.Ý Everyone needs to watch for changes in the law, both state and federal.
Many elder law attorneys recommend that a spouse or sandwich generationer sign the contract as ìPower of Attorney for _____î or ìon behalf of ____.îÝ And if the word ìSponsorî is at the end of the line for your signature, cross out that word.
The key agency in all states is the State Health Department, which administers both federal and state SNF regulations.Ý The name of the appropriate person and telephone number can usually be obtained through the Area Agency on Aging or the hospital discharge planner or social worker.
Remember:Ý A squeaky wheel does get results and often better care for the loved one.Ý The SNFs administration and staff realize you know the laws and your rights and will respect you for this.î
MEDICARE PAYS FOR
ÝNURSING HOME AND HOME CARE
Medicare pays all charges when a patient is in a nursing home for the qualifying time period.
A patient or his/her family member does not have to pay a nursing home if they think Medicare should be paying until Medicare makes a determination.Ý And if Medicare does refuse to pay, a patient/family has the right to appeal.Ý Too often the insurance company handling Medicare rejects an application even if by law they should be paying the Home.
If Medicare refuses to pay, there is an appeal process.Ý Any one turned down should appeal!
Procedure: the nursing home will bill the patient.Ý If the patient has no money - or then uses up his/her money -Ý the nursing home has the responsibility to file to Medicaid.
It may take a month or two for Medicaid processing.Ý In the meantime, the patient is entitled to all appropriate care and services.Ý The nursing home will be paid retroactively.
Nursing Homes ìTidbitsî
Medical Records Access
Many states guarantee a patientís right to have access to medical records and the information contained in them.Ý A doctor, hospital or nursing home cannot refuse to show a patient or the patientís representative the records.
Patient Consent: A Must
A hospital or nursing home cannot provide medical treatment to a patient without the consent of either the patient or the patientís representative.Ý This covers any surgical procedure or medical treatment that involve the touching of the patientís body.
Any unauthorized touching of the body can constitute ìbattery,î a crime under the law.
A patient or nursing home resident can also refuse to take medications.Ý If the nursing home forces the patient to take the medication, they can be held liable under the law.
This material is copyrighted by Carol Abaya Associates and cannot be reproduced in any manner, print, or electronically.