When It Comes to Nursing Homes, You Don’t Know What You Don’t Know

December 26, 2016

At Drazen Law Group, we’re often asked why anyone would need an attorney to help put a loved one in a nursing home. After all, the admission process seems like it should be a simple matter, something that family members could easily handle—like going to the DMV to change your vehicle’s license plates. Unfortunately, the process is rarely simple.

When you discover that a loved one needs nursing home care, a lot is riding on your ability to make good decisions quickly, often under pressure, which can be hard even if this is not the first time you’ve been in this situation. Who has time to become a long-term care expert in the time that the nursing home is giving you to review their admissions agreement? How do you know that the decision you make today won’t come back to haunt you tomorrow?

That’s where an attorney—and elder law attorney, to be specific—can be so helpful. When you’re in this situation, you have no way of knowing what you don’t know. When you don’t know what you don’t know, it’s easy to make costly mistakes.

When people don’t know what they don’t know, they often come into the process with three misconceptions.

#1: Getting a loved one into a nursing home will be easy—sort of like checking into a hotel.

Families are often surprised when elderly loved ones end up on wait lists after applying for residence in long-term care facilities. Why does this happen?

Let’s look at the admission process of a nursing home. If the elder is living at home, family members obtain applications for homes they are interested in, complete those forms, and then return them. If the elder is hospitalized, the hospital social worker or discharge planner is responsible for requesting applications on the elder’s behalf and assisting the elder, family, guardian or conservator with the completion of the application.

When an application is requested, the nursing home must send you an application and dated receipt within two days. At this time, the nursing home will place your loved one’s name on the dated list of applicants. This list only shows that your loved one has requested an application and that it has been mailed to you.

Upon receipt of the application, you complete it and return it to the nursing facility. When the application is received by the nursing facility, your name will be placed on the nursing facility waiting list. It is not until your loved one’s name is placed on the waiting list that he or she will be considered for a bed in the nursing facility. Generally, a nursing home must admit applicants on a first-come, first-served basis, based on the date the home receives a completed application. However, Connecticut law provides that if a nursing facility has a certain percentage of beds occupied by Medicaid recipients, or the only room available is a private room, the facility may refuse to admit Medicaid applicants.

In addition to legalized discrimination against those covered by Medicaid, there are many exceptions to the first-come, first served requirement. For example, an elder should be allowed to be admitted ahead of others on the waiting list if his or her spouse is already a patient in the nursing facility, or if the elder requires short term rehabilitation or respite care, or if he or she is currently residing in a facility that is shutting down.

The reality of the wait list means that it is difficult or impossible to know when your elderly loved one will be admitted to the nursing home. It will depend on how many people are ahead of your loved one on the list and how quickly beds become available. Keep in mind that the nursing facility must inform you of your loved one’s place on the wait list whenever you ask for the information.

In all Connecticut nursing homes, once people are on the wait list, they stay there. A person can’t be removed unless he or she has been on the wait list at least 90 days, the nursing facility writes to the elder or his/her caregivers asking if they wish to remain on the list, or the elder or his/her representative does not respond to the letter within 30 days.

If a person rises to the top of the wait list but doesn’t need nursing home care, what happens? In Connecticut, the person retains his or her position at the top of the wait list instead of being sent to the back of the line as is common in other states. The nursing home will go down the list, offering a bed to each person until it’s finally taken. If an elder doesn’t yet need nursing home care, admissions personnel will typically ask families to call when the elder is ready. When an opening occurs, it goes to the person at the front of the line who is ready for that level of care. 

If you’re not a nursing home expert, how would you know any of this?

#2: Nursing homes operate like big, happy families.

I want to start by stressing that there are many fine long-term care facilities that do a wonderful job providing care for their patients. Many have tight-knit communities that can feel like family. Many resemble the idyllic pictures in their sales brochures. However, it’s important to keep in mind that a nursing home is a business. Like any business, it wants to maximize its revenue while minimizing exposure to risk and liability.

One of the most common ways nursing homes minimize risk and potential liability is through the use of language on admission agreements. An admission agreement explains your rights and responsibilities, and those of the nursing home. You want to make sure that you are signing a document that protects your rights and does not expose you or your family to unexpected financial liability. It is important to read the document carefully and to make sure you fully understand its terms before you sign it. However, many first-time buyers of nursing home services, impressed by a compassionate sales pitch, sign admission agreements without even reading them. This is always a mistake.  

Think about it. If you’ve never seen a nursing home admission agreement before, how would you know whether the terms in that agreement were favorable for you? Chances are, you wouldn’t. Even if you had a general practice attorney review the agreement, it’s possible that he or she might miss things that an experienced elder law attorney would catch.

There are dozens of contract provisions in admission agreements that favor the nursing home at the expense of the family. For example, a nursing home may try to get you to sign the agreement as the “responsible party.” This is never a good idea. 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.

The “arbitration provision” is another example. 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 private pay requirement is another trap. 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.

But how would you know about any of these, especially if you’ve never seen a nursing home agreement before? You don’t know what you don’t know.

#3: How expensive can nursing home care be? It can’t cost THAT much.

Many families are stunned when they realized just how expensive nursing home care will be. According to the Genworth 2015 Cost of Care Survey for Connecticut, the median annual rate for a semi-private room in a nursing home ranges between $140,000 and $150,000 per year. Annual costs for a private room can top $150,000 in some Connecticut cities including New Haven, Milford and Hartford.

When it comes to figuring out how to pay for nursing home care for a loved one, there are dozens of variables, each representing a series of questions that, if answered incorrectly, could bankrupt the elder, impoverish dependents and expose the family to unnecessary financial liability. What kind of care is needed? How much will care cost? How long will it be needed? Will public benefits be able to cover any of the costs? How can I protect assets to care for a dependent spouse or family member?

There are so many things that can go wrong. One mistake, one missed deadline can create a financial catastrophe that reverberates for years to come. An experienced elder law attorney can help you avoid these mistakes and maximize savings so that you can spend more on things that enhance your loved one’s quality of life.

Most families benefit from expert guidance during the nursing home admission process. Providing that guidance is what we do at Drazen Law Group. We believe that the best outcomes are always the result of a carefully thought out strategy. Choosing facilities, deciding where to apply, and timing those applications can be tricky. The earlier you start planning and the earlier you involve us in the process, the more options you will have, and the more affordable those options will be.  

Questions? Just give us a call at 203.877.7511.

 

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