by Jim Schuster, Certified Elder Law Attorney
1. An Assisted Living Facility Is Not a Nursing Home
It used to be that if an elder moved out of the home for health reasons, the move was to a nursing home. Not any more. Many families find very nice “assisted living” facilities that charge almost as much per month as a nursing home. While these may be appropriate placements for some people, they are not nursing homes. Assisted living means a room in a secure environment with basic living services provided, such as meal preparation, cleaning and supervision. No medical treatment is provided since the facility is not medical care facilities. For the same reason there is no payment support from Medicare or Medicaid.
Every aspect of the nursing home resident relationship, from admission to discharge, is regulated by law. All phases of the medical care are regulated from physical plant to staffing. All of the following services are provided and covered by regulation: (a) Admission, discharge, and transfer of patients; (b) Clinical records; (c) Physician and Nursing services; (d) Dietary services;(e) Rehabilitative services; (f) Pharmaceutical services; (g) Dental services; (h) Podiatry services; (i) Social services.
Not all nursing homes are the same. You can find nursing homes in an area by Visiting Medicare.gov find nursing home and compare section. There you can review the annual state inspection report. Visit and observe how residents are treated. It is best to visit at least twice and one of those should be either on the weekend or in the evening when staffing is lower. Speak with family/friends who are visiting a resident and ask them for their opinion. Take a checklist with you. If you don’t have the ability to do an on-site investigation you can hire a Geriatric Care Manager to help. See www.CareManager.org.
An admission agreement is a contract. Michigan law allows a “responsible party” to sign the contract for the patient without incurring personal financial liability. However, some contracts have language hidden in paragraphs that impose legal obligations on the signor. While the law forbids the requiring of a personal guarantee of payment, the law allows a person to guarantee payment. A person who signs a contract, even as POA Agent for another is presumed to have read and understood what s/he signed. The signor may be vindicated only after an expensive trial in court.
If a person has a bed in a nursing home, he is already admitted. He may not be discharged for failure to sign a contract. If you are pressured into signing, have your elder law attorney review the contract.
In this conservative, pro-business era, corporations are flexing their muscles. Compulsory pre-dispute arbitration agreements are being inserted in more and more consumer contracts. This includes nursing homes. An arbitration agreement means the resident agrees to give up the right to a jury trial. Any dispute will be handled in the more business friendly environment of arbitration. There are times when arbitration provides an advantage to all but that can be determined after a dispute has arisen. When serious issues arise such as your family member dying of neglect, you will want a public trial by jury. If you as agent for a resident is presented with an admission agreement that has an arbitration clause, do not sign it. Make an immediate appointment with an attorney to review the contract.
If signing the presented agreement is the only way to get into your chosen nursing home, then try to have the admission person review the paperwork with the resident who would then sign or not. If the resident is not competent to understand the contract then the compulsory arbitration agreement may be voided by a court if a serious legal dispute arises.
Under the Nursing Home Reform Law residents have extensive rights, under the law the facility is their home. Included in their rights is the right to: control their plan of care including choice of doctor, to accept or refuse treatment; accommodation to their preferences in food, activities and daily schedule; to privacy, dignity, and to be free from abuse and restraint.
A resident has a list of rights as long as his arm, but the resident needs a patient advocate to protect and enforce those rights to good care. A patient advocate must be authorized in writing by a designation or healthcare power of attorney.
Medicare only pays for a maximum of 100 days post-hospital skilled care, though many folk only get about four weeks. Skilled care means services over and above the basic medical provisions of the nursing home and involves either skilled nursing and/or skilled rehabilitation.
Medicaid has its own unique rules of eligibility that are as complicated and confusing as any tax law. The rule of thumb is that the applicant may have a home, car and $2,000. That does not mean that all other assets must be used to pay the nursing home bills. Get professional advice to take advantage of credits, allowances and exemptions to save your dollars.
Contrary to some opinions expressed in national magazine or newspaper articles, almost all nursing homes participate in Medicaid. It is illegal to discriminate between residents who paying out of their own funds and those for whom Medicaid pays. Treatment staff is not informed who is a Medicaid patient. However, some families notice a big difference in the transition from Medicare coverage to long term care – whether private pay or Medicaid. The reason is that Medicare pays for additional skilled service identified above.
Have a question about a medical decision or the quality of care? Hire a professional such as a nurse or social worker to review and evaluate. Have a question about patient rights, Medicare or Medicaid? Hire an elder law attorney.
Want More Information?
Call (248) 356-3500 for a copy of our Patient Advocate Guide to good care in a nursing home. It has over 80 pages of information the patient advocate needs to know about patient/resident rights, Medicare, Medicaid and a listing of all nursing homes in Southeast Michigan.