Watch for These Points In A Nursing Home Contract

Stephen M. Garcia
The Garcia Law Firm

After you have visited the nursing homes or long-term care facilities you and your loved one is interested in, it is time to sit down with the facility director or director of admissions at each facility on your “possible list” to talk price and contracts.

Expect this discussion to be the first of many such discussions. The price is not cut-and-dried. It is fluid based upon a number of factors.

Contracts and all of their attachments are complicated. The terms set out in the contract and the attachments are important as they can significantly effect the rights of the resident. Do not sign anything – not matter how rushed you may be – until you understand exactly what you are agreeing to.

First Steps

After your first price and contract meeting with the facility staff, take the contract home to read it in full. Read the entire contract and mark anything you do not understand or about which you have questions. Be aware that the contract is designed to protect the nursing home, not you.

Each facility’s contract is different, so you if you are considering a number of facilities, read each contract. If you can afford it, have an elder law attorney review the contract.

Payment Issues

The cost of nursing homes and long-term care facilities vary widely. How they describe these costs also differ. Be sure you understand the costs and financial arrangements.

“Basic charges” usually include room and board, but they might not cover other essentials.

There may be “supplemental charges” for physical therapy, glucose monitoring, prescription and non-prescription drugs, hand or tube feeding, disposable undergarments, nutritional supplements and so on.

Sometimes what is covered depends on what insurance your loved one has. For example, someone on Medi-Cal may get “free” laundry services while a self-pay resident may be charged for the service.

Besides a basic plan, most facilities have various rate plans. The cost depends on the complexity of care your loved one needs, special needs they may have, amenities offered, and the type of room they request. Get an itemized list of all charges.

What services the resident is responsible for paying varies widely with how the facility will be paid: Medicare, Medi-Cal, long-term care insurance, commercial insurance, or insurance through an HMO, the Veterans Administration or Workman’s Compensation. Some residents self-pay.

Not all nursing homes or long-term care facilities accept all types of payment, so make sure you know what the facility will accept; what services your insurance(s) will pay for; how much of each service your insurance will pay for; and if your loved one will be responsible for any co-payments.

If you and your loved one are planning on using Medicare or Medi-Cal to pay all or part of the costs, make sure the facility is “Medicare certified” or “Medi-Cal certified.”

Usually there are a limited number of Medicare beds and Medi-Cal beds. Discuss this with the facility director.

When Medicare Runs Out

It is very important that you ask the facility director what happens when the resident’s Medicare runs out.

There is a trend in nursing homes and long-term care facilities to evict residents when their Medicare runs out and they have to move to Medi-Cal.

Facilities are reimbursed at a lower rate than they get with Medicare or from most other insurance programs.

If the facility director agrees to take Medi-Cal when the resident’s Medicare runs out, get the agreement in writing.

Arbitration Is Not In Your Interest

Increasingly, nursing homes and long-term care facilities attempt to demand that you sign an Arbitration Clause or an Arbitration Agreement as a condition of admission. It may be included in the contract or it may be a separate document.

This is against the law. You have the right to decline to sign an Arbitration Agreement, and you should exercise that right.

When you sign an Arbitration Agreement, you are agreeing to give up your Constitutional right to a jury trial. Any disputes or personal injury claims your loved one has will be decided by an arbitrator rather than the courts. The arbitration process typically favors the corporation, not the individual.

There are challenges to forced arbitrations in most states. So far the insurance and nursing home lobbies have succeeded in their fight to make you give up your right to a jury trial. This benefits them, not you.

If you believe your loved one is a victim of elder abuse, it is worth talking to an experience elder abuse attorney. There could be legal exceptions in the way the admission agreement was written so that your loved one could bring an elder abuse lawsuit to court and exercise your Constitutional right to a jury trial.

Who Should Sign

Do not sign any forms – including the contract – if there are any blank spaces or spaces to be “filled out later.”

Regardless of what the nursing home or long-term care facility tries to tell you, the potential resident is the only person who should sign any of the forms and the contract. If you sign the contract, you could be liable for any money due the nursing home.

Federal and state law forbid nursing homes from requiring third-party signatures as a condition of admission. There often is a space for a signature for a “responsible party.” Unless you want to be financially responsible for any money owed the nursing home, do not sign as a “responsible party.”

Some nursing home or long-term care facility contracts include a Power of Attorney within the document. Never sign a Power of Attorney form offered by a facility. Often this is making you a “guarantor,” responsible for the money owed the facility. A Power of Attorney should always be reviewed by an elder law attorney before it is signed. (Note: Power of Attorney is different than a Durable Power of Attorney. Talk to your attorney about the differences.)

There are instances when the potential resident just cannot sign the contract. If the nursing home absolutely insists that someone sign the contract, by EACH of your signatures include the line, “In signing this contract it is understood I do not accept any personal responsibility for the charges, fees, or any expenses incurred by the resident.”

However, there may be charges you are willing to pay for, such as beauty services. In that case sign a separate agreement for that expense only.

As you read the contract and other documents, words such as “responsible party,” “guarantor,” “financial agent” (not “agent”), are red flags that you are agreeing to be responsible for costs if your loved one’s funding runs out.

Final Thoughts

Be aware that there is nothing in an admission contract that will protect your loved one from nursing home neglect or elder abuse by the facility. Your most important job begins once your loved one moves into whichever facility you have selected.

Nothing is a better deterrent from elder abuse or nursing home neglect than your frequent, random and unannounced presence at the facility.

Watch for signs of elder abuse and nursing home neglect. Don’t be afraid to go to the director. It is not just okay, it is critical to your loved one that you are a “squeaky wheel.”