Orlando Estate & Elder Law

Could Nursing Home Regulations Be Victims of Politics?

In the last months of the Obama administration, the Centers for Medicare and Medicaid Services enacted sweeping new regulations on nursing homes. Some elder law advocates fear they might be repealed by Congress or the Trump administration.

Nursing home care in the U.S. is uneven. The quality of care can vary greatly between facilities. That is unlikely to change. However, care can be improved by the federal government enacting new rules that apply to all nursing homes.

That is what the Centers for Medicare and Medicaid Services attempted to do in the fall of 2016. New regulations were enacted that addressed many frequent patient complaints about their nursing homes.

As The New York Times reports in "Nursing Home Residents Gain New Restrictions," some elder law advocates are concerned that the Republican-controlled Congress will repeal the new regulations or that the Trump administration will work to undo them.

Many of the new regulations are uncontroversial. They address basic quality of life provisions. For instance, regulations requiring that patients be allowed to have any visitors they want at any hour as long as the visitors do not disturb other residents and that residents be allowed to choose their own roommates as long as both of them agree.

Some regulations are more controversial, such as not allowing nursing homes to require that residents agree to binding arbitration to settle disputes and changing the rules about readmission to facilities after an extended hospital stay.

It is too early to say which, if any, of these new regulations will remain in place. Elder law advocates will be watching closely.

For more information about elder law and estate planning in Orlando, FL (and throughout the rest of Central Florida), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: New York Times (Jan. 27, 2017) "Nursing Home Residents Gain New Restrictions."

Nursing Home Friends With Benefits

Thanks to medical advances and changing attitudes about sex, it is no longer taboo for nursing homes to allow intimate relations between residents. One Brooklyn nursing home even has a dating service for its residents.

The introduction of Viagra and similar “lifestyle” medicines, as well as changing views on sexual relationships outside of marriage, has caused nursing homes to deal with something previously taboo.

Today, many nursing homes have had to think about what to do with their residents who are in relationships with each other.

Recently, The New York Times, in an article entitled “Too Old for Sex? Not at This Nursing Home,” wrote about a nursing home in Brooklyn that has a comprehensive sexual expression policy for residents and even has a dating service and a senior prom.

While nursing home residents having sexual relationships might seem like an unimportant story, it actually is an important elder law issue. Sexual relationships in nursing homes raise the possibility of abuse and false claims of abuse.

Having guidelines is a way to let staff know how to act when there are relationships and how to look out for signs of abuse. Nursing homes do not necessarily need to go as far as the one in Brooklyn, but having policies and guidelines is important.

In the coming years, more and more nursing homes will grapple with these issues and come up with a wide variety of policies.

The good news for seniors is that they should have options for choosing a facility that suits their needs.

Reference: New York Times (July 12, 2016) “Too Old for Sex? Not at This Nursing Home”

Nursing Home Evictions Increasing

Elder Law advocates claim that nursing homes are increasingly turning to improper evictions to rid themselves of patients they view as undesirable or difficult.

Under federal law nursing homes can only evict residents under limited circumstances. However, elder law advocates claim that increasingly nursing homes are not limiting themselves to those circumstances. Instead, the nursing homes are evicting residents who are difficult to care for because of dementia, residents who have family members that complain about the care and residents who are otherwise difficult.

According to the Seattle Times in "Nursing homes turn to eviction to drop difficult patients" evidence from federal data appears to back the advocates' claims.

In fact, complaints to the Long Term Care Ombudsman Project are up 57% since 2000.

This is a big problem for nursing home residents and their families because most of the time there are few other options for the evicted residents other than staying in a hospital.

While residents have the right to appeal the evictions it is costly to do so. Sometimes, even when the resident wins the appeal, government agencies still do not require the nursing home to take the resident back.

To make matters worse, nursing homes found to have acted improperly are rarely, if ever, punished or fined.

Nursing homes themselves disagree with the advocates.

The American Care Association claims that the evictions are proper, but does agree that a national policy discussion is necessary to come to terms with the increasing number of nursing home residents who are difficult to care for.

If you or a family member is facing a problem with a nursing facility, please contact this office immediately to preserve your rights.

Reference: Seattle Times (May 8, 2016) "Nursing homes turn to eviction to drop difficult patients"

How Much Are Nursing Home Costs Rising?

The cost of nursing home care continues to rise. Seniors should plan for continued increases.

A new study released by the Lincoln Financial Group reveals that on average the cost of semi-private and private nursing home care in the U.S. increased by 2% in 2014 and that increase is consistent with other recent years. McKnight's reported on this study in "Average cost of nursing home care rises 2% annually, Lincoln report shows."

The study also reveals that nursing home costs vary greatly by region of the country and metro area. Nursing home costs in Connecticut are almost triple the costs in Oklahoma, for example. The difference might be the result of real estate costs in different regions and differences in the price of labor.

To put the rising costs in perspective, overall inflation in the U.S. was 1.58% in 2014. Nursing home costs thus rose greater than inflation, but not alarmingly so. In fact, 2% is also the target inflation rate the Federal Reserve aims for in any given year.

Of course, in the future inflation in nursing home costs might not continue at the 2% rate. It depends on numerous external factors.

Nevertheless, it can generally be assumed that the costs will continue to rise over time along with the costs of most everything else.

The important take away for individuals is that when making retirement and estate plans, it should be assumed that prices will be greater than they currently are. The 2% per year increase in costs can serve as a useful guide for people as they make their plans.

Part of our Elder Law practice is helping our clients and their families evaluate how the cost of care might affect them.  Please schedule a consultation if we can help you too.

Reference: McKnight's (April 21, 2016) "Average cost of nursing home care rises 2% annually, Lincoln report shows."

Is Minimum Wage A Senior Issue?

At first glance it might not seem that the battle over raising the minimum wage is of pressing importance to retired people, but if one advocacy group is correct it might be a vital concern for seniors in nursing homes.

The current political battle over raising the minimum wage does not necessarily seem like one that would be at the top of the agendas of retired people. If anything, a big raise in wages could increase the costs of goods and services, which would harm those on fixed incomes.

However, the Paraprofessional Healthcare Institute reports that low employee compensation does harm seniors in a very specific way in that it hurts the quality of care in nursing homes staffed by underpaid nursing assistants.

The theory is that underpaid caregivers have stresses in their own lives that can lead to not performing as well on the job. It also makes it more difficult to retain good, experienced caregivers who leave for better paying employment.

McKnight's reported on this issue in "Underpaid nursing home aides lead to poor care, group says."

There are a couple of counter arguments to this. Most importantly, data suggests that quality of care in nursing homes is generally going up despite the low wages paid to nursing assistants. Another problem is that if wages in nursing homes are increased, it is not clear where the money will come from.

Nursing homes are already very expensive and reliant on Medicaid funding.

While it is debatable whether raising the minimum wage would help or harm seniors, what this shows is that elder law issues must be considered in a larger context.

We would be happy to assist with any aspect of planning for your long term care needs.  Please schedule a consultation at our Orlando Elder Law practice.

Reference: McKnight's (April 12, 2016) "Underpaid nursing home aides lead to poor care, group says."

New Nursing Home Quality Measurements

The federal government has announced six new measurements for its system of comparing the quality of care patients receive at nursing homes.

Anyone interested in information about the quality of a nursing home can go to Medicare's website and use the Nursing Home Compare system to look up detailed information about the nursing home, including whether it has received any penalties. A five star rating system makes it easy to quickly compare different nursing homes against each other.

Of course, the ratings are only as good as the information that goes into making them.

McKnight's reports that the government will soon be adding six new measurements to the ratings in "6 new quality measures coming to Nursing Home Compare, Five-Star rating system."

The new measurements include:

• Percentage of people staying less than 100 days who had an emergency room visit.
• Percentage of short stays who were sent home and not soon thereafter readmitted to another nursing home or hospital and who did not die within 30 days.
• Percentage of short stays who were hospitalized after admission.
• Percentage of short stays whose physical functioning and locomotion improved.
• Percentage of residents of over 100 days whose independent movement got worse.
• Percentage of long stays who were prescribed hypnotic or anti-anxiety medication.

The first five measurements will be phased into the ratings over the next nine months.

If you have concerns about a family member or friend who might need nursing care, please schedule a consultation to discuss placement, care or finances.

Reference: McKnight's (March 4, 2016) "6 new quality measures coming to Nursing Home Compare, Five-Star rating system."

Nursing Homes Rejecting Returning Residents

Under federal law if a nursing home patient goes to a hospital and the nursing home subsequently refuses to readmit the resident, the resident is entitled to an administrative hearing conducted by state government. However, even when residents win the hearings it can be difficult to get some states to enforce their own rulings.

Bruce Anderson lived in a California nursing home for four years before he left the nursing home for a hospital due to pneumonia. When the hospital was ready to release him, the nursing home refused to take him back.

Federal law requires states to conduct an administrative hearing in these cases, which California did. Anderson won the hearing. However, as Next Avenue reports in "The Agonizing Limbo of Abandoned Nursing Home Residents" Anderson was not readmitted to the nursing home after winning the administrative hearing.

In California a different agency is supposed to enforce the rules than the agency that holds the hearing. The enforcement agency sometimes disagrees with the results of the hearing and refuses to enforce the decisions.

Anderson is suing the state.

This is an unfortunate situation and it is not uncommon. Nursing homes are often eager to get rid of residents who require a lot of staff attention. The problem, however, is that these elderly people have nowhere else to go to receive care and must remain in hospitals when it is not medically necessary for them to do so.

In many cases it is actually harmful to stay in the hospital. This also creates financial problems for hospitals, too. It can cost more to provide care for these patients than the government is willing to reimburse.

If you are or someone you love is faced with a similar situation, please contact my office for assistance. There may be time limits when decisions can be appealed, so don't wait!

Reference: Next Avenue (March 4, 2016) "The Agonizing Limbo of Abandoned Nursing Home Residents"

Court Nixes Nursing Home's Arbitration Clause

Many nursing homes insert mandatory arbitration clauses in their contracts with elderly patients. They do not do so for the benefit of the elderly.

If you read the fine print on almost any standard contract a large company makes a consumer sign, you will most likely find a clause that any dispute between the consumer and the company concerning the contract must be submitted to arbitration.

Increasingly, nursing homes and other elder care facilities are also inserting these clauses in their contracts.

Companies are quick to note that arbitration is normally faster and cheaper than going to court.

However, consumer advocates and elder law attorneys point out that these clauses do not necessarily benefit consumers. In reality, arbitration can make it more difficult for consumers to prevail and remedies that might be available in court are sometimes not available in arbitration.

The Wills, Trusts & Estates Prof Blog reports that a court in Arizona recently refused to enforce the arbitration clause in one nursing home's contract in "Arizona Court Overturns Home Arbitration Agreement."

In this case, the man who signed the contract on behalf of his mother did not have any legal authority to bind her to arbitration. He was not her power of attorney.

Going further, the court also signaled that such a ruling could apply more broadly. According to the court, the arbitration clause could be seen as an unenforceable contract of adhesion.

As the article notes, in many states consumers have a legal right to strike out the arbitration clauses before signing the contracts.

If you have any questions about nursing homes and arbitration in your state, please schedule a consultation before you sign anything.

Reference: Wills, Trusts & Estates Prof Blog (Feb. 2, 2016) "Arizona Court Overturns Home Arbitration Agreement."

The High Cost of Dementia Requires a Plan

Three diseases, leading killers of Americans, often involve long periods of decline before death. Two of them — heart disease and cancer — usually require expensive drugs, surgeries and hospitalizations. The third, dementia, has no effective treatments to slow its course. So when a group of researchers asked which of these diseases involved the greatest health care costs in the last five years of life, the answer they found might seem surprising. The most expensive, by far, was dementia. The study looked at patients on Medicare. The average total cost of care for a person with dementia over those five years was $287,038. For a patient who died of heart disease it was $175,136. For a cancer patient it was $173,383. Medicare paid almost the same amount for patients with each of those diseases — close to $100,000 — but dementia patients had many more expenses that were not covered. On average, the out-of-pocket cost for a patient with dementia was $61,522 — more than 80 percent higher than the cost for someone with heart disease or cancer. The reason is that dementia patients need caregivers to watch them, help with basic activities like eating, dressing and bathing, and provide constant supervision to make sure they do not wander off or harm themselves. None of those costs was covered by Medicare.

A recent The New York Times article, "Costs for Dementia Care Far Exceeding Other Diseases, Study Finds," reports that for many families, the cost of caring for a dementia patient will in many cases consume all of their household wealth.

Most families just aren't prepared for the financial burden of dementia. They assume that Medicare covers all of the expenses. Not so. Patients and their families don't realize that isn't the case. Plus, everything gets more complicated when an individual has dementia.

For example, if a dementia patient in a nursing home gets a fever, the staff may say that they aren't equipped to handle it. They call 911. The patient is then admitted to the hospital. This can lead to complications for the patient suffering from dementia. They may get delirious and confused, slip or fall out of bed and sustain injuries, or they choke on their food. This can cause medical costs to sky-rocket.

There are large disparities in out-of-pocket costs for the three diseases. Medicare covers discrete medical services like office visits and acute care, including hospitalization and surgery. These are the types of expenses experienced by cancer patients and heart patients. Those patients usually don't need full-time home or nursing home care until the very end of their life, if at all. As a result, they don't see that continuing cost. On the other hand, dementia patients need constant care for years. In addition, these dementia patients may not be sick enough for a nursing home, but they still will need supervision and care.

When dementia patients are sick enough for a nursing home, the cost is not covered by health insurance. More than half of patients with dementia— with three-quarters of those from racial minorities—spend down, using savings to pay for the nursing home until the money is all gone. After that, Medicaid takes over.

There are steps that can be taken to avoid some of the more dire financial outcomes.  But planning early is critical.  As a board certified specialist in elder law, I deal with caring for the elderly, Medicaid, and dementia all the time.   Please call me and schedule an appointment to go over how to best address your family's situation.

Reference: The New York Times (October 26, 2015) "Costs for Dementia Care Far Exceeding Other Diseases, Study Finds"

Are Nursing Home Arbitration Agreements Okay?

Buffalo attorney Julie Bargnesi is a proponent of fairness to health care providers and patients alike. She’s not only an attorney who represents health care providers and is a part of the health care industry practice team at Harris Beach, she was once a nurse in a hospital where part of her job was advocating for patients. It’s just one reason she stresses the importance of having the ability to arbitrate cases from the nursing home setting; “This is fair to both sides, and as a nurse I was always seeing both sides of it,” she said. “There’s a lot of nursing home litigation in Western New York and it is time-consuming and expensive for everyone.”

Most states use arbitration agreements rather than having to resort to full-blown litigation that can take years, according to the article in a recent Buffalo Law Journal titled, “Nursing home arbitration enforceable in NYS.”

But not New York, because of a law that didn’t allow for arbitration agreements to settle incidents that occurred in nursing homes. Several states, including New York, refused to enforce arbitration clauses in nursing home admission contracts. Instead, they litigated.

However, in 2012, the issue reached the U.S. Supreme Court in Marmet Health Care Center v. Brown. That decision struck down any state law that didn’t permit an arbitration provision in the nursing home matter. The ruling held that the Federal Arbitration Act (FAA) overrules any state law that says arbitration clauses in nursing home contracts aren’t enforceable for lawsuits stemming from injury or death.

Despite the Supreme Court’s decision in 2012, the topic still isn’t well-known, the article explained. But nursing homes have started adding the clause into patient contracts, and the majority of families and residents are signing them. With the rise in litigation, the article says that it’s at least a tool that nursing home owners can use to give them some protection from costly verdicts.

Patients will still have protection, as cases can still be challenged in courts, and arbitration agreements can be struck if they aren’t properly constructed.

The arbitrator is like a judge who sees both sides and may say, “He’s kinda right and she’s kinda right, so I’m going to make everyone happy and split the baby.” Arbitration tends to be fairer.

Just like any contract, the article says that a court can review the arbitration agreement to make sure it is legal. A contract can’t take advantage of the resident or his or her family, and a nursing home can’t deny admission based on whether the arbitration agreement in the contract is signed.

The article urges patients and family members to be aware of this arbitration agreement, which will arbitrate all potential claims and waive litigation.

If you have any questions about these arbitration clauses and how they are handled in Florida, please make an appointment to see me  before signing any nursing home contract.

Reference: Buffalo Law Journal (July 27, 2015) “Nursing home arbitration enforceable in NYS”