A recent story we heard on the radio described a nursing home lawsuit against a family member of the resident. Several of our clients wondered: is this a real thing? Do I need to worry about a nursing home lawsuit, even if I’m not the one receiving care?
Yes, it is a real thing. And yes, nursing homes often sue family members or others for unpaid bills after they’ve helped someone get into the nursing home.
The NPR story
The article (on NPR) was chilling. One county in New York, it reported, had seen a nursing home lawsuit filed against dozens of family members and even friends. Most of those court filings were after the death of the resident, and they might be for tens of thousands of dollars.
Some of the lawsuits were actually filed by Monroe County, where Rochester is the county seat. That’s because Monroe County operates its own nursing home, and residents of that facility may get sued for costs of care. In other cases, private nursing homes filed lawsuits.
In more than one nursing home lawsuit, the County (or the private nursing home) accused the defendants of hiding, or using, the resident’s funds themselves. They cited state law barring “fraudulent conveyances” (sometimes “fraudulent transfers”). The NPR piece pointed out that it sounds like they were accusing family members of committing fraud.
[As an aside, this law has changed in many states. What used to be called a fraudulent conveyance is now often called a voidable transaction. But Arizona, for one, has not yet updated its language; we still outlaw “fraudulent transfers.”]
Does this mean family members are liable for care costs?
No. The story was not about what is sometimes called “filial support” laws or practices. As we have previously reported, such laws exist in a number of states. But few states — or nursing homes — enforce them. And in most cases, they are impermissible anyway.
Instead, each Monroe County nursing home lawsuit was about the facility’s admission agreement. Virtually all of the defendants had signed their family member — or friend — into the nursing home. And they had blindly signed the admission agreement where indicated.
Here’s what they hadn’t noticed: in the fine print, each agreement included a provision in which the signer promised to pay the debt. Even if the patient’s money ran out. Even if the signer had no legal status. And even if the signer was not a relative.
Did the signers have to agree to those provisions? No. Did the signers even have to sign anything at all? They often did not. Did the nursing homes tell them they didn’t have to sign, or could cross out those provisions? No.
So, as the story reported, the person who took a family member or friend to the nursing home, who “signed them in,” became liable for all the costs. And those can be overwhelming.
But wait. Doesn’t Medicare or Medicaid cover nursing home costs?
Medicare’s nursing home coverage is very slight, and almost always time-limited. Medicare pays for a few days or weeks, but that’s usually it.
Veterans or military benefits, long-term care insurance, Indian Health coverage and other sources sometimes cover a portion of nursing home costs. But for most people, the only real assistance is from Medicaid. And that requires an elaborate, time-consuming and sometimes even costly application process. So nursing homes look for the easiest place they can find payment. That might be a nursing home lawsuit against a family member or other signer.
Getting someone to sign a guarantee of payment — often unwittingly — is the cheapest of tricks. That doesn’t stop the industry from engaging in it. If you’ve ever signed a nursing home admission agreement, you probably noticed that you were asked to sign as “responsible party.” You might ask: responsible for what?
How can you avoid a nursing home lawsuit?
It may not be possible to avoid any liability for a family member’s nursing home care. That’s particularly true for spouses. But there are a couple things to watch out for:
- When you are signing a family member or friend into a nursing home, read the agreement. Cross out anything that says or implies that you are accepting personal responsibility for the care costs.
- While you’re there, look for “arbitration” clauses. They are insidious, and they almost never are beneficial. Cross them out, too.
- Pay particular attention to paragraphs where you are asked to initial or sign separately. Those are usually the ones where you are at the greatest risk.
- Make sure that you indicate your actual role in signing. Do you hold a power of attorney? Sign as “attorney-in-fact” (write that behind your signature). And do it on the patient’s signature line, not on the “responsible party” line.
- If you’re not sure, don’t sign at all. Tell the intake worker that you’ll need to take the agreement home to read it. And take it to a lawyer for review.
The facility can’t make you accept personal resp0nsibility. They can’t make you agree to an arbitration provision. But they won’t tell you that. Instead, they’ll rely on the anxiety, confusion and discomfort of the moment to get you to sign something you don’t have to sign.
Is it this bad in Tucson?
Responsible nursing homes know all this, and don’t try to take advantage of you. The good news: while admission agreements we see in Tucson, Arizona, are often egregious, they are not as over-the-top as some may be in other locales. But that doesn’t mean all is rainbows and unicorns — you need to be savvy about getting long-term care for your family member, loved one or friend. You don’t want to be on the receiving end of a nursing home lawsuit.
Oh, and everything we write her about nursing homes applies just as much to assisted living, adult care homes and other care arrangements. In fact, they are more numerous (and variable) and less regulated — so they’re often worse. Beware.