Sunday, July 16, 2017

How to Protect Yourself when Signing Nursing Home Admission Agreements

Placing a family member in a nursing home is a difficult and traumatic event. One of the obstacles to be overcome is reviewing and signing the facility’s admission paperwork. This typically involves many pages of complicated provisions and jargon. There is a temptation to just sign wherever directed without even trying to read and understand the terms.
It’s best to try to overcome the urge to get this onerous task over with as quickly as possible. This paperwork is important. And by signing the admissions paperwork you may be agreeing to be personally responsible for the costs of your family member’s care.
Of course it would be ideal to have a lawyer review the paperwork and explain it to you before you sign. But, that may be unrealistic given the demanding and stressful circumstances. You may be pretty much on your own.
The law does provide some protections for caregivers who find themselves confronted with nursing home admissions paperwork. The Nursing Home Reform Act prohibits certain types of conduct by skilled nursing facilities that participate in Medicare and/or Medicaid.
Unfortunately, the reality is that some nursing facilities include illegal provisions in their admission contracts. I recently encountered an otherwise respected nursing facility that was attempting to have a family member sign as a “co-signer guarantor” to personally guarantee the payment of all charges incurred by the resident. The guaranty read in part: “If the resident does not or cannot pay, I will pay the amount owed to [nursing facility] for residency charges, services, equipment, supplies, medication, and other charges.”
It didn’t matter that this type of third party guarantee provision has been prohibited since the Nursing Home Reform Act was implement more than 25 years ago. There it was – in this nursing home contract in 2017. When the family member questioned this provision he was told that signing it was required. It wasn’t until an elder law attorney (me) spoke with the facility’s chief financial officer that the facility backed off with an apology.
The prohibition of third party guarantee agreements is not a hidden or ambiguous part of the law. I’ve reproduced the relevant section of the regulation below.
The bottom line is – take care to review nursing home admission paperwork and know what you are signing. It is a legal agreement that could put you on the hook for tens of thousands of dollars.
Get the paperwork reviewed by your lawyer if you possibly can do so. If not, try to educate yourself as best you can ahead of time. Strike out and initial provisions to which you do not want to agree. Sign the paperwork as the representative of the resident only and try not to take on personal liability. For example, you can sign the line for the signature of the applicant/resident in a way that shows you are signing only in the capacity of being the agent of the resident: “John Resident by Family Member, his agent.” Try to avoid signing as “responsible party” or “guarantor.”
Be aware that if the resident has already been admitted to the facility and moved in, there are only a few reasons that can cause them to be discharged. (I’ve reproduced the regulation stating the 6 reasons for discharge below). A family member’s refusal to sign an agreement to become personally responsible for the cost of care is not one of those reasons.
The Regulations
The federal requirements for skilled nursing facilities can be found at 42 CFR Part 483, Subpart B. Section 483.15 of these regulations lays out the requirements regarding admission policies. I’ve highlighted subsection 3 which prohibits facilities from requesting or requiring a third party guarantee of payment.
(a)Admissions policy.
(1) The facility must establish and implement an admissions policy.
(2) The facility must -
(i) Not request or require residents or potential residents to waive their rights as set forth in this subpart and in applicable state, federal or local licensing or certification laws, including but not limited to their rights to Medicare or Medicaid; and
(ii) Not request or require oral or written assurance that residents or potential residents are not eligible for, or will not apply for, Medicare or Medicaid benefits.
(iii) Not request or require residents or potential residents to waive potential facility liability for losses of personal property
(3) The facility must not request or require a third party guarantee of payment to the facility as a condition of admission or expedited admission, or continued stay in the facility. However, the facility may request and require a resident representative who has legal access to a resident's income or resources available to pay for facility care to sign a contract, without incurring personal financial liability, to provide facility payment from the resident's income or resources. [emphasis added]
(4) In the case of a person eligible for Medicaid, a nursing facility must not charge, solicit, accept, or receive, in addition to any amount otherwise required to be paid under the State plan, any gift, money, donation, or other consideration as a precondition of admission, expedited admission or continued stay in the facility. However, -
(i) A nursing facility may charge a resident who is eligible for Medicaid for items and services the resident has requested and received, and that are not specified in the State plan as included in the term “nursing facility services” so long as the facility gives proper notice of the availability and cost of these services to residents and does not condition the resident's admission or continued stay on the request for and receipt of such additional services; and
(ii) A nursing facility may solicit, accept, or receive a charitable, religious, or philanthropic contribution from an organization or from a person unrelated to a Medicaid eligible resident or potential resident, but only to the extent that the contribution is not a condition of admission, expedited admission, or continued stay in the facility for a Medicaid eligible resident.
(5) States or political subdivisions may apply stricter admissions standards under State or local laws than are specified in this section, to prohibit discrimination against individuals entitled to Medicaid.
(6) A nursing facility must disclose and provide to a resident or potential resident prior to time of admission, notice of special characteristics or service limitations of the facility.
(7) A nursing facility that is a composite distinct part as defined in § 483.5 must disclose in its admission agreement its physical configuration, including the various locations that comprise the composite distinct part, and must specify the policies that apply to room changes between its different locations under paragraph (b)(10) of this section.
The rules for discharging a resident are found at 42 CFR Part 483, Subpart B, Section 483.15(c):
(c)Transfer and discharge -
(1)Facility requirements - (i) The facility must permit each resident to remain in the facility, and nottransfer or discharge the resident from the facility unless -
(A) The transfer or discharge is necessary for the resident's welfare and the resident's needs cannot be met in the facility;
(B) The transfer or discharge is appropriate because the resident's health has improved sufficiently so the resident no longer needs the services provided by the facility;
(C) The safety of individuals in the facility is endangered due to the clinical or behavioral status of the resident;
(D) The health of individuals in the facility would otherwise be endangered;
(E) The resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare or Medicaid) a stay at the facility. Non-payment applies if the resident does not submit the necessary paperwork for third party payment or after the third party, including Medicareor Medicaid, denies the claim and the resident refuses to pay for his or her stay. For a resident who becomes eligible for Medicaid after admission to a facility, the facility may charge a resident only allowable charges under Medicaid; or
(F) The facility ceases to operate.
Further Reading
An excellent online resource for learning about the rights of nursing home residents and their families is the website of the National Consumer Voice.

Be aware that in some states, including Pennsylvania, family members can become liable for a parent or child’s unpaid cost of care under what are known as filial support laws. See my article on this subject: Law can require children to pay support for aging parents. It’s a good idea to meet with an experienced elder law attorney as soon as possible if your parent or spouse r needs nursing home care.

Thursday, July 13, 2017

Pennsylvania's New Notary Law

Pennsylvania has adopted a version of the Revised Uniform Law on Notarial Acts. The new law, which takes effect on October 26, 2017, codifies provisions relating to notaries in Title 57 and repeals existing laws relating to notaries.
The new law will be of interest not only to notaries but to lawyers and anyone who employs notaries.
A copy of the law (57 Pa.C.S. §301-331) is available here. An overview of its major changes to prior law is available here.  The National Notary Association has a useful compendium of various PA statutes that are related to the notary process:  
Further information on the regulation of notaries in Pennsylvania is available on the PA Department of State website:
Further Reading:

Sunday, July 9, 2017

How to Avoid an Estate Planning Tragedy

You see me here, you gods, a poor old man,
As full of grief as age; wretched in both.
-King Lear, 3.2

I recently purchased a copy of King Lear. Somehow, I had never read this Shakespeare classic. Now, being semi-retired I have some time to read things like this that I missed.

Wow. This is a serious tragedy. And it arises from a failure of retirement and estate planning.

In case you missed the story (or read it many years ago) here is an overview. As the play begins, an aging and addled King Lear decides to divide his lands among his three daughters. He decides to give the largest share to whoever flatters him the most. Lear’s corrupt daughters, Regan and Goneril, are quite willing to lie to their father with excessive expressions of love they do not feel.

Cordelia, his one honest and loyal daughter, refuses to flatter Lear but says with sincerity that she loves him as a daughter should. Offended, Lear disowns and banishes Cordelia.

Lear turns his estate over to Regan and Gonerli and then their true natures are revealed. They treat their father with disrespect and conspire against him. 

Virtuous daughter Cordelia returns with an army in an attempt to protect her father but she loses the battle against her evil sisters. Eventually Cordelia is executed. Goneril poisons Regan and later kills herself.  Lear himself ends up blind, impoverished, sick and overwhelmed by grief. The strain overcomes Lear who falls dead on top of Cordelia’s body.

King Lear’s story illustrates the hopes and fears of many of us as we grow old.  We want security and respect, good health (and health care) as we age. We want to leave a positive legacy and a family at peace after we are gone. All of these goals eluded King Lear.

How sharper than a serpent's tooth it is
To have a thankless child!
King Lear, 1.4

While the Lear story is extreme, I have seen bits and pieces of his tragedy occur many times over my long career. Children do sometimes treat their aging parents very badly. Sibling rivalries that have been submerged since childhood can reawaken with volcanic force when a parent becomes incapacitated or dies. A plan that leaves things uncertain under the philosophy that “the kids will sort it all out after I’m gone” can be a recipe for serious family discord. Siblings can battle for years over an inheritance and end up spending more on lawyers and litigation costs than the inheritance is worth.

While a good estate planning lawyer is not going to be able to prevent you from having a thankless child, expert advice and advance planning can minimize the problems that will result. Advance planning for the reality that we are aging and will eventually die can help avoid problems for both you and your family. Heed the lessons of King Lear:

  • Don’t wait until you are addled (like Lear) to plan your estate
  • Plan and prepare in advance for the possibility that you may lose mental capacity in the future
  • Set up a plan to protect your future  financial security
  • Have a well thought out Will and estate plan
  • Get expert professional help from an experience elder law and estate planning attorney
  • Read Shakespeare (or attend a theater production).

Sunday, July 2, 2017

Pennsylvania Veterans Registry

Are you a veteran? Pennsylvania wants to connect you and your family with information about valuable benefits, programs and services that you may not know about.
The Pennsylvania Veteran’s Registry  is intended to provide veterans with information on many benefits, programs and services that are available to them, It’s operated by the Department of Military and Veterans Affairs (DMVA).
The registry is a fine idea, but it has not been particularly successful to date. It is too limited in scope and has been underutilized by veterans. An initial barrier is that veterans have to be aware of the existence of the registry and apply to receive information about benefits and programs. And not many veterans have applied. Currently, the online registry captures only about 7,000 of the over 894,000 veterans in Pennsylvania. That represents less than 1% of PA veterans.
Pennsylvania House Bill 1231 (HB 1231) is bi-partisan legislation that is intended to expand the scope, utilization and impact of the Veterans Registry.
The bill requires coordination by DMVA with other state agencies that have contact with veterans. Other agencies will inform veterans of the existence of the registry and assist those who wish to be included. The bill protects privacy by prohibiting the information collected from being sold or used for commercial purposes. It requires the DMVA to submit an annual report on how many veterans are accessing the registry.
HB 1231 bill passed the House on June 28, 2017 by a vote of 198-0. It awaits action in the Senate. But you don’t have to wait for HB 1231 to be enacted to register. You can apply for the registry now here. The current registry provides information on many benefits and programs such as:
  • Compensation/Pension Claims
  • Disabled Veterans Real Estate Tax Exemption
  • Veterans Temporary Assistance
  • Blind Veterans Pension
  • Educational Gratuity
  • Amputee and Paralyzed Veterans Pension
  • Persian Gulf Conflict Veterans Bonus
  • State Veterans Homes
  • PA Veterans Trust Fund
  • Honoring Our Veterans License Plate / Driver’s License and ID Card Veterans Designation
  • Military Family Relief Assistance Program

 Hopefully, an expanded registry as envisioned by HB 1231 can eventually become a one-stop shop for information on veterans benefits. If you support the expanded registry you might want to let you state Senator know.  You can get the name and contact information for your Senator here.