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Nursing Home Contracts

Before a senior gets admitted to a nursing home, he or she will need to sign a contract or other admission’s agreement. A contract is a legally binding document that defines the conditions under which the senior is admitted. It is important for seniors and caregivers alike to review and understand the contract in its entirety to ensure optimal care, protection and provisions. Some of the most important terms of a nursing home contract define the circumstances under which a resident can be admitted, transferred or discharged and how they will pay for the services provided.


Under federal regulation, 42 CFR 483.12(a)(2), a nursing home facility must allow a resident to stay in the facility under the following conditions: 1. his or her needs cannot be met, 2. the individual’s health improved, 3. the facility services are not necessary, 4. the resident is unsafe in the facility, 5. the individual is a danger to other residents if he or she continues to stay, 6. the resident has failed to pay or apply for benefits to pay after “reasonable and appropriate notice,” and or 7. the facility goes out of business. These are the sole grounds for a nursing home facility to be able to discharge a resident.


A facility may not discharge residents when the resident entered for the purpose of rehabilitation, which has now concluded or the resident or family, etc. refuse to sign an admissions contract. Even though the facility can’t force the individual out, the resident is still responsible to pay privately for the care or apply for public benefits to cover the cost of services.


According to the National Association of Consumer Advocates (NACA), a nonprofit association of attorneys and consumer advocates committed to representing consumers’ interests, there are problems with recent trends in nursing home contracts.  Some nursing home facilities are requiring third parties to apply for Medicaid, recertification of Medicaid, and pay any legal fees incurred by the nursing home because of failure to apply for or maintain Medicaid, as well as expanding the definition of “representative” and/or “sponsor” to include legal liability beyond that required by federal and state laws .


In New York State, under 10 NYCRR §415.3(b)(1) & (6), there is no third party liability in these situations. As a condition of admission, expedited admission, or continued stay, there is no third party liability or guarantees. However, nursing homes may seek a third party to sign an agreement on behalf of a resident if that third party has access to the resident’s funds, such as an agent under power of attorney, joint account holder, or court-appointed guardian. Third parties are never personally liable. Their liability on extends to their access and use of a nursing home resident’s funds.


Furthermore, according to 10 NYCRR §415.3(b)(3) – (4), there is no waiver of federal rights. A nursing home may not require a resident to waive the right to Medicare or Medicaid. Also, they may not require a resident to guarantee that he or she will not apply for public benefits to pay for care.  This means they cannot require a resident to be a private payer.


For further information on nursing home care, contact a New York elder law attorney.  The goal of an elder law attorney is to help secure appropriate medical treatment and advise on a plan to secure payment of nursing home care.  Further, they will help protect your loved ones and preserve assets to the greatest extent possible under the law. Their tasks in this situation include, but are not limited to, providing an opinion letter for a nursing home, assisting in review of all nursing home contracts, and advising family on proper signing of a contract. i.e.“Resident Representative” vs. “Responsible Party” and protect a client’s right to privacy.


The lawyers at Tanya Hobson-Williams, PC are skilled in all aspects of elder law and are dedicated to representing its clients with diligence and compassion during emotional times. Contact the experienced New York elder law attorneys at Tanya Hobson-Williams, PC for a consultation by calling (718) 210-4744 or by filling out our contact form.


Nursing Home Discharges: Can You Appeal?

There are many reasons why elderly persons wind up in nursing homes, including voluntary admittance to obtain assistance with rehabilitation after a hospital stay or problematic behaviors associated with various mental conditions such as dementia. In order to afford nursing home costs, many of these adults rely on Medicaid and Medicare. A nursing home may choose to discharge a person for various reasons, including their coverage is running out or they feel the patient is ready for release.  However, if a resident is being discharged, the discharge can be challenged.

There are only five reasons in which a resident can be discharged: (1) the resident’s health has improved, (2) the resident’s needs cannot be met by the facility, (3) the health and safety of other residents is endangered, (4) the resident has not paid after receiving notice, or (5) the facility has stopped operating.

Sometimes, to get around the policy, the nursing home may transfer the patient to a hospital and then refuse to let them back in. In this case, state law requires that the hospital must hold their bed for a certain number of days. (A resident should check their policy to see the amount of time allotted for the hold.)

Without proper notice and planning, a nursing home is unable to discharge a resident at all. The discharge plan must ensure that the resident has a safe place to go and outline the care that they will receive. In general, written notice must be given to the resident 30 days before discharge. In emergency situations, the amount of time may be decreased.

Even if the above notices are given to the resident, they can still appeal a decision to discharge. For residents receiving government-funded healthcare assistance, there is a fast appeal if they are receiving care at a Medicare-covered facility, home health agency, rehabilitation facility, or hospice. The fast appeal is filed through the Beneficiary and Family Centered Care Quality Improvement Organization. During this appeal, the nursing home will be required to provide you with a “detailed explanation of non-coverage,” which will lay out when and why your services will no longer be continued. The Beneficiary and Family Centered Care Quality Improvement Organization will then ask why you believe the services should continue, review your records, and issue a decision by the close of business that day. The appeal process of a nursing home discharge can be overwhelming, so contacting an attorney immediately is recommended.

Taking proper care of the disabled and elderly in our society who depend on us is of the utmost importance. If you have questions about the care of a disabled or elderly loved one, contact an experienced New York elder law attorney who can help. For more information, contact Hobson-Williams, P.C. at (718) 210-4744 for the quality representation that you deserve.

Antibiotic Usage in Nursing Homes Linked to Serious Health Problems

According to the Center for Disease Control (CDC), up to 70% of nursing home residents are prescribed antibiotics during the course of any given year, ranging in cost between $38 million to $137 million per year. Recently, the Journal of American Medical Association (JAMA) released the results of a study that linked the high usage of antibiotics in nursing homes to many health problems such as gastroenteritis, clostridium difficile, and resistance to superbugs, drug-resistant germs.

The study, which concentrated on a sample of 110,656 patients in 607 nursing homes in Ontario, Canada, found that the residents had a high percentage of antibiotic use. The most commonly prescribed antibiotics were penicillin and second-generation fluoroquinolones. Despite the fact that some elderly residents did not take the antibiotics, they were still at an increased risk of antibiotic-related harm.

As noted by the CDC, the over-prescription of antibiotics contributes to the development and sustainability of superbugs, one of the world’s leading health threats. Physicians are advised to only prescribe antibiotics if, based on evaluation, their patient has a bacterial infection. According to the JAMA study, it is estimated that 56% of inappropriately prescribed antibiotics are to treat suspected urinary tract infections, and up to one-third of these are for nursing home residents with asymptomatic bacteriuria, bacteria in the urinary tract. However, this bacteria is usually safe and does not require antibiotic treatment.

According to the CDC, nursing home residents are highly susceptible to to drug-resistant germs due to the possibility of the bacteria “colonizing,” residing without producing symptoms, on their skin.

If you or your loved one is in a nursing home and has been subjected to misuse or overuse of antibiotics, contact an experienced elder law attorney at the New York Elder Law Firm Hobson-Williams, P.C. at (718) 210-4744.

Nursing Home Chain Settles with New York Attorney General for $600K

Recently, the New York State Office of the Attorney General announced that a New York nursing home chain, Elant, settled with its office for $600,000 stemming from claims that they benefited financially by prolonging residents’ stays longer than necessary.  The nursing home chain admitted that several patients who were meant to be short term were transferred to one of their locations in financial peril.  The transfer was against the wishes and consent of the residents and their families, and was meant to generate income for the location and assist in remedying the financial condition.  Attorney General Schneiderman remarked that his office is dedicated to combating such practices and will “find those who use patients to siphon off critical taxpayer funds.”

The Attorney General’s Medicaid Fraud Control Unit and the New York State Department of Health engaged in a joint investigation that revealed the illegalities occurring.  The agencies discovered that the practice of retaining patients longer than necessary was aimed at patients who were the recipients of Medicare or Medicaid.  The patients were also provided with additional and unnecessary services during the period of delay despite the fact that the patients were seeking to be discharged.

Also resulting from the investigation were the license revocations of two former Chief Executives of the nursing home chain, and two former administrators.  Both former CEOs and an additional administrator voluntarily surrendered their licenses.  Additionally, the Attorney General is overseeing that new practices be put in place at Elant to safeguard the patients’ best interests and prevent the exploitation of vulnerable residents.  The chain is also required to enter into a Corporate Integrity Agreement with the Office of the Medicaid Inspector General.

If you believe that your loved one has been mistreated or been taken advantage of by a nursing home, contact an experienced attorney who has the skill and knowledge to handle such matters.  The Law Offices of Tanya Hobson-Williams has handled numerous nursing home claims including those of abuse and neglect.  For more information, call the Law Offices of Tanya Hobson-Williams toll free at (866) 825-1529 or (718) 210-4744.


Nursing Homes Using Guardianship Rights to Collect Debts

Nursing Homes Using Guardianship Rights to Collect Debts

The New York Times recently exposed several startling scenarios in which nursing homes have attempted to gain guardianship rights over residents in an effort to collect payment.  According to research done by Hunter College, the practice of nursing homes filing for guardianship of residents is becoming increasingly common.  In the last ten years, out of 700 guardianship cases brought to court in Manhattan alone, 12% were filed by nursing homes.

If a Guardian is appointed due to the efforts of the nursing home, they are often awarded not only reimbursement of their legal fees out of the incapacitated persons funds but they could also be granted payment of their nursing home bills and obtain other rights over the incapacitated persons finances. It is legal for nursing homes to hire counsel to petition for the appointment of a Guardian and in some cases it may be necessary.  However, the intent of Article 81 of the New York State Mental Hygiene Law has been increasingly abused.  The intent was that guardianship was to be a last resort and only granted for the benefit of the person for whom it is appointed.   Families whose loved ones reside in nursing facilities may be thrust into the vortex of an expensive and lengthy legal battle as a result of the exploitation of the statute.

In a recent heartbreaking case mentioned by the Times last month, an 82 year old man was forced to undergo the anguish of watching his wife of 47 years lapse into dementia while being terrorized by the looming threat of litigation.  Mary Manning Walsh Nursing Home had petitioned for guardianship of the woman after her nursing home bills co-payment had doubled to $4,558.54 per month, making it impossible for the couple to keep up with payments.  The woman had appointed her husband as health proxy and power of attorney in the event of incapacity.  However, the nursing home had left a stack of legal papers near her bedside for her husband to find.  It was a petition brought by the nursing home to have a guardian appoited over his wife despite the validly executed power of attorney.

If your relative is in a nursing home that has petitioned for guardianship, or you are just in the process of planning for their long term care, find out how to protect your loved one and contact experienced elder law attorney, Tanya Hobson-Williams. The attorneys at Tanya Hobson-Williams are available to set up a consultation at 866-825-1529.


Elderly Misuse of Antipsychotics: A Disturbing National Trend

A recent National Public Radio (NPR) investigation revealed that nearly 20 percent of senior nursing home residents receive some form of antipsychotic medications.

Similar reports, drawing from the NPR investigation, found significantly higher rates of antipsychotic drug usage concentrated in the Western New York area.  In the Rochester region, data revealed that antipsychotic drug usage rates reached up to 30 percent.*

These statistics are concerning as recent news has suggested that many seniors in nursing care facilities are often given antipsychotics meant to treat conditions that they do not actually have. For example, a 2011 government study found that 88 percent of Medicare claims for antipsychotics prescribed in nursing homes were for treating symptoms of dementia, even though the drugs were not approved for that. The consequences of such overmedication can lead to unfortunate complications, including an increase in the risk of accident, injury, and even heart failure.

In response to this trend, the federally-operated Center for Medicare and Medicaid Services instituted a national campaign to reduce the misuse of antipsychotics. Despite its efforts, however, investigations reveal that the government has been slow to penalize caregivers that run afoul of the program’s mission.

Federal law prohibits the use of antipsychotics drugs for the convenience of the caregiving staff.  Thus, it is important that loved ones be cognizant of the signs of over-medication. If you suspect that you or your elderly loved one is being subjected to over-medication in his or her Senior Care facility, contact an experienced New York Elder Law attorney at the Law Office of Tanya Hobson-Williams at (718) 210-4744.

*While the numbers are alarming, Medical professionals in the Rochester region maintain that the comparatively higher usage rates reflect the elderly patient’s higher need for the medications. Statistics suggest that the Rochester region leads the nation in care for elderly patients with substantial and complex needs, providing support for the medical professionals’ contentions that such medications are necessary to treat their elderly patients.

Nursing Homes Attempt to Lure in More Medicare Patients to Increase Profit

A recent exposé by the New York Times revealed that as nursing homes revamp their facilities to include luxury living quarters, the disparity between the lavish amenities of short term accommodations, and the quality of care can be drastic.  Although nursing homes are attempting to lure in patients whose short stays will be funded by Medicare dollars, in lieu of Medicaid, many patients are being discharged from the facilities before they have been rehabilitated.  Or worse yet- they leave with more medical issues than they had upon admittance.

Nursing homes are reaping 84% more in profits from short-term patients on the Social Security age based Medicare program than they do from lower income patients whose long-term stays are funded by need based Medicaid program.  Medicare does not provide for long term care funding, so many facilities are creating “luxurious” accommodations that may even include putting greens, restaurants, and private rooms with the hopes of luring in patients and increasing revenue.  Some nursing homes have decided to sustain themselves on Medicare funding alone because it is so profitable, thus excluding Medicaid patients.

Due to the time limits for nursing home stays for Medicare patients, many patients will be forced to leave the nursing home before they are fully rehabilitated or before they have adjusted to their medications.  More facilities are catering to short term care in order to receive the substantially higher Medicare payments.  The quality of care is being compromised by ushering patients out the door with quick (and often ineffective or negligent) treatment with less staff.

One family has decided to sue the nursing facility where their mother was rehabilitating after a fall.  While at the facility, she lost twenty pounds and developed a bed sore that exposed her bone.  As a result of the nursing home’s negligence, the patient’s health had deteriorated so badly that she was brought to a hospital where such succumbed to her condition a month later.

In another case, an 87 year old retired neonatologist who checked herself into a top rated facility to recover from an injured foot also developed bedsores so severe that she had to be brought to the emergency room.  She also claims that the staff did not take precautions to prevent bedsores by turning her over periodically; nor did the staff respond to her diaper change requests promptly or give her a full bath.  The patient is suing the facility for negligent care.

Those in the industry are optimistic that the playing field will even out and the quality of care will stand on equal footing with the quality of accommodations in the not too distant future.  While hospitals are required to pay penalties if too many patients are readmitted, they will likely cease sending patients to nursing homes that perform poorly.  In addition, new payment models are being implemented that reward low costs without sacrificing quality.

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