Elder law attorney Jim Koewler joins Suzanne to talk about the admissions paperwork we have to sign when a senior love one comes into a skilled nursing facility. In part one, they talked about how the agreement should document what services are available that meet your loved one’s needs. This segment focuses on aspects of the agreement that are subject to federal rules.
Under CMS rules, a place that takes Medicare and Medicaid:
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*The following is the output of transcribing from an audio recording. Although the transcription is largely accurate, in some cases it is incomplete or inaccurate due to inaudible passages or transcription errors.
The following podcast is by Mr Jim Taylor, elder law and special needs attorney, helping and protecting those who need long term care. And Welcome back everyone to the answers for elder’s radio network with Jim Kaylor, elder law attorney based out of Richfield, Ohio, which is right up near between uh an Akron area right. Yeah, and most importantly, I’m a mile from country made ice cream and a mile and a half from Whitey’s boozing burgers. Well, there you go. You can tell what’s important to me. Food. Never know. So, Jim, we’ve been talking about Um agreements and paperwork that we have to sign, obviously when we come into a quote unquote skilled care facility, whether it’s assisted living or nursing, skilled nursing facilities, etcetera. And give us a before we start in the next segment. Can you give us just a brief synapsis of if somebody’s just catching on slide two or part two, what did what did they miss in part one? Okay, in part one we talked about whether the how the agreement should document what services are available that meet your loved one’s needs. And this is this is very much state based this is something Ohio has that I’m hoping other states copy, although I worry about Ohio’s enforcement. Um, but uh, where an assistant living has to be pretty specific on what they offer because they are very different from one assistant living to another on the services they choose to provide. Very different business models and nursing homes ten at least in the services they offer. Qualities a different question, but in the services they offer they tend to be much more similar from one nursing home to another. Even between Cleveland and Seattle, nursing homes are gonna look a lot more like than assisted livings between field in Cleveland. Well, most skilled nursing facilities are national companies. There’s very few, at least out here in Washington state, that are independently run um or, you know, small. Here we have a lot more that are small, regional change. There are a few millions. Okay, we have. We have several regionals out here and then some onesies and twosies. Yeah, we I suppose we have a few regional but Um, you know, we have like the avenirs and the and the UH. You know, we’ll see the avenues out here too. So I think it’s gone past, regional. Yeah, yeah, that’s what I was gonna say. Their national yeah, but we’ve got the renaissance, which is two or three and we’ve got, we not see more and more of the small companies with the UH, four and five people in a house? Oh yes, well, that’s different. That’s Ault family home here for here and in Seattle, in Washington, and those I’m a huge fan of. Yeah, as long as with everyone else, as long as they’re not cutting cost costs by cutting services, I’m yeah, me too. But all too all, too often I see, and I can’t I’m not picking out adult group homes, are family care homes, but all too often we see care providers cutting costs because that they’re in business and Medicaid is not paying them any more money, certainly not paying what they ought to be paying. And if they rely on Medicaid, they’re really squeezed. Covid just colobom because nobody when to move in. So they’re trying to make up their losses from that. And a lot of them changed hands, so they’re under even more pressure to pay off the debt of the recent purchase. Yep. So back to talking about admission agreements or residency agreements or whatever your particular place calls it. Now at the national level, the national rules again under Center for Medicare and Medicaid Services, which has abbreviated cms. I’m not sure where the other m went. Um, under CMS rules, a place that takes Medicare and Medicaid cannot demand in its admission agreement that the resident give up the right to seek Medicaid. Now, if the facility doesn’t accept Medicaid, they’re not obviously not subject to that rule. Okay, but if they do accept Medicaid, they cannot say we will take you only on private pay. So they have to. They cannot have that prohibition on seeking Medicaid in their agreement. Um. In addition, they cannot demand a waiver of personal property loss. Meeting. The nursing home or assisted living or whomever is not liable if your necklace disappears, if your cash disappears, if your bed cheats disappear. Okay. Um. The problem is I see that almost in every admission agreement I review. there. But if we’re putting it in there, but they put it in in a way because most families don’t know, and even Andy and then and then, if something disappears. It’s big enough to to fuss over. The family says some things that, oh, you, you waived it, you can’t claim personal property. Now they don’t know that it was an illegal clause to begin with, so they don’t take it to the next level in a dispute. Yeah, actually, I had one where I found easily half a dozen um clauses that simply violate state or federal rules, and then two or three others we just didn’t like, and I marked it up and the attorney for the nursing them said, no, we’re taking no changes at all. Some of these are illegal. Yeah, we’re making no changes at all. So this is a contract of adhesion. I asked him. Oh, I didn’t say that, so you didn’t have to. It’s a contract of adhesion. That’s what you’re doing here. That’s a that’s a term of art. That says one person that did all the writing and the other just accept that it didn’t have a negotiating leverage. So if there’s a problem later, whatever interpretation could go one way or the other, it’s going to go in favor of the one who had the less power in the negotiation. Okay, and he was not going to admit as a contract of adhesion, but that’s exactly what he was trying to do. General Counsel and I are not friends at all, Um, so it’s different. You’re you know, obviously you’re who you’re protecting is different. Oh Yeah, Oh yeah, I don’t like his chain of nursing homes anyway. They are not good providers. Who Care? They’re they’re high on my naughty list. To borrow something from Santa Claus Um now here’s one of my favorites, or least favorites, however you want to do it. Everyone describe it an arbitration clause. Nursing Home and assisted living like, frankly, most businesses you’ll find, and if you signed up for a new bank account, you’ll find that you agree to arbitrate. If you sign up for cell phone service, you’ll find that you agree to arbitrate. PAYPAL, just put this in, Venmo, just put this in. Okay, Um. They want to go to arbitration because in theory it’s cheaper. What it really is, in my view, because I deal with some people who do Nursing Home Litigation and they say now it’s no cheaper to arbitrate than it is to go to court, arbitration can be held in confidence. You agree to the arbitration and in there you agree to do it confidentially. Well, the confidential part really bugs me. I cannot point to anything in nursing home world or assisted living world where the confidentiality has kept uh, bad things from being fixed. But I can point to it in the Catholic Church. The Catholic Church used confidential mediation with church members who had been molested by clergy and try to make nice with those church members. The confidentiality of that mediation Ken the greater world from finding out for decades, of perhaps centuries, about clergy sex abuse. If it hadn’t been for the Boston Globe and the spotlight group at Boston Globe bringing everything to light, Um, hence the name spotlight, I assume we wouldn’t know and the confidential mediation kept it quiet. Well, the confidentiality, by keep it from getting out there in the public reduces the pressure of the bad actor, the Catholic Church in that case, nursing homes and assistant livings and banks and cell phone companies and paypal and Venmo from having their bad acts come to light. Okay, UM, so they can settle with you and it’s all confidential. They can make you to arbitration if you read to it and it’s confidential. Well, under the Obama Administration, the Obama Administration prohibited arbitration clauses. That got taken to court and tied up through the end of the Obama Administration. The trump administration put in a restored the rule but modified it somewhat, a little bit in favor of the Um the resident. But the resident has to be proactive. So uh, and arbitration agreement is an agreement, a clause in whatever you’re signing that says I agree to go to arbitration and not to go to court, and it almost always says I agree that I cannot join a class action and it almost always says I agree that it will be confidential arbitration. Okay, and it may be in Bermuda by three people who work at nursing homes. That’s very case specific. But you can get around this if you are proactive. The resident or whoever signing them behalf the resident can reject the arbitration clause at the time was signing and has thirty days after that. Even if they signed it, thirty days to resent, you’re locked in and this is Um u s Lat Nursing Home Lot, or is this is CODA federal regulations and Center for Medicare and Medicaid Services, which is a piece of health and Human Services. Well, there you go. Okay, but most people don’t know that and they don’t even body look at the agreement. They can sign the stupid thing. Yeah, so I have tried to be proactive on admission agreements and yes, it’s starting with me and yes, it’s it’s gonna take forever and long after I die for this to have any effect. Probably I have created an arbitration opt out advanced directive that you sign while you’re signing powers of attorney. It’s available on my website, protecting seniors dot com, and then go to the toolbox tab. It’s a one pager that an the state planning lawyer, a friend of mine, and I put together that says, I don’t care what I sign, are my agent signs at the time that I’m going into a nursing homewor assisted living. I don’t agree to arbitration. Okay, and yeah, I’m let’s just assume that we signed at the time that because we were under the gun health was a bigger concern than the contract. So, uh, if you get this agreement nursing home within the thirty days, then I’m opting out. Okay, and it specifically cites the CODA federal regulations under which the arbitration closes are are discussed. Take this thing, sign it, attach it to your health care power atturney your healthcare proxy, where they call it in your state, and to your General Power Attorney. I all but guarantee the nursing who is gonna ask for those, or the assistant of them is going to ask for those. Then when they get them, now they’ve got the opt out and you’ve got a way to say, hey, I opted out. Most people never have a dispute with a nursing home or assistant living, but if they do, I want them to have the right to go to court because if, if one person gets hurt because there’s a lack of training and lack of equipment, I want that to come to light so the nursing home has an incentive to fix the training, fix the equipment, add more staff whatever. Good, good and Jim, we’re gonna be right back talking about what were the next thing we I’m talking about is what’s called the resident representative. This is this is where family gets screwed. Well, we’re gonna be right back everyone. Stay tuned for part three. State of Ohio residents, you have a friend to help you navigate long term care while protecting your assets. You can reach Jim at www dot protecting seniors dot com, or just email him at J K O E W L E R Pyphen a F e. that’s J Kaylor a F E at protecting seniors dot com.
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Originally published September 18, 2022