Warning Before You Sign

If your family is faced with a nursing home admission, here is a warning before you sign the admission agreement with all that fine print that is bewildering. Do not sign that agreement until you have an experienced elder law attorney review it, because many such admission agreements have provisions in them that try to make the family member signing it personally responsible for the monthly payment. This is not allowed under the Federal law, and you should not sign as a “responsible party.” It is perfectly fine to sign as a power of attorney, or a conservator, and that is how the admission agreement is often signed.  

A recent notification letter to nursing homes from the Centers for Medicare and Medicaid Services (CMS) and from the Consumer Financial Protection Bureau (CFPB) reminded nursing homes about their responsibilities under the Nursing Home Reform Act, the Fair Debt Collections Practices Act, and the Fair Credit Reporting Act. Essentially the Nursing Home Reform Act prohibits nursing homes from requiring that someone other than the person going into the facility sign a guarantee of payment in order to be admitted. A contract that conflicts with this is not valid and is not enforceable. But since families do not want to get into a lawsuit over this, here are some thoughts on how to avoid one, even though the nursing home is in the
wrong if it tries to force a family member to “guarantee” or “be responsible” for the payment for care.
 
The Medicare and Medicaid Services notice to nursing homes states that about 48 million family members and friends are caring for adults who need long term care, so this is not an isolated problem. In a typical admission agreement, the very first sentence has a clause that labels the spouse, or child as a “responsible party”, and those words are repeated throughout all of the fine print over a couple dozen pages. Caregivers and family members should not be pressured into signing an admission agreement before they have a chance to have it reviewed by an attorney who represents them, not the nursing home, to make sure it is not in violation of the clear Federal laws. Some nursing homes will try to steer applicants or their families to a corporation to “do the Medicaid application.” Such corporations are not attorneys and have no duty to inform a client of the federal laws that prohibit making others liable for nursing home costs.  

The solution is simple. Do not sign as a “responsible party.” If a father or mother who needs care can sign for themselves, that will not cause other family members a problem, although it is still wise to have an attorney representing them review it before they sign. For everyone else, once the “responsible party” fine print is removed they can sign if they are power of attorney, or conservator. It is both that simple and complicated. It is complicated because the whole family is under incredible pressure under the difficult circumstances having mom or dad going into a
nursing home, and the last thing they are thinking about are the legalities of what they are signing. They are only thinking about what is best for mom or dad. An elder law attorney is not under that same emotional pressure and can clearly advise and solve that problem of “responsible party” words in the admission agreement. That is true whether the elder person can privately pay for a while or needs Medicaid right away. The goal is to get the institutional care needed, without family members being responsible for debts that federal law says cannot be required of them.