Beware of the Binding Arbitration Agreement in the Nursing Home Admission Packet
February 18, 2014
Imagine that you’re being admitted into a nursing home. You are having trouble making decisions and managing your affairs at this point. Luckily, you planned ahead and have a Health Care Proxy in place. Your agent fills out the reams of paper that seem necessary for your admission, including a binding Agreement to Arbitrate. That means that if you ever have a dispute with the nursing home, you are agreeing in advance to use binding arbitration, and not a jury trial, to settle that dispute. Your agent signs it, figuring you can’t be admitted without it. All is well until a dispute arises and – boom – you’re stuck heading to arbitration.
While it may sound attractive, arbitration tends to favor the “big guys” – in this case, the nursing home and health care providers. For you as the patient, or “little guy,” jury trials are far more consumer-friendly.
Good news, though – in January, the Massachusetts Supreme Judicial Court (our highest court) decided the Johnson case, which says that the decision to sign an arbitration agreement isn’t a health care decision. And because the agent named in your Health Care Proxy can only make health care decisions on your behalf, if he or she signs an arbitration agreement, a court will find that agreement void.
But what if you have both a Health Care Proxy and Power of Attorney in place? This difference is key because the agent named in your Power of Attorney CAN agree to binding arbitration on your behalf. A Power of Attorney gives more business-related decision-making powers than a Health Care Proxy, so the agent named in your Power of Attorney can make financial and legal decisions on your behalf. Agreeing to arbitration is not a medical decision but it is a legal one, so it’s one the agent named in your Power of Attorney CAN make.
As I mentioned, arbitration tends to favor the nursing home if a dispute arises. But how can you protect yourself? First, most nursing homes do NOT condition admittance on whether or not you (or your agent) agree in advance to arbitration. Simply refuse to sign the arbitration agreement within the admission packet, or if it is part of a larger document, cross out those paragraphs.
Also, your Power of Attorney document should make it clear that your agent cannot agree to binding arbitration before a dispute arises. When a dispute happens, arbitration may be your best option – but you don’t want to make that decision before you know the facts.
And if you don’t have a Health Care Proxy or Power of Attorney yet? Put them in place now. It won’t take much time at all.
Looking at Continuing Care Retirement Communities? Look Closely.
December 3, 2010
There are a lot of benefits to Continuing Care Retirement Communities (CCRC’s), also called “Buy-In’s.” These are the places where you put down a substantial sum (maybe $250,000 or more) as an entrance fee, and you plan to stay there for life – they have independent apartments, various levels of assisted living, and skilled nursing (nursing home), all on campus. There is definitely something appealing about the promise of being cared for for life.
But will they really care for you for life? There are some big questions right now about the nursing home units at CCRC’s. For example, when describing the nursing home to you, a potential customer, the sales staff will explain that if you run out of money, they will help you apply for Medicaid. Well, as it turns out, sometimes the CCRC makes you spend down even further than the Medicaid rules do.
For example, for a married couple, if one spouse needs nursing home but the other is still in the community (ex. in her own apartment or in the assisted living), MassHealth rules permit the community spouse to keep about $110,000 to live on. But guess what – before letting the husband move into a MassHealth nursing home bed, the CCRC might make the wife spend her own money down even further than the $110,000, maybe allowing her to keep only $50,000 for herself. And what did they have her spend it on? The husband’s private pay bed in the CCRC nursing home. And how much longer can she last in the community with only $50,000 to her name?
The sales team might also tell you that if a couple really runs out of money, there is a benevolent fund that will help you pay your monthly fees. I’d be a lot more comfortable moving into a CCRC if I saw the balance sheet for that benevolent fund – is there really enough in it for all the residents who might need help? And do they ever really expend from the benevolent fund?
Before committing to a CCRC, do your research. Dig around to make sure that what the sales staff is telling you is true. Two sources of hands-on experience with the nursing home units are going to be (1) local families who have been through the nursing home, and (2) local elder law attorneys who have helped clients navigate the CCRC nursing home experience.
Newton Health Care Center
December 4, 2008
On a beautiful December Wednesday, I drove to Newton to tour the Newton Health Care Center. The owner, Healthbridge, also has the Weymouth Health Care Center on the South Shore. From the outside, it looks like an old-fashioned, brick nondescript nursing home, but inside, there is a lot going on. They offer an Alzheimer’s care unit, long-term care, short-term rehab, and post acute care.
Most interesting, though, is their “orthopedic unit.” This is a 22-bed wing designed for people who need a short stay while recovering from hip replacements, knee replacements, or other orthopedic surgeries. It is such a change to see a unit built for baby-boomers – rooms are private, each has a flat screen TV, there is internet access, and the wing is spacious and tastefully decorated. Very different from the usual institutional experience!
Through all the units, I noticed a few things that I liked. One was sunlight – lots of it. Plenty of natural light is key to mood and health. Despite being right off the highway, there were also peaceful views out many of the windows, whether of trees or a neighboring gold course. Again, soothing, natural sights help life mood and promote health. The courtyard used by the Alzheimer’s and dementia residents is larger than at many other facilities. And the two things I also look for when visiting facilities – the staff looked happy and calm, as did the residents.