The decision to place a family member into a nursing home is a dilemma for an ever-increasing number of Americans. In addition to the emotional difficulties inherent in making such a decision, if a family decides to place a member into a nursing home, there is a mountain of paperwork awaiting them. While nursing homes will often argue that their contacts are standard and cannot be changed, this is rarely the case. To ensure that your contract doesn’t have any hidden or illegal clauses, it’s essential to consult with an experienced elder law attorney before you sign it.
When you receive the nursing home contract, make sure to actually read the contract in detail to understand the provisions. Make sure that the following provisions are included:
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The basic daily rate for service and the adjustment process for price increases. By ensuring that the basic daily rate and the adjustment process is clearly defined in the nursing home contract, you ensure yourself protection from future disputes.
A list of charges for any items not included in the basic daily rate. This ensures that charges for all items not included in the basic daily rate are defined to ensure future disputes over price does not arise.
- The right to apply for Medicare and/or Medicaid. Receiving government assistance can be a major financial relief for residents in nursing homes, but these programs are less profitable for nursing homes. Ensure that the contract expressly allows you to apply for Medicare and/or Medicaid.
- The ability to appeal any Medicare and/or Medicaid decisions. Similar to the above, this ability ensures that you have the right to appeal any Medicare and/or Medicaid decisions.
- Only the family member is responsible for the costs of care. Some nursing homes will attempt to include a clause that makes you a co-signer to the agreement and thus a third-party guarantor for any money not paid by the family member. Even though these agreements are illegal under the Nursing Home Reform Act, it is best practice to ensure that the nursing home contract expressly identifies that only the family member is responsible.
- The family member can be removed from the nursing home only if (i) removal is necessary for the family member’s welfare; (ii) the family member no longer requires care consistent with a nursing home; (iii) the health and/or safety of other residents in the nursing home are placed in danger by the family member’s presence; (iv) the family member fails to pay and the failure to pay is unreasonable; and, (v) the nursing home is no longer in operation. Under the Nursing Home Reform Act, nursing homes can only remove residents under specific circumstances. By including the prior language, you ensure that the nursing home contract is compliant with federal law and that your family member is protected.
These six provisions should be considered “must haves” in nursing home contracts, although there are a great many other important provisions that should be included or excluded depending on your needs.