Episode 38

What to look out for in nursing home admission documents

 

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This is the Nursing Home Abuse Podcast. This show examines the latest legal topics and news facing families whose loved ones have been injured in a nursing home. It is hosted by lawyers Rob Schenk and Will Smith of Schenk Smith LLC, a personal injury law firm based in Atlanta, Georgia. Welcome to the show.

Schenk: Hello out there and welcome to episode 38 of the Nursing Home Abuse Podcast – “What to Look Out For In Nursing Home Admissions Documents.” My name is Rob Schenk.

Schenk: And we are nursing home abuse attorneys in the state of Georgia, and we are also your co-hosts for this episode. You know what I was thinking about? There was a viral video not too long ago – I don’t know who the actors are, I can’t remember who they are, but it was two actors reenacting the intro to “Simon and Simon,” the TV show from the ‘80s, like frame for frame. They went and did a reshoot, like went to the same locations and everything. You don’t know the show “Simon and Simon.”

Smith: No, I do, and I’m trying to think of who it is, because it’s too…not Seth Rogan…

Schenk: But it’s along that line.

Smith: It’s along those lines. It’s two of those guys. I think one of them might have been Don – not Don Draper – but Jon Hamm. Jon Hamm.

Schenk: I think Jon Hamm was the more manly dude.

Smith: And then I think the other guy was Jimmy Fallon.

Schenk: He was the Jimmy Fallon line. He was in “Parks and Recreation” and he’s been in other stuff. He was the bad guy in “Stepbrothers.”

Smith: Yes, yes – Ben Wyatt.

Schenk: So when you say you didn’t know who those two people were, you knew exactly who they were.

Smith: Well I actually happened to look up Ben Wyatt the other day for another reason because he was in a movie that I saw.

Schenk: Well the reason I’m bringing that up and humming that tune is because I think it would be funny if you and I reenacted our own scenes from the beginning of this show. For those out there who don’t know, this is not just a regular podcast. This is a video podcast, and we have an introduction of Will and I doing various things. I guess it’s just us talking about the table.

Smith: Oh yes, you mean B-roll introduction.

Schenk: Yeah, like we’re talking about we’re doing things and we’re interacting with each other. We need to actually…or hire two actors to do that that kind of look like us.

Smith: Yeah, children.

Schenk: Children.

Smith: Have two children do.

Schenk: Have two children do it. But anyways, lots of great things on this episode. We’re talking about a topic that we get asked about a bit from family and friends, and that is when you have a loved one that is prospectively looking to be admitted into a nursing home or assisted living facility, you’re going to probably go there, go to the office, talk to the nursing home administrator, and they’re going to set in front of you a bunch of documents, kind of like when you’re buying a house, you’ve got to sit down with them, that closing attorney, and there’s a stack of papers an inch thick. And today, we’re going to talk about what’s in those papers, what’s in a nursing home admission packet and some things to probably look out for if you find yourself in that situation where you have a loved one who is going to be admitted into a nursing home, like maybe some back angle things that the nursing home has put in there or some things to look out for.

From a general standpoint though, the main thing though is before you would happen to go to the nursing home to discuss that with a nursing home administrator, you’re kicking the tires, figuring out whether or not to put your loved one in that nursing home is whether or not you have the authority to sign any of the documents in the admission package at all.

Generally, at least in the state of Georgia, if you’re going to act on behalf of another person, then one of a few things needs to have transpired prior to you executing that document on behalf of somebody else. The first thing is there’s some type of power of attorney. A power of attorney is a document that a principal, Person A, signs giving the agent, Person B, the legal authority to do or act on behalf of Person A in XYZ capacity. Generally when you hear the term “durable power of attorney,” what?

Smith: When you get into these long rants, you start to talk like Barack Obama. You know that, right?

Schenk: Oh, with the pauses?

Smith: Yeah. There are a couple of things you need to do. One of those…

Schenk: That is actually a tool used by actors to keep the audience going with… I went to a CLE about – it was either closing statements or whatever, and the guy, he was the legal consultant for “My Cousin Vinny,” like he was the consultant, like whenever you see “Law and Order” or “Legally Blonde” or whatever, they hire him to come out and go, “Hey, that’s not what hearsay is,” or “You can’t argue during a question,” or blah-blah-blah, but that was his big deal. You need to cut your sentences up into pieces just like this to add emphasis to every clause in your sentence.

Smith: Interesting. All right.

Schenk: So durable power of attorney, so how should – okay. Durable power of attorney – that’s generally going to be Person A, the principal, providing the agent, generally, with unbridled authority. Generally there’s not very much that the agent cannot do on behalf of A, and that’s generally, at least in the state of Georgia as it stands now, a true durable power of attorney – now this is not legal advice, I don’t know what’s in your durable power of attorney, but generally that provides requisite authority to bind or to allow you to execute a nursing home admission packet.

The next thing would be either a conservatorship or a guardianship, and this is where a judge, and in Georgia, it’d be the probate court, has said that Person A is no longer able to make their decisions on their own for whatever reason, either a disability, mental incapacity, and sometimes if it’s a minor. But a court document is going to say that the agent, Person B, can act on behalf of Person A.

Smith: And a guardianship is for the person, conservatorship is for their property.

Schenk: And all these terms will vary state to state. We practice principally in the state of Georgia, so that’s where we’re coming at, but it’s along the same lines. Power of attorney, guardianship, conservatorship – there needs to be some type of legally enforceable mechanism.

Smith: Advanced healthcare power of attorney directive, whatever they call them in different states – the ability to make complete decisions for your loved one, because if you’re putting somebody in a nursing home, not only is it convenient to them to have you make decisions for them, it’s not as though you get a warning signal before they become possibly mentally unavailable or incompetent. So it can be a slow process to where Mom goes into a nursing home. Four months down the road, a year down the road, all of a sudden you realize Mom has dementia and she can no longer sign legal documents, and instead of being able to sign over all this authority to you, you’re going to have to go through the process of getting the courts involved, getting physicians involved. So having it up front is extremely valuable.

Schenk: Okay, so now that we’ve kind of gotten that out of the way in terms of like can you even go down to the nursing home and act on behalf of your loved one that’s going to be put into that nursing home, a couple things about the admissions packets.

Smith: Well, well, well…

Schenk: That’s me hitting the mic this time.

Smith: Well, well, well… “It was me.”

Schenk: Chickens come home to roost. A couple things, like any legal document, it’s important that we understand that this isn’t a high-pressure sale situation. This isn’t a situation which you’ve got to make that decision there on the spot. Principally, what I’m saying is if you get that admission package and it’s 25 pages, if it’s 10 pages, if it’s five pages, you have every right, if you so desire, to take it with you, fold it up, put it in your pocket, take it home, open it back up on your kitchen table, and read it word for word. Ask questions. Get your other family members involved. Maybe they can understand what the second paragraph means on the fifth page. But at the end of the day, you do not have to sign it right there in front of them. Take it home and review it. And better yet, you can also have an attorney review it.

Smith: Absolutely.

Schenk: Generally if you’ve made it to a stage in your life or at least the life of your loved one where you’re having to make the decision whether or not to put them in a nursing home, hopefully you have shopped around and found an elder law attorney that can help you with some of these things. An elder law attorney generally is somebody that can draft the durable power of attorney. They can do the healthcare directives. They can do wills, things like that, put affairs in order. But anyways, you can take that nursing home admission document to that lawyer and they can review it for you, let you know what’s going on, but just principally, take your time with it. Look and see because there are nursing homes out there…

Smith: And I know we live in a day and age, and I know that I’m guilty of this, absolutely guilty of this, where we have to agree to terms and conditions so often that naturally we don’t read them. I can tell you right now, I don’t think I’ve ever read a single term and condition of Verizon, AT&T, Comcast, any of them. It’s just not worth it.

Schenk: And this is why we still get CDs and cassette tapes of “The Office” from Columbia House, because Will still continues to check, “I agree to the terms and conditions.”

Smith: Always. Ace of Base – I have every single single. I don’t have the albums, but I have every single single.

Schenk: And the cassette single.

Smith: The cassette single.

Schenk: So the next thing would be to understand that you can…

Smith: Well what I was trying to say before you went off on a tangent about Columbia House, this isn’t one of those things where it’s okay for you, because everybody’s doing it or whatever, to do that. This is one of those times where it’s extremely important, regardless of how…

Schenk: That’s okay.

Smith: Everything is always on fire in Atlanta. It’s one of those things where it’s extremely important that you do go through this. Don’t get tired and frustrated. Don’t be lazy. Take that admission packet and go through the entire thing, because there are very important agreements that you’re making in that admission packet.

Schenk: And to that point, I apologize for interjecting about Columbia House. The point I was going to make before you took the ball back was that when you take that document home, when you review it with your family, when you review it potentially with a lawyer, you can, if you so desire, make changes to it. Some things you can strike out if you don’t like it. Some things you can add.

Now bear in mind that when you go back to the nursing home, they might say, “It’s take it or leave it,” but you never know. You can strike through some things like, for example, whether or not you want pictures taken of your loved one for the nursing home’s marketing purposes, things of that nature, which might not be material to the nursing home but you might not want to have happen.

Smith: But remember that they don’t have to – I mean it may not be a level playing field as far as negotiating the terms because you may need your mother close to your residence, and this is the only nursing home, but they don’t have to accept her. So that’s just something to keep in mind. They don’t have to accept her.

Schenk: That’s right. So there are going to be some things, and this will depend – this is why it’ll be important for you to show this to an attorney – but when a nursing home, skilled nursing home, assisted living facility, accepts Medicare and Medicaid, they are governed by both federal law and state law. I don’t have a percentage – I think we’ve thrown out some percentages before about the nursing homes in the state of Georgia and the country that do not take Medicare or Medicaid, but there are not as many, in fact, I’d say they are few and far between, so most every nursing home is going to be governed by the regulations for accepting Medicare and Medicaid.

In terms of payments in the admissions documents, please be advised that it’s not true that once Medicare benefits are exhausted, your loved one has to leave the nursing home. There should be nothing in that admissions document with regard to payment that guarantees…

Smith: Can I just interject? Medicaid is the primary payer for over 60 percent of nursing home facilities, and this is in Georgia.

Schenk: Medicaid.

Smith: Medicaid, yes.

Schenk: In Georgia. So there’s nothing in that document in terms of those nursing homes accepting Medicare/Medicaid that says some third party has to guarantee payment for your loved one. Generally that would be a violation of federal law if not state law.

Now another couple things are there should be nothing in that admissions document that waives in any capacity the normal legal or constitutional rights that your loved one would have going to the bank, going to school or taking part in regular society, that is to say there should be nothing that would prohibit your loved one in that admission packet from I guess worshipping in the way that they want to or going to vote. Anything regarding race, ethnicity, national origin, none of those things should be present to prohibit any activities associated with constitutional rights.

Smith: Yeah, absolutely. And that includes everything from the arbitration agreements, which have you covered that yet?

Schenk: We’ll get into that.

Smith: I want to get into that. That’s it’s own separate thing, the Seventh Amendment, but you know, you’ve got some places which may even inadvertently try to limit an individual’s ability to worship in a specific way, or they put extra requirements, again – inadvertently, to go out and vote because it requires some level of assistance from other people to get some of these nursing home residents to vote. So it’s really important that you go over these contracts because some of these nursing homes, and it’s not somebody in the back twirling their mustache and saying, “I’m going to take away their rights,” quite simply, sometimes nursing homes don’t hire attorneys to draft their own admissions packets, which is absurd to me because it is a contract. So you just have to do your due diligence and go through these.

Schenk: That’s right. So getting into just a couple of the individual clauses that might be present, the first one is going to talk about the concept of DNR. Can you speak to that a little bit?

Smith: Yeah, so it’s just quite simply “Do Not Resuscitate.” When you’re dealing with an individual who is in the late stages of their lives – your grandmother is 90 years old – well it may not be in her best interest and it may be against her wishes that should she encounter some sort of medical situation where she’s dying, so she’s a full code, she’s having a heart attack, something to that degree, then they may limit what they do to resuscitate her and bring her back. So they may not perform CPR or they may not extend to her certain life-saving techniques and simple make her comfortable and let her end her life peacefully the way that she wants to.

And there are different levels of DNR and there are different reactions to each of those levels. So obviously, if somebody has fallen on the ground and they’re bleeding from their head, they’re not just going to go, “All right, everyone just gather around and watch Ms. Johnson slowly bleed out,” but it really has to do with naturally occurring medical conditions like heart attacks or even strokes. So that’s something that’s important to talk with your loved one and your doctor and make sure it’s in the admission agreement.

Schenk: Yeah, this is something that’s probably going to be in the admission packet.

Smith: Yeah, it needs to be in that agreement. Otherwise the default is we resuscitate. So if you’ve got an 110-year old woman who’s like, “Please, for the love of God, let me go to Heaven,” then you need to make sure that the nursing home understands, “Don’t perform CPR on this woman.”

Schenk: That’s right. So I think the next thing you’re probably going to see, and we talked about this for a second, but there’s generally going to be some type of model release or privacy policy dealing with photos and recordings and images taken of your loved one – maybe not like a head shot, but maybe he or she is in a group shot participating in an activity, whatever the case may be. The nursing home is generally going to request a release so they can take images of your loved one for the purposes of marketing that nursing home, so pamphlets, websites, commercials, advertisements, that kind of thing. And to the extent that you don’t want your loved one involved in that, there are some folks that don’t like their picture taken, there are some folks that don’t want to be – maybe they don’t want to be seen in that thing, I don’t know – but that’s an important component if that’s not something you’re into, and you have the right to decline that if you want, but again, that’s something to look out for.

Smith: Yeah, and understand the reason why I bring this up is because I have seen at least one situation where some pictures were taken that were inappropriate. That’s still going to be unlawful.

Schenk: This is on the up-and-up.

Smith: Yeah, we’re talking about Grandma is in activities and they’re all bouncing the ball around and they’re sitting at Bingo and somebody takes a picture of that and they use it for a brochure.

Schenk: This isn’t an employee or a staff member using their cell phone to take a picture, an inappropriate picture of a resident. That’s not what this is usually about. As Will said, that’s generally going to be unlawful regardless of how you cut it.

Smith: Yeah.

Schenk: And last but not least before we switch subjects, one of the principal components of most nursing home agreements, most admission packets, is going to be having you sign on behalf of your loved one an arbitration agreement.

So we’ve touched on arbitration about 100 times on this podcast. Arbitration is an alternative dispute resolution method. It’s an alternative to typical litigation, filing a lawsuit in the courthouse. Arbitration is a method in which the grievance of your loved one, if they’ve been neglected or abused or killed, is you provide arguments to an individual neutral arbitrator to render a judgment, and it’s a private event. It’s not a public hearing. There is no jury trial. There are no appeals. The arbitrator’s ruling is going to be final and sometimes does not even invoke the rule of law at all.

Smith: Yeah, and I think that people are probably familiar with it because back in early September, there was the enormous Equifax breach where 145 million individuals had compromised information because of hackers, and it was in the news. It was a big deal. Equifax offered you like a certain term of protection because of that for free. It’s a paid service that they normally offer that you have to buy, and they were offering it for free, and people discovered and the news media discovered that when you were clicking on “Yeah, I’ll enroll in this,” and when you clicked on the terms and conditions, one of the things you were agreeing to was arbitration in the case that you had a legal dispute because of the breach. So you couldn’t be a part of the class action. You couldn’t be a part of any lawsuit against them. You had to arbitrate. So it was a big deal. It was resolved in that Equifax ended up saying, “Okay, okay. We’re taking this away and getting rid of it,” but that’s what arbitration is and I’m pretty sure everyone is familiar with it at this point.

Schenk: So bottom line is that make sure you have read the agreement, the entire agreement, understand everything. If you don’t understand everything or don’t agree with everything, take it to an elder law attorney. And you have the right to make change if you want. They have the right to refuse it, but at least be involved in that and don’t be confused about what’s in it, because it’s highly possible that one day the terms in that admissions packet will be very important to you and very important to your loved one.

Smith: And I think we forgot to say this, to throw it out there, don’t sign the arbitration clause. As simple as that, just don’t sign it.

Schenk: There’s going to be almost no instance – and this is not legal advice – but there’s honestly going to be no instance where signing an arbitration agreement is going to be a better situation for your loved one.

Smith: Yeah.

Schenk: Moving on. A little bit of interesting news coming out of West Virginia. West Virginia…

Smith: Mountain Mama.

Schenk: It is West Virginia, right? West Virginia… Who’s that?

Smith: John Denver. Don Johnson.

Schenk: We’ve talked about John Denver on this podcast before.

Smith: We have.

Schenk: He wrote the train songs – you didn’t know that.

Smith: No, I knew that and I told you and you thought that was somebody else.

Schenk: The record is available.

Smith: From Columbia House.

Schenk: A new West Virginia law has been passed in order to reduce the statute of limitations for claims against nursing homes. This new law, also known as Senate Bill 338 reduces the amount of time plaintiffs can file a lawsuit following an incident of alleged nursing home abuse and neglect from two years to one year. So we’ve got Jeff Stuart, an attorney with the Bell Law Firm in Charleston who states that this law is helping nursing home owners at the expense of patients and predicts that there will be an increasing number of nursing home profits after this law becomes into effect of July 1 of 2017. Well he said it about right.

Smith: You know, and I’ve got to tell you. In the beginning, when we were talking about some of the things that people put into admission packets that may restrict resident rights, there’s no some villain in the back twirling their mustache, a lot of times it’s inadvertent because they don’t understand things, I don’t think I feel that way about some of the laws that these state legislatures and even federal lawmakers pass. I honestly kind of think there’s an evil villain kind of in the background twirling his mustache on these. I mean this clearly doesn’t benefit anyone other than nursing homes to the detriment of nursing home residents.

Schenk: So the statute of limitations, if it’s not clear, is the time in which an individual has been injured has to file a lawsuit. It’s not indefinite. So on one hand, making a statute of limitations, five, six, seven, eight, nine, 10 years, on one hand helps the injured person get their things together, investigate, do all the things they need to do to get their house in order prior to filing a lawsuit. So that’s beneficial. A long statute of limitations is generally going to benefit the person that’s been injured.

On the other hand, the longer that a statute of limitations is, the more detrimental it will be to the potential defendant – in this case, nursing homes – because you’ve got to think about it this way. They don’t hold onto files indefinitely. They don’t hold onto records indefinitely, Things that would exonerate the defendant or the nursing, things that would prove the plaintiff’s case false, a lot of evidence disappears after time. So that’s another reason why it’s detrimental to the nursing home but good for the potential plaintiff to have a long statute of limitations.

The shorter, on the other hand, the shorter the statute of limitations is, the more it swings the other way. If your loved one has passed in a nursing home, you’re dealing with probate court or whatever it is in your state in terms of administering the person’s estate, a lawsuit may not be on your mind at that point, and then time passes and you’re barred from bringing a claim, even though you would have had a rightful claim.

Smith: And statute of limitations are a clear reflection of how important the underlying legal issue is to that society. For example, misdemeanors have – in criminal law, misdemeanors only have a two-year statute of limitation…

Schenk: In Georgia.

Smith: In Georgia, this is all Georgia, in which the prosecutor can pursue them. Felonies, it’s up to four years, and something like murder has no statute of limitations. In Georgia, the legislature doesn’t like defamation, so it has a one-year statute of limitation where normal personal injury has two.

Schenk: That’s right, and generally the average around the country is between one year and four years for personal injury, and that’s what nursing home neglect or abuse case would fall into in most instances, so this is getting to generally the minimum on the scale in terms of states across the country.

Smith: Oh, absolutely.

Schenk: But again, I think Will’s right. Whenever you have something that’s this beneficial for a segment of the country, in this instance, the industry that operates nursing homes, then there is a twirly mustache dude or lady – well maybe not a lady twirling her mustache, whatever, twirling her hair in an evil way…

Smith: In an evil way.

Schenk: In an evil way – because why go from two to one? It helps the nursing homes.

Smith: That’s all.

Schenk: There’s going to be a percentage of people that do not bring claims because they ran out of time. If they only had two years, they would have brought the claim, and that’s why this individual that’s quoted in this article from the ET – I don’t know, TheET.com is where we got this from.

Smith: And I’m all about having a certain limit of time. At some point, you’ve been sitting on your hands too long, and it’s unfair to the defendant even though it’s a huge nursing home.

Schenk: They’ve done something wrong, yeah.

Smith: So you know, it shouldn’t be 15 years, but the first year that your loved one dies, you’re rocked with all kinds of other responsibilities, the funeral, emotional problems, and so limiting it to the first 12 months seems completely irresponsible, unethical and just immoral to me.

Schenk: Yeah. Well that is going to just about do it for episode 38 of the Nursing Home Abuse Podcast. We hope that you have found this episode enlightening, educational, perhaps entertaining.

Smith: Probably entertaining.

Schenk: Again, this is not just an audio podcast that is available on Stitcher or iTunes. It is also a video podcast which is also available for you to consumer, both on the YouTube, on our YouTube channel, or on our website, which is NursingHomeAbuse.com – no, no it isn’t. It’s NursingHomeAbusePodcast.com – NursingHomeAbusePodcast.com. And with that – why are you looking at me like that?

Smith: Because you’re talking? I’m waiting for you to finish the segment.

Schenk: And with that, we will see you next time.

Smith: See you next time.

Thanks for tuning into the Nursing Home Abuse Podcast. Please be sure to subscribe to this podcast on iTunes or Stitcher and feel free to leave us some feedback. And for more information on the topics discussed on this episode, check out the show website – NursingHomeAbusePodcast.com. That’s NursingHomeAbusePodcast.com. See you next time.


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