Nursing Homes Cannot Hold Residents' Family Members Who Signed Admission Agreements Personally Responsible for Cost

Courts continue to protect family members of nursing home residents from efforts by institutions to hold family members personally responsible for residents' expense.  These actions are becoming more prevalent as States tighten Medicaid restrictions, leaving more residents with outstanding obligations to the nursing home.  

An Ohio appellate court recently reversed the decision of a trial holding that a son is not personally liable for breach of contract after his father was discharged from a nursing home for non-payment even though the son breached his duty to his father as agent under a power of attorney. Extendicare Health Services v. Dunkerton (Ohio Ct. App., 11th Dist., No. 2015-P-0004, Feb. 6, 2017).

Herbert Dunkerton entered a nursing home after he broke his leg. His son, Michael, signed the admission agreement as his agent under a power of attorney. After Herbert's Medicare coverage was terminated, the nursing home asked that Michael apply for Medicaid on his father's behalf. Michael never applied for Medicaid, and the nursing home eventually discharged Herbert for nonpayment.

The nursing home sued Michael for breach of contract and fraudulent conveyance of Herbert's funds. The trial court ruled that Michael breached his duty as his father’s attorney-in-fact when he refused to apply for Medicaid for his father and entered judgment in the amount of $25,228.43. Michael appealed, arguing that he was not a guarantor of his father's debt.

The Ohio Court of Appeals, Eleventh District, reversed, holding that even though Michael breached his duty as attorney-in-fact, Michael did not breach the admissions agreements with the nursing home. According to the court, Michael "signed the admission agreement and the payor confirmation as his father’s attorney-in-fact, and neither document provides that appellant was Herbert’s voluntary guarantor," so Michael was not responsible for his father's debt pursuant to these agreements. The court notes that under state law an attorney-in-fact can be personally liable under certain circumstances, but the nursing home did not raise the state law in its complaint.


For the full text of this decision, go here.

A North Carolina appellate court recently dismissed a breach of contract lawsuit against a nursing home resident's daughter even though the daughter signed the admission agreement on the grounds that the resident was named as representative in the agreement. Wrightsville Health Holdings, LLC v. Buckner (N.C. Ct. App., No. COA16-726, Feb. 21, 2017).

When Sharon Buckner entered a nursing home, her daughter, Melissa, signed the admission agreement on her behalf. The agreement stated that Sharon was the "resident" and the "representative," but Melissa signed the agreement and initialed the portion stating that the representative agreed to personally guarantee payment in the event the resident's Medicaid application was denied. The nursing home demanded that Melissa pay Sharon's unpaid bill.

After Melissa refused to pay, the nursing home sued her for breach of contract. Melissa filed a motion to dismiss, and the trial court granted the motion. The nursing home appealed.

The North Carolina Court of Appeals affirmed, holding that Melissa was not liable for breach of contract. The court ruled that because Sharon is named as resident and representative under the admission agreement, Melissa's signature at the bottom of the document "must be read as" Melissa signing on behalf of Sharon and "her signature and initials on the document merely obligated her mother to comply with the terms of the Admission Agreement."

For the full text of this decision, go here.  

Both cases underscore the importance of family members distinguishing their role as "agent" or "attorney-in-fact" when signing nursing home admissions agreements. 

Institutional Care: America's Most Vulnerable Seniors Raped and Sexually Abused

The headline alone is nauseating.  "SICK, DYING AND RAPED IN AMERICA'S NURSING HOMES," screams the headline of the recent CNN report detailing the incidence of sexual assaults in America's nursing homes, and the indifference of the government and regulators to the epidemic of violence visiting the most vulnerable in America's nursing homes. The facts elicited by CNN reporters in individual cases sicken and disturb. 

That such a story even exists is maddening.  More than 16,000 cases of sexual abuse have been reported in nursing homes and assisted living communities since 2000, according to the CNN report.  But the figures do not tell the complete story.  They don't even come close. The reason is that the government does not specifically track sexual abuse.  Despite the frequency, and indeed, the devastating impact upon victims and their families, state and federal government simply does not track or keep statistics of sexual assault.  CNN explains: 

Despite the litany of abuses detailed in government reports, there is no comprehensive, national data on how many cases of sexual abuse have been reported in facilities housing the elderly.

State health investigators examine all types of abuse reported at nursing homes and assisted living facilities, whether reported by the facilities or flagged by complaints to the state from witnesses, family members or victims. In the case of nursing homes, state officials typically conduct these investigations, as well as routine inspections, on behalf of the federal Centers for Medicare & Medicaid Services (CMS), which regulates the more than 15,000 facilities that receive government reimbursements that pay for many residents' care. Both state health agencies and the federal government then use the information to rate facilities and issue financial penalties for the worst offenders.

*          *         * 

CNN surveyed the health departments and other agencies that oversee long-term care facilities in all 50 states. Of the states that could provide at least some data, the responses varied widely. 

Illinois, for example, said 386 allegations of sexual abuse of nursing home residents had been recorded since 2013, 201 of which involved a caretaker. Hawaii said eight allegations of sexual abuse were investigated between 2011 and 2015 -- five of which involved a caregiver. And when states provided a further breakdown of how many allegations had been substantiated, the results demonstrate just how few accusations end up being proven -- whether it's because of the extreme hurdles posed by aging victims, the destruction of evidence, or half-hearted investigations by facilities and regulators.

Of the 386 cases in Illinois, 59 were considered substantiated. And in Texas, 11 of 251 sexual complaints in the 2015 fiscal year were substantiated. Wisconsin said it didn't have a single substantiated report of abuse in the last five years.

But most states could not say how frequently abuse investigations involved sexual allegations, often stating that sex abuse allegations are not categorized separately from other forms of abuse.

The federal government doesn't specifically track all sexual allegations either.

The reported figure comes from federal data maintained by the U.S. Department of Health and Human Services' Administration for Community Living (ACL), the cable network said, noting that ACL officials said that it includes only cases that involved state long-term ombudsmen.

To arrive at the figure reported, CNN reviewed civil and criminal court documents, state health investigations and CMS information (which included data only on nursing homes), and also interviewed experts, regulators and the families of victims. Although the investigation focused on nursing homes it also addressed assisted living communities, singling out two specific cases.

In one such case, a former cook at a Louisiana assisted living community,  was indicted and charged with first-degree rape of a resident. An executive at the community has also been charged for  failing to report abuse of adults and obstruction of justice, a charge she and the community that hired her denies.  

CNN also cited a 2013 case in Minnesota in which an 89-year-old assisted living resident with dementia was transferred to the mental health ward of a local hospital after she said she had been raped. A certified nursing assistant said he had consensual sex with the resident, and a director at the community believed him, according to CNN.

Most of the report focused on the abuse in nursing homes.  Before reciting specific, repeated, and heart-wrenching details of case after case, the news organizations made a stark and horrific assessment of its findings:

The unthinkable is happening at facilities throughout the country: Vulnerable seniors are being raped and sexually abused by the very people paid to care for them.

It's impossible to know just how many victims are out there. But through an exclusive analysis of state and federal data and interviews with experts, regulators and the families of victims, CNN has found that this little-discussed issue is more widespread than anyone would imagine.

Even more disturbing: In many cases, nursing homes and the government officials who oversee them are doing little -- or nothing -- to stop it.  

Sometimes pure -- and even willful -- negligence is at work. In other instances, nursing home employees and administrators are hamstrung in their efforts to protect victims who can't remember exactly what happened to them or even identify their perpetrators.

In cases reviewed by CNN, victims and their families were failed at every stage. Nursing homes were slow to investigate and report allegations because of a reluctance to believe the accusations -- or a desire to hide them. Police viewed the claims as unlikely at the outset, dismissing potential victims because of failing memories or jumbled allegations. And because of the high bar set for substantiating abuse, state regulators failed to flag patterns of repeated allegations against a single caregiver.

It's these systemic failures that make it especially hard for victims to get justice -- and even easier for perpetrators to get away with their crimes.

According to the report, perpetrators get away with their crimes in too many instances, sometimes through the intentional or negligent handling of the nursing homes themselves. Some perpetrators are first reported by other employees for assaults upon them, causing the nursing home to treat the issue as a labor matter, leaving vulnerable residents under the perpetrator's care. If you want to read more about the specific cases, go here.  The news network recommended that facility owners and operators investigate all incidents, preserve evidence, train employees on reporting practices, and employ sufficient staff to enable proper supervision of workers.

If you are a senior, a family member of a senior, or a caregiver, advocate, or fiduciary for a senior, it is imperative that you evaluate carefully institutional care.  Sexual abuse is only one of many risk factors about which you should be aware. This blog has included articles detailing many of these risk factors, warning that institutional care should be a last resort, and not an ordinary health care option as it is utilized by Medicare, Medicaid, and the current health care system.  These articles include the following:  

• COPD Patients Discharged to a Skilled Nursing Have Two Times the Risk of Death Within Year Compared to Those Who Go Home
• One-Third of Nursing Home Residents Injured or Killed In Treatment
• Hapatitis Infection Risk in Nursing Homes Up 50%; Infection Risk Across the Board Increases
• Resident's Death Caused By Nursing Home Failing to Follow Advanced Directives Requesting CPR
• Nursing Home Involvement in Patient's Death Object Lesson on Aging-in-Place Planning
• Nursing Home Worker Faces Homicide Charges in Violent Death of Resident
• Paramedics Often Obstructed, Provided Insufficient Information On Nursing Home Calls
• Hospice Patients in SNFs Less Likely to be Visited by Professional Staff the Last Two Days of Life
• Non-Profit Long-Term Care Safer than For-Profit
• Nursing Home Residents Twice as Likely to Suffer Fractures
• Habits Are Hard to Break: Nursing Homes Habitually Violate Federal Standards Year After Year
• CDC Reports That SNF Workers Most Likely Among Health Care Workers to Forego Recommended Vaccinations
• New Controversial Sign-Off Rule Increases Burdens On Skilled Nursing Facilities- Threatens Transfer To Hospitals
• Don't Let Institutions Plan for You: Medicaid-Eligible Nursing Home Resident Stuck With Costs of Private-Pay Room
• Many Skilled Care Providers Still Unaware of New Medicare Rules Permitting Chronic Condition Care
• Ohio Ranks Poorly on Long-Term Care Services Scorecard
• Hospice Costs Medicare Less Notwithstanding that Hospice Patients Live Longer

You should ensure that you, or those for whom you are or may be responsible,  adopt a comprehensive estate plan adopting and implementing an "Aging in Place" plan, and providing both guardianship planning and guardianship protection. Guardianship and institutionalization are cruelly related in that court appointed guardians often prefer institutional care for their wards, and institutions often refer residents for guardianship. For more information regarding the risks associated with guardianship, visit the National Association to STOP Guardianship Abuse.  Among the best planning tools developed to avoid the risk of institutional care is avoiding institutional care altogether. 


If you want to attend in person or online a seminar on "Aging in Place," its meaning, its importance, and how to incorporate it into your estate and financial plan, simply send us an email with your name and location.   

Congress Considering Removing Medicaid Eligibility Planning Opportunities- Spousal Income Annuities Targeted

Congress is considering making it harder to qualify for Medicaid if a community spouse has an annuity.  The change is part of an effort to close what Congress considers "loopholes" in Medicaid law.

The proposed bill aims to prevent married couples from using assets to purchase an annuity for the community spouse, so that the institutionalized spouse can apply for Medicaid. The bill would count half of the income from a community spouse's annuity as income available to the institutionalized spouse for purposes of Medicaid eligibility. The House Energy and Commerce Committee held a hearing on February 1, 2017, to consider the changes.  It is unclear how eligibility will be changed since income can not be "liquidated" to pay for care.  Regardless, the proposed changes would mean that married couples would have one less tool available to create an adequate safety net for a community spouse affected by nursing home spend down.  

Along with limiting spousal annuities, Congress is also considering bills to count lottery winnings as income and require Medicaid applicants to prove U.S. citizenship or residency before receiving benefits.

For more information about the proposed legislation, click here.

Patient Discharged to Nursing Home 300 Miles Away

McKnight's has reported that a Georgia hospital discharged and transported a patient to a nursing home 300 miles away, resulting in a lawsuit filed by the patient's sister. 

Johnny Lee Bryant was admitted to Doctors Hospital in Augusta, GA, in early January 2015 from  a nearby long-term care facility. He was treated at the hospital for sepsis and pneumonia for less than two weeks before he was discharged.

Instead of returning to the nearby facility, Bryant was transported by Gold Cross EMS to a nursing home nearly 300 miles away. Once there, the nursing home refused to admit Bryant.   Bryant was eventually taken back to Augusta and admitted to a different hospital, where he died in February 2015.

The lawsuit, filed by Bryant's sister accuses the hospital, the ambulance company and Hetal Thakore, M.D., of negligence, wrongful death and causing emotional distress.

For more information, go here. 

Seniors Should Review Medications for Fall Risk

Falls remain by far the leading cause of injuries among adults age 65 and older in the U.S, according to the Centers for Disease Control and Prevention (CDC).  The January Newsletter of Worst Pills Best Pills includes an excellent article warning the elderly of the importance of reviewing medication for increasing fall risk.   The article explains that: 

The most recent CDC statistics reveal that during 2014, approximately 27,000 older adults died because of falls. Overall, nearly 3 million older adults were treated in emergency rooms for fall-related injuries, such as fractures and head trauma, and about 800,000 of these patients subsequently were hospitalized. The costs to Medicare to care for patients who have been injured in falls are estimated to be $31 billion annually. And for many elderly people, fall-related injuries can lead to a loss of independence and placement in an assisted-living facility or nursing home.

Many falls are preventable. In 2011, the CDC launched an initiative called STEADI — Stopping Elderly Accidents, Deaths, and Injuries — to reduce preventable falls in older adults. STEADI provides health care professionals with tools to screen and assess older patients for risk of falls and guidance on how to reduce this risk. A key part of the STEADI program involves health care professionals reviewing and managing patients’ medications that might increase the risk of falling. 

The list of drugs that can make patients susceptible to falling is lengthy.  Use of these drugs by older adults should be avoided whenever possible, and many have been designated as "Do Not Use" by Public Citizen’s Health Research Group [link added]. Older adults requiring treatment with one or more of these drugs should use the lowest dose necessary to achieve the desired clinical benefit in order to lower the risk of falling. Note that the table does not include drugs used to treat high blood pressure, all of which can increase the risk of falling.

Seniors, their family, friends, and caregivers are well-advised to review medications regularly.   

The New Special Needs Trust Fairness Act

The Special Needs Trust Fairness Act, federal legislation that allows people with disabilities to create their own special needs trusts instead of having to rely on others, is now law.  The measure was included in the 21st Century Cures Act, a $6.3 billion package of health-related initiatives signed by President Obama on December 13, 2016. 

The National Academy of Elder Law Attorneys (NAELA)  press release announcing the Fairness Act’s clearing its final legislative hurdle, explains that the measure “corrects a patently false and degrading error in the law that presumed all individuals with disabilities lacked the capacity to handle their own affairs.”  The legislation, which Rep. Glenn Thompson (R-Pa.) introduced in 2013, will finally allow beneficiaries with capacity to create and fund their own special needs trusts with the same treatment and protections available for trusts created by others on behalf of the beneficiaries. 

In addition to Rep. Thompson, NAELA applauded Frank Pallone (D-N.J.) along with Sens. Chuck Grassley (R-Ia.) and Bill Nelson (D-Fl.) “for their bipartisan dedication to ensuring this common sense fix became law.”

The Fairness Act will apply to trusts established on or after the date that the Cures Act was enacted.  

The Social Security Administration has published an emergency memorandum incorporating the change into the Program Operations Manual System (POMS) ( with thanks to Attorney Donald D. Vanarelli, whose blog post can be found here).

The SNT Fairness Act can be found in Title V, Section 5007 (page 440), of the Cures Act.  To read the 21st Century Cures Act, click here.

Antipsychotics and Psychotropic Drugs Increase Fall Risks in Nursing Homes

McKnight's Long Term Care News reports that psychotropic drugs, including antipsychotics and antidepressants, increase the risk of falls among nursing home residents, according to a recently published study.

Previous research suggested a link between psychotropic prescriptions and falls in nursing home residents, but little was known of how "as-needed" prescriptions impacted fall rates. The study, published in the December issue of JAMDA - The Journal of Post-Acute and Long-Term Care Medicine by Dutch researchers, not only backed up earlier research, but found a relationship between falls and drugs taken on an as-needed basis as well.

Of the 2,368 nursing home residents in the study, nearly 70% had a prescription for at least one psychotropic drug per day. An additional 8.8% had an as-needed psychotropic prescription. The study's authors found that 33.5% of residents had at least one fall, which most often occurred on days when a psychotropic drug was prescribed on a scheduled basis.

Residents receiving the drugs on a scheduled basis had a nearly threefold increase in falls. An increase in fall incidence also was noted in residents prescribed the drugs on an as-needed basis. Results of the study also showed that male residents had a fall risk nearly two times higher than female residents.

Study results showed no link between fall incidence and the prescription of benzodiazepines, drugs commonly used to treat anxiety and insomnia.

An Ohio appeals court has ruled that a Medicaid applicant did not transfer assets for less than fair market value even though he sold property at below the appraised price because the sale was an arms-length transaction. Lawrence v. Ohio Department of Job and Family Services (Ohio Ct. App., 6th Dist., No. H-15-020, Sept. 2, 2016).

Eugene Lawrence owned a rental property that he could no longer maintain, so he sold it in 2011 for $22,720, which was the remaining balance on the mortgage. The auditor had appraised the property at $66,800. In 2014, he entered a nursing home and applied for Medicaid. The state determined that because Mr. Lawrence sold the property for less than the fair market value, it was an improper transfer, and it imposed a penalty period.

Mr. Lawrence appealed the decision. After a hearing, the state upheld the penalty period, and Mr. Lawrence appealed to court. The trial court found that Mr. Lawrence sold the property in an arms-length transaction, so the state should not have imposed a penalty period. The state appealed.

The Ohio Court of Appeals, Sixth District, affirmed, holding that Mr. Lawrence did not transfer assets for less than market value. According to the court, "the market conditions at the time of the sale combined with the condition of the property and circumstances of the sale demonstrated an arms-length transaction for fair market value."

Although the result is comforting for those who must plan for Medicaid eligibility, the case is instructive of the difficulties applicants may face.  The state upheld the decision on appeal to an Administrative Law Judge, but the Common Please Court held in favor of the applicant.  The applicant then was forced to defend the decision in the Court of Appeals.  Proceeding through the court system is not easy, or inexpensive.  

For the full text of this decision, go here.

ACLU Takes On Nursing Homes

McKnight's has published an excellent and illuminating editorial regarding how some seniors who need institutional care are routinely frustrated in seeking and obtaining care by the very institutions themselves.  The editorial explains, using a specific example, how the ACLU has finally involved itself in skilled nursing home placement decisions or refusals.  The editorial reads: 

As in all cases involving a resident who wasn't accepted at a nursing home, each side has a different take on what happened.

According to the Lincoln Star-Journal, Nebraska resident Courtney Shelor says her father wasn't accepted at six nursing homes because he had HIV. A statement from the ACLU followed this week, via a letter to the homes in question reminding them of state and federal law.If you missed the basic tenants around the Americans with Disabilities Act (or Section 504 of the Rehabilitation Act of 1973), it's here.  

Accepting a person with a terminal illness into your nursing home also would hopefully be found within your own moral code.While it was 68 miles away from his family, Shelor was finally accepted at Golden Living Center in Broken Bow. I suspect that administrator or admissions director was simply doing her job, but let me say publicly: Good for you for making his last days good ones. Shelor writes that this facility “welcomed us with open arms!” While the center had never had anyone with HIV, it was able to make it work, including helping the elder Shelor be approved for Medicaid.You can read the rest of the younger Shelor's letter here, in which she talks about her father being her hero. He died at the end of July.

Go here to read the rest of the article.

Bill Offers Tax Credit for Aging In Place Improvements

Making your home more accessible for your long term care needs may soon be incentivized by a $30,000 tax credit.

Rep. Patrick Murphy, D-Fla., recently introduced H.R. 5254, entitled, “Senior Accessible Housing Act,” which would incentivize individuals 60 years of age and older to “age in place” by way of a $30,000 tax credit for home modifications. Potential modifications include the widening of doorways and the installation of ramps, handrails, grab bars and non-slip flooring.

The Congressional Research Service (CRS) summary of the Bill reads as follows:

This bill amends the Internal Revenue Code to create a nonrefundable personal tax credit for senior citizens who modify their residences to enhance their ability to remain living safely, independently, and comfortably in the residences.  

The credit applies to up to $30,000 of the expenses that individuals who are at least 60 years old incur over their lifetime to make modifications to their residences, including: 

•  the installation of entrance and exit ramps;

• the widening of doorways;

• the installation of handrails or grab bars

• the installation of non-slip flooring, and;

• other modifications that the Internal Revenue Service (IRS) includes on a list of modifications that would enhance the ability of the individuals to remain living safely, independently, and comfortably in their residences.

The IRS must establish and maintain the list of acceptable modifications after consulting with the Department of Health and Human Services (HHS) and receiving input from the public. 

The Bill and credit would certainly be more meaningful if current HHS policy was not hostile to home bound health care or home bound hospice care.  For more information regarding HHS policy of actively discouraging use of the Medicare home health care and hospice benefits, go here and here.  Regardless, the Bill currently has 19 co-sponsors.

To follow activity on the bill, go here.

To read the text of the bill, go here.