Clauses in nursing home agreements may violate the law

Kansas City Star

February 02, 2008

Elderly consumers and their families in Missouri should be wary when signing long and often complex nursing home agreements, according to a new study.

Although most presented few problems, some admission agreements skirt state and federal laws, misleading consumers about the care they can expect and inducing them to sign away critical consumer protections, says a study by the National Senior Citizens Law Center.

Although industry officials criticized the study's findings, advocates for the elderly said it raised serious questions about how some nursing homes operate.

'People are signing these agreements in a crisis situation, assuming they are legal, and then when there is a problem down the line, they are being told they agreed to this,' said Andrea Routh, a former director of the Missouri Division of Aging and now a health-care consultant.

Jon Dolan, executive director of the Missouri Health Care Association, the state's largest nursing home trade group, called the report statistically flawed. He said it relied on incomplete data and misapplied federal law to fit a preconceived effort to put nursing homes in a bad light.

'To paint with such a broad brush is suspect right off the bat,' Dolan said. 'We believe we are following state and federal law and have not been advised of anything different.'

However, Denise Clemonds, head of the Missouri Association of Homes for the Aging, which also represents nursing homes and other residential care services, said her organization supports the study.

'Whether it's statistically valid or not, we can learn from it,' she said.

The National Senior Citizens Law Center, a Washington-based nonprofit legal advocacy group for seniors and elder-care lawyers, reviewed 175 admission agreements voluntarily provided by nursing homes. The study found agreements which improperly limited a nursing home's obligations. Others allowed discharges for vague reasons, or stuck relatives with bills they legally didn't owe.

Eric Carlson, the study's author, said that some of the agreements conflict with the federal Nursing Home Reform Law and state laws. The federal law requires nursing homes to provide care that helps residents reach the 'highest practicable' level of functioning.

But Carlson said some agreements instead seek to get seniors or their families to lower their expectations of care and assume more of the risks of injury, such as falling or choking.

The study was requested by the Missouri long-term care ombudsman's office.

State Ombudsman Carol Scott said the findings will be presented to health-care providers around the state. She said most nursing homes provide good care, but 'for the ones not providing good care, I hope they hold this (study) up as a mirror.'

Toby S. Edelman, a spokesman for the Center for Medicare Advocacy in Washington, said similar studies in other states also show 'ongoing concerns' with nursing home agreements.

The Missouri study found that nursing homes sometimes protect themselves by persuading seniors to waive legal remedies. In 18 percent of the agreements, seniors were required to submit a dispute to arbitration, rather than sue in court.

Industry officials maintain that the waivers deter frivolous lawsuits. But trial lawyers contend they have successfully fought the provisions in court as unconstitutional and unenforceable in health-care cases.

Lawyers noted, however, that consumers often don't know the waivers can be challenged.

'A lot of people read it and say, 'There is nothing I can do,' ' said attorney Derek Potts, who represents residents and their families in neglect and abuse cases against nursing homes.

The study contends the agreements also thwart federal law by inserting provisions making it easier to evict residents. Federal law sets out six conditions that justify evicting a resident.

But according to the study, 17 percent of the agreements allowed evictions without a reason, and 46 percent included at least one reason contrary to federal law. One allowed evicting residents who are unduly noisy, uncooperative or destructive -- behavior sometimes associated with Alzheimer's disease.

However, Dolan disputed that residents were unlawfully discharged. 'We are heavily regulated on who we can discharge and when,' he said.

While most of the Missouri study's findings relate to seniors, it also found that their families are sometimes stuck with bills they are not legally required to pay.

Carlson, the study's author, said that under the federal reform law nursing homes cannot require a relative or a friend to become financially liable for nursing home expenses. Yet, the study found that 19 percent of the admission agreements required a financial guarantee 'in

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