Needless Falls at a Nursing Home or Assisted Living Facility

Standard of Care to Prevent Falls

Nursing homes and assisted living facilities are under a duty to care for their residents. This includes a standard of care when it comes to their residents who are at risk of falling. When a nursing home or assisted living facility breaches that standard of care and a resident is harmed, there may be a legal case against that facility.

Often the fall was completely avoidable and should have been prevented. Nursing homes and assisted living facilities are being paid lots of money to take care of loved ones. It is their responsibility to mitigate falls. It is their job. A single fall can be a life altering event, affecting a person’s quality of life for the rest of his or her life.

The Grand Bargain

Nursing homes and assisted living facilities are supposed to be safe havens for our parents and loved ones when living in the community is no longer viable. In essence you are trusting the facility to take care of your parent at a time when you cannot take care of them yourself. It is a grand bargain: the facility is paid handsomely for their care in return for taking every precaution to make the living arrangements safe. In some case, unfortunately, that trust is blatantly violated.

Nursing Staff Negligence

At some nursing homes and assisted living facilities, the nursing staff and aides are underpaid, untrained, overworked, and have high turnover. Mistakes are often repeated and not corrected. Their mistakes only comes to light when disaster strikes and a family member is willing to fight back and say that is not right.

Nursing homes and assisted living facilities want to limit their exposure to “accidents” and will want the resident to sign an arbitration clause to avoid a court trial. Do not sign the arbitration agreement. Signing an arbitration clause is akin to insuring less of a recovery and less accountability for the facility. Often times the facility will ignore the problem, pretend the issue does not exist, or blame the resident. Nursing homes and assisted living facilities know that their residents often suffer from dementia, are weak or physically unstable. These are not unknowns to nursing home or assisted living management, and they are obligated to take measures to address these risks.

Taking Legal Action for Nursing Home Neglect

How do you know when it is time to get an attorney involved?  The nursing home or assisted living facility has to have breached their standard of care to the resident (i.e., it was their fault, their staff was negligent in their action or inaction, etc.). Next, the resident has to be harmed to a significant extent. How much harm is enough? The harm at issue does not have to be permanent but must be significant.

Nursing home and assisted living facilities are big business in Maryland with the average cost of assisted living facilities at $4,000–$6,000 per month and nursing home costs at $8,000–$11,000 per month on average. Sometimes the facility does not hold up their end of the deal. Do not let the nursing home or assisted living facility get away with their behavior. For the sake of your loved one and countless others at their facility, someone needs to take a stand.

Recommendation #1: Document Everything

Take diligent notes of the negligent behavior (dates, names of those involved, witnesses, etc.). Unfortunately, not everyone has a photographic memory. Always document the issue. This helps establish your case when a judge gets involved.

Feel free to give our office a call for a consultation.

Elder Exploitation

Our firm was recently successful in helping a family recover funds for an elderly mother and her adult disabled son who was subject to guardianship.  The person of interest was a neighbor who posed as an accountant to prepare the elder mother’s and her disabled son’s tax returns. Unknown to our client was that this this individual opened numerous accounts and credit cards and misappropriated over $100,000 worth of their assets. Our firm was successful in obtaining the return of those assets. We recently were informed by the family that the perpetrator was successfully prosecuted and is now serving a significant jail time for her actions in taking funds from our client and her disabled son.

Another Win! – Will Contest

We had another will contest win.  Our client was gracious enough to send us a card expressing her thanks.  This is what she had to say:

“Thank all of you for the way you handled our case.  You guys are wonderful.  Along with being very professional, you showed us such compassion.  You guys went over and beyond to make sure the wrong to us was made right.  We cannot thank you enough.  We will highly recommend you.  Thank God for all of you.  Sincerely, B.J.

P.S.  Wow!!! What a check (smile).”

Another Win! – Medical Assistance Issue

We just won another Medical Assistance appeal issue.  In this case, Medical Assitance was initially denied for nursing home benefits and the son of the Medical Assistance applicant was handed an invoice from the nursing home for over $100,000.  Needless to say, he was upset.  We were able to successfully argue that that the transactions at issue were not Medicaid Penalty transfers and that full Medical Assistance benefits should have been granted from day 1.  We received the Administrative Law Judge opinion today removing approximatley 98% of the penalty.  Client is happy.

Should I Sign the Nursing Home Contract?

A very common situation for my clients (or potential clients)  find themselves in is the chaotic situation of transferring their parent from a hospital to an area nursing home for rehabilitation.  It is in this situation, when emotions are high, people are tired, that the nursing home will, at the last second, wants the son or daughter admitting the parent to sign a 60+ page nursing home contract.  Of course, the nursing home contact (usually the nursing home admissions director) is very friendly and advises that “don’t worry” this is just for your parent’s assets and does not obligate you to use your own funds for nursing home expenses.  Often times the nursing home will demand that the contract be signed before admission (even if the hospital is in the process of discharging from the hospital).  Often times this is an extremely hectic situation and the last thing that is on the son’s or daughter’s mind is a careful review of the nursing home contract.  To be clear:  under no circumstances should the contract be signed until an elder law attorney reviews the contract.  It is a very routine question to ask the nursing home to allow time for their elder law attorney to review the contract.  No matter how friendly the director of admissions person is, if there is a shortfall in payment or the Medical Assisstance application goes awry, the nursing will look for however signed the contract to pay the nursing home bill in full.  I had a recent case where the nursing home assured the son that there was nothing to worry about and had him sign the contract in his name.  The nursing home handeled the Medical Assistnace application.  Unfortunately, the Medical Assistance application was denied.  The next day, the nursing home delivered an invoice to the son for immediate payment for $100,000 for unpaid nursing home bills.  Nursing home contracts are sophisticated documents with good attorneys hired by the nursing home that will use this contract against you.  It is absolutely critical that an elder law attorney review that contract as soon as possible.  If the contract is already signed, then the situation becomes more complex.  In either event, a competent elder law attorney should be immediately contacted.

Can We Have Two Guardians Serve at the Same Time?

The answer to this is easy: yes.   However, the more interesting question is should you have two individuals serve as guardians at the same time.  Remember, that as co-guardians each of you would have to agree on every decision.  If you didn’t agree each of you would have to petition the court for resolution.  That is time consuming and expensive.  My general advice for guardianship is to have only one person appointed at a a time.  If that person can no longer serve, then this person should submit a resignation with a petition from the new proposed guardian with, ideally, the written consent of the previous guardian.

Looking for IRA Assets

The issue of whether or not an IRA asset is a countable asset is an interesting issue from a Maryland Medical Assistance perspective.   For individuals and their spouses, when an ill spouse goes into a nursing home and reviews the issue of applying for Medical Assistance for the ill spouse, the issue that routinely comes up is the issue of what is a countable asset towards the Medical Assistance threshold for the community spouse and ill spouse (i.e. how much can the ill spouse and community spouse own and still be eligible for Medical Assistance benefits).  From a Maryland perspective, and IRA account and other forms of retirement accounts are fully countable assets.  This is specifically addressed in the Maryland Medical Assistance Manual and all of the caseworkers are processing Medical Assistance applications counting IRA and other forms of retirement assets as countable assets.  The real question is whether or not Maryland is correct in treating the IRA and other forms of retirement assets as countable assets.  The answer is Maryland may well indeed be incorrect.  We are looking for the right client scenario to push this issue and clarify and correct this fundamental determination that IRA and other retirement assets should not be countable assets.

New Medicaid Numbers

Medicaid Spousal Impoverishment Figures for 2012

The new minimum community spouse resource allowance (CSRA) is $22,728, and the new maximum CSRA is $113,640. The new maximum monthly maintenance needs allowance is $2,841. The minimum monthly maintenance needs allowance remains $1,838.75.  This has yet to be implemented for Maryland.  It is expected to come out shortly.  It is unclear if this will be retroactive to January 1, 2012.

In part, what this means is that the community spouse of a Medical Assistance applicant can have no more than $113,640 in countable assets at the point when she is seeking eligiblity for the nursing home spouse.  The prior maximum amount allowed was $109,560.

Increase in Nursing Home Costs

According to the newly published survey by Metlife, the average cost of long term care continues to rise.  According to the report the average room nursing home rates rose nationwide by 4.4 percent to $87,235 a year or $239 a day, while assisted living facility costs jumped 5.6 percent on average to $41,724 a year or $3,477 a month.

According to the Metlife survey, Baltimore area nursing homes ranged in monthly costs (for a semi private room) from $6,944 to $9,424 a month. The Baltimore area average assisted living costs grew to $3,830 a month. The Baltimore area average home health aide charged $19/hour.

Nursing Services and Medical Assistance

From a Maryland perspective, once an individual is eligible for long term care Medical Assistance, all of his or her income must go to the nursing home except for certain deductions.  Notably, the deductions are health insurance,  personal needs allowance (currently at $71/month), and possibly a spousal allowance.   While there may be other needs for the nursing home resident, a question often poised is can the resident’s income be used to pay for private nurses?  The answer here in Maryland is “no.”   If private duty nurses or aids are going to be employed they must be paid for by other resources, typically, the surviving spouse or other family members.

So, it came as no surprise that in a recent out-of-state case, that this court also held that private nurse costs could not be deducted from the nursing home resident’s income (once they were on Medicaid).  In Re Pitman v. Daines (N.Y. Sup. Ct., App., Div., No. 2011 NY Slip Op 08681, Dec. 1, 2011).  In that case, the nursing home resident paid for private nurses to provide 24-hour care. After the resident died, the resident’s executor sought to have the decedent’s net available monthly income reduced for Medicaid eligibility purposes by the amount the decedent paid for
the nurses, but the state refused.

After a hearing, New York State Department of Health found for the state, and the executor appealed.

The New York Supreme Court, Appellate Division, held that the amount the resident paid for private nurses could not be subtracted from his monthly income for Medicaid eligibility purposes. According to the court, “private 24-hour nursing care may have provided the deceased with ‘optimal care’ but was not ‘essential’ care that was ‘medically necessary’ for purposes of Medicaid reimbursement.”

If this same case were heard here in Maryland, it is my opinion that the court here would come to the same conclusion.