Reviewing prospective nursing home contract. Many questions.
Mom is 85 with Alzheimer's and has lived with me 5+ years. Doc categorizes it as "severe" and, although she's had some incontinent episodes lately, she's still capable of self-toileting as long as I check that she's not pulling soiled panties back on. She's having more & more difficulty communicating...calling things by wrong words & some of her sentences are so fractured with starts, stops & word substitutions that I can't always figure out what she's trying to get across. She still calls me by name but has no clue that I'm her daughter...I'm just a nice neighbor or a long-time co-worker.
I have hypothyroidism & MY doc says that my wildly swinging thyroid levels & our inability to gain consistent control with my meds is probably due in large part to the extreme stress that I deal with as a sole 24/7 caregiver & that it's time to place Mom. I haven't had even an hour "off" from caregiving in the past 11 months. Anyway...I'm starting to see the wisdom in my doc's words.
I've toured 3 of the local homes & went back to the one yesterday to ask if I could review their contract packet. OMG! The thing HAS to be as thick as 'War & Peace"!! Knowing there was no way that I could truly read & understand something that big while there, I asked if I could take the packet home to review & then come back with any questions I had. At first, the Social Worker seemed a bit reluctant to allow that. Just as I was about to tell her, fine, I'll go talk with the other facilities, she relented & gave me the packet.
I'm sitting here at the kitchen island this AM reviewing it & I have some concerns. Maybe these are standard legal-speak among all facilities...but I don't know. I'm hoping some of you that have already gone through this process can shed some light on that.
In several places throughout the contract, there's language regarding behavior:
"No behavior will be tolerated that will infringe upon the rights of other residents or staff members."
"The touching of another without his/her consent for the purpose of harassment, abuse, or exploitation is not permitted. Our facility must protect all residents that reside at our facility therefore we reserve the right to request the offending resident, family or responsible party to make other placement if the behavior is not corrected."
Currently, Mom has not gotten physical (slapping, punching, pinching, etc)...but, then again, she's not in an environment with other cognitively impaired & inappropriate individuals, either. I mean, it's Alzheimer's...there's bound to be behaviors and, yes, sometimes it's resident to resident. Does these passages mean that if she starts getting combative with staff or hauls off & slaps another resident that's irritating her, that they can kick her out? I, honestly, would rather just keep going here at home with her than to gain my freedom and then lose it again 4 months from now because she's combative & the home doesn't want her any longer. I know that would finish breaking me.
And then there's this:
"It's hereby acknowledged and agreed that the Resident is being admitted to the Facility on his or her own volition and the Facility, its personnel, and the attending physician are absolved and released of any responsibility if the Resident should leave the Facility for any reason whatsoever without consent of the attending physician and notice to the Facility."
Their Alzheimer's unit has a keypad code to enter or exit. I have seen Alzheimer's patients randomly press those code buttons & just HAPPEN to hit the right one or they follow someone else out that wasn't paying attention. So, is this passage saying that if Mom would get out of the unit/facility somehow & get hurt and/or killed, that I have no legal recourse? Or is it just saying that, let's say, the doc says her heart isn't strong enough for her to leave the facility & won't consent to an LOA pass but I take her out anyway & she has a bad outcome that I can't come back on the home & say "why didn't you stop me?"?.
Also, as much as Mom has declined, the ONE thing she expresses quite clearly is that she doesn't want to be in a nursing home & that she wants to stay with me. Is the home going to say that they can't legally keep her because she can express her desire not to be there (false imprisonment)?
Lastly, I'm in Missouri. MO is not a filial responsibility state. Throughout the contract it states that any charges not covered by Medicare, Medicaid or other insurance are "your" responsibility. If I sign as her Durable Power of Attorney, or as this facility calls it attorney-at-hand, MO's non-filial status means that *I*, personally, am not responsible for any costs not covered by insurance, right? If *I* don't owe, how does that get paid, and could they kick her out, once Mom has used up her private funds?
5 Answers
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Will your mom need Medicaid at some point to pay for her stay in a facility? I live in MO also and when my dad went into a nursing home Medicare picked up the tab for a certain amount of days and I had to prove to the NH that I was in the process of getting Medicaid for my dad in order for him to continue staying there.
My dad's social security also went to the NH each month. The NH wanted to deduct it from my dad's account each month but we objected and wrote them a check every month. My dad died in the middle of the month and the NH billed him for the entire month. We never paid that bill and nothing ever became of it although they sent bills every month for quite a while.
If your mom runs out of money and has no way to pay the facility, yes, they can ask her to leave. That's why I was wondering about Medicaid. That's another thing I would speak to the social worker about.
If you remove her AMA (against medical advice), not only are you fully responsible, but you can even be charged with negligence.
Anyplace you sign, you MUST write "DPOA" or "Guardian" after your name. ALWAYS and without fail, add that or be held responsible for the bill.
1. Reading the agreements.
I'm glad you didn't back down in advising that you needed time to review them. It's been my experience that admins usually try to push these through, and respond with nonbinding answers to some issues, such as "oh, that doesn't really mean anything", or "that's just there because the attorneys put it in."
Well, it's there, and it means something. Otherwise it wouldn't be there.
When I worked as a government contract administrator, it was our intent to draft tough contracts, but generally as negotiations proceeded there were concessions made and agreements reached that suited both parties.
That doesn't happen often, if it does, when one party has more power than the other, in the case of nursing homes and similar facilities. However, you have the power of placing your mother there, and they want the money, presumably. So you do have some leverage.
But there is a disconnect between the attorneys who draft these and the people who have to implement them. That's not unusual; I've seen it frequently. Each has a different perspective.
And you have an obligation to and right for yourself and your mother to understand everything you sign, whether or not all the social workers wants is to get all the signature pages executed.
2. Informed consent.
If the issue is raised again and you get noncommittal responses and are encouraged if not pushed to sign, advise them that any signature under those circumstances would NOT be an informed consent. You can sweetly tell them that the issue of what implies "informed consent" should be discussed with the attorneys who drafted the documents.
If you don't execute with informed consent, you may have grounds later to challenge a provision, or to use the defense that you weren't permitted time to review the documents and therefore were prevented from understanding them. Generally a court's response would be that it was up to you to take the time to understand before execution. And that's what you're trying to do.
3. Unwanted physical contact with patients and staff.
Given that Alzheimers has an aggressive stage, I understand the need for this. I also understand your concern, and it's a legitimate one. Let's examine the specific wording:
""No behavior will be tolerated that will infringe upon the rights of other residents or staff members."
I see d key words: "tolerated", "infringe" and "rights". That's a loaded sentence!
You're within your rights to ask specifically what the parameters of these are. E.g., does tolerated mean that if it occurs once, that's it? Or do they counsel you, suggest meds, make alternate suggestions?
You can ask them HOW they address these situations, what they do, and at what point do they consider the resident to be a danger to others? There are probably sliding scales of tolerated behavior, and you have a right to know.
My guess is, it's on a case-by-case basis. If so, you can also ask for examples of what behavior would be offending, how often has it occurred, what the action was, and just as importantly, how often was a resident asked to leave because of offending behavior.
Turn the situation around and "allow" them to explain the parameters of their tolerance and action, and the 3 key words. You have a right to know how they're defined and what latitude is applied to an offending situation.
4. Harrassment, etc.
""The touching of another without his/her consent for the purpose of harassment, abuse, or exploitation is not permitted." Note that "purpose of..." is a major qualifier. Purpose implies intent. Does an Alzheimer's patient touch someone specifically to harass, abuse or exploit, or is it just part of the behavior pattern?
More importantly, how is intent proven? In a court, "intent" can be determined by legal criteria. Are there such criteria established by the facility, and if so, what are they?
Ask for examples. If a good natured woman hugs another because she likes her and is glad to see her, but the hugged woman perceives it as harassment, how is the determination made? I recall in one rehab facility that one of the men was grabbing the buttocks of nurses. I found that so offensive, as I'm sure did the nurses. That's a clear example of what would be considered unacceptable.
But as I see it, that phrase turns on what is considered "harassment, abuse, or exploitation", and I can see that it's necessary, but you also have a right to know how it's defined, what examples are, and what action is taken. I.e., is the resident counseled, medication considered, or is the first unwanted touch an automatic eviction notice?
This is getting long, so I'll finish later.
As for Medicaid, yes, she will eventually need to utilize it...probably within six month's time, more or less depending on how badly the current bipolar stock market decimates her investment portfolio. Her elder lawyer has instructed me to notify him when she has approx. 3 mo income left & he would assist me in filing for Medicaid.
The behavior thing was what got me the most, I think. I mean, I worked in a nursing home for 7 years and, in that time, I got proposed to more times than Liz Taylor, groped more times than a porn star & hit/punched/slapped/pinched/whacked more than Manny Pacqiuao...it's just the nature of the environment, especially on an Alz unit. It seems to me that their policy regarding behavior APPEARS at this point, without clarification from the facility, entirely unreasonable in light of the nature of the disease.
Anyway, I'm interested to see what else Garden...or anyone else...has to say.