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The First Step in CRISIS planning for Long Term Care: Selecting a facility
Selecting a long-term care facility Chicago, the Chicago Metropolitan area, or the state of Illinois for that matter can be complicated. In Crisis Planning for Long-Term Care, this complexity exists whether you are considering independent living, assisted living, supportive living, memory care, or a skilled nursing care facility or a continuing care retirement community. Shopping for any service, but especially long term care services for your loved one, requires careful shopping and a careful examination of the contract that you will be required to sign upon entering the facility.
Sometimes the contracts that facilities offer our clients are not drafted in a way that is most favorable to our clients. Rather the contract in many respects may favor the facility. As in the review of any contract for services, a thorough review is necessary. Here are some of the recurring issues that we want our clients to know about when we review these contracts on their behalf.
First, we recommend that every contract that the client signs be reviewed by our staff first, after all the contract is a binding legal commitment. Poorly drafted contracts are what lawsuits are made of.
Secondly, we recommend that only the person receiving long-term care signs the contract if at all possible. In the state of Illinois we do not have what is called a filial responsibility. This means that children do not have a legal obligation as a matter of law to support their parents while their parents are in long-term care. However children can make themselves contractually obligated by signing on as a as guarantor, responsible party, co-payer etc., simply by signing a contract that has such a liability shifting provision in it.
Third, retain a care placement firm that specializes in matching the medical needs of your loved one with the capability of the facility you’re seeking to enter. Not all facilities do everything the same. Furthermore if you find a facility that matches the medical needs of your loved one (and those medical needs can vary from person to person) then have the care placement firm that you hire review how the facility has performed in its recent state audits regarding delivery of care and safety.
Some of the other issues that we deal with when reviewing these contracts are:
- bed deposit requirements – CMS as indicated under certain circumstances, these are permissible.
- waiver of certain due process and notice requirements – these waivers should always be rejected.
- waiver of any personal liability on the part of the facility for causing any physical or other harm to the resident – these waivers should always be rejected as well.
- understanding the interwoven payment requirements when Medicare, private pay, and Medicaid are all part of the payment mix.
- nondiscrimination provisions should always be present in any contract.
- procedures regarding involuntary discharge should also be examined closely so that there is no frivolous discharge of the resident that deprives the resident of their contractual rights and rights under federal and state law.
- there are only certain circumstances, the most obvious one being nonpayment, upon which a nursing home can discharge a resident.
- guarantee of payment requirements on third parties- these are impermissible as a matter of law.
- paying for “bedhold”, which often occurs when a nursing home resident is hospitalized with the intent to return back to the facility- be aware that Medicaid recipients have priority for the first bed available upon return n from hospitalization thus eliminating the need for a deposit in many cases.
- be aware that some facilities that identify themselves as Medicaid facilities, may only be Medicaid facilities in what is called “distinct part”. Thus, only a certain portion of their available beds are certified for Medicaid and Medicare, but not all of their beds.
- arbitration clauses- do not believe that you must sign an arbitration clause to gain admission to the facility. An arbitration clause will force a family to litigate any controversial issues regarding payment or harm to the resident in a private arbitration forum, rather than in a court of law with a judge and jury of your peers.
There are many more issues to be concerned about. That’s why the contract must be reviewed by counsel. We tell our clients when we find a contract with problematic provisions, that they have three choices:
- accept the contract “as is” – not recommended.
- negotiate the contract – if the facility will agree to do so. (Note: we find the many facilities refuse to negotiate and refuse to allow the prospective residents attorney counsel to talk to the facility’s attorneys about the contract – unfortunate but it happens all the time).
- Or, if the facility is unwilling to negotiate the contract and the provisions contained in the contract are sufficiently objectionable, the family always has the ability to shop for another facility – this is called “freedom of contract” and exists for your freedom and protection in every area of law.
Two quick news items:
1. Effective January 1, 2020 Illinois has adopted the Illinois Trust Code, which is a substantial overhaul of the laws relating to the drafting and administration of trusts, revocable and irrevocable, in the state of Illinois
2. At the federal level Congress passed the SECURE Act, which is one of the largest overhauls pertaining to retirement accounts and retirement account planning in recent years.
More to come about these two large legislative developments in future issues of our Elder Law Update.
Please accept our best wishes for you and your loved ones for the new year!
Anthony B. Ferraro
BS, MSTax, CPA, JD
An Elder Law, Estate & Trust and Asset Protection Lawyer
A Lawyer for Aging Boomers and Seniors
Di Monte & Lizak, LLC
216 Higgins Road
Park Ridge, Illinois 60068
email: Anthony Ferraro – firstname.lastname@example.org