Long Term Care Planning lssues
by Richard T. Marshall
In just the past few years, we have witnessed a startling demographic surge: the Graying of America. Half the people who have ever lived to be 65 or older are alive today. Life expectancy at birth is now over 76 years. The fastest-growing segment of the population are those over 75. Ten percent of Americans are now over 85. Approximately half of all Americans who are now over 65 will be admitted into a nursing home at least once. Over 22 percent of all Americans over 85 now live in nursing and convalescent homes. On any given day, such facilities are caring for about one in twenty Americans over the age of 65. One fifth of all nursing home residents stay at least one year. One tenth stay three years or more. Most of them never expected to find themselves in nursing homes; an AARP survey indicated 40% of admissions were not due to sickness, but were due to falls.
In this new and aging world, attorneys are increasingly called upon to advise clients about nursing and convalescent homes. Essentially, people seek counsel in three major problem areas. They are concerned with A) The means to finance long term nursing home care, B) Information on the rights of nursing home residents, and C) Reporting nursing home neglect and abuse.
A. Meeting the Costs of Nursing Home Care
Nursing home care is expensive; some will cost as much as $5,000 per month. Elderly persons and their families need guidance in finding resources to fund such care, or advice on possible long-term care alternate options. Nursing homes are designed to provide room, meals, help with daily living, and recreational activity to residents in a supervised environment. They are, in general, the facilities most often provided for persons with physical or mental impairments which prevent them from living independently. They are certified to provide skilled nursing services, when necessary, as well as custodial care. Clients can obtain assistance in selecting a nursing home by seeking the advice of hospital discharge planners or social workers, physicians, clergy, volunteer groups such as the Visiting Nurse Association, nursing home professional associations, or the Long-Term Care Ombudsman in their locality. In Texas, they can locate the local Ombudsman by calling (800)252-2412.
About half of all nursing home residents around the U.S. pay nursing home costs out of personal resources. Usually, it isn’t too long before extended periods of residency drain their savings, and they become eligible for Medicaid. Medicaid is a State and Federal program that will pay most nursing home costs for people with limited income and assets. These eligibility limits vary from state to state. Attorneys in Texas are frequently called upon by adult children in all parts of the U.S., inquiring about Texas Medicaid eligibility for parents who reside in Houston, Dallas, San Antonio or El Paso. Some are seeking avoidance of Medicaid income and net worth caps by the making of gifts, or establishment of trusts. Attorneys who give advice in this area do so at their own peril in the absence of full familiarity with applicable law, including the federal Older Americans Act and Chapter 101 of the Texas Human Resources Code. Gifts made and most trusts established within up to five years of entry into a long-term care facility are usually disallowed, and civil and criminal penalties may be incurred for Medicaid fraud. Medicaid will only pay for nursing home care in Medicaid-certified facilities.
Medicare, as distinguished from Medicaid, will not pay for nursing home costs, with the exception of skilled nursing or rehabilitation services for a limited period of time, after a qualifying hospital stay. An excellent guide to these qualifying conditions may be found in the publication “Your Medicare Handbook,” which one can obtain at no charge from the Health Care Financing Administration by calling (800)638-6833.
Medicare Supplemental Insurance (Medigap) will pay Medicare’s deductibles and co-insurances, and may cover services not covered by Medicare. Some people have nursing home costs covered, or partially covered, by managed care plans or employer benefit packages.
Long-Term Care Insurance is now offered by a number of insurance companies. It is designed specifically to cover long-term care costs. Generally, only relatively healthy persons may purchase such coverage, and premiums, of course, increase with the age of the applicant. Insurance professionals encourage people to obtain such coverage before the age of 60, in order to lock in maximum benefits at minimum premiums. Sometimes elderly persons with adequately funded life insurance programs are in a position to obtain optional payout plans from existing life insurance policies to cover monthly, quarterly or annual payments for long-term care.
There are alternative options to nursing and convalescent homes. Many elderly Texans wind up in nursing homes because they and their families are ignorant of a variety of other living arrangements which may be preferable to nursing homes. These alternatives may include home care services such as meals-on-wheels programs, friendly visiting and shopper services, and adult day care. Some nursing homes offer respite care, admitting persons for a short period of time to give the home caregivers a break. There are Federal and State programs that subsidize housing for older people with low to moderate incomes. The Texas Department on Aging has established a statewide program entitled Options for Independent Living expressly designed to help elderly persons remain at home despite limited self-care capabilities.
More upscale options include assisted living communities which provide independent living arrangements within a complex, with meals, laundry, medication reminders, and transportation to shopping malls and churches, on a monthly rental fee basis. There are also adult foster homes providing board and care for people who cannot live independently, where residents are helped with daily activities such as eating, walking, bathing, dressing and toileting. Some private long-term care insurance and medical assistance programs will help pay for these arrangements.
Continuing Care Retirement Communities (CCRCs) are housing communities that provide varying levels of care designed to meet needs ranging from independent living to residence in an affiliated nursing home. Residents may move from one level to another, as their needs change. This option is an expensive one, as many CCRCs require a large deposit prior to admission, and charge monthly fees thereafter.
B. The Rights of Nursing Home Residents
Nursing homes and convalescent homes are required by Chapter 242 of the Texas Health and Safety Code to provide elderly residents with a written list of their rights before providing services or as soon as possible thereafter. Chapter 102 of the Texas Human Resources Code lists the Rights of the Elderly (persons 60 years of age or older). Among these rights are:
- The right to be treated with dignity and respect for their personal integrity without regard to race, religion, national origin, sex, age, disability, marital status, or source of payment. This means that the individual has the following explicit rights: (a) The right to make his or her own choices regarding his or her personal affairs, care, benefits, and services; (b) The right to be free from abuse, neglect, and exploitation; and (c) Where protective measures are required, the right to designate a guardian or representative to ensure quality stewardship of his or her affairs.
- The right to be free from physical and mental abuse, including corporal punishment, or physical or chemical restraints that are not mandated by a physician’s order.
- The right to communicate in their native language with others for the purpose of receiving treatment, care or services.
- The right to express complaints about their care or treatment, either anonymously or to a person designated by them; and the right to a prompt response to such complaints; and the right to be free from reprisal, discrimination, or punitive action for expressing such complaints.
- The right to privacy for attending to personal needs and a private place to receive visitors.
- The right to send and receive unopened mail, and the right to have that mail sent and delivered promptly.
- Married residents have the right to share a room.
- The right to participate in social, religious and community groups..
- The right to manage the individual’s personal financial affairs.
- The right to have access to their personal and clinical records which must be held confidential, and may not be released without the resident’s consent, except when the resident is transferred to another facility.
- The right to be informed in language that the resident can understand, of his or her total medical condition, and to prompt notification of any significant change in medical condition.
- The right to choose and retain a personal physician and to be fully informed in advance about their treatment or care.
- The right to refuse medical treatment, after being informed of possible consequences of refusal.
- The right to retain and use personal possessions, including clothing and furnishings, as space permits.
- The right to refuse to perform services for the nursing home.
- The right to know whether the resident is entitled to Medicare or Medicaid benefits, within 30 days of admission to the nursing home; and which items and services are covered.
- The right to make a living will, execute a durable power of attorney, and to make an advance designation of guardian.
C. Reporting Nursing Home Neglect and Abuse.
It is a shocking experience for an attorney when relatives of nursing home residents come to the office with long overdue complaints about neglect or abuse of a beloved family patriarch or matriarch. More often than not, the elderly person has already died, or suffered needlessly for months.
It is estimated that as many as one out of every twenty older adults may be a victim of abuse. Elder abuse has been defined as including any form of physical or emotional abuse, financial exploitation, neglect, or sexual abuse. Family members should look for the following clues as indicators of elder abuse:
- Bruises and fractures, which are usually blamed on falls. The real cause may be physical abuse.
- Weight loss, which may be due to neglect, starvation, or an improper diet, although often blamed on illness or lack of appetite.
- Mental dysfunction, which may be the result of malnutrition or over-sedation, and not just “old age” or Alzheimer’s.
Attorneys should immediately advise such clients to file complaints directly with the Texas Department of Human Services. They’ll fax or mail you a complaint form, if you phone them at (800)458-9858. If a client is not sure about filing a complaint, he or she should call the State of Texas hotline for information on contacting the Long Term Care Ombudsman in your local area. That number, once again, is (800)252- 2412.
In the event that the resident or his or her family retains counsel to file a damage suit for neglect or abuse, the Texas Department of Human Services will not only furnish a copy of the initial investigation report based on the client’s complaint, but will also provide limited information to counsel about prior complaints against the offending facility.
Other resources are the Texas Advocates for Nursing Home Residents at (888) 826-4748, the Nursing Home Advocacy Project at (888)343-4414, the Texas Gray Panthers at (512)458-3738 and the Texas AARP at (512)480-9797.