When seniors need full-time institutional care, or when the injured or debilitated require similar 24/7 attention, loved ones — and even friends — must take care to read and re-read any documents that nursing homes and other long-term care facilities shove before them to sign during the stressful admissions process.
That’s because the owners and operators of the facilities soon may create a financial nightmare for the unwitting document signers, fueling what is the huge shame of the U.S. health care system: medical debt.
Most regular folks might think that the financial obligations incurred in long-term care facilities rightly belong to the adult residents. They’re 21 and older, and unlike minor kids carted into urgent, or emergency rooms for treatment, the residents typically have, until their situations suddenly shift, been responsible, including legally, for their lives and personal business.
But nursing homes have dragged into court “children, grandchildren, neighbors, and others, many with nearly no financial ties to residents or legal responsibility for their debts,” the independent Kaiser Health News service and NPR have reported.
In examining the bankrupting national scandal of medical debt, the KHN-NPR series has turned to what consumer experts say is a growing, hard-to-fathom menace of nursing home collections lawsuits. As KHN reporter Noam Levey found:
“The lawsuits illuminate a dark corner of America’s larger medical debt crisis, which a KHN-NPR investigation found has touched more than half of all U.S. adults in the past five years. Litigation is a frequent byproduct. About 1 in 7 adults who have had health care debt say they’ve been threatened with a lawsuit or arrest, according to a nationwide KFF poll conducted for this project. Five percent say they’ve been sued. The nursing home industry has quietly developed what consumer attorneys and patient advocates say is a pernicious strategy of pursuing family and friends of patients despite federal law that was enacted to protect them from debt collection. ‘The level of aggression that nursing homes are using to collect unpaid debt is severely increasing,’ said Lisa Neeley, a Massachusetts elder law attorney.”
Levey dug into a wave of cases filed in Rochester, N.Y., where he reported:
“24 federally licensed nursing homes filed 238 debt collection cases from 2018 to 2021 seeking almost $7.6 million, KHN found. Several nursing homes did not file any lawsuits in that period. Nearly two-thirds of the cases targeted a friend or relative. Many were accused — often without documentation — of hiding residents’ assets, essentially stealing. The remaining cases targeted residents themselves or their spouses. Nursing homes have gone after some families for tens of thousands of dollars. In a few cases, debts surpassed $100,000.”
The basis for the cases is slim, experts told NPR:
“The legal strategy is often rooted in admissions agreements, the piles of paperwork that family or friends sometimes sign, not realizing the financial risks. ‘The world of nursing facilities is a black hole for most people,’ said Eric Carlson, a longtime consumer attorney at the nonprofit Justice in Aging. ‘This happens in the shadows.’ In most cases reviewed by KHN, the people sued didn’t have an attorney, which can be expensive. In nearly a third, the nursing homes won default judgments because the defendants never responded, a common phenomenon in debt cases. In many cases, lawsuits sought interest rates as high as 18% on top of the debt.”
Nursing homes, especially those that are publicly supported, insist that they are simply following sound business practices. If people incur debt and promise to pay it, then those who are owed must collect sums, including through the courts, if they are to stay in business. But experts interviewed by Leavey disagreed with this simplistic view, as he reported:
“[Admissions] agreements, which can run multiple pages, have long been standard in the long-term care industry. They often designate whoever signs as a ‘responsible party’ who will help the nursing home collect payments or enroll the resident in Medicaid, the government safety-net program. Many lawyers say making a family member financially liable is unfair. ‘If you bring your child to a doctor, you should pay for the child’s medical care. But if your adult child brings you to a nursing home and you’re 80, the law doesn’t bind you to pay those bills,’ said Paul Aloi, a Rochester attorney who has represented all sides — patients, hospitals, and nursing homes — in debt collection cases.
“Federal laws and regulations prohibit homes from requiring a resident’s relatives or friends to financially guarantee the resident’s bills. Facilities cannot even request such guarantees. But consumer advocates say nursing homes slip the admissions agreements into papers that family members sign when an older parent or sick friend is admitted. Sometimes people are told they must sign, a violation of federal law. Sometimes there is barely any discussion. ‘They are given a stack of forms and told, “Sign here, sign there. Click here, click there,”’ said Miriam Sheline, managing attorney at Pro Seniors, a nonprofit law firm in Cincinnati.”
Caveat emptor. One of the people quoted in the KHN-NPR news report says the signature used by a nursing home as “evidence” to sue her may have come from an unlikely source: a visitor log.
In my practice, I see not only the harms that patients suffer while seeking medical services, but also the damage that can be inflicted on them and their loved ones by neglect and abuse in nursing homes and other long-term care facilities.
The coronavirus pandemic laid bare the increasing failures in the long-term care industry. With overcrowding, poor staffing, flawed infection control practices, slow vaccination practices, and other problems, nursing homes and long-term care facilities saw 200,000 of their residents and staff die — a quarter of the nation’s staggering 1 million-plus death toll due to the disease.
More than 1 million already frail and debilitated nursing home residents and staff were infected with the disease. Tens of millions of residents endured crushing loneliness, isolation, and further erosion of their mental and physical health during pandemic lockdowns of their care facilities. Too many residents and loved ones still struggle with the tough choice of potentially pursuing justice and remedies in the civil system for long-standing, well-known, and unacceptable wrongs in nursing home care.
But those who are appalled and aggrieved by various parts of long-term care and seek legal redress may find their efforts challenged — again, by documents signed under duress and during the admission process. Owners and operators of facilities too often get residents and loved ones to sign arbitration agreements. This means their complaints will be forced into a legal system in which in many ways the decks are stacked against them. Their cases will be heard by hired guns, arbitrators who often themselves work for big legal enterprises that have frequent dealings with nursing home operators, including whether they get retained in the first place, and meaning they can benefit by maintaining favorable relationships with them. Arbitrations do not occur in open, public court rooms but often in secured office buildings or closed corporate headquarters, sometimes those of the disputing parties. They do not always follow rigorous standards that courts must on evidence. Arbitrators’ decisions are binding and can require heavy legal lifting to contest and reverse.
We have much work to do to reform nursing home and long-term care to ensure its maximum safety, accessibility, affordability, and quality. We also must protect our legal system, so those with serious, legitimate claims of harm and injury have appropriate access to courts that are not jammed up with dubious and venal claims.