Articles Posted in Elder Law

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Recent natural disasters have highlighted the need for more comprehensive emergency and evacuation plans for nursing home facilities. Hurricanes Harvey, Irma and Marie each caused significant property damage, resulted in loss of life, and left many seniors stranded for days without electricity, air conditioning, sufficient access to medications and doctors, no way to contact family members, and rapidly dwindling food and water reserves.

Federal regulations on nursing home emergency preparedness were issued in September of 2016 and should be fully implemented by November of this year. The new regulations sound fairly comprehensive. They address things such as an emergency plan & procedures, communications, training and back-up power systems. The problem is that the new regulations are vague and give no specific guidance or standards by which these new procedures should be evaluated. Critics of the new regulations fear that the lack of specificity in Federal guidelines will lead to inconsistencies in planning and implementation.

Luckily for those of us that live in the Midwest, we have little to fear from hurricanes. However, severe snow storms, summer heat waves and tornadoes have all been known to effectively trap seniors in nursing facilities or in their homes. As we head into winter we urge our clients to check in with elderly clients often. If the senior lives in a nursing home, we suggest the family inquire after emergency procedures and to establish a reliable means of communication with the senior such as a personal cell phone. For those seniors living at home, we suggest families procure sufficient water and non-perishable foods to meet the senior’s needs during extender periods of extreme cold or heavy snows. We also suggest making advanced arrangements for snow removal.

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A CCRC (Continuing Care Retirement Community) is a facility that allows residents to move from independent living to assisted living to skilled care as their mental and physical states change.  They are usually a facility where a person can buy in to the community, pay a monthly sum and receive a portion of the buy-in price when they move out, die or when the resident’s quarters have been resold.  There are some CCRCs that are on a straight rental basis.

One issue that has received much attention lately is the ability of the CCRC to dictate when a person must transfer to a higher standard of care within the facility.  The CCRC contract usually states that if a resident can no longer be cared for at a certain level then the facility can move that resident to a higher level of care.  The disagreements and then the subsequent lawsuits appear when the management of the facility gives notice to a resident that she can no longer remain at a certain level of care, but the resident- and even the resident’s physician- argue that the current level of care is adequate for her condition.  The issue becomes whether the facility can force the resident to a higher and probably more expensive care level notwithstanding the protests to the contrary.

Courts, however, have been reticent to disturb the CCRC Agreement in these cases.  Favoring the language and the sanctity of the Agreement, they have almost always sided with the facility.  Their logic is that the contract left the final decision with the facility, so the facility has the final word on whether the resident moves to a more intensive care level.

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