Tuesday, December 24, 2013
I've been reading discussions lately on elder law listservs, debating whether nursing homes' attempts to hold family members contractually liable to pay bills violate the Nursing Home Reform Act's bar on mandatory third-party guarantees of payment.
This issue was addressed recently by the United States District Court for the Western District of Pennsylvania in White v. Jewish Association on Aging, where a pro-se plaintiff alleged a violation of NHRA at 42 U.S.C. §§ 1395i-3(c)(5)(A)(ii) and 1396r(c)(5)(A)(ii), tied to allegations that his mother's nursing home required him to sign the admission agreement for his mother.
The U.S. District Court dismissed the suit, rejecting NHRA as permitting a private right of action, but then also addressing the specific "guarantee" issue urged by the son:
"In signing the Admissions Agreement and agreeing to become the Responsible Party... Plaintiff consented to apply Ms. White's financial resources to cover her care.... The Agreement also explicitly states that the Responsible Party's failure to apply a Resident's income and assets to pay for the care would result in the Responsible Party becoming personally liable—not for the bill itself— but 'for any misappropriation or misapplication of Resident's funds or assets.' Plaintiff makes no allegation that Defendant is doing anything other than what is expressly permitted—requiring him to apply Ms. White's finances to cover her costs. Thus, Plaintiff is not being treated as a guarantor, and his claim should be dismissed." (citations ommited)
Hat tip to Rob Clofine, Esq. of York, Pennsylvania for the White case link.