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Nursing Homes are Not the Enemy – Massachusetts

By Harry S. Margolis

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Some elder law attorneys have advertised in The Boston Globe and on the radio in a way that implies that nursing homes are trying to take seniors’ money as well as their children’s rightful inheritance. These are outrageous claims. Nursing homes provide 24-hour care to seniors at the end of their lives that simply cannot be provided at home.

Nursing homes are expensive—often costing $500 or more per day. But to put that in perspective, some hotels charge as much or more without providing meals, care, or activities. While few of us could afford to stay at the Ritz for more than a few days, it’s hard to fault the facilities for what they charge even though few can afford it for very long.

Over-the-Top Advertising

The law firm of Dennis Sullivan & Associates ran an ad in the Globe that blares “What You Need to Know Now to Avoid Nursing Home Poverty!” Why call it “nursing home” poverty? That seems to indicate that the nursing home is pushing people into poverty, when it’s simply providing a much-needed service for a fee.

The ad further stated: “WARNING! The Congressional Budget Office considered extending the Look Back period from 5 to 10 years!” Never mind that the CBO is simply a research arm of Congress and has no power to change any law. The ad went on to lament: “What a shame to see someone’s life savings of 30, 40, or 50 years wiped out in a matter of months!” This is a bit of an exaggeration. Even if a nursing home costs $15,000 a month, a resident’s life savings is quite small if it were to be spent down just in a few months.

In an ad by the Commonwealth Advisory Group on WBZ-Radio, broadcaster Gary LaPierre interviewed Attorney Phil Amaru, who said: “That’s when we plan ahead, so that if a nursing home is needed in the future they can’t take your house and money. Listen, the nursing home wants your money so you have to do something to protect it, otherwise it’s gone.” Again, the nursing home doesn’t “take” your money; it provides a much needed and difficult to provide service for a justifiable fee.

Tug of War Over MassHealth Planning

It’s true that nursing homes want to be paid, and why shouldn’t they be for the care they provide? It’s also true that MassHealth covers most people in nursing homes at a rate that’s far lower than nursing homes can charge on a private-pay basis (and according to the nursing home industry, lower than the cost of care). So they prefer private pay patients.

It’s also true that elder law firms, including ours, counsel seniors and their families on how they might qualify for MassHealth sooner and protect some of their assets from having to be spent down paying for nursing home care. We also advise seniors and their families about how savings may be stretched by getting partial MassHealth or Veterans benefits to help pay for care at home or in assisted living. This can create a tug of war between elder care attorneys, their clients and nursing homes. But there’s no reason to disparage nursing homes in the process.

This tug of war exists because Congress has not created a national long-term care policy or extended Medicare to cover long-term care. As a result, Medicaid (MassHealth in Massachusetts) has become the de facto long-term care insurance of the United States. It was not designed for this purpose, but it’s what we have to work with.

Some Civility and Perspective, Please

I suppose that ads that generate and work on fear are more effective than those that blandly state the facts. But the fear is overblown and unnecessary. There is a lot that can be done to protect assets, either with advance planning or after a senior falls ill. We may not be able to save every last dollar and most seniors and families don’t want to save every dollar. They’re usually comfortable paying for some care out-of-pocket. If there is a spouse at home, they want to make sure that she can continue to live comfortably and they want to leave some inheritance to their children and grandchildren.

The us against them atmosphere these ads create poisons the atmosphere. Families and nursing homes need to work together to provide the best care possible for their loved ones. Otherwise, everyone’s uncomfortable, creating a bad situation for the loved one in the facility and the family members who need to visit as often as possible.

Care providers, whether at home, in assisted living facilities or in nursing homes deserve respect and support for performing a difficult function. In the time of Covid, they’re doing so at risk to themselves. Lawyer advertising can be respectful while offering clients information about estate and long-term care planning. Let’s dial back the tone a few notches.

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