As published in the Houston Chronicle, Senior Living Section, June 23, 2010

Legal actions sought against nursing homes’ financial abuse

By Wesley E. Wright and Molly Dear Abshire

A well known Houston attorney, Marian Rosen, has announced she intends to file a lawsuit against nursing homes that continue to defy a federal statute known as the Nursing Home Reform Act of 1987 which prohibits requiring third-party guarantors as a condition of admission to a nursing home that accepts Medicaid or Medicare. This should be of great interest to people who have placed or will be placing a loved one in a nursing home and are required to personally guarantee payment of the nursing home bill.

Rosen has been in the news most recently for successfully suing a Houston homeowners association and forcing them to return an elderly woman’s home valued at $150,000 which had been foreclosed on for past due homeowners association’s fees in the amount of $800.

She made national news for her representation of a group of investors in a suit involving the Enron collapse and recently filed a class-action suit against BBVA Compass involving bank overdraft charges.

She is involved in numerous elder law issues, including fighting the predatory practices of various insurance companies that convince elderly people to purchase annuities that considering their age and circumstances, never should have been sold to them.

Rosen said she will seek to have the plaintiffs she will represent certified as a class and believes there will be a large number of plaintiffs and defendants since the practice is widespread.

She said, “in violation of federal law, many nursing homes are surreptitiously securing the signature of family members as ‘"responsible parties"’on admission documents. Family members who want to be contacted when the resident has a change of condition, participate in care plan meetings and consult with health-care providers run the risk of getting stuck with huge bills if the paperwork for Medicaid or Medicare is not approved in a timely manner.”

Rosen said, “Families compelled to place a loved one in a nursing home are emotionally vulnerable. If they do not sign the paperwork their loved one will not be admitted. They have no time to hire an attorney to review the paperwork to protect their legal rights. This practice must be stopped.”

Eric Carlson, managing attorney for the National Senior Citizen’s Law Center in Los Angeles, has agreed to help in the case and has sued nursing homes in California successfully for the same practice. Carlson has authored publications and articles, among them a publication called “20 Common Nursing Home Problems and How To Resolve Them,”available at www.nsclc.org.

In a telephone interview, Carlson said, “Federal law is clear - a nursing home must not require a family member or friend to become liable for the resident’s nursing home charges. Over the years, many nursing homes have ignored or evaded this federal law. It’s important consumers fight back in court, so nursing homes aren’t able to take advantage of others in the future. A class-action case against nursing homes is an important way to protect consumers who otherwise would be trapped by these illegal business practices.”
New York attorney, Stephen J. Silverberg, current president of the 4,500 member National Academy of Elder Law Attorneys, said, “For over 23 years some nursing homes have been financially abusing individuals who require institutional services and their families. It is more urgent than ever for someone to take action to permanently bring a halt to these improper actions.”

The family member or friend handling the nursing home admission paperwork for a loved one must be aware of this very common and unethical practice that has caused a devastating problem for many.

Wesley E. Wright and Molly Dear Abshire are attorneys with the firm of Wright Abshire in Bellaire.  Wright is board certified by the Texas Board of Legal Specialization in Estate Planning and Probate Law and is certified as an Elder Law Attorney by the National Elder Law Foundation.  Abshire is certified as an Elder Law Attorney by the National Elder Law Foundation.  Nothing contained in this publication should be considered as the rendering of legal advice to any personís specific case, but should be considered general information.