ElderWeb

As I look to the future of this industry, I see several inescapable trends:

• The number of people who will need care will explode as the Baby Boom generation ages.
• The number of people who are working and paying taxes to pay for Medicaid and Medicare will decline, relative to the older population, so the pool of money that will be available for Medicaid long term care will rise at a far slower rate than the increase in the older population.
• Many people who do have savings will exhaust most of their funds before they get to a nursing home, and most nursing homes will have 90-100% of their residents dependent on Medicaid, reducing the financial viability of the industry.

I think these trends will lead to the following potential scenarios:

• Governments will be forced to greatly restrict and reduce the amount of money they reimburse providers for each Medicaid long term care recipient, and long term care providers will have to develop a strategy to operate with a growing percentage of Medicaid recipients and a sharply declining Medicaid reimbursement rate.
• Nursing home operators will divide into two groups: Medicaid-only and non-Medicaid. The Medicaid-only facilities will shave every possible cost and find ways to provide only the bare minimum of services in a very cost-efficient operation. Although they will attempt to attract private pay residents, people with resources will not be attracted to their poorly-maintained buildings and low service levels. These facilities will become the "poor farms" of the future. Non-Medicaid facilities will accept only those who have the funds to pay for the cost of their care, providing a quality facility and a level of service commensurate with the amount the resident is willing and able to pay, and these facilities will become the facilities of choice for those who have the means to afford them.
• If  nursing home operations remain unprofitable, or if operators are precluded from trying to make a profit by isolating private paying residents in facilities that have higher costs, many operators will exit the business entirely. If many providers exit the business, the supply of available nursing home beds will decline significantly. Ironically, this might finally allow the remaining operators to be more selective in determining how many low-paying Medicaid residents they will accept.
• Governments may encourage or require assisted living operators to accept Medicaid payments in an effort to control program costs by shifting Medicaid long term care recipients from nursing homes to assisted living facilities. That would force assisted living operators to take the same steps nursing homes have had to take to reduce their exposure to low Medicaid reimbursement.
• At some point, governments may have to reduce the number of people on Medicaid by  increasing the eligibility requirements for Medicaid . They can do this by lowering the income and asset caps, increasing the "medical necessity" requirements, or requiring the personal residence to be included as an asset when determining Medicaid eligibility. 
• Governments may also have to reduce the number of services they provide for those who do qualify and/or develop some sort of "rationing" program to allocate resources and services, perhaps by limiting availability of expensive procedures and services for people who are too ill or too old. 
• Governments are also likely become more aggressive in looking to family members to help pay for care costs. They may regulate and enforce tighter restrictions on giving assets away to family members when those assets could have been used to pay for care for Medicaid recipients. They may try to recover assets retrospectively from those who received them, or require family members to make contributions toward the cost of care to supplement the government contribution.
• Medicaid will continue to exist in some form for the truly indigent, however Medicaid recipients will probably have to accept a lesser quality of services. They will probably have to go on waiting lists for services, and will find they are unable to use the providers they prefer. Some people who would be eligible for Medicaid under today's programs will not be eligible under the Medicaid programs of the future.

The implications in planning for future long term care needs are:

• Long term care recipients will be divided into the "haves" and the "have nots" -- those who can pay for it themselves and those dependent on the Medicaid system. Although this won't be a palatable or desirable situation, any attempt to make long term care costs universally available at taxpayer cost will quickly torpedoed when the costs are calculated, since neither the federal nor the state governments could possibly afford to provide a comprehensive long term care benefit to the huge numbers of Baby Boomers that will be entering the system.
• Medicaid will be available as a safety net when everything else is exhausted, but it will probably involve forfeiting any inheritance that would otherwise be left to other family members, may require supplementation from family members, and will probably leave the spouse with very limited financial resources. Medicaid recipients will have a limited ability to control where they receive services and what services are available to them.
• People who are able to pay for their care with savings or insurance will have the easiest access to services and the most ability to control what kind of care they receive and where they receive it, regardless of what happens to government reimbursement programs. They will be highly attractive to service providers who are likely to compete strongly for their attention.

Conclusion

My conclusion after looking into the future is that Baby Boomers should be saving and investing enough to be able to pay privately for whatever long term care they may need, and they probably need to investigate buying long term care insurance to supplement those investments to ensure they are able to avoid dependence on government long term care programs.

How long will you stay in a nursing home, if admitted to one?

The overall average length of stay computed from the 1999 Nursing Home Survey for DISCHARGED residents is 388 days, or just over 1 year. Using discharge data from this survey, it appears that the average length of a nursing home stay for people admitted to a nursing home when they are age 45 or older is:

When planning ahead for the financial burden of long term care you need to decide how you will handle the not-insignificant risk of a very lengthy stay rather than planning for the 'average' length of stay of one year. Also keep in mind that very short stays of one month or less will probably be excluded from coverage by long term care insurance (which typically has elimination periods of up to 3 months before coverage begins), but may be covered by Medicare.

The overall average length of stay computed from CURRENT resident data shows that an average length of stay of 901 days, which is 30 months or about 2.5 years. The average length of stay for DISCHARGED residents is 388 days, or just over 1 year. Many people use the first figure when discussing the average length of a nursing home stay, but I think the DISCHARGE data is more meaningful. Read Why.

Average Length of Stay by Sex and Age at Admission
Additional Illustrations*

Source: CDC/NCHS 1999 National Nursing Home Survey (NNHS), discharged residents data.

About this data:
This nationwide sample survey of nursing homes, their current residents and discharges was conducted by the National Center for Health Statistics from July through December 1999. The survey was conducted via a combination of personal interviews and review of residentsÂ’ medical records. Responses are for 8,215 current residents and 6,913 discharges from the 1,423 nursing homes that participated in the survey. The sample frame for discharges was the total number of residents discharged from care by the nursing home during a designated month between October 1998 and September 1999. Included were discharges that occurred because of death of the resident.

I have omitted from this data discharges for people who were admitted to the facility earlier than age 45 because they often have severe physical or mental limitations that arose in childhood, and many times have extremely long stays that distort the results. The complete data set includes stays as long as 34 years for people admitted at fairly young ages. I have included admissions for people from age 45 to age 64, rather than starting at age 65, because many of these admissions represent people with early-onset of diseases like Alzheimers or those who suffered a traumatic illness or accident as an adult.

* The discharges for all males and females age 45 and older includes enough data to be statistically valid (at least 60 responses in each category). I have also included charts for sub-groupings by age to illustrate the way that the length of stay changes with the age at admission, but some of the longer lengths of stay within these sub-groupings do not include enough data elements to be statistically valid.

Much of the data that has been used historically to estimate the average length of a nursing home stay is based on surveys of current nursing home residents where the surveyor asks how long each person in the nursing home has been there, but the computation of the average length of stay of residents that have been discharged is quite different.

The overall average length of stay computed from the 1999 Nursing Home Survey for CURRENT residents shows that an average length of stay of 901 days, which is 30 months or about 2.5 years. The average length of stay for DISCHARGED residents is 388 days, or just over 1 year.

I believe the average length of stay of CURRENT residents mis-states the average length of stay in two ways:

1. People who stay less than a year are under-represented in the average (i.e. if one room in the nursing home has a resident who has been there less than one month, and that bed was occupied by 11 other people in the last year who also stayed there less than one month, it should count as more than a single 'one month' stay)
2. Everyone who is counted is still a resident in the home. Their stays are not yet over, so the length of stay measured does not include the whole length of their stay, which won't be known until they die or are discharged.

Information on the length of stay of current nursing home residents is of most interest to nursing home operators, who can use it to predict turnover and income, but is not particularly useful if an individual is trying to predict how long they will be there.

The average length of stay of DISCHARGED residents is computed by calculating the actual length of stay for each resident discharged during the prior year. This data accurately measures the length of each resident's stay, since the stay is now complete. Since I am most interested in helping people plan for future nursing home use, I have used discharge data on this page and in the accompanying graphs.

What you can NOT tell from this data is whether someone will have more than one nursing home stay, a situation which is not unusual. Unfortunately, I know of no source that would help predict how many nursing home stays any one person might anticipate over time or what the accumulated length of those stays might be.

How likely are you to spend time in a nursing home? The statistic most often quoted is that someone age 65 has a 43% chance of spending time in a nursing home.

Kemper P. and Murtaugh C. (February 28, 1991). New England Journal of Medicine.

These statistics are referred to by nearly everyone in the industry, but note that these estimates are based on EXTREMELY old data which may not be indicative of future trends.

Data Source and Date: Data from the National Mortality Followback Survey of the next of kin of a sample of persons 25 years of age or older who died in 1986.

Research Methodology: Current data on life expectancy were then used to reweight the sample to project lifetime nursing home use for those who became 65 years old in 1990.

Findings: Of those who died in 1986 at 25 years of age or older, 29 percent had at some time been residents in a nursing home, and almost half of those who entered a nursing home spent a cumulative total of at least one year there. The probability of nursing home use increased sharply with age at death: 17 percent for age 65 to 74, 36 percent for age 75 to 84, and 60 percent for age 85 to 94.

Predictions: For persons who turned 65 in 1990, we project that 43 percent will enter a nursing home at some time before they die. Of those who enter nursing homes, 55 percent will have total lifetime use of at least one year, and 21 percent will have total lifetime use of five years or more. We also project that more women than men will enter nursing homes (52 percent vs. 33 percent), and among them, more women than men will have total lifetime nursing home use of five years or more (25 percent vs. 13 percent).

Kemper P. and Murtaugh C. (February 28, 1991). Lifetime Use of Nursing Home Care. The New England Journal of Medicine.

Date Source and Date: Age-, sex-, and race-specific estimates of the number of persons with chronic disability from the 1982, 1984, 1989, 1994, and 1999 National Long-Term Care Survey (NLTCS),the use of nursing home beds by elderly persons in the 1985 to 1995 National Nursing Home Surveys (NNHS), and nursing home expenditures from the 1987 to 1996 Medical Expenditures Surveys (MEPS).

Research Methodology: All five NLTCS samples were drawn from Medicare administrative records. This list sample frame maintained near-perfect follow-up of persons across survey years (eliminating bias from loss to follow-up). The sample design for the 1982 NLTCS was drawn, using reduction sets of 5,000 persons, from 55,000 names drawn from Medicare lists. A reduction set was the predefined number of cases screened until a sufficient number of sets had been processed to identify 6,000 chronically disabled persons to receive detailed community interviews. Chronic disability rates were calculated by using as denominators estimates of the size of the population aged 65+ at risk made from sample-weighted counts of persons in each cell. In 1994 and 1999 NLTCS samples were supplemented three ways. First, an over-sample of persons age 95+ was drawn in 1994 (n = 540) and 1999 (n = 600) to improve the precision of estimates for this extreme elderly population. Second, to improve estimates made of the traits of nondisabled persons the sample receiving a detailed community interview was augmented in 1994 by 1,762 persons designated to receive a community interview even though they would not otherwise have received one based on their screen interview (sample component H).

Findings: Dramatic reductions in disability and nursing home use occurred for all age groups above 65, and were largest for persons older than 85.

Observation #1: The decline in disability rates is increasing at an accelerating pace.

Changes in the prevalence of chronic disability in the United States black and nonblack population above age 65 from 1982 to 1999

The nursing home industry as we know it today really sprang to life when the Medicare and Medicaid programs were established, since those programs created the first system of third party payments for nursing home care. Prior to 1965, the nursing home industry consisted primarily of county "poor farms" supported by tax subsidies for indigent older people who had no other resources; "mom and pop" operators who took older people into their homes or who created small group homes for those who could pay something toward their care; and charitable facilities, many religious, that drew operating income from donations and subsidies from affiliated organizations. After 1965, nursing homes could count on a dependable, recurring source of government income for people who had no money (Medicaid), as well as a generous payment system for Medicare recipients who needed more acute rehabilitative care. Not coincidentally, this was the time when many for-profit nursing home companies were established. 

In the early years of the new Medicaid and Medicare systems, providers were generally reimbursed for their costs, no matter what those costs might be. They reported those costs to the government, and in most parts of the country they received a payment designed to ensure that they suffered no loss on the care of Medicaid or Medicare recipients in a system called cost-based reimbursement. Since those payments included some of the costs of the buildings, equipment, and administration of the facility, operators could use those payments to cover a large part of their fixed costs, then derive a profit from the residents who were not covered by Medicaid or Medicare. There was little or no regulation, nor any restriction on the construction of new facilities, and thousands of new nursing homes were built. 

As the number of facilities grew, the number of people collecting Medicaid or Medicare payments for long term care exploded. In the meantime, the costs of care increased, partly due to inflation and partly due to the fact that facilities had no incentive to control costs when they had a guarantee that they would be reimbursed for them in full. The amount of money that the federal and state governments had to pay began to spiral upward at a dizzying pace as both the number of recipients and the cost per recipient increased. 

State governments, who are responsible for about half of the cost of the Medicaid program, saw the cost of the Medicaid program explode, and a large part of their Medicaid costs were for long term care costs. As state governments dealt with fiscal problems and budget shortfalls, many reacted by reducing the reimbursement for Medicaid long term care or delaying payments to providers. For the most part, the new payment formulas that have evolved no longer provide full reimbursement for the cost of care provided to Medicaid recipients. After several years of budget surpluses, many state governments are again experiencing budget problems, so it is likely that the nursing home industry is in for another round of Medicaid reimbursement cuts.

The federal government was also has been experiencing budget problems. They are responsible for half of the cost of the Medicaid program and all of the cost of the Medicare program. They have tried a variety of methods to reduce those costs, many of which impacted the amount of money that nursing home providers could receive as reimbursement for Medicaid and Medicare residents. In an attempt to reduce the cost of the hospital Medicare program, hospital stays were reduced and patients were discharged "sicker and quicker." Many people who previously would have been in hospitals have ended up in nursing homes, and nursing homes have seen their costs increase even more as they care for these very ill residents at the same time their reimbursement for providing that care has declined.

Nursing homes have seen many other cost pressures, including litigation and exploding insurance costs due to that litigation, and new laws and regulations that increase operating costs, like those dictating higher staffing levels and pay scales. As a result of all these pressures, the nursing home industry is in a severe financial crisis. Many national nursing home operators have gone into bankruptcy in the last couple of years. So far, few nursing homes have actually closed their doors, but a number have changed ownership as stronger operators acquire or take over management of nursing homes that are in trouble. 

A number of reports and studies have analyzed how access to caregiver and community services can reduce the utilization of nursing homes. This article includes summaries of a number of research studies on how older people identify, select, and access eldercare services. Based on these studies, it appears useful services to improve community care might include needs assessments, information and referral (I&R) services, support groups, counseling programs, telephone "hotlines", informational pamphlets, and respite services.

A needs assessment, If done by an unbiased party, could help guide families in the decision-making process, and ensure they are aware of the full range of services and solutions available. Combined with I&R services, it could help determine the most appropriate and cost-effective site for services needed by the older person, by matching their needs and financial resources to the actual services available in the community. Many family members, unfamiliar with the full range of aging services available, assume that nursing home placement is the only alternative when an older person is unable to manage their own care at home. While that is sometimes the right solution, a good assessment process could ensure no better alternative exists before that decision is made.

One thing which keeps older people at home at a manageable cost is the support of informal, unpaid, caregivers, such as spouses, family members, and friends. Any attempts to reduce nursing home utilization must include support for these informal caregivers. They need help caring for the problems which have been found to predict nursing home placement, including cognitive disorders and difficulties with IADLs. They also need support and respite to continue to provide care without burning out. Providing assistance to the informal caregivers could extend the time they are able to keep care recipients at home. This assistance could include support groups, counseling, and respite services.

Good supervision of complex medical directions could prevent acute episodes and health declines caused by failure to follow those directions. One way to do this is to provide information and instruction to older people and their caregivers in understandable language using informational pamphlets, telephone "hotlines", or on-site visits to explain and confirm that instructions are followed and understood.

Consumers need better systems for comparing, assessing, and monitoring care alternatives to understand the real benefits and costs of each type of care. A decision to move Mom to a nursing home so she will receive better care makes no sense if she is moved to a place where she receives less attention that she received at home because of inadequate staffing. An inexpensive, but unmonitored, home care aide is a poor solution if he/she is abusive, fails to show up when scheduled, or steals money or valuables. Residents in institutional settings may suffer from a lack of personal choice about lifestyle issues like smoking, eating, and drinking due to restrictive regulations and provider concerns about liability.

Consumers also need good information about the real cost of each care alternative and the reimbursement available. A jerry-rigged patchwork of community resources may be more expensive than placement in assisted living or a nursing home, and may be more time-consuming to manage than caring for the older person in the home of a relative. Assisted living is an attractive option for people who don't need complex medical care, but may not be available to people without significant financial resources or good long term care insurance.

REFERENCES

A Systematic Comparison of Community Care Demonstrations

June 1987, by Robert Kemper, Robert Applebaum, and Margaret Harrigan, is a study of how availability of community care can impact nursing home costs and utilization. The study draws several conclusions:

• Better information about available services may reduce nursing home placement and total care costs for people with low levels of care needs who are not aware of community alternatives.
• There is no way to restrict community care only to people at risk for nursing home placement, so while costs for some individuals may be reduced by access to more community services, the aggregate costs will grow due to the increase in the number of people accessing care.
• The cost advantage of community care over nursing home care is large for those with minimal needs, but reverses for those with extreme care needs, so remaining at home is not always a cost-effective solution.

Informal Caregiver Burnout, Predictors and Prevention

April 1993, ASPE Research Notes, analyzes what conditions are most likely to lead to failure of informal caregiver support and subsequent nursing home placement. Based on their research, they concluded the most likely reasons for individual caregivers to quit are:

• The number of ADLs
• The inability to leave the care recipient alone
• Sleep disturbances
• High levels of stress vs satisfaction
• The availability of other helpers

They also concluded that the most likely predictors of nursing home placement are:

• Cognitive impairment
• Advanced age (75+)
• White race
• High IADL impairment
• High burden on the caregiver
• Use of formal (paid) services

Improving Quality in Long Term Care by Anticipating the Needs of Chronically-Ill and Disabled Patients in the Community Setting

This 1998 testimony to the Institute of Medicine from American Medical Association discusses how better home care can reduce both hospitalizations and nursing home placement for frail older people. It states that for every patient in a nursing home, there are 3 similarly impaired people cared for at home by their families, and that 80% of homebound patients get all their care from family members. The report discusses the problems of "health illiteracy", stating that about half of all Americans would have trouble understanding and carrying out complicated medical directions, and that close to 70% of elderly people are "health illiterate". Since more than 12% of all hospitalizations are due to improperly taken medications, there is a significant opportunity to reduce healthcare costs by ensuring, through home care services, that complex medical instructions have been understood and followed. The report also points out that homebound elderly people have trouble arranging transportation, which makes it more difficult for physicians to monitor their care, could be alleviated by promoting physician house calls.

Improving Quality in Long-Term Care

February 1998 - This testimony to the Institute of Medicine from American Association of Retired Persons discusses quality assurance in nursing homes, supportive housing, and the home. They point out that consumers are demanding a higher quality of life, and they strongly prefer to receive supportive services in the most home-like environment possible. Improving technology and changing practices have made it possible to deliver care in a wider range of settings. All these changes mean that consumers have more choices than before, but state regulatory systems have had difficulty keeping up with the changes, and are under increasing budgetary pressure, so the assessment of the quality of care alternatives has become more difficult.

Some of the problems in nursing homes include inadequate nurse staffing, medication errors, use of restraints, and problems with dignity and quality of life. Inadequate reimbursement and inadequate funding of programs like the Ombudsman Program may also contribute to poor quality care. Supportive housing, including assisted living, has problems including cost-cutting strategies like shared rooms and baths, and inadequate staffing or services, especially for dementia patients. Another problem is the lack of standards and inadequate regulation of the industry. The lack of public funding means many of these programs are only available to the wealthy. Home care is inadequately regulated, suffers from a shortage of qualified, well-trained workers, and has no good quality-assurance system.

Improving Quality in Long Term Care

March 1998 - This testimony to the Institute of Medicine from American Medical Directors Association discusses the role of physicians in nursing homes. It states that reimbursement rather than appropriateness drives placement decisions, and that new Medicare reimbursement rules for nursing homes are likely to discourage them from accepting patients with complex care needs in favor of those with lesser needs. At the same time, assisted living facilities are attempting to retain residents with increasing care needs, which they may be unable to manage, and home health reimbursement is being scaled back, reducing access to home care services. All these issues muddy placement and treatment decisions for older people.

The AMDA is concerned about the lack of medical oversight in all care settings, and the need to strengthen the role of physicians and medical directors. They are concerned that current reimbursement systems are inadequate to provide that oversight. They also recommend extensive consumer education and vigorous advocacy to protect elderly people and their surrogate decision-makers.

Improving Quality in Long Term Care

March 1998 testimony to the Institute of Medicine from Consumers United for Assisted Living discusses ways assisted living can impact the care of older people. They point out that a jerry-rigged patchwork of community resources may be more expensive than placement in assisted living or a nursing home, and may be more time-consuming to manage than caring for the older person in the home of a relative. While they believe that assisted living provides a good solution for many families, they are concerned about the real estate mentality of many providers, the risk of importing the problems of the nursing home industry into this setting, the inadequacy of regulations, and the affordability of this housing.

What is Quality Care for Persons With Alzheimers Disease?

March 1998 testimony to the Institute of Medicine from Alzheimer's Association discusses the importance to family members of issues like the quality of staff, staff turnover, staff/resident ratios, the quality of service programs, and the safety of the environment in assessing the quality of institutional programs for people with Alzheimers.

Improving Quality in Long Term Care

March 1998 testimony to the Institute of Medicine from American College of Health Care Administrators discussed the importance of maintaining quality of life in institutional settings, and the fact that current regulations make it difficult to allow residents personal choice about things which involve risk, like eating unhealthy foods, smoking and drinking. The report discusses the need for regulatory systems to focus on outcomes and resident satisfaction, rather than prescribing processes.

The testimony describes changes in the various elements of the long term care continuum, and the lack of communication and integration across that continuum.

Making Decisions About Long Term Care: Voices of Elderly People and Their Families
Making Decisions About Long Term Care: Views From Professionals

This research into how families make long term care decisions from SPRY indicates that families need more information to make educated decisions. Families said they are highly influenced by their physicians, but that the physicians often didn't have good information about options, either. Decisions are often made in crisis, in an atmosphere of fear, guilt, and denial, and without complete information. Both projects emphasize the importance of providing good information to families so that appropriate decisions are made.

by Richard T. Marshall, Attorney

Richard Marshall is a veteran trial lawyer and a Certified Senior Advisor. His focus is upon the legal problems of senior citizens, both in litigation and in counseling. He has recovered substantial awards and settlements in medical malpractice and nursing home neglect and abuse claims. His firm provides full representation at all levels of litigation, both individually and through a network of associated counsel throughout Texas. His website is at Texas Senior Law.

As we enter the next millennium, we are witnessing a startling demographic surge: the Graying of America. Half the people who have ever lived to be 65 or older are alive today. Life expectancy at birth is now 76 years. The fastest-growing segment of the population are those over 75. Ten percent of Americans are now over 85. Approximately half of all Americans who are now over 65 will be admitted into a nursing home at least once. Over 22 percent of all Americans over 85 now live in nursing and convalescent homes. On any given day, such facilities are caring for about one in twenty Americans over the age of 65. One fifth of all nursing home residents stay at least one year. One tenth stay three years or more. Most of them never expected to find themselves in nursing homes; a recent AARP survey indicates 40% of admissions were not due to sickness, but were due to falls.

In this new and aging world, attorneys are increasingly called upon to advise clients about nursing and convalescent homes. Essentially, people seek counsel in three major problem areas. They are concerned with A) The means to finance long term nursing home care, B) Information on the rights of nursing home residents, and C) Reporting nursing home neglect and abuse.

A. Meeting the Costs of Nursing Home Care

Nursing home care is expensive; some will cost as much as $4,500 per month. Elderly persons and their families need guidance in finding resources to fund such care, or advice on possible long-term care alternate options. Nursing homes are designed to provide room, meals, help with daily living, and recreational activity to residents in a supervised environment. They are, in general, the facilities most often provided for persons with physical or mental impairments which prevent them from living independently. They are certified to provide skilled nursing services, when necessary, as well as custodial care. Clients can obtain assistance in selecting a nursing home by seeking the advice of hospital discharge planners or social workers, physicians, clergy, volunteer groups such as the Visiting Nurse Association, nursing home professional associations, or the Long-Term Care Ombudsman in their locality. In Texas, they can locate the local Ombudsman by calling (800)252-2412.

About half of all nursing home residents around the U.S. pay nursing home costs out of personal resources. Usually, it isn't too long before extended periods of residency drain their savings, and they become eligible for Medicaid. Medicaid is a State and Federal program that will pay most nursing home costs for people with limited income and assets. These eligibility limits vary from state to state. Attorneys in Texas are frequently called upon by adult children in all parts of the U.S., inquiring about Texas Medicaid eligibility for parents who reside in Houston, Dallas, San Antonio or El Paso. Some are seeking avoidance of Medicaid income and net worth caps by the making of gifts, or establishment of trusts. Attorneys who give advice in this area do so at their own peril in the absence of full familiarity with applicable law, including the federal Older Americans Act and Chapter 101 of the Texas Human Resources Code. Gifts made and most trusts established within three years of entry into a long-term care facility are usually disallowed, and civil and criminal penalties may be incurred for Medicaid fraud. Medicaid will only pay for nursing home care in Medicaid-certified facilities.

Medicare, as distinguished from Medicaid, will not pay for nursing home costs, with the exception of skilled nursing or rehabilitation services, under certain limited conditions, after a qualifying hospital stay. An excellent guide to these qualifying conditions may be found in the publication "Your Medicare Handbook," which one can obtain at no charge from the Health Care Financing Administration by calling (800)638-6833.

Medicare Supplemental Insurance (Medigap) will pay Medicare's deductibles and co-insurances, and may cover services not covered by Medicare. Some people have nursing home costs covered, or partially covered, by managed care plans or employer benefit packages.

Long-Term Care Insurance is now offered by a growing number of insurance companies. It is designed specifically to cover long-term care costs. Generally, only relatively healthy persons may purchase such coverage, and premiums, of course, increase with the age of the applicant. Insurance professionals encourage people to obtain such coverage before the age of 60, in order to lock in maximum benefits at minimum premiums. Sometimes elderly persons with adequately funded life insurance programs are in a position to obtain optional payout plans from existing life insurance policies to cover monthly, quarterly or annual payments for long-term care.

There are alternative options to nursing and convalescent homes. Many elderly Texans wind up in nursing homes because they and their families are ignorant of a variety of other living arrangements which may be preferable to nursing homes. These alternatives may include home care services such as meals-on-wheels programs, friendly visiting and shopper services, and adult day care. Some nursing homes offer respite care, admitting persons for a short period of time to give the home caregivers a break. There are Federal and State programs that subsidize housing for older people with low to moderate incomes. The Texas Department on Aging has established a statewide program entitled Options for Independent Living expressly designed to help elderly persons remain at home despite limited self-care capabilities.

More upscale options include the assisted living communities which provide independent living arrangements within a complex, with meals, laundry, medication reminders, and transportation to shopping malls and churches, on a monthly rental fee basis. There are also more modest homes providing board and care for people who cannot live independently, where residents are helped with daily activities such as eating, walking, bathing, dressing and toileting. Some private long-term care insurance and medical assistance programs will help pay for these arrangements.

B. The Rights of Nursing Home Residents

Nursing homes and convalescent homes are required by Chapter 242 of the Texas Health and Safety Code to provide elderly residents with a written list of their rights before providing services or as soon as possible thereafter. Chapter 102 of the Texas Human Resources Code lists the Rights of the Elderly (persons 60 years of age or older). Among these rights are:

• The right to be treated with dignity and respect for their personal integrity without regard to race, religion, national origin, sex, age, disability, marital status, or source of payment. This means that the individual has the following explicit rights: (a) The right to make his or her own choices regarding his or her personal affairs, care, benefits, and services; (b) The right to be free from abuse, neglect, and exploitation; and (c) Where protective measures are required, the right to designate a guardian or representative to ensure quality stewardship of his or her affairs.
• The right to be free from physical and mental abuse, including corporal punishment, or physical or chemical restraints that are not mandated by a physician's order.
• The right to communicate in their native language with others for the purpose of receiving treatment, care or services.
• The right to express complaints about their care or treatment, either anonymously or to a person designated by them; and the right to a prompt response to such complaints; and the right to be free from reprisal, discrimination, or punitive action for expressing such complaints.
• The right to privacy for attending to personal needs and a private place to receive visitors.
• The right to send and receive unopened mail, and the right to have that mail sent and delivered promptly.
• Married residents have the right to share a room.
• The right to participate in social, religious and community groups..
• The right to manage the individual's personal financial affairs.
• The right to have access to their personal and clinical records which must be held confidential, and may not be released without the resident's consent, except when the resident is transferred to another facility.
• The right to be informed in language that the resident can understand, of his or her total medical condition, and to prompt notification of any significant change in medical condition.
• The right to choose and retain a personal physician and to be fully informed in advance about their treatment or care.
• The right to refuse medical treatment, after being informed of possible consequences of refusal.
• The right to retain and use personal possessions, including clothing and furnishings, as space permits.
• The right to refuse to perform services for the nursing home.
• The right to know whether the resident is entitled to Medicare or Medicaid benefits, within 30 days of admission to the nursing home; and which items and services are covered.
• The right to make a living will, execute a durable power of attorney, and to make an advance designation of guardian.
  

C. Reporting Nursing Home Neglect and Abuse.

It is a shocking experience for an attorney when relatives of nursing home residents come to the office with long overdue complaints about neglect or abuse of a beloved family patriarch or matriarch. More often than not, the elderly person has already died, or suffered needlessly for months.

It is estimated that as many as one out of every twenty older adults may be a victim of abuse. Elder abuse has been defined as including any form of physical or emotional abuse, financial exploitation, neglect, or sexual abuse. Family members should look for the following clues as indicators of elder abuse:

1. Bruises and fractures, which are usually blamed on falls. The real cause may be physical abuse.

2. Weight loss, which may be due to neglect, starvation, or an improper diet, although often blamed on illness or lack of appetite.

3. Mental dysfunction, which may be the result of malnutrition or over-sedation, and not just "old age" or Alzheimer's.

Attorneys should immediately advise such clients to file complaints directly with the Texas Department of Human Services. They'll fax or mail you a complaint form, if you phone them at (800)458-9858. If a client is not sure about filing a complaint, he or she should call the State of Texas hotline for information on contacting the Long Term Care Ombudsman in your local area. That number, once again, is (800)252- 2412.

Other resources are the Texas Advocates for Nursing Home Residents at (888) 826-4748, the Nursing Home Advocacy Project at (888)343-4414, the Texas Gray Panthers at (512)458-3738 and the Texas AARP at (512)480-9797.

A complete list of where to file complaints about nursing home abuse in other states is set out at the following Web site: http://www.gwjapan.com/NCEA.