Checklist for Selecting a Nursing Home

You are looking for an excellent nursing home placement for yourself or your loved one. These 10 points will help you determine which placement will provide the best care and the most dignity.

1. Ask About Care Plans

Care plans outline the care provided to the resident and should be updated at least every three months and immediately on any change in a resident’s condition. Care plans should be specific and individualized, listing what staff will be involved and what each staff member will do, and should include the resident, family members, and staff. Care conferences to discuss the medical care, activities, and therapies the resident receives should be held regularly and should involve the staff, the resident, and the family. Ask these questions of the residents and their families too. Find out how nonemergency medical concerns are handled. Ideally, a medical director will respond to questions and concerns within 24 hours.

2. Check Last Three Inspections

Nursing homes must be inspected at least every 15 months. Inspection reports are available from Medicare at medicare.gov.  Read the most recent inspections. If there are deficiencies, ask about those deficiencies and find out what is being done to correct the problems. Pay attention to the size and scope of the deficiencies; some deficiencies are more serious than others. If the facility has had any major penalties, find out why the penalties were imposed and if the underlying problems have been resolved. The following penalties should raise a red flag:  government sanctions, decertification from Medicare or Medicaid, partial or total bans on admissions, state appointed monitors, or temporary managers fines.

3. Ensure Minimal Use of Restraints

Restraints are anything used to keep a resident from moving freely, including, but not limited to, cloth ties, bed rails, chair trays, and hand mitts. Restraints can contribute to agitation and depression, development of bed sores, increased likelihood of injury in case of a fall, broken bones, and strangulation. Safer alternatives include pillows to help a person sit straight, reclining chairs, chair alarms, bed alarms, lowered beds, and floor padding. Ask staff and residents or residents’ families about restraints. Look around.  Do you see evidence that restraints are commonly used?

4. Take a Tour

Tour the facility.  Pay attention to what you see, hear, and smell. Do not be limited to public areas, but ask to tour the residential areas too. Check out the food being served. Look at the activities chart. Pay attention to how the staff treats the residents. Try to tour on a weekday and on a weekend and look for any differences.

5. Talk to the Residents

Find out what the current residents or their families think about their care. Talk to them, their family members, and caregivers. Talk to the staff. Get a feel for what they think about their jobs and how they feel about the residents. Ask about coworkers and try to find out if staff turnover is a problem. Lower turnover could mean higher job satisfaction, which results in better care for the residents. Lower turnover also means that the residents can develop relationships with the staff and receive more consistent care.

6. Inquire About Staffing

Facilities are requires to post the number of licensed and unlicensed direct care staff for each shift. Check it out on weekdays and weekends. Homes with more licensed staff tend to provide better care. Do they use temporary agencies? Are staff members permanently assigned to residents?  The better the staff know the resident and the more comfortable they are, the better the care should be.

7. Check the Resident or Family Council

Resident and family councils, made up of residents and their families and friends, help protect against abuse and neglect, tell a facility when culture change is necessary, assist the activity director in increasing resident participation, and provide ongoing appreciation for staff. Resident and family councils benefit residents by providing education about residents’ rights and a means to express concerns and solve problems. They also provide orientation, support, and information for new residents and families.

8. Request Information About Changes in Source of Payment

Federal law prohibits Medicaid certified homes from seeking written promises to pay privately. Most nursing home applications still require financial information and many have written policies stating that someone is more likely to be admitted if that person has a certain level of assets, which ensures his or her ability to pay privately. State law requires that if a nursing home is certified for Medicare, it must be certified for Medicaid.  Medicare beds are, however, more profitable to the nursing home and the Michigan Department of Community Health (MDCH) does not actively enforce this law. In 2004, the MDCH issued a policy stating that any newly certified Medicaid beds (after August 1, 2004) must also be Medicaid certified. Dual certification benefits residents when their source of payment changes.

9. Find Out How Much Control the Residents Have

Find out how much choice the resident has in his or her daily schedule and the care received. For example, can the resident participate in social, recreational, religious, or cultural activities that are important to him or her? Can he or she decide when to participate? Does he or she get to choose what time to get up, go to sleep, or bathe? Can he or she get food and drinks at any time? What if he or she doesn’t like the food that is served? Is transportation provided to community activities? Does he or she get a separate television? Can he or she decorate the living space the way he or she wants?

10. Ask About Visitation

Ideally, the nursing home should be located conveniently for family and friends and should provide a welcoming atmosphere for visitors. Find out what the restrictions are for visiting. Visitors are beneficial to the resident in that they can alert staff to changes in the resident’s behavior or mood, raise concerns with staff members, and ensure that a resident is receiving appropriate and adequate care. Not only do visitors brighten the resident’s day, but residents who have lots of visitors generally receive better care.

Tax Court Warning: Agreements to Care for Aging Parents Must Be In Writing

The Tax Court has held that an estate could not deduct as a claim against the estate a large amount supposedly owed by the decedent to her son for care taking services he provided to her for several years before her death. The claim was based on an alleged agreement that had not been reduced to writing, even though the son had been a practicing attorney before he became engulfed in care taking. The only evidence the estate offered to prove the alleged agreement was the son's testimony, which the court found to be improbable, self-serving, and uncorroborated. (Estate of Emilia W. Olivo, TC Memo 2011-163)

Emilia W. Olivo died without a will on April 26, 2003. At the time of her death, she was a widow living in New Jersey. She was survived by two sons and two daughters. One son, Mr. Olivo, the administrator of the estate, lived with his mother at the time of her death. He cared for his mother and father for many years before their deaths. His care taking started in the fall of 1994, when his mother fell and suffered a compression fracture of her lower spine that left her nearly paralyzed in both legs.

Mr. Olivo was a lawyer, but his practice began to disintegrate during the mid '90s, in part because of the amount of time he devoted to his parents' health problems. He prepared durable powers of attorney for his parents and they executed them in 1995 (father) and 1996 (mother). His father died in the fall of 1995, and the probating of his will was highly contentious. Family relationships became strained after that and remained so until 2000.

Emilia had numerous health problems during the last years of her life. The compression fractures to her spine left her incapable of caring for herself and basically paralyzed in both legs. Mr. Olivo purchased a Hoyer lift to move her from bed to her wheelchair and back. She also required assistance to use the bathroom, to get dressed, and to bathe. She had a number of other problems including incontinence, which required Mr. Olivo to clean up after her and change her clothes. She was a diabetic, which required Mr. Olivo to test the insulin levels in her blood several times each day and, if needed, inject her with insulin.

Mr. Olivo was also responsible for preparing all meals and doing general housekeeping. He employed home health aids to assist him, but the aids were not registered nurses and therefore could not administer Emilia's medications or do the blood sticks and insulin injections she required. Mr. Olivo kept extensive records of his mother's medications, hospital visits, and diagnoses. He also kept a composition notebook where he recorded her blood sugar levels, blood pressure, pulse, and body temperature.

Caring for his mother took a toll on Mr. Olivo. At some point during 1998, his brother, an M.D., became concerned about Mr. Olivo's health. After being criticized by a sister, Mr. Olivo offered to stop providing care and to hire round-the-clock nurses instead. His three other siblings, however, asked him to continue the care and he did so until his mother's death.  Mr. Olivo prepared an estate tax return before he was formally appointed as administrator (there was a delay because one sister initially refused to renounce her right to be appointed as administratrix). This return claimed a deduction of $1,240,000 as a debt the estate owed to him for the care he provided to his mother pursuant to an alleged agreement he had with her to compensate him for his services in caring for her (alleged agreement).

Regarding the alleged agreement, during the Tax Court trial, Mr. Olivo testified that at some point during 1998, he learned that one of his sisters had commented that all he did was sit around and watch television while getting free room and board. He was upset by the remark, and he told his mother, who offered to pay him $1,000 per week for the care-giving. Mr. Olivo said that he suggested that $200 per day would be agreeable to him. However, he further testified that he became worried about his mother's finances, and he suggested that she defer the payment until her death. He said that, to avoid a complicated interest calculation, she agreed to pay him $400 per day with payment deferred until after her death.

However, Mr. Olivo never reduced the alleged agreement to writing. He acknowledged during his testimony that he “could have and should have” memorialized their agreement, but he was too distracted by the day-to-day details of caring for decedent. He explained that he was not thinking like a lawyer during that time.

The Tax Court observed that the only evidence the estate offered to prove the alleged agreement was the testimony of Mr. Olivo. It stressed that Mr. Olivo never reduced the alleged agreement to writing, nor were there any other witnesses to the alleged agreement or any other corroborating evidence. The Tax Court said it did not have to accept testimony that is improbable, self-serving, and uncorroborated by other evidence.  The Tax Court also noted that, under New Jersey law, the oral promise of a decedent must be proved by clear and convincing evidence. However, it did not decide whether to apply that standard because it found that Mr. Olivo's testimony failed to satisfy even the less exacting preponderance standard normally applied by the Tax Court.

The court said that Mr. Olivo's testimony recounting the facts surrounding the alleged agreement was highly questionable. Although the court understood that he had a lot on his mind during the years when he was caring for his parents, his claim that he was unable to think like a lawyer during that period was belied by the fact that he prepared powers of attorney for both of his parents and had his parents execute them. Given his training and experience as an attorney, how contentious the probating of his father's estate had been, the apparent animosity between him and one sister, and his vested interest in ensuring that he would receive compensation from his mother pursuant to the alleged agreement, the court did not believe that he would not have reduced the alleged agreement to writing or at least have some corroborating evidence beyond his self-serving testimony.

In light of the foregoing, the court declined to accept Mr. Olivo's uncorroborated testimony regarding the alleged agreement. Accordingly, it concluded that the estate failed to establish that his mother entered into the alleged agreement with Mr. Olivo. Consequently, the court held that Mr. Olivo's claim for compensation pursuant to the alleged agreement may not be deducted by the estate.

In the alternative, the estate contended that Mr. Olivo was entitled to some recovery under quantum meruit. Even in the absence of a contract, when one party has conferred a benefit on another and the circumstances are such that it would be inequitable to deny recovery to the party conferring the benefit, New Jersey courts allow recovery in quasi-contract. Quantum meruit is a type of quasi-contractual recovery that allows a plaintiff to recover the reasonable value of services rendered when the plaintiff conferring the services had a reasonable expectation of payment.

The court stressed that Mr. Olivo's care for his mother during the last years of her life was extraordinary, and the efforts he expended on her behalf were commendable. However, it concluded that the estate did not show that Mr. Olivo was entitled to recover for that care under quasi-contract because there is a presumption under New Jersey law that services rendered to a family member living in the same household are rendered gratuitously.