Read It Three Times, Then Read It Again: How Nursing Homes Use "Responsible Party" Clauses in Admission Agreements to Charge Relatives for Their Loved Ones' Care.

Abstract

This Note explores an alarming, decades-old trend that has received renewed attention from enforcement agencies and the media: nursing homes suing family members and friends ("relatives") for residents' unpaid bills. As justification, nursing homes point to "responsible party" clauses within admission agreements signed by relatives during the admission process. Undeterred by the 1987 Federal Nursing Home Reform Act's (FNHRA) prohibition on requiring relatives to act as financial guarantors in exchange for residents' admission, nursing homes use carefully worded "responsible party" clauses to obtain virtually the same result: relatives' total liability for residents' unpaid balances. Relatives are frequently caught off-guard by these lawsuits; many who sign admission agreements do so without a proper understanding of the potential liability they are assuming and have limited (if any) access to residents' assets. This problem is aggravated by several aspects of the admission process that disadvantage relatives, such as the stressful and emotional nature of admission, the complicated language in admission agreements, and the inadequate-at times, misleading-guidance provided by nursing homes. This Note examines the tension between the FNHRA's financial protections for relatives and nursing homes' admission practices and use of "responsible party" clauses. Furthermore, this Note proposes solutions aimed at better informing relatives of the legal risks associated with "responsible party" clauses.