Some nursing homes and hospitals have moved patients into formal guardianships to ensure that they pay their bills, according to the New York Times.
Of the guardianship cases in New York state, 16.1 percent of cases involve hospitals, and 12.4 percent involve nursing homes, according to the limited records accessed by the newspaper (many guardianship cases are sealed). The bulk of the other cases are bought by family members and protective service agencies.
State laws typically provide for guardianships to ensure that the affairs and interests of adults who cannot look after themselves are handled appropriately. However, they also can be used by healthcare providers to access a patient's money.
"It's a strategic move to intimidate. Nursing homes do it just to bring money," Ginalisa Monterroso, who heads the Medicaid Advisory Group and previously handled patient Medicaid accounts at the Mary Manning Walsh Nursing Home on Manhattan's Upper East Side, told the Times.
Lawyers and other officials with high-level knowledge of the guardianship process told the Times that using it as a bill collection device violated the legislative intent of the statute when it became law in 1993. One judge regularly rules against such moves when taken by healthcare providers, but families still have to go to court and often spend tens of thousands of dollars on legal fees.
But advocates for providers say it's a way to end a stalemate when family members balk after nursing homes raise prices or co-payments for the care they provide.
"When you have families that do not cooperate and an incapacitated person, guardianship is a legitimate means to get the nursing home paid," attorney Brett D. Nussbaum, who represents Mary Manning Walsh in many cases, told the Times. Nussbaum estimated he has brought 5,000 such cases over the past 21 years.
Yet guardianship in New York can also work more effectively for families than in other states. Juliette Fairley moved her ailing father to New York City after she could not not obtain a guardianship in Texas in order to improve the subpar care he received, according to a piece published by Main Street.
And checking for guardianship status for pediatric patients can lead to improved care handoffs at children's hospitals, FierceHealthcare previously reported.