NEXT STEPS: Laws protect Medicaid patients in nursing homes

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NEXT STEPS: Laws protect Medicaid patients in nursing homes

Jan. 20, 2008

QUESTION: Our father, an Alzheimer's patient, has been in an assisted-

living center for two years and a nursing home for a little more than

a year. His monthly care now costs more than $6,500 per month, a

large increase over the cost of the assisted living.

We used his money to pay for his care privately in the Alzheimer's

ward. As his money began to dwindle, we were up front with the

facility about our intention to apply for Medicaid once his money ran

out. When we paid the last month we could, we were told that because

there was no Medicaid bed and our father was a " high maintenance "

resident, the facility could not keep him any longer and we would

have to make plans to take him home or they would discharge him. My

sister and I live out of state, and they really have us over a barrel

because neither of us has made any other plans to care for him. Can

the nursing home do this? What are our options?

Answer: No, the nursing home cannot do this. Once admitted to a

Medicaid-certified facility, each resident has the legal right to

remain in the facility — without regard to source of pay — and to not

be transferred or discharged unless (1) the transfer or discharge is

necessary for the resident's welfare and the facility cannot meet the

resident's needs; (2) the transfer or discharge is appropriate

because the resident's health has improved to the extent that he or

she no longer needs the services provided by the facility; (3) the

resident endangers the safety of individuals in the facility; (4) the

resident endangers the health of individuals in the facility; (5)

after reasonable and appropriate notice, the resident has failed to

pay for — or to have paid under Medicare or Medicaid for — his or her

stay at the facility. (It is important to remember that for residents

who become Medicaid-eligible after admission to a facility, the

facility may charge only allowable charges under Medicaid); or (6)

The facility ceases to operate.

In addition, the " notice of discharge " that the facility gave you

appears to be inadequate. First of all, under the law, before a

facility can transfer or discharge a resident, it must not only

notify the resident — and, if known, a family member or legal

representative — of the transfer or discharge and the reasons for the

move in an understandable written format at least 30 days before

transfer or discharge, but also record the reasons for the discharge

or transfer in the resident's clinical record. We doubt that your

father's record contains any such notations and suggest you secure a

copy of his record immediately.

By law, the notice to transfer or discharge must contain, among other

things: (1) The reason for transfer or discharge; (2) The effective

date of transfer or discharge; (3) Where your father is to be

transferred or discharged; and (4) A statement that your father has

the right to appeal the action to the state, including the name,

address and telephone number of the state long-term-care ombudsman.

There are other requirements for the protection of residents who

either have developmental disabilities or are mentally ill. We

suggest that you contact an elder law attorney in your state to get a

referral to an experienced lawyer in the state where your father

resides as quickly as possible.

We suggest that neither you nor your sister take him home because if

you do, you will probably not be able to get him into another

facility and will lose the legal positions you have. Require the

facility to take all steps required by the law to protect your father.

http://www.thestate.com/life-and-arts/story/289821.html