SENIOR SIGNALS: Understanding rights under Nursing Home Reform Act

One of the issues we face revolves around the discharge of a resident from a nursing home.

Oftentimes, an agent or advocate visits our office concerned because their loved one is being discharged from the nursing home, and they want to assess what their options are. The good news is that the nursing home cannot just kick a resident out of the nursing home.

A common discharge is related to a loss of Medicare coverage for rehab or skilled nursing care. Under Medicare rules, coverage of rehab services will not extend beyond day 100 and will be cut short due to a refusal to participate in therapies or if daily skilled care is no longer necessary. However, what most facilities fail to explain to the residents and their advocates is that they have the option to remain in the facility, and the nursing home may only involuntarily discharge under a set of parameters as set forth under the Nursing Home Reform Act. Specifically, a nursing home must allow a resident to remain in the facility unless one of the following conditions is met:

1. The resident's welfare cannot be met in the facility;

2. The resident no longer needs the services provided by the facility;

3. The safety of individuals in the facility is endangered;

4. The health of individuals in the facility would otherwise be endangered;

5. The resident has failed, after reasonable and appropriate notice, to pay for a stay at the facility;

6. The facility ceases to operate.

And, even under those circumstances, the facility is still responsible for the development of a safe-discharge plan. Specifically, a facility is responsible for developing a post-discharge care plan that assesses the continuing care needs and development of a plan designed to ensure the individual's needs will be met after discharge from the facility into the community.

All too frequently, we receive a statement from a discharge planner that the "safe-discharge plan" includes going to an assisted living facility or returning home with private duty staff to assist with 24/7 care. The problem; however, is that the resident may not be able to afford either of those options, and as a result, would not be safe alternatives to the nursing home. Not only has the nursing facility not informed the resident of his or her right to remain at the facility under private pay (or that Medicaid may be able to assist with paying for care), but has failed to consider whether the "safe-discharge plan" is a viable option.

The question then becomes what is the motivation to discharge a patient. It is simple - the nursing home is a business. Most nursing homes prefer Medicare reimbursement or private pay over Medicaid reimbursement to protect the financial stake of the company. Furthermore, most nursing homes prefer residents who do not have extraneous care needs, or advocates that are determined to present a problem to a nursing home.

So, you are probably wondering what you can do in light of an improper discharge:

1. Appeal the discharge. If you feel that your loved one still requires skilled nursing care or is otherwise being improperly discharged, you may appeal the decision. The facility is required to provide you with a statement pertaining to your right to appeal with the discharge notice.

2. Demand bill. If you disagree with a facility's decision of coverage, you may request that the facility submit the bill to Medicare even when the facility believes that services will not be covered by Medicare. The facility cannot bill the beneficiary for the disputed charges until the Medicare fiscal intermediary issues a formal claim determination. If the determination is unfavorable, you should be prepared to pay for the expense.

3. Find an alternative source for payment. Understand that your loved one's stay in the nursing home will not be covered by Medicare as of day 101 of institutionalization. If your loved one cannot afford the private pay rate, act promptly to develop a plan for long-term payment in facility. It is imperative that you determine whether an application for Medicaid is necessary, and that the necessary planning for Medicaid, and the submission of an application, occur prior to the expiration of the Medicare covered period.

4. Investigate bed certification. Many facilities will inform a resident that they do not have any more Medicaid beds available, despite the fact that most facilities have dually-certified beds. What this means is that if you are currently in a bed, they must allow you to stay in the bed even if you are on Medicaid ? the number of "Medicaid beds" is most often determined by the facility itself for budgetary purposes.

5. Be prepared for a hospital discharge. A facility may have the resident admitted to a hospital on in-patient status and deny readmission. Since Connecticut Medicaid does not pay for a bed hold, you should consider privately paying for a bed hold.

6. Do not sign in an individual capacity. If you are an agent for the resident, you should never sign the nursing home admission documents in your personal capacity, and the nursing home cannot require you to sign as a responsible party. Instead, you should clarify, in writing that you are signing on behalf of the resident.

7. Seek an experienced advocate. If you feel something isn't right, you should seek someone experienced with resident rights.

Attorney Daniel O. Tully is a partner in the law firm of Kilbourne & Tully, P.C., members of the National Academy of Elder Law Attorneys Inc., with offices at 120 Laurel St., Bristol. 860-583-1341.