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Jewish World Review August 25, 2008 / 24 Menachem-Av 5768 Nursing home violates laws By Jan L. Warner & Jan Collins http://www.JewishWorldReview.com | Q: My mother's last illness — she died two years ago — left my father almost destitute. Aside from Social Security and a small pension (totaling less than $800 per month), he has his house and little more. Early this year, at age 83, he fell and broke his hip. After being hospitalized for surgery, he was discharged to a nursing home for rehabilitation, which did not go well at all. He is still unable to walk, get out of bed, go to the bathroom, etc., and his doctor says that he has reached maximum improvement. His nursing-home care was paid for by Medicare and, since he had a Medigap policy, we were told that there would be no charges for him during the first 100 days in the nursing home. Now, 44 days into his stay, the nursing home staff told my brother and me that they could not do anything more for my father and would have to discharge him unless we could pay $6,500 plus per month to keep him there as a private pay patient. When we told them that he had been approved for Medicaid, the nursing home told us that they did not have a Medicaid bed and that we could either pay privately or would have to take him home. His doctor says that Dad needs to be watched around the clock — an expense that Dad — and we — can not afford. What can we do to make sure our father gets the care he needs? A: Under the facts as you state them, the nursing home can't discharge your father, and you need to hire an experienced elder-law attorney immediately (www.naela.org). The actions threatened by the facility violate both federal and state regulations which provide, in pertinent part, that the facility cannot transfer or discharge your father unless (a) the facility cannot meet your father's needs — which is clearly not the case; (b) your father's health has improved to the extent that he no longer needs long-term care — which is clearly not the case; or (c) your father has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare or Medicaid) his stay at the facility — which is clearly not the case. And what is really bad is that the facility knows that your father's conversion to Medicaid does not allow them to discharge him. In addition, before transferring or discharging a resident, the facility must (a) give 30 days' notice to your father and a family member of the proposed transfer or discharge; (b) state in writing the reason(s) for the discharge, the date of the discharge, and the location of the place to which the resident is to be transferred or discharged; and (c) provide your father with information about his right to appeal to the state agency that administers the Medicaid program in your state. In addition, by telling you and your brother that your father can stay if you guarantee you will pay the private pay rate, the facility has again breached federal and state guidelines because the facility is prohibited from requiring a third-party guarantee of payment as a condition of admission, expedited admission or continued stay in that facility. If your father has qualified for Medicaid, the facility cannot charge, solicit, accept or receive, in addition to any amount otherwise required to be paid under the state plan, any gift, money, donation or other consideration as a precondition of admission, expedited admission, or continued stay in the facility. It is indeed unfortunate that nursing facilities accept patients, take Medicare or private pay, and then try to discharge the patients when they run out of money. We suggest that you strongly contest these actions. Every weekday JewishWorldReview.com publishes what many in in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here. JAN L. WARNER received his A.B. and J.D. degrees from the University of South Carolina and earned a Master of Legal Letters (L.L.M.) in Taxation from the Emory University School of Law in Atlanta, Georgia. He is a frequent lecturer at legal education and public information programs throughout the United States. His articles have been published in national and state legal publications. Jan Collins began co-authoring Flying SoloŽ in 1989. She has more than 27 years of experience as a journalist, writer, and editor. To comment or ask a question, please click here. Archives © 2008, Jan Warner

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