Jan L. Warner & Jan Collins

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Read admission-package 'agreements'; booting a patient once Medicaid kicks in

http://www.NewsAndOpinion.com | Q: I was checking my father into a nursing home when I saw, as part of the admission packet, an agreement to arbitrate any disputes we might have over our father's care -- before the fact. In other words, they wanted me to give up my father's right to a jury trial if he is mistreated. Is this legal?

A: There are many papers thrown at those who place parents and loved ones in nursing facilities, when everyone is in a hurry and upset. But we have heard the same story from quite a few readers of late, and have seen some of the "agreements" that are part of the admissions package.

We see no reason to give up rights your loved one may have without knowing the kind of care that will be provided. While some of the arbitration agreements clearly state that signing on the line is not a condition of admission, we have seen individuals who sign everything put before them without asking questions. This is a mistake. A Florida court recently determined that an arbitration clause contained in an admissions agreement was valid and enforceable, even though the person who signed it didn't read it. A word to the wise: If you don't understand it, don't sign it until you do.

Q: Our mother, diagnosed with Alzheimer's disease four years ago, has been cared for by my sister and her husband until it was impossible to continue (because of safety concerns). For more than two years, Mom has been in the dementia ward of a nursing home, which has been funded by her income and assets at the rate of nearly $5,000 monthly, including medication and adult diapers.

Since her assets were used up (we sold her home, and her Social Security income is only $600 per month), we told the administrator that we would have to apply for Medicaid within the next five months. A week later, the administrator wrote us that not only that there was no Medicaid bed available, but because Mom was a "problem resident," we would have to take her home or they would discharge her. My sister and I feel we have been put over a barrel because neither of us has made any other plans to care for her. Is it right for a nursing home to do this?

A: No. According to federal and state law, once admitted to a Medicaid-certified facility, your mother has the legal right to remain in that facility -- without regard to how her care is being paid for - and not be transferred or discharged from the facility unless:

-- The facility can't meet her needs and the transfer or discharge is necessary for her welfare.

-- Your mother's health has improved to the point that the services provided by the facility aren't required.

-- Your mother is jeopardizing the health or safety of other residents.

-- You or your mother fails to pay for her stay at the facility after reasonable notice.

-- The facility goes out of business.

From what you describe, these criterions aren't factors in your mother's case, and discharge, therefore, is inappropriate. Remember that when your mother becomes Medicaid-eligible after admission, the facility may charge only allowable charges under Medicaid.

In addition, the "notice of discharge" given to you is inadequate. By law, before a facility can transfer or discharge your mother, it must deliver its reasons in writing at least 30 days before the date of transfer or discharge. The notification you receive must contain the reasons for the discharge or transfer in clear language, and the reasons must also be clearly stated in your mother's clinical record. Before discharge, the facility must have in place a discharge plan -- that is, where your mother will go after discharge and how she will be cared for. It is insufficient for the facility to tell you to pick up your mother. Lastly, the notice must contain not only notification that your mother has the right to appeal, but also the name, address and telephone number of the state long-term-care ombudsman.

Since our response is an oversimplification of the rules, we suggest that you contact an elder law attorney where your mother lives in order to protect her interests.

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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.