One question is whether Medicare will pay for a resident's stay, determined by Medicare coverage rules and governed by various notices and appeal rights. Whether the resident can continue to live in an SNF is an entirely different matter, determined by the Nursing Home Reform Act (198), which has its own notification and appeal rights. This alert establishes notification and appeal rights both in relation to Medicare coverage and to transfers and discharges to nursing homes. People can be discharged from nursing homes for many reasons.
Discharges can be a positive outcome and can be an individual choice. In other cases, discharges may be made by order of the center and against the will of the resident. There are strict rules about when involuntary discharges initiated from a facility (FID) are allowed. FIDs can be dangerous and traumatic for the residents involved and can result in higher costs of care, raising concerns among the public and Medicare and Medicaid programs.
Before the COVID-19 pandemic, media news and Ombudsman programs reported that IDFs were becoming the leading cause of complaints for nursing home residents. This study identifies the characteristics of residents related to the increased risk of being discharged alive and how these relationships vary by era, state and type of facility. It also presents findings on the relationship between the lifetime discharge of living residents and risk factors and post-discharge outcomes. We mainly studied residents of nursing facilities, since there were no identifiable risk factors among residents of skilled nursing facilities.
The purpose of this FAQ page is to provide answers to the most frequently asked questions. Currently, this section provides useful information on admission, transfer and discharge rights in nursing homes, as well as information on the right to post-hospital readmission or therapeutic leave. There are plans to expand this section to include questions and answers related to other long-term care settings as well. If you can't find an answer to your question, contact your long-term care advocate. IADLs are certain tasks that may not be necessary every day, but are essential for living independently.
IADLs include preparing meals, household chores, laundry, managing money, transportation, shopping, using the telephone, and performing basic household maintenance. Be sure to read the agreement carefully before signing it. Ask questions if you don't understand something. If you are not in an emergency situation, ask a lawyer or other person to read the contract before signing it.
There are parts of an admission agreement that you may politely refuse to sign or cross out (with the initial one), such as a payment guarantee provision from a responsible party or a third party, an arbitration agreement, or a negotiated provision on risk or compensation (see below).Both federal and state laws prohibit a nursing home from requiring a third-party payment guarantee as a condition for admission, expedited admission, or continued stay at the facility. If a third party has legal access to the resident's income and assets (for example, acting as the resident's agent through a power of attorney from the resident or if a court appoints him as his guardian or trustee), the nursing home may require the third party to sign a contract committing to paying the nursing home with the resident's income or resources. In that situation, the third party would not be personally responsible for the bill (with their own money), unless they misused the resident's money and used it to pay the third party's bills instead of the resident's nursing home bill. Read carefully any warranty provision from a responsible party or third party.
If the provision seems to make you (as the responsible party) personally responsible for paying the resident's bill out of pocket, in addition to your obligation to pay for the center with the resident's income or resources, you should consider refusing to sign that provision or cross it out and write your initials next to the crossed out section. You must explain, in a polite but firm manner, that you understand that such provision is illegal and unenforceable. Nursing home staff may be embarrassed or surprised by your refusal, and may simply continue with the rest of the admission package without objecting to your refusal to sign this provision. If you have already signed an admission agreement as a responsible party and the center is now asking you to pay or if the nursing home is demanding you for payment, you should consult an attorney who is familiar with nursing home legislation. An arbitration agreement is an agreement to the effect that any future dispute between you and the nursing home, other than those specifically exempted, will be handled by a private judge called an arbitrator, rather than going to court.
Often, the arbitration agreements included in nursing home admission contracts require that all of the resident's claims be submitted to arbitration, but they allow the center's claims to be processed in court. Most advocates believe that the arbitration process is generally not good for residents. Arbitration tends to be more expensive than a court case because the parties pay the arbitrator an hourly rate. Most advocates also believe that courts are generally more sympathetic to the types of cases a resident or a resident's family can bring against a nursing home than an arbitrator.
It is best to make a decision about arbitration after a dispute has arisen and after speaking with an attorney, rather than agreeing to arbitration at the time of admission before any dispute arises. Not if you can avoid it. If possible, avoid signing the arbitration agreement at the time of admission. Often, the center will not object if you or your representative simply refuse to sign the arbitration agreement. You can say that you prefer to make the arbitration decision after a dispute has arisen, but that you don't want to commit to arbitration now.
Regardless of whether or not you signed the arbitration agreement, if the center attempts to send your claim against the center to arbitration, you should contact an attorney immediately. The agreement may or may not be binding, depending on the circumstances surrounding the signing, the language or terms of the arbitration agreement, who signed it, etc. Before agreeing to have your claim sent to arbitration, consult with an attorney to see if there is any way to challenge the arbitration agreement. Basically, a negotiated compensation or risk provision says that the center does not provide personalized care 24 hours a day and that the center will not be responsible for any injuries a resident suffers as a result of the resident's decision not to receive complementary private nursing care. Do not sign such a provision if you can avoid it.
Nursing homes are required, by law, to have sufficient nursing staff to provide nursing and related services “to achieve or maintain the highest possible physical, mental and psychosocial well-being of each resident.” The resident should not have to pay more for private nursing staff, in addition to the monthly nursing home bill, to receive adequate care. No facility should be able to evade responsibility for the negligence of its staff by, in fact, blaming the resident for not hiring private service nurses. If such a provision appears in the admission contract, consider crossing out that provision and initializing the crossed out provision to demonstrate your refusal to be bound by that section. Because the center receives a higher monthly payment rate for a paying private resident than for a resident who qualifies for Medicaid, a facility may prefer to admit a paid private resident rather than a Medicaid applicant.
The center may want to be sure that the applicant will be a paying private resident for a specific period of time. As for any resident who qualifies for Medicaid, a nursing home cannot collect, request, accept, or receive any gift, donation, or other consideration other than that allowed by the state's Medicaid plan, as a precondition for admission, expedited admission, or continued stay in the home of elderly people. In addition, a facility cannot require a resident or prospective resident to relinquish their right to Medicaid or Medicare, nor can it require any promise that a resident or potential resident is not eligible or will not apply for Medicaid or Medicare. Under federal law, a center cannot require an applicant to promise to pay the private wage rate for a period of time, since such a promise would prevent the resident from applying for Medicaid as soon as they meet the requirements.
Can a nursing home force the family to remove the resident from the center without warning? The notification must include specific information, such as the reason for the discharge or transfer, the effective date of the transfer or discharge, the place to which the resident will be moved or discharged, a statement of the resident's right to appeal the action, the name, address and telephone number of the State Ombudsman for Long-Term Care, the mailing address and telephone number of the agency responsible for the protection and defense of persons with developmental disabilities if the resident has a disability of development, and mailing address and telephone number of the agency responsible for the protection and defense of the mentally ill if the resident has a mental illness. What can I do if I receive, or my loved one receives, a notification from the nursing home threatening to move or discharge me or my loved one? You should immediately contact the local long-term care advocate who covers the area where the nursing home is located. The ombudsman's job is to help residents resolve problems in the nursing home. Sometimes, the ombudsman may talk to the administrator and convince him that the dismissal or transfer is not appropriate. Be sure to state that you are appealing the discharge and include the relevant information, such as the name of the facility and the name of the resident, along with the discharge notification and your contact information.
Do I have the right to file an appeal if the center wants to move me or my loved one from one unit of the center to another and I don't want to move? You have no right to appeal simply because the center wants to change your roommate or change your room assignment. However, you have the right to file an appeal if you are asked to move from a different part of the facility to another that is separately certified under Medicare or Medicaid. If the transfer is between two separately certified units, you are entitled to all available notification and appeal protections in the event of another involuntary transfer or discharge. Unfortunately, this sometimes happens, but it's illegal under federal and state laws.
Federal and state laws require that the discharge center provide sufficient preparation and guidance to residents to “ensure the transfer or discharge from the center in a safe and orderly manner.” At a minimum, this obligation requires that the resident be sent to a location that can provide them with the care they need. Sending a quadriplegic resident home to live with their disabled daughter, without any home service plan, for example, would not be an adequate discharge plan and would be a reason to challenge the discharge. There are a number of possible arguments. The notice itself may be faulty, may not have all the necessary information, or may include erroneous or misleading information.
The center may not have obtained the clinical record documentation required by federal and state laws. The center may not have properly planned the discharge and may plan to send the resident to a location that cannot properly care for them. Or, the center may not have valid legal reasons for the transfer or discharge. For example, the center may allege that a resident represents a danger to the safety of others, but the resident's behavior consists simply of cursing or other irritating, but not dangerous, behavior.
In that case, the hearing officer may determine that the dismissal is not justified because the resident does not actually pose a danger to the safety of others. All relevant and valid arguments must be presented at the hearing; don't rely on just one, as you don't know what argument or arguments the hearing officer may find persuasive. Virginia Medicaid doesn't pay for the days a nursing home resident is admitted to the hospital during the days a nursing home resident stays in bed. Unless the resident or family decides to pay to maintain the specific bed, the facility has the right to offer the bed to another person.
However, while the hospitalized resident may not be able to return to the same bed if it is already full, they still have the right to be readmitted to the same facility and occupy the next available bed in a semiprivate room, as long as the resident continues to need care in a nursing home and is eligible for the services of a Medicaid nursing facility. The Virginia Department of Health Care Services (DMAS — Medicaid) covers up to 18 days of therapeutic leave in a 12-month period. During these 18 days, Medicaid will pay to keep the resident's bed if the license is part of the resident's care plan and as indicated in the resident's medical record. Therapeutic leave includes visits to family or friends or admission to a rehabilitation center for up to 7 days for evaluation, but does not include admission to an inpatient hospital. Often, arbitration agreements in nursing home admission contracts require that all of the resident's claims be submitted to arbitration, but they allow the center's claims to be heard in court.
Most advocates believe that the arbitration process is generally not good for residents. Nursing homes are required, by law, to have sufficient nursing staff to provide nursing and related services “to achieve or maintain the highest possible physical, mental and psychosocial well-being for each resident.” You should immediately contact your local long-term care advocate, who deals with the area where the nursing home is located. The ombudsman's role is to help residents resolve problems in the nursing home. Unfortunately, this sometimes happens, but it's illegal under federal and state laws. Federal and state law requires that the discharge facility provide sufficient preparation and guidance to residents to “ensure the safe and orderly transfer or discharge of the facility.” There are several possible arguments.
The notice itself may be faulty, may not contain all the necessary information, or may include erroneous or misleading information. The center may not have properly planned the discharge and may plan to send the resident to a place where it cannot properly care for them. If a resident is mentally unable to decide for themselves, the nursing home may refuse to discharge a patient. The 1999 Amendments to the Protection of Nursing Home Residents (NHRPA) make it illegal to unintentionally move or discharge a patient when a nursing home stops accepting residents funded by Medicaid. Even if you pay on your own or pay privately, if your nursing home accepts Medicaid residents, you have the right to appeal the discharge.
A nursing home resident must have a reasonable amount of time to find another source of payment. Under state law, the facility must consult with the resident's treating physician (and with the resident and the family or responsible party) before discharge or transfer. If the nursing home makes it clear that it does not plan to readmit the person, file a complaint with the state's Long-Term Care Ombudsman. There are only six valid reasons why a nursing home resident may be forced to move to another nursing home or other institutional setting (a “transfer”) or may be sent to a non-institutional environment, such as their home or the home of an adult child (a “discharge”). In addition, the nursing home must prepare and guide the resident in a language and in a way that they understand so that they can be discharged in a safe and orderly manner.
Do not move the nursing home resident The nursing home resident and their family should not panic or take the resident out of the facility. A nursing home resident can be legally moved involuntarily if the nursing home cannot meet their needs. According to state programs of the Ombudsman for Long-Term Care (LTCOP), one of the five main complaints they receive is inadequate discharge planning or improper evictions from nursing home facilities. Unfortunately, many nursing home residents, or their families, are aware of the rights of a nursing home resident.
