I have the good fortune of spending the better part of this week in Fort Worth, Texas at a conference of the National Academy of Elder Law Attorneys. It’s at these events where I learn new ideas, solidify my thinking on issues I already know, and make new friends. I also get great ideas for things to write about. Today, Attorney Eric Carlson from the National Senior Citizens’ Law Center was talking to us about nursing home residents’ rights. My mind wandered to all of the clients I have worked with over the years who have had concerns and issues regarding something a nursing home was – or was not – doing. The issues related to nursing home rights are many, and at some point a family might feel like they are desperately trying to hang onto a bucking bronco that they have never ridden before and didn’t want to be on in the first place. This article focuses in on one of those challenging situations – when the nursing home says that a patient’s Medicare will be ending.
The setting: Mom is already in a nursing home. She was admitted two weeks ago for rehabilitation, after a hospitalization due to a stroke. Currently, Medicare is covering the costs of her care. Awhile ago, before the stroke, I met with the family to talk generally about Medicaid, because Mom also is approaching the mid stages of dementia and was considering a move out of her home.
I get a call or email from one of the family members who was in the earlier meeting. “The nursing home just told us Mom’s Medicare is ending in three days and we need to make plans for her discharge. Where is she going to go?!?”
My first thought is “WHOA NELLY!” (Maybe it’s the Texas air influencing my choice of words here.) Because this family has just been thrown into the ring of uncertainty and panic thanks to what someone at the nursing home told them, and we need to get a handle on what is really going on.
Luckily most times, “Whoa Nelly” is not what comes out of my mouth. Usually there are questions. The questions are important because each one relates to rights the person has and that we need to discuss. Many of these rights are found in federal regulations. I’ll provide some links at the end.
1. “Did they give you something in writing?”
When a nursing home determines that a patient no longer qualifies for Medicare to pay for that patient’s care, the nursing home must provide written notice in advance. The written notice must include, among other things, a statement that Medicare will be ending, the date it will end, the reason it is ending, and an an explanation of the person’s right to appeal. So, if no written notice has been given, the process has not formally been started. The patient has the right to receive that notice. A decent nursing home will give it directly to the competent patient or to the responsible agent of an impaired patient, and will provide the family with a compassionate person to explain what it means. But sometimes it is just found in a patient’s drawer.
If no written notice has been given, it doesn’t mean the nursing home is not trying to move the patient out. It just means they have not started the proper legal process.
2. “What is the reason they are giving as to why Medicare will end?”
When a nursing home determines that a patient no longer qualifies from a medical perspective to have Medicare pay for the patient’s care, the facility must explain the reason. (This rule does not apply for non-medical reasons such as the fact that the patient’s allotted Medicare days for payment have run out.)
The circumstances under which Medicare will pay for nursing home care are extremely limited, which is why Medicare is not a payment source for long term care in a nursing home. One of the coverage rules is that the care being provided must be daily skilled nursing care or skilled rehabilitation that is medically necessary. If a person has improved (or declined) to the point that they no longer need skilled care, it is possible that Medicare coverage will end. At that point, the family will need to pay privately, qualify for Medicaid, access Long Term Care insurance, or access other forms of payment that may be available.
On the other hand, if a person still needs daily skilled care, Medicare payment should continue (provided there are coverage days still available.) Unfortunately, there is an issue that comes up time and time again in these cases.
Family member: ” The nursing home says Mom has plateaued. She is no longer making progress in her therapy.” This ought to be a great big red flag, like waving a flag in front of a rodeo bull!
The fact that someone is no longer making progress is not in and of itself a reason for Medicare to end, if that person still needs daily skilled care or rehab to keep from regressing (backsliding) on the progress that has been made, or if daily skilled care is required for other reasons. Yet, it is a major reason nursing homes use to end Medicare and move people out.
Nursing homes trying to end Medicare coverage inappropriately because a person had “plateaued” was such a common violation that a class action called the “Jimmo” case resulted in a strong set of communications and directives to nursing homes from the government. But it still happens more than it should. A link to a toolkit for families in this situation is included at the end of this article.
3. “Do you disagree with the nursing home?”
I always ask this question because sometimes people agree that their loved one no longer needs skilled care, but other times they feel the patient could benefit from continuing the care. When a patient disagrees with the decision, specific appeal rights exist in Medicare termination cases. The notice must include the details about how to exercise those rights and families must act fast to exercise them.
What the notice does not tell you is this: if you decide to pursue an appeal you must insist that the daily care be continued! Most nursing homes will encourage the family to stop rehabilitation or go down to two times a week. But if you believe Medicare should keep paying, you cannot reduce the amount of care because Medicare only pays if daily care is given! ( Or at least 5 days a week in rehabilitation cases.) So it is a bit of a risk, since if the appeal is unsuccessful, the patient will have a higher bill to pay for the daily care. But if the appeal is successful, and it turns out the patient reduced the amount of care while the appeal was pending, the patient will probably end up paying even though he or she won the appeal.
4. “Do you need more time -or- do you want to stay in the facility?”
If the answer is “Yes” even in those cases where the family does not dispute the decision to end Medicare, I explain that the fact that Medicare is ending does not mean the person has to leave! The reasons that a nursing home can force a resident to leave are extremely limited and do not include simply the fact that Medicare is ending.
If a nursing home wants a patient out it must give a specific written notice of planned discharge that is different from the Medicare notice. The process of evicting a patient requires the nursing home to allow the tenant 30 days to move, except in very limited cases where less time can be given. The nursing home must also provide services to the patient to assist in planning for the discharge, and may not discharge that patient if there is not a safe place for the patient to go.
So, patients have options when Medicare ends. They can:
- Dispute the written notice of Medicare termination;
- Decide to move out if a safe place is available;
- Stay in the facility and continue to pay privately;
- Stay in the facility and access other payment sources, or seek Medicaid coverage if the facility participates.
- If they simply need more time but do plan to move, they can wait for written discharge notice and discuss discharge planning options.
During this time the patient may be liable for the cost of care if Medicare was properly terminated and no other coverage is available. But no family or client should feel pressure to move when they are not ready, or just because a nursing home staff told them verbally that Mom needed to move.
Each case is different, so in cases like this, patient’s need to be educated, get good advice and strong legal representation if it becomes necessary.
A good explanation of nursing home residents rights is here.
A toolkit that explains the Jimmo case and helps people advocate in those cases is here.