Legal Q&A: Nursing Home Rehabilitative Care
Question: “My father-in-law is currently in a nursing home. He’s been in and out of various facilities resulting from two failed back surgeries, followed by several years of over-prescribed pain medicines. In the last 12 months he’s been in a rapid decline of health; that’s why we put him into care facilities. The current facility is moving him out this week because he isn’t making any improvements and his medical insurance will be cut off. As we try to find him new care, we’re discovering that his current medicinal intake is too complicated for other facilities. Can you recommend a course of action for us? His wife comes to visit him every day. We’d like to keep him nearby if possible. Many thanks in advance for your help on this.”
Answer: Most nursing homes participate in either or both the Medicare and Medicaid programs, and from your description it sounds as if your father-in-law was in the Nursing Home under Medicare or a Medicare replacement coverage. First, if that is the case you must understand that Medicare will not pay indefinitely for long term care. Generally, Medicare will only pay for up to a maximum of 100 days of rehabilitative services in a nursing facility after the patient has spent 3 midnights in a hospital. Once the 100 days are up, or previously when it was determined that the patient was making no improvement, then the care is no longer consider rehabilitative but is then considered long term care and Medicare stopped paying even if the time was well short of the 100 days. Medicare does not pay for long term care. Unless your father-in-law has long term care insurance, it is unlikely that any private insurance would pay for long term care. That means no matter what you do in the short run, you must plan for your father-in-laws long term care and how you are going to pay for it.
In the short term, if Medicare was paying for your father-in-law’s rehabilitation in the nursing home, you might be able to get additional time in the facility based upon a recent change in Medicare policy agreed to by the Federal Government as part of a settlement of a class action lawsuit. The prior standard allowed Medicare to stop paying once the patient had ceased to make any improvement. The change provides that if the patient, your father-in-law, stops making improvement however is still in need of a skilled level of care, Medicare will continue to pay up to the maximum of 100 days.
After the 100 days or whenever your father-in-law is discharged, a facility will have to be found that can accommodate him. Fortunately for you, you can generally make the current nursing facility find and arrange for your father-in-laws admission to an appropriate facility. In response to reports of widespread neglect and abuse in nursing homes, Congress enacted legislation in 1987 requiring nursing homes participating in Medicare and Medicaid to comply with certain quality of care rules. This law, known as the Nursing Home Reform Act, says that nursing homes “must provide services and activities to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident in accordance with a written plan of care.
You may only be transferred or discharged to a safe and secure place that can meet your needs. It doesn’t matter what the reason is for the transfer or discharge. It doesn’t matter how long you were in the nursing home. It doesn’t matter if it is an emergency. Your transfer or discharge must be safe and secure.
Pursuant to federal law, prior to involuntarily discharging a resident, a facility is required to have a “post-discharge plan of care that is developed with the participation of the resident and his or her family, which will assist the resident to adjust to his or her new living environment.” Generally, a transfer of a resident is permitted only “when adequate alternative placement is available. In order to determine whether “adequate alternative placement” is available, a facility must prepare a discharge plan before involuntarily discharging a resident. The discharge plan must take the resident’s medical needs into account. Further, any discharge plan must include involvement of the recipient, family or authorized representative in the placement process with recognition of their choices. In addition, the Nursing Home Reform Act requires that a nursing facility “must provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility.
Once an appropriate facility is found, a determination has to be made as how your father-in-law will pay for his care. If he does not have long term care insurance, and otherwise has insufficient assets, he can apply for Medicaid, which is a joint federal and state program which pays for long term care for people who cannot afford it themselves. I would strongly recommend that you get assistance in determining if your father-in-law qualifies for Medicaid as well as assistance in the actual application process. I would recommend you locate an Elder Law Attorney in your area, and then arrange a consultation with the Elder Law Attorney.
If you have additional questions, you may want to talk with an attorney at Michael Hodes, LLC (410) 769-8002 about this matter.
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Above content provided by Michael Hodes, LLC. For advice about legal issues, consult a licensed Attorney.