I recently met with a family regarding their ailing father and a potential involuntary nursing home discharge. Their father fell in his home and was subsequently hospitalized. He then transitioned from the hospital to a local nursing home for rehabilitation covered by Medicare. The amount Medicare pays a nursing home for a resident undergoing short-term rehabilitation is significantly higher than what the nursing home would receive via Medicaid. However, Medicare will only pay for a maximum of 100 days if the resident needs skilled care. The 100 days is by no means guaranteed. With this client, the nursing home discharge of the father from Medicare coverage occurred after only 52 days. It was around this time that the family sought the assistance of our elder care law office, which was recommended by another family we assisted in a similar circumstance.
With Medicare no longer covering the nursing home costs, the father became a private-pay long-term care resident. In conjunction with our elder care coordination team, the family recognized their father could not safely return home, and he had insufficient funds to be able to pay privately to move to an assisted living facility. The family decided their father should remain at the nursing home; our elder care coordinator communicated to its business office and informed the business office that we would be seeking Medicaid eligibility on our client’s behalf to cover his costs.
At this point, the nursing home business office informed the family that the nursing home “had no long-term care beds available.” As a result, the father would be subject to a nursing home discharge, and the family would need to find another nursing home for his care.
The issue is the statement, “We have no long-term-care beds.” Every bed in the nursing home is a “long-term care bed.” There is no such legal term as a “long-term care bed.” Every nursing home that receives federal funds through either Medicare or Medicaid (which is nearly every nursing home) is subject to the Nursing Home Reform Act of 1987. The Act delineates the only reasons why an involuntary nursing home discharge can occur.
They are:
- The facility cannot provide an adequate level of care;
- There is no source of payment, and the resident has not applied for Medicaid;
- The resident no longer requires nursing home care;
- The resident jeopardizes the health or safety of other residents;
- The nursing home closes.
Conspicuously absent from the above list is a resident transitioning from Medicare coverage to Medicaid coverage. A nursing home resident has the right to transition to Medicaid coverage at any time, and the facility has an obligation to keep them as a resident. Accordingly, because the father wanted to remain in the nursing home, and none of the above criteria was met, the facility was legally required to keep him.
The Medicaid reimbursement rates paid by the Medicaid program to nursing homes are much lower than the private pay long-term care rates. This is a political issue that must be addressed, and many elder advocacy groups are doing so. I also acknowledge the potential financial strain on nursing homes caused by these low reimbursements. Regardless, the mere fact that Medicaid pays less than the private pay rate is simply not a permissible reason for an involuntary nursing home discharge.
As a result of our office’s advocacy, we were able to advocate for the father’s legal rights and achieve the outcome his family sought—the best care for their father.
If you or a loved one is told, “We have no long-term care beds,” you should seek counsel of your own to protect your rights or those of your loved one.
Long-term care is opaque, complex, and confusing. The elder care advocates at Rothkoff Law Group are uniquely experienced in navigating the maze, advocating for the best care possible.
