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Nursing home can't disregard patient's rights

By JAN WARNER AND JAN COLLINS, Special to the Times
Published February 27, 2007


Q: Our mother, who suffers moderately from Alzheimer's disease, has lived in a nursing home for nearly three years. She is in a locked ward because she wanders.

We have used the assets our late father left her to pay for her care, more than $6,000 monthly. As her money began to dwindle, we told the administrator of our intention to apply for Medicaid once the money ran out.

When we paid last month, we were told that because there was no "Medicaid bed" available and because our mother was, as they put it, a "high maintenance" resident, they could not keep her any longer. We would have to make plans to take her home or they would discharge her.

Can the nursing home do this? What are our options?

A: No, the nursing home can't do this if it is a Medicaid-certified facility. Once admitted to such a facility, each resident has the legal right to remain there - without regard to source of payment.

The patient cannot be transferred or discharged unless one of these conditions exists:

- The transfer or discharge is necessary because the facility cannot provide something essential to the resident's welfare.

- The resident's health has improved to the extent that he or she no longer needs the services provided by the facility.

- The resident endangers the health or safety of individuals in the facility.

- After reasonable notice, the resident has failed to pay for - or to have Medicare or Medicaid pay for - his or her stay at the facility. (Remember that for residents who become Medicaid-eligible after admission to a facility, the facility may charge only allowable charges under Medicaid.)

- The facility ceases to operate.

In addition, the "notice of discharge" that was given to you is inadequate.

Before a facility can transfer or discharge a resident, it must notify the resident - and, if known, a family member or legal representative - of the transfer or discharge and the reasons for the move in an understandable format at least 30 days before transfer or discharge.

The facility must also record the reasons for the discharge or transfer in the resident's clinical record. You can ask to see if your mother's record contains such notations.

By law, the notice to transfer or discharge must contain, among other things:

- The reason for transfer or discharge.

- The effective date of transfer or discharge.

- Where your mother is to be transferred or discharged.

- A statement that your mother has the right to appeal the action to the state government. This statement must include the name, address and telephone number of the state's long-term care ombudsman.

Note that the facility must prepare an appropriate discharge plan, including where your mother will be cared for. A discharge to your home is not, in our view, an appropriate discharge plan.

There are other requirements for the protection of residents who either have developmental disabilities or are mentally ill. We suggest that, as quickly as possible, you contact an elder-law attorney to secure a referral to an experienced lawyer where your mother resides.

In the interim, under no circumstances should you accept responsibility for your mother and remove her from the facility.

Jan Warner is a member of the National Academy of Elder Law Attorneys; Jan Collins is editor of the Business and Economic Review published by the University of South Carolina. Write to them on www.nextsteps.net.