Part 2 of my Blog Series: My Own Mother’s Journey in the Long-Term Care System
By Howard S. Krooks, Esq., CELA, CAP, Partner, Elder Law Associates PA and Mrs. Gladys Krooks
After reading a story in the news recently about nursing homes that were illegally and inappropriately evicting elderly or disabled residents when their Medicare ran out, it reminded me of the time during the summer of 2019 when my mom was discharged too soon from a nursing home, only to end up back in the emergency room two days later.
Mom had been in the nursing home for over two weeks (from June 12-July 2), when the nursing home abruptly discharged her due to her Medicare coverage days coming to an end (she had prematurely used most of her 100 Medicare days in a prior rehab stay). She was informed that she needed to start paying out of her own pocket (private pay) because she had reached her limit for Medicare. The nursing home declared her to be “fully independent” and discharged her, or “kicked her out,” according to my mom. At the time, I was glad about mom getting to go home, and thought she had been at the facility long enough. My mom told me at the time that she wanted to go home. It turns out, my mom had her doubts about being ready for discharge but didn’t speak up. Unfortunately, I didn’t probe further either with her or with her doctor.
Two days later, during a home care assessment at my mom’s house, it became clear that my mom was in pain and had been unable to bear any weight or stand on her own. My brother, Michael, and I had to help her get around and take care of her. We considered whether remaining at home was viable and ended up bringing her to the emergency room that day.
Never Assume …
This experience really got me thinking. Should she have been discharged if she couldn’t get around on her own? When is nursing home discharge appropriate? When is it too soon? We just assumed she was OK because the nursing home discharged her. But she wasn’t ready to come home and definitely wasn’t “fully independent,” as the nursing home indicated.
In the news article mentioned above, several stories are described about seniors who had been in rehab centers or nursing homes for several weeks, only to be pushed out before they were ready, due to issues with Medicare and not being able to pay for private care. Sadly, thousands of nursing home residents are discharged against their wishes or evicted from nursing homes each year, according to the article.
Know Your Rights
What many people don’t know, or find out too late, is that you have the right to appeal the Medicare decision or to apply for Medicaid (assuming you qualify), and if you qualify, you can stay in the nursing facility on Medicaid for as long as you need nursing care.
The National Long-Term Care Ombudsman Resource Center, administered by the Administration of Aging, advocates for residents in nursing homes, rehabilitation and assisted living facilities. Every state is required to have an Ombudsman program, thanks to the Older Americans Act, originally enacted in 1965. The program investigated more than 194,000 complaints about long-term care facilities in 2018, with the majority of the complaints being about inappropriate discharges and transfers. Why is this happening? It all comes down to money.
According to care advocates and experts, nursing homes desire Medicare patients on short-term rehabilitation because Medicare reimburses facilities at a higher rate than Medicaid. This means Medicare patients are more lucrative to facilities than Medicaid patients, so they’ll kick out lower-income people on Medicaid to make room for the Medicare patients. But when Medicare runs out, look out. Medicare only reimburses facilities in full for the first 20 days, and then patients must start paying some out-of-pocket expenses to the tune of $176 per day for covered services from days 21-100. Medicare ends completely after 100 days. Advocates say that many facilities deliver eviction notices to Medicare patients at 20 days.
Long-term care facilities are permitted to evict residents legally if the patient’s health improves sufficiently, if the patient’s presence puts other residents in danger, if the patient’s needs can’t be met by the facility or if the resident stops paying and has not applied for Medicare or Medicaid. However, long-term care facilities must give 30 days’ written notice for evictions and must help with the patient’s transition to home care or another facility. It’s illegal for facilities to discriminate based on payment sources, yet it seems to be happening all the time. The news article details some horrific stories of facilities that illegally discharged patients without any notice.
In addition to not being discriminated against based on payment choice, residents can’t be evicted for nonpayment if they are in the process of applying for Medicaid or appealing a denial. Nursing homes that violate a patient’s rights or harm or endanger a patient can face fines and penalties. In 2017, the Trump administration reduced the number of fines that can be imposed to just once for an infraction. Advocates disagree with this new policy and believe there should be a fine for every day violations were observed.
Understand What You’re Signing Up For
Clearly more needs to be done, but until that happens, you need to know your rights. You also need to understand how long-term care insurance works if you have a policy. Many long-term care insurance policies stipulate that if a patient with a chronic illness needs medical services only two out of seven days, then the insurance company assumes the patient is fully independent. Know what you’re getting when you sign up for these policies.
If you have any questions about long-term care and your rights, consult a care advocate/geriatric care manager and an elder law attorney to make sure you or your loved ones are protected.
The information contained in this article has been prepared by Elder Law Associates PA, presents general information, is for informational purposes only, and is not, nor is it intended to be, legal advice. Before acting on any of the information presented, we advise you to consult an attorney for advice regarding your individual situation.