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Jewish World Review January 21, 2008 /14 Shevat 5768 Nursing home's ‘discharge’ notice improper By Jan L. Warner & Jan Collins http://www.JewishWorldReview.com | Q: Our father, an Alzheimer's patient, was in an assisted-living facility for two years and has now been in a nursing home for a little over a year. His monthly care now costs more than $6,500 per month, a large increase over the cost of the assisted-living facility. We have used his money to pay for his care privately in the Alzheimer's ward. As his money began to dwindle, we were up front with the facility about our intention to apply for Medicaid once his money ran out. When we paid the last month we could, we were told that because there was no Medicaid bed and our father was a "high-maintenance" resident, the facility could not keep him any longer, and we would have to make plans to take him home or they would discharge him. My sister and I live out of state, and they really have us over a barrel because neither of us has made any other plans to care for him. Can the nursing home do this? What are our options? A: No, the nursing home can't do this. Once admitted to a Medicaid-certified facility, each resident has the legal right to remain in the facility — without regard to source of pay — and to not be transferred or discharged unless (1) the transfer or discharge is necessary for the resident's welfare and the facility can't meet the resident's needs; (2) the transfer or discharge is appropriate because the resident's health has improved to the extent that he or she no longer needs the services provided by the facility; (3) the resident endangers the safety of individuals in the facility; (4) the resident endangers the health of individuals in the facility; (5) after reasonable and appropriate notice, the resident has failed to pay for — or to have paid under Medicare or Medicaid for — his or her stay at the facility. (It is important to remember that for residents who become Medicaid-eligible after admission to a facility, the facility may charge only allowable charges under Medicaid); or (6) The facility ceases to operate. In addition, the "notice of discharge" the facility gave you appears to be inadequate. First of all, under the law, before a facility can transfer or discharge a resident, it must not only 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 written format at least 30 days before transfer or discharge, but also record the reasons for the discharge or transfer in the resident's clinical record. We doubt that your father's record contains any such notations, and we suggest that you secure a copy of his record immediately. By law, the notice to transfer or discharge must contain, among other things: (1) The reason for transfer or discharge; (2) The effective date of transfer or discharge; (3) Where your father is to be transferred or discharged; and (4) A statement that your father has the right to appeal the action to the state, including the name, address and telephone number of the state long-term-care ombudsman. There are other requirements for the protection of residents who either have developmental disabilities or are mentally ill. We suggest that you contact an elder-law attorney in your state to get a referral to an experienced lawyer in the state where your father resides as quickly as possible. We suggest that neither you nor your sister take him home as, if you do, you will probably not be able to get him into another facility and will lose the legal positions you have. Require the facility to take all steps required by the law to protect your father. Every weekday JewishWorldReview.com publishes what many in in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here. JAN L. WARNER received his A.B. and J.D. degrees from the University of South Carolina and earned a Master of Legal Letters (L.L.M.) in Taxation from the Emory University School of Law in Atlanta, Georgia. He is a frequent lecturer at legal education and public information programs throughout the United States. His articles have been published in national and state legal publications. Jan Collins began co-authoring Flying SoloŽ in 1989. She has more than 27 years of experience as a journalist, writer, and editor. To comment or ask a question, please click here. Archives © 2008, Jan Warner

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