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WILLS, TRUSTS, ESTATES
PERSONAL INJURY
REAL ESTATE
CLOSINGS
CORPORATION LAW
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FALSEHOODS DISSEMINATED BY NURSING FACILITIES
Falsehood No. 1: "We can't give you therapy services because
Medicaid doesn't pay for therapy."
Nursing facilities continually try to limit Medicaid recipients to the
bare necessities. The discrimination against Medicaid recipients is
particularly evident when a resident shifts from Medicare reimbursement
to Medicaid reimbursement. Although a resident may have received daily
physical therapy under Medicare, it is relatively common (although
generally illegal) for a nursing facility to eliminate the therapy
services upon the resident's changeover to Medicaid. Federal law
requires that a nursing facility provide "services and activities
to attain or maintain the highest practicable physical, mental, and
psychosocial well-being of each resident." Furthermore, a nursing
facility "must establish and maintain identical policies and
practices regarding transfer, discharge, and the provision of services
required under the state [Medicaid] plan for all individuals regardless
of source of payment." The surveyor's guidelines explicitly state
that a Medicaid-eligible resident is entitled to medically-appropriate
therapy services:
Specialized rehabilitative services are considered a facility service
and are, thus, included within the scope of facility services. They must
be provided to residents who need them even when the services are not
specifically enumerated in the state [Medicaid] plan. No fee can be
charged a Medicaid recipient for specialized rehabilitative services
because they are covered facility services. (Guidance to Surveyors for
42 C.F.R. 483.45(a) (contained in HCFA Transmittal 274).)
Falsehood No. 2: "We can't give you therapy services because
you aren't making progress."
Nursing facility employees often will cite lack of progress (e.g.,
"Your mother has plateaued") as a justification for stopping
therapy services. An employee may suggest that the supposed lack of
progress is a medical reason for ending therapy; alternatively, the
employee may blame Medicare guidelines. There may be occasions in which
lack of progress is a legitimate medical justification for the cessation
of therapy services. In many instances, however, progress is not the
only goal of therapy; maintaining a condition, or moderating the rate of
decline, is also a justifiable goal. The nursing home reform law
recognizes this fact in language quoted earlier: A nursing facility must
provide "services and activities to attain or maintain the highest
practicable physical, mental, and psychosocial well-being of each
resident." 42 U.S.C. 1395i-3(b)(2), 1396r(b)(2) (emphasis
added); see also 42 C.F.R. 483.25 (slightly different language):
"[A] facility must ensure that [a] resident's abilities in
activities of daily living do not diminish unless circumstances of the
individual's clinical condition demonstrate that diminution was
unavoidable." 42 C.F.R. 483.25(a)(1).
There are two responses to a "lack of progress" excuse
based upon supposed Medicare justifications. The first relates to
Falsehood No. 1. As discussed above, a resident's reimbursement source
never excuses a facility from the federal nursing facility requirements.
The second response is to point out that Medicare reimbursement is not
dependent upon a resident's progress. To receive Medicare reimbursement
(limited to no more than 100 days per Medicare benefit period), a
resident must require "skilled nursing services" or
"skilled rehabilitation services" as defined in 409.31
through 409.35 of Title 42 of the Code of Federal Regulations.
"Progress" is not a criterion.
Falsehood No. 3: "You have to wake up at a certain hour
because we don't have enough nurse aides to accommodate individual
schedules."
The assembly-line ambiance of many nursing facilities can be devastating
to residents' emotional health. Imagine the effect on even a healthy
person if he or she suddenly were required, for example, to wake up at
6:00 a.m. and go to bed at 7:30 p.m., in accordance with a regimented
facility-wide schedule. The nursing home reform law states that
"[a] nursing facility must care for its residents in such a manner
and in such an environment as will promote maintenance or enhancement of
the quality of life of each resident." Specifically, a resident has
the right "to reside and receive services with reasonable
accommodation of individual needs and preferences, except where the
health or safety of the individual or other residents would be
endangered." A corresponding regulation explicitly discusses daily
schedules, stating that a "resident has the right to [c]hoose
activities, schedules, and health care consistent with his or her
interests, assessments, and plans of care." 42 C.F.R. 483.15(b).
In presenting this falsehood, a nursing facility claims that it does not
have enough staff members to accommodate a resident's reasonable
request. This claim is irrelevant. A nursing facility must employ enough
qualified employees to meet residents' needs. A lack of nursing
assistants is not a legitimate excuse.
Falsehood No. 4: "Your children can visit only during
visiting hours."
Some nursing facilities have relatively restricted visiting hours. Such
restrictions conflict with the nursing home reform law, which attempts
to make a stay in a nursing facility as home-like as possible.
Accordingly, a resident's "immediate family or other
relatives" have the right to visit at any time, assuming that the
resident consents to the visit. The surveyor's guidelines detail how the
interests of all residents can be accommodated:
Immediate family or other relatives are not subject to visiting hour
limitations or other restrictions not imposed by the resident. However,
the facility may try to change the location of visits to assist care
giving or protect the privacy of other residents, if these visitation
rights infringe upon the rights of other residents in the facility. For
example, a resident's family visits in the late evening may prevent the
resident's roommate from sleeping. (Guidance to Surveyors for 42 C.F.R.
483.10(1) (contained in HCFA Transmittal 274).) Visitors from outside
the family can be subject to "reasonable restrictions," again
assuming that the resident consents to the visit. The surveyor's
guidelines suggest what such "reasonable restrictions" could
entail:
Non-family visitors must also be granted "immediate access"
to the resident. The facility may place reasonable restrictions upon the
exercise of this right such as reasonable visitation hours to facilitate
care giving for the resident, or to protect the privacy of other
residents.
Falsehood No. 5: "You can no longer receive Medicare
reimbursement because we have determined that you need custodial care
only."
Medicare may pay for up to 100 days of nursing facility care if a
resident: 1) has Medicare coverage; 2) has been hospitalized in an acute
care hospital for at least three consecutive nights in the preceding 30
days; and 3) needs skilled nursing services or skilled rehabilitation
services. For the initial 20 days of nursing facility care, the Medicare
program can pay 100 percent of nursing facility expenses; for days 21
through 100 in the nursing facility, a resident must pay a daily co-pay.
Under Medicare law, a nursing facility generally makes the initial
determination on whether or not to submit a bill to the Medicare program
for a resident's nursing facility care. The resident must be notified of
this determination on a form that informs the resident that he or she
may force the facility to submit a bill to the Medicare program. When a
bill subsequently is submitted, the nursing facility can not charge the
resident for any amount that Medicare may pay, unless and until Medicare
eventually denies the claim. Stipulation and Order in Sarrassat v.
Sullivan (N.D.Cal. 1989) (reproduced in the CCH Medicare & Medicaid
Guide, 38,504). Thus, a nursing facility employee is not telling the
truth when he or she summarily informs a resident that the resident
cannot receive Medicare reimbursement for a nursing facility stay. Under
Medicare law, a resident can force a facility to submit a bill to the
Medicare program, and the coverage decision is made by the Medicare
program (subject to further appeals).
Falsehood No. 6: "Because you are not eligible for Medicare
reimbursement, you must leave your Medicare-certified bed."
Under federal law, a nursing facility may seek Medicare certification
for some or all of its beds. Most choose to certify
"Medicare-distinct parts" comprised of 10 percent to 25
percent of a facility's beds. A nursing facility can receive Medicare
reimbursement only for a resident in a Medicare-certified bed. Medicare
reimbursement is relatively high--generally 30 percent to 100 percent
higher than a facility's standard daily rate. Because the Medicare
program will pay for nursing facility care for no more than 100 days per
benefit period, a nursing facility has strong financial incentives to
shuttle residents in and out of Medicare-certified beds. Although this
shuttling optimizes a nursing facility's reimbursement, it may be less
than optimal for residents. Nursing facility residents often are
susceptible to transfer trauma. In addition, because Medicare-distinct
parts generally are staffed to provide an above-average level of care, a
transfer from a Medicare-distinct part may deprive a resident of the
extra care he or she needs. Congress recognized the incentive for
shuttling residents to and from Medicare-certified beds, and accordingly
gave a resident the right to veto an intra-facility transfer motivated
by Medicare reimbursement. Specifically, a resident has "[t]he
right to refuse a transfer to another room within the facility, if a
purpose of the transfer is to relocate the resident from a portion of
the facility that is [Medicare certified] to a portion of the facility
that is not [Medicare certified]." Facility staff often claim that
Medicare rules require that a Medicare-certified bed be occupied by a
resident eligible for Medicare reimbursement. This claim is false.
Medicare certification of a room does not prevent that room from being
used for the care of a resident who pays privately or pays through the
Medicaid program.
Falsehood No. 7: "We can't admit your parent unless you
accept full financial responsibility."
The nursing home reform law prohibits a nursing facility from requiring
a third-party guarantee of payment as a condition of admission or
continued stay. "The prohibition against third-party guarantees
applies to all residents and prospective residents in all certified long
term care facilities, regardless of payment source." Guidance to
Surveyors for 42 C.F.R. 483.12(d)(2) (contained in HCFA Transmittal
274); 56 Fed. Reg. 48,841 (September 26, 1991). The nursing facility
industry has developed a subterfuge to evade this law. Most nursing
facilities request that a resident's family member or friend sign an
admission agreement as a "responsible party." The family
member or friend generally signs, understandably believing that a
"responsible party" is a contact person in the case of an
emergency. In fact, the admission agreement in another paragraph defines
a "responsible party" as a person who understands that he or
she cannot be required to become financially liable, but who nonetheless
"volunteers" to assume full financial responsibility for the
resident's nursing facility expenses. "Responsible party"
provisions are illegal and unenforceable for at least three reasons.
First, such provisions are sometimes used to require a third-party
guarantee of payment, in clear violation of federal law. Second,
responsible party provisions give no consideration to a resident, family
member or friend, and are thus unenforceable. Third, these provisions
are deceptive and unenforceable under state consumer protection
statutes.
The analysis above was followed in the recent case of Podolsky v.
First Healthcare Corp., 50 Cal. App. 4th 632,58 Cal. Rptr. 2d 89 (1996);
(see "Keeping Current," The ElderLaw Report, Vol. VIII, NO. 5,
December 1996, page 5), in which the California Court of Appeal rejected
an attempt by Hillhaven nursing facilities to solicit third-party
guarantees. (The documents from the Podolsky litigation are available
from Clearinghouse Review (312-263-3830) at Clearinghouse No. 48, 003.)
If a nursing facility files suit based on an invalid guarantee
agreement, a defendant can gain additional leverage by filing a
cross-complaint against the facility's unlawful business practices.
Falsehood No. 8: "We don't have to readmit you from the
hospital because your bed-hold period has expired."
Most states allow a nursing facility resident to hold open his or her
nursing facility bed during a relatively short hospital stay. The
nursing home reform law requires that a nursing facility inform a
resident of any bed-hold rights on at least two occasions: after
admission to the nursing facility, and at the time of a transfer to a
hospital. In addition, a Medicaid-eligible resident has the right to
return to an available bed in a nursing facility after a hospital stay
of any length. This provision of the nursing home reform law strikes a
balance between the resident's interests and the interests of the
nursing facility. On the one hand, a Medicaid-eligible resident often
has difficulty finding a nursing facility placement because the Medicaid
program generally pays a relatively low reimbursement rate. On the other
hand, a nursing facility cannot be expected to hold a bed indefinitely
for a hospitalized resident. Many nursing facilities refuse to
acknowledge this readmission provision. In one extreme example, a
resident was forced to obtain an emergency readmission order from the
California Court of Appeal after a nursing facility had appealed and
delayed previous readmission orders issued by both the California
Superior Court and the California Department of Health Services. See
Ghodrat Nissan v. AIB Inc. dba Hancock Park Convalescent Hosp., No. B
099654, Second Appellate District of the California Court of Appeal.
(Most of Ms. Nissan's court filings are available from Clearinghouse
Review at Clearinghouse No. 51,052.)
Falsehood No. 9: "You must move from the facility because you
are a difficult resident."
As relevant here, eviction from a nursing facility is justified only if
a resident's needs cannot be met in the facility, or if the resident
endangers the health or safety of other residents. Under these
standards, a "difficult" resident should not be evicted. After
all, nursing facilities exist in order to care for people with physical
and mental difficulties. The fallacy of a facility's argument often can
be shown by the location to which the resident is to be transferred. If
the facility proposes that the resident be sent to another nursing
facility, it is evident that the resident's needs can be met in a
nursing facility or that the resident does not endanger the health or
safety of other nursing facility residents.
In addition, even assuming that a resident's "difficulty"
otherwise justifies his or her eviction, an eviction is inappropriate if
a nursing facility seeks eviction before making reasonable attempts to
address a resident's problem(s). "In the absence of a comprehensive
care plan identifying ameliorative options to control [a resident's]
behavior, [a nursing facility] cannot involuntarily discharge [a
resident] for safety reasons." In the Matter of the Involuntary
Discharge or Transfer of J. S. by Ebenezer Hall, 512 N. W. 2d 604,613
(Minn. 1994); (see "Keeping Current,: The ElderLaw Report, Vol. V,
No. 9, April 1994, page 5). (Documents from the J. S. litigation are
available from Clearinghouse Review at Clearinghouse No. 49,295.)
Falsehood No. 10: "You must move from the facility because
you want only palliative care and intend to die in our facility."
Many nursing facilities claim that their policies prohibit residents
from refusing life-sustaining treatments. Although these claims
sometimes are well-intentioned, they always are wrong. Like any
individual, a nursing facility resident "has the right to refuse
treatment." Furthermore, "refusal of treatment would not
constitute grounds for transfer, unless the facility is unable to meet
the needs of the resident or protect the health and safety of
others."
Falsehood No. 11: "You must move because this facility does
not accept a pending Medicaid application as payment."
A private-pay resident often encounters problems when his or her savings
are exhausted. Even if the resident applies for Medicaid at the earliest
possible instant, until the application is approved, he or she will have
no way of paying for potentially thousands of dollars of nursing
facility expenses. Some nursing facilities threaten to evict such
residents during the transition from private pay to Medicaid
eligibility. Such threats are improper. HCFA's Guidance to Surveyors
establishes that "[a] resident cannot be transferred for
non-payment if he or she has submitted to a third party payor all the
paperwork necessary for the bill to be paid."
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