THE PROBLEM:
It has come to the attention of the Long Term Care Ombudsman Program that some nursing homes are telling people that their facility only provides short-term rehab services and does not provide long-term care. Some people who go into a facility for short-term care and end up needing long-term care are being told that they will need to go to another facility. One of the most common reasons for this is that short-term rehab services, which are usually covered under Medicare, have higher reimbursement rates than long-term care services. This can lead to an unfair discharge or transfer. However, since most nursing home care is paid for through public programs such as Medicare and Medicaid, there are important standards to protect residents from unfair discharge or transfer.
THE FACTS:
I. There is no such thing as a short-term or rehab skilled nursing facility. In order to be a licensed nursing home in New York State, a facility has to provide both short-term and long-term skilled nursing care. This means that a facility cannot
discriminate against someone needing long-term care, whether it is someone who wishes to come in as a new resident or a short-term resident transitioning to long-term care.
II. Nursing homes are prohibited from discriminating based on source of payment. According to the New York State Department of Health’s public information on residents’ rights, the nursing home must “obey all pertinent state and local laws that prohibit discrimination against individuals entitled to Medicaid benefits, and give explicit advice to you concerning your right to nondiscriminatory treatment in admissions (State regulations prohibit discrimination against individuals entitled to Medicaid benefits)”. The nursing home cannot “require a third-party guarantee of payment as a condition of admission, expedited admission or continued stay in the facility.” The nursing home cannot “require you to waive your rights to Medicare or Medicaid.” The nursing home cannot “require verbal or written assurance that you are not eligible for, or will not apply for, Medicare or Medicaid benefits.”
TRANSFER & DISCHARGE RIGHTS:
The following rights pertain to all licensed nursing homes under federal law:
I. Right to Stay. Residents must be allowed to remain in the facility, and not transferred or discharged unless:
a. The transfer or discharge is necessary for the resident's welfare and the resident's needs cannot be met in the facility.
b. The transfer or discharge is appropriate because the resident's health has improved sufficiently so the resident no longer needs the services provided by the facility.
c. The safety of individuals in the facility is endangered due to the clinical or behavioral status of the resident.
d. The health of individuals in the facility would otherwise be endangered.
e. The resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare or Medicaid) a stay at the facility. Non-payment applies if the resident does not submit the necessary paperwork for third party payment or after the third party, including Medicare or Medicaid, denies the claim and the resident refuses to pay for his or her stay.
f. The facility ceases to operate.
II. Right to Appeal. A facility may not transfer or discharge a resident while an appeal is pending.
III. Documentation Required. When the facility transfers or discharges a resident under any of the circumstances specified in this section, the facility must ensure that the transfer or discharge is documented in the resident’s medical record and appropriate information is communicated to the receiving health care institution or provider. Documentation in the resident’s medical record must include:
a. The basis for the transfer.
b. When a resident is being transferred because the facility says it cannot meet the needs of a resident, the specific resident need(s) that cannot be met, facility attempts to meet the resident needs, and the service available at the receiving facility to meet the need(s).
IV. Notice Before Transfer. Before a facility transfers a resident, it must provide:
a. Written notice to the resident and his/her representative in language and manner that they can understand.
b. Notice must be given at least 30 days in advance. (With very limited exceptions, such as when a resident cannot be cared for safely or is a danger to others, in which case “notice shall be given as soon as practicable before transfer or discharge” and the facility must document the danger that failure to transfer/discharge would impose.)
c. The facility must send a copy of the notice to the regional ombudsman program.
If the resident is sent to the hospital for urgent needs, the resident and/or loved ones have the right to reserve their room by paying the daily rate privately while they are at the hospital. However, if it is not feasible to pay that rate, the facility is obligated to offer that resident the next available bed. The facility cannot take any other resident until the resident at the hospital is offered the bed. It may not be in the same room but it would be in the same facility. If the individual no longer meets the criteria to remain at the hospital and a bed is not yet available, the person may be sent to another facility. Even if this happens, the resident still has the right to return to their previous nursing home, to the first bed that is available.
So, if you or your loved one find yourself in this situation, reach out to your local Ombudsman program for assistance. Call 518-562-1732. Or email Amy Gehrig at: amy@ncci-online.com.
