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. ßß1395i-3(b)(2), 1396r(b)(2) (emphasis added); see also 42 C.F.R. ß483.25 (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. ß483.25(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 ßß409.31 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. ß483.15(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. ß483.10(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. ß483.12(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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