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Nursing Home Residents’ Rights

One of the most important things I have learned working as an elder law attorney is that “the squeaky wheel gets the grease.” In the elder care context, that means being unafraid to be a vocal and visible advocate for the elderly. This applies not just to attorneys, but also to the families. The best way to be a “squeaky wheel” is to be informed about your loved ones’ rights. Here, I will discuss the rights of the elderly living in a nursing home.

Nursing homes exist to serve the residents they allow into their facility. When residents and families are unaware of their rights, the balance of power can shift in favor of the nursing home. This is when certain scenarios can arise that are in violation of a resident’s rights. Not all nursing homes operate in this way, but if you encounter any of the following situations, you should follow the steps outlined and, if necessary, contact a professional for assistance. This can be an attorney, who can help you resolve your issue, or an ombudsman, who can investigate the nursing home. The Cincinnati area’s ombudsman is Mary Day, who works for Pro Seniors. For more information, go to www.proseniors.org.

1. Nursing homes cannot discriminate against residents based on their source of payment.

No resident should be told that they will not receive needed care because Medicare or Medicaid will not cover it. Often, nursing homes claim that they lose money on Medicaid residents because Medicaid pays at lower rates than they can charge privately. If a nursing home tells you that services will not be covered because of Medicare or Medicaid, you need to be ready to advocate on your loved one’s behalf. Reiterate that federal law prohibits the disparate treatment of residents based on source of payments. Keep in mind that conversations about cost to the nursing home are irrelevant in light of this law.

2. Nursing homes cannot cease therapy because the resident fails to show improvement.

For an individual on Medicare who is admitted to a hospital for at least 3 days and is then transferred to a nursing home for therapy, Medicare will cover up to 100 days. The federal law states that Medicare will cover that therapy, subject to the 100 day limit, as long as the therapy is helping the resident to improve, maintain, or prevent decline of the resident’s condition. The industry has developed a rule of thumb that they will cease therapy if the resident is not showing improvement. This rule of thumb is not the law. A recent federal lawsuit, Jimmo v. Sebelius, has helped clarify this issue and industry professionals are becoming increasingly more aware of the appropriate application of the law. However, if you are told that your loved one is not showing improvement, cite the federal law and, if necessary, the lawsuit.

3. Nursing homes cannot discharge a resident for being difficult.

Federal law allows for discharge under six limited circumstances: 1) failure to pay; 2) skilled care is no longer needed; 3) the resident’s needs cannot be met by the nursing home; 4) the resident’s presence endangers the safety of others; 5) the resident’s presence endangers the health of others; and 6) the nursing home is going out of business. This issue will likely come down to what “difficult” behavior is being discussed. A resident who is violent might be dangerous to the safety of others. But behaviors such as wandering off or moaning loudly throughout the night are not legitimate grounds for discharge. In order to discharge a resident, the nursing home must provide at least 30 days notice, in writing, stating the reason for the discharge and also listing the name, address and phone number of the state long-term care ombudsman. Upon receiving such a notice, you have the right, within 30 days, to request a hearing to oppose the discharge. In the event that this issue goes to a formal hearing for determination, it is advisable to have legal representation.

If you have questions about any of the above, or any other nursing home rights’ concerns, please fill out the “Contact Us” form.

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What is Elder Law?

Elder law is a broad term encompassing the various legal issues that affect the elderly.  It can cover everything from criminal charges to real estate disputes.  But typically it is a term used to refer to those issues that are especially pertinent to the elderly.  These issues are things like Medicare and Medicaid planning, estate planning, and guardianship.  Elder law is growing as a specialized field of law thanks to the fact that we, as a population, are living longer.

The combination of longer life expectancy and rising health care costs makes it increasingly important to begin long term care discussions early.  Families should discuss parents’ wishes and realistic goals and expectations regarding the management of finances.  Having a plan in place can help families save a tremendous amount of assets and also prevent headaches down the road.  The role of the elder law attorney is to facilitate these discussions by educating the family on the different ways to achieve their long term goals and by helping implement the plan the family chooses.

The best time to contact an elder law attorney is before a parent becomes ill enough to require ongoing care.  Often families do not know that they can or should contact an elder law attorney until they are in crisis mode.  While an attorney can be helpful at that point, they have more options pre-crisis that ultimately will protect the family and the parents’ assets.  For more information, please fill out the “Contact Us” form.

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