Advocating Against the Nursing Home Discharge
By Shannon Laymon-Pecoraro, Esq.
We see many instances where a nursing home has discharged a patient against the wishes of the family of the client. Most will accept the discharge because they do not understand their rights. Among the numerous stories I have heard, a few of the common reports I received are that the facility said the patient could not remain in the nursing home because Medicare would no longer pay (without explaining other financial options that may be available), that they could not keep their loved one because they are not a “memory care unit,” the patient is “difficult,” or that there are no “long-term care beds available.” All of these explanations are intended to mislead a patient or family into accepting an undesired discharge.
The Nursing Home Reform Act must permit a resident to remain in a facility unless one of the following applies:
- The transfer or discharge is necessary to meet the resident’s welfare and the resident’s welfare cannot be met in the facility.
- 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.
- The safety of individuals in the facility is endangered.
- The health of individuals in the facility would otherwise be endangered.
- The resident has failed, after reasonable and appropriate note, to pay for services.
- The facility ceases to operate.
In understanding these exceptions, it is important to note that a nursing home is required to provide all necessary care, and even with difficult patients, cannot require a patient of their family to privately pay for additional care. Meeting the patient’s needs is the responsibility of the facility and a care plan must be developed to accommodate such needs.
If the conditions under the Nursing Home Reform Act are met, the facility will still have the responsibility of ensuring a safe discharge or transfer. An unsafe discharge would be one that does not provide for a long-term solution for substituted care services. We often see unsafe discharges were family cannot provide the necessary care, whether due to skills or time, and the resident cannot afford to pay for the necessary care.
So, what options are there if you are facing an unlawful discharge? You should let the facility know that you are aware of the discharge rights, that you will not be accepting the discharge. Further, if the facility is expecting you to act on behalf of the patient, you should refuse to pick the patient up for discharge. If the facility continues to press for discharge, you should required the facility’s physician to sign off on the discharge, and let the facility and the physician know that they will be held accountable for any harm suffered by the patient due to an unlawful discharge. In my experience, this will usually stop the discharge; however, if the facility continues to press for discharge, Robert Fleming and Lisa Nachmias Davis, authors of the Elder Law Answer Book, indicate the patient should suggest the nursing home administrator inform the facility’s insurance carrier about the discharge and that the patient should immediately notify the local long-term care ombudsman. Fleming and Davis further point out that this can, “… be a game of ‘chicken,’ where the nursing home believes the family will, in fact, step up and take care of the individual who is delivered to the child’s home, and is willing to risk the repercussions if harm comes to the individual as a result. The family has to resist the pressure and be willing to contact police if the tactic is tried, resulting, presumably, in an emergency placement in a new facility.“
Ask Kit Kat: Paws in Need
Hook Law Center: Kit Kat, what can you tell us about “Paws in Need?”
Kit Kat: Well, this is an online resource for pet owners who have emergencies, and who need help in paying for extraordinary veterinary costs. It was started by Gina Highfield of Hampton, VA. Gina has been helping animals in the Hampton Roads, VA area for at least 6 years. Gina is known for establishing and running a Facebook group of over 30,000 called Lost & Found Pets that helps reunite lost animals and their owners. Through this project, she became aware of a need to help pet owners who had large, unexpected veterinary bills. Thus, she established a second organization to help with this goal called “Paws in Need.” Gina says, “We never want to see a family have to euthanize or surrender their pet due to money.”
One such recent recipient of the “Paws in Need” Fund is a dog named Pirate who lives in Portsmouth, VA. Pirate darted out into a road recently and was hit by a car. His left front leg had to be amputated. The veterinarian had estimated the cost to be approximately $2,500. “Paws in Need” contributed $250; another group called Animal Resources of Tidewater gave $200. Pirate’s owners, the Worthingtons, gave $300, and the family has set up a payment plan to pay for the rest of the expenses.
“Paws in Need” will not cover routine expenses like spaying/neutering or yearly vaccinations, but it will assist with those large, unexpected pet emergencies. It also provides emotional support to the families of ill or injured pets. Dana Worthington, Pirate’s owner, says, “She (Highfield) gave us hope and opened up the door to all of these different resources so that I was able to make an informed choice for the healthcare of my dog. I wouldn’t have been able to do that without her.” (Saleen Martin, “ ‘ Paws’ help pet owners fund costly life-or-death surgeries,” The Virginian-Pilot, January 31, 2019, p.1 & 4)