By Shannon Laymon-Pecoraro, CELA
As elder law attorneys, we frequently see nursing homes attempt to wrongfully discharge clients. Under the Nursing Home Reform Act, there are strict rules regarding when a nursing facility may involuntarily discharge a patient. Specifically, a nursing home must allow a resident to remain in the facility unless one of the following conditions is met:
- the resident’s welfare cannot be met in the facility;
- 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 notice, to pay for a stay at the facility; or
- the facility ceases to operate.
And, even under those circumstances, the facility is still responsible for the development of a safe-discharge plan. Specifically, a facility is responsible for developing a post-discharge care plan that assesses the continuing care needs and development of a plan designed to ensure the individual’s needs will be met after discharge from the facility into the community.
While we have repeatedly received stories regarding the fact that there are “no long-term care beds available” or the patient was “only admitted for short-stay rehabilitation”, the most recent trend in attempted discharges relates to the facility failing to require a preadmission screening prior to accepting a patient.
A preadmission screening is necessary when a patient will be admitted inpatient and are in need of long-term care services, which may need funding by Medicaid within 180 days of admission. While this is not a new requirement, in April of 2019, the Virginia Department of Medical Assistance Services issued a bulletin that, effective July 2019, they would begin implementing a process to verify that a valid screening exists prior to admission into a nursing facility, and that, in accordance with policy, they will not provide reimbursement for services unless a screening is completed prior to admission into a nursing facility. They also made it clear that it is the nursing facility’s responsibility not to accept residents without pre-authorization who are Medicaid-eligible in less than 180 days of admission.
In practice, we see many hospitals failing to perform the screening, and nursing homes accepting patients without the screenings. If you or a loved one intend to be admitted into a nursing home, prior to discharge from the hospital, you should request the hospital perform a screening, if there is any possibility the stay may become long-term. This will avoid future problems if you or your loved one needs to apply for Medicaid services.
Ask Kit Kat: Deaf/Blind but not Out
Hook Law Center: Kit Kat, what can you tell us about Opal, an Australian shepherd mix, who is both blind and deaf and lives in the Spokane Valley of Washington State?
Kit Kat: Well, this truly is a remarkable story. Opal, who has both blindness and deafness, was lucky to be adopted at 4 months old by the Brays. At the time, she couldn’t go up and down stairs, couldn’t play games like fetch, etc. With a little help from her new parents, she learned to respond to touch—one tap on her back means to sit, two taps on her shoulders means to lie down. She also developed a keen sense of smell. Utilizing these two senses, she now functions almost like any other dog. She can even sense when her human dad gets home from work. As soon as he enters their yard, she is barking and jumping, happy to welcome him home.
Unfortunately, Opal is not unique. The loss of her sense of sight and hearing is due to the presence of two merle genes. It can happen to any type of dog that has the merle gene, like Great Danes, border collies, and certain kinds of corgis. One merle gene will not make an impact except for a marbling effect on its coat, but two merle genes can result in the dog being deaf, blind, or both. Most professional breeders are aware of this issue, and know how to avoid this problem, but inexperienced breeders are not. Amanda Fuller, who runs a dog rescue for deaf and blind dogs and is a vet technician in Baltimore, has helped create and shared videos on the subject to increase awareness of the problem.
The Brays are to be commended. They not only have Opal but also another dog (a terrier mix) named Pearl, who is deaf. Both dogs fit right in with the family which now includes their daughter, Lily. Lily presents no problem for Opal. When Lily was an infant, they introduced them to each other. Without them saying where the baby was, Opal instinctively knew, and she slowed down as she entered the room where the baby was. She is probably relying most heavily on her sense of smell. The Brays say Opal can even sniff out an ice cube if one happens to fall in their kitchen. What a unique and intelligent dog! (Meryl Kornfield, “Opal is deaf and blind, but her owners insist she’s no underdog,” The Washington Post, December 30, 2019)