To Be Old, Frail and Evicted: Patients at Risk

I wrote this article in 2008 for a website I owned at the time. I’m republishing it now because it is just as important now as it was then.

— To Be Old, Frail and Evicted: Patients at Risk —

That was the headline of an article in The Wall Street Journal. The article went on to say:

“Across the country, nursing homes are forcing out frail and ill residents. While federal law permits nursing-home evictions in some circumstances, state officials and patient advocates say facilities often go too far, seeking to evict those who are merely inconvenient or too costly. Residents with dementia or demanding families are among the most vulnerable, particularly if … they depend on Medicaid to pay their bills. …”

“Residents may not know they can appeal or may be too ill to do so or fear retribution.”

— How Can I Keep That From Happening to My Parent? —

The following story will help you understand just what a nursing home can and CANNOT do.

Situation. “My father lives in a non-profit care facility (nursing home). It says that it will keep him when he runs out of money. It is a wonderful place and they treat him very well. He has no assets and is hiding none. He has dementia and is very confused. He is angry and upset a lot. Could they tell me he can’t be there anymore? If so, do they have to help me find a place for him or would they be required to find a place? He will run out of money in about 6 months.”

Facts. Most (if not all) nursing homes have the legal right to discharge a patient for a variety of non-financial reasons, including being a threat to the safety of other patients and/or the nursing home’s staff. But, that usually doesn’t happen. Instead, depending on the laws of the state where your father lives, the nursing home may restrain him chemically (with sedative drugs) or with physical restraints. To learn if and under what conditions your father can be discharged or restrained, read the contract you (or he) signed when he was admitted into the nursing home, together with any amendments that you (or he) may have signed later.

The contract will also spell out what assistance, if any, his current nursing home will provide in finding another nursing home if they (his current nursing home) discharge him. In most cases, you will receive no help; you’ll have to find a new nursing home on your own. However, most nursing home contracts state that they must give your father (or you) at least 30 days notice in writing in advance of the date when they want to discharge him.

Regarding the financial aspects of your father’s situation: If someone already lives in a nursing home when they run out of money, the nursing home cannot throw them out – in most cases. However, when he does run out of money, his nursing home may require him (or you on his behalf) to apply for Medicaid to avoid being discharged. (Medicaid is the federal/state program that pays about half of all nursing home expenses.) Once again, this will be spelled out of the contract signed with the nursing home when your father was admitted.

(Another reason for applying for Medicaid when his money runs out: It will pay for the medical care he receives outside the nursing home, including office visits with medical specialists, lab tests and exams, hospital stays, etc. If that type of care is now being paid for by Medicare, his Medicare coverage will stop when he runs out of money if he has not applied for and been accepted by Medicaid.)

In 1999, Congress passed Public Law 106-4, “Nursing Home Resident Protection Amendments of 1999.” In summary, the federal law says:

1. If a private-pay or Medicare patient lives in a nursing home while the nursing home is a Medicaid provider (most are), he or she cannot be discharged for financial reasons, even if the nursing home later withdraws from the Medicaid program, but continues to provide nursing home care to other types of patients. HOWEVER, nothing prevents the nursing home from moving the patient, without his or her permission, into a lower-cost room, including a ward-type room for several patients, or a special Medicaid section of the facility. But, the nursing home cannot transfer the patient to another nursing home without his or her specific permission.
2. A Medicare or private-pay patient who enters a nursing home when the nursing home is not in the Medicaid program can be discharged [evicted] when he or she is no longer able to pay the charges of the facility, even if the patient then qualifies for Medicaid. But for this type of discharge to be allowed, the nursing home must have informed the patient of this discharge [eviction] policy in writing, and received the patient’s written acknowledgment, when the patient began residence in the facility.

As you can see, there are several “ifs” involved, including whether or how soon your father (or you on his behalf) should apply for Medicaid. We recommend that you discuss it at your earliest opportunity with an attorney who specializes in elder law. Go to the National Academy of Elder Law Attorneys‘ website. On their home page for the public, you’ll find a link in the upper right corner that will help you locate an elder law attorney.

A final word of advice: While you and other members of your family may be able to help your father financially, be very careful about accidentally becoming a co-signer for any of his debts, or signing any other type of document where you agree to become financially responsible for him. If you were to become a co-signer or become financially responsible, you would be legally obligated to use your own money to pay his bills.

If you do have to sign something for your father as his Power of Attorney, make sure that you include POA after your name AND that you also sign his name after yours. That isn’t forgery as long as you do have a valid Power of Attorney. And, acting as his Power of Attorney does not obligate you to use your personal funds to pay his expenses.

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