Staying Put in a Nursing Home

Being in a nursing home is hard enough without being threatened with eviction. That is a problem that faces many of our most vulnerable citizens.

Nursing homes often prefer private-pay residents to Medicaid residents and will threaten to discharge a patient who goes on Medicaid. This is illegal!

Medicare rules are very clear that discrimination based on source of payment is illegal. Ensuring that the patient is in a bed that is eligible for Medicaid reimbursement is an administrative issue for the facility to resolve.

If a person resides in a nursing home that has any Medicare or Medicaid beds, there are only six grounds for eviction: (i) It is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility; (ii) The resident’s health has improved so the services provided by the facility are no longer needed; (iii) The safety of individuals in the facility is endangered; (iv) The health of individuals in the facility would otherwise be endangered; (v) The resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare or Medicaid) a stay at the facility; or (vi) The facility ceases to operate.

A resident cannot be transferred for non-payment if he or she has submitted to a third-party payer all the paperwork necessary for the bill to be paid. Non-payment would occur only if a third party payor, including Medicare or Medicaid, denies the claim and the resident refused to pay for his or her stay. A Medicare or Medicaid claim is not considered denied until after an administrative hearing has been requested, held, and decided.

Nursing homes may not put a person who is already in the home on a waiting list for a Medicaid bed. A resident who becomes eligible for Medicaid is entitled to the next available Medicaid bed. Some nursing homes will try to convince the family that the resident must be moved. If that happens, consult a competent Elder Law attorney.

A nursing home may try to claim that the resident’s needs cannot be met when the only problem is that the resident’s care is more expensive or more time-consuming than the facility operator would prefer. This is not grounds for discharge.

Transfers of this sort often stem from the facility’s desire to specialize in a particular type of patient or care–e.g., Alzheimer’s, respite or short-term rehabilitation– to maximize reimbursement or streamline care requirements. Neither the Reform Law nor Medicare or Medicaid law recognizes or supports such distinctions. There is no basis, therefore, for a discharge simply because the resident may now require long-term custodial care rather than rehabilitation, or no longer qualifies for Medicare-covered skilled care. The Nursing Home Reform Law states that every nursing facility “must provide services to attain or maintain the highest practicable physical, mental and psycho-social well-being of each resident” … “in such a manner and in such an environment as will promote maintenance and enhancement of the quality of life of each resident.” This means that care must be individually tailored to best serve each resident, with reasonable accommodation of individual needs and preferences and sufficient staffing (nurses, aides, and speech, occupational and physical therapists) to ensure the health and safety of all residents.

Nursing home residents have many rights under state and federal regulations. There are also state agencies that are directed to enforce those rights. If you think you or someone you care about is being treated badly in a nursing home, call the state nursing home ombudsman or the state agency that licenses nursing homes. Or call an Elder Law attorney if you have trouble finding out how to contact the state enforcement agency.


John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
©2008 John B. Payne, Attorney

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