1. The War of the Beds Bedhold Charges, Deposits, Discharges, and Due Process in Nursing Homes John B. Payne www.law-business.com

2. Bed Deposits Medicare and Medicaid providers prohibited from charging Medicare beneficiaries for services that are eligible for payment by Medicare 10/29/20112 ©2011, John B. Payne, Attorney

3. Bed Deposits (cont'd) In general, nursing homes are not permitted to require a deposit or prepayment for skilled nursing after a qualifying three-day hospitalization. A deposit may not be required where the resident has applied for Medicaid. 10/29/20113 ©2011, John B. Payne, Attorney

4. Notice Of Medicare Termination Before End Of 100 Days Notice of Medicare Termination is issued by the facility, without consulting Medicare. Patient should respond to the notice with a request for "demand bill“ so facility would not be allowed to bill until a determination of Medicare coverage is Medicare, itself. Exhibit A. 10/29/20114 ©2011, John B. Payne, Attorney

5. Non-Discrimination Federal law requires facilities to "establish and maintain identical policies and practices regarding transfer, discharge, and the provision of services... regardless of source of payment.” Linton v. Commissioner, 65 F3d 508 (6th Cir. 1995); 42 USCA § 1396r(c)(4). 10/29/20115©2011, John B. Payne, Attorney

6. Guarantors The contract with a nursing home resident shall be solely between the facility and the patient or the patient's guardian or legal representative. MCLA 333.21766(1). Patient’s representative may not be required to assume personal financial liability except for funds belonging to the patient under the representative’s control. MCLA 333.21766(9). 10/29/20116©2011, John B. Payne, Attorney

7. Involuntary Discharge Transfer and discharge regulations apply if any residents participate in Medicare or Medicaid. 42 CFR § 483.12. – No exclusion for facilities that have designated themselves as offering "respite care," "subacute care," "short-term rehabilitation," or "Alzheimers care” – Exclusion for “institutions for the mentally retarded 10/29/20117 ©2011, John B. Payne, Attorney

8. Legitimate Grounds For Discharge 1)Transfer or discharge is necessary for resident's welfare and resident's needs cannot be met in the facility. 2)Resident's health has improved sufficiently that resident no longer needs services provided by the facility. 10/29/20118 ©2011, John B. Payne, Attorney

9. Legitimate Grounds For Discharge (cont'd) 3)The safety of individuals in the facility is endangered 4)The health of individuals in the facility would otherwise be endangered 5)The resident has failed, after due notice, to pay or have Medicare or Medicaid pay, or 6)The facility ceases to operate. 10/29/20119 ©2011, John B. Payne, Attorney

10. Contesting Discharge Payment requirements for a resident who becomes eligible for Medicaid after admission to a facility, are limited to allowable charges under Medicaid. Facility may not discriminate against Medicaid recipient. 10/29/201110 ©2011, John B. Payne, Attorney

11. Contesting Discharge (cont'd) Common Rationale:"the resident's needs cannot be met in the facility." – Often reflects facility's desire to specialize in a particular type of patient or care--e.g., Alzheimer’s, respite or short-term rehabilitation – Reform Law, Medicare and Medicaid do not support such distinctions 10/29/201111 ©2011, John B. Payne, Attorney

12. Contesting Discharge (cont'd) There is no basis 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. 10/29/201112 ©2011, John B. Payne, Attorney

13. Contesting Discharge (cont'd) 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." 10/29/201113 ©2011, John B. Payne, Attorney

14. Contesting Discharge (cont'd) Discharges Based on Behavior: Residents face discharge because of difficult behaviors that may be manifestations of dementia. This is type of need facilities are supposed to be able to address. 10/29/201114 ©2011, John B. Payne, Attorney

15. Contesting Discharge (cont'd) Nurse’s aides are required to be trained and tested regarding care of cognitively impaired including: – Techniques for addressing the unique needs and behaviors of individuals with dementia (Alzheimer’s). – Communicating with cognitively impaired residents. – Understanding behavior of cognitively impaired residents. – Appropriate responses to the behavior of cognitively impaired residents. – Methods of reducing the effects of cognitive impairments. 10/29/201115 ©2011, John B. Payne, Attorney

16. Contesting Discharge (cont'd) A facility must provide services according to the Nursing Home Reform Law to the extent needed to fulfill all plans of care. Nursing and related services and specialized rehabilitative services to allow or maintain the highest practicable physical, mental, and psycho- social well-being of each resident. – Pharmaceutical services – Dietary services – Ongoing program of activities – Dental services 10/29/201116 ©2011, John B. Payne, Attorney

17. Contesting Discharge (cont'd) Persons suffering from Alzheimer’s Disease may not be excluded from nursing homes; indeed, there may be no other facility to which they can go. Behavior that could pose a threat should be addressed with better supervision, room changes, adjustments to medications, or efforts to address whatever irritants cause the resident to exhibit the dangerous behavior. 10/29/201117 ©2011, John B. Payne, Attorney

18. Contesting Discharge (cont'd) A facility would be out of compliance if it refused to provide a statutorily defined service to eliminate certain residents. Administrative hearing officers and judges have ruled that even very disruptive and potentially dangerous resident behavior is insufficient justification for discharge. The cost of care is not one of the six legitimate reasons for discharge set forth in the federal regulations. 10/29/201118 ©2011, John B. Payne, Attorney

19. Nonpayment and Change in Payment Source Change to Medicaid is not legitimate reason for discharge. Be suspicious of claims that facility does not have “Medicaid bed.” Where the Medicaid application is in process facility is barred from discharging resident. No discharge for termination or denial of Medicaid during administrative appeal. Exhibit B (hearing decision against facility). 10/29/201119 ©2011, John B. Payne, Attorney

20. Nonpayment And Change In Payment Source (cont'd) Facilities must notify resident of Medicaid application requirements and procedures. To discharge for nonpayment, facility must document nonpayment and efforts to collect. Resident has right to redeem and remain up to date of transfer. 10/29/201120 ©2011, John B. Payne, Attorney

21. It ain’t over ‘til it’s over 10/29/201121©2011, John B. Payne, Attorney If involuntary discharge is the “result of a negative action by the department of community health... and a hearing request is filed... the [discharge] period... does not begin until a final decision... by the department of community health or a court.” M.C.L.A. 333.21773(6). A similar guarantee is at 42 CFR § 483.12.

22. Procedural Protections Reasons for transfer or discharge must be recorded in clinical record. – location to which transferred or discharged – effective date of the transfer or discharge 10/29/201122 ©2011, John B. Payne, Attorney

23. Procedural Protections (cont'd) 30-day written notice required unless: – the health and safety of resident or other individuals would be endangered – the health of the resident improves sufficiently to allow a quicker transfer – resident has been at the home less than 30 days 10/29/201123 ©2011, John B. Payne, Attorney

24. Procedural Protections (cont'd) Change in condition or behavior as basis for transfer requires re-assessment, new plan of care and notice. Further reassessment is appropriate alternative to eviction if new plan of care is inadequate. Facility’s failure to comply with any requirement may be bar to discharge. 10/29/201124 ©2011, John B. Payne, Attorney

25. Procedural Protections (cont'd) Discharge planning is required. Written discharge and post-discharge care plan -- with participation of resident Specification of types of care required after discharge -- may help prove resident's needs can be met in current nursing home Written notice of bed reservation policies and priority readmission required at hospitalization 10/29/201125 ©2011, John B. Payne, Attorney

26. Procedural Protections (cont'd) In an involuntary transfer or discharge, the “facility must provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge.” Orientation may include (according to the Surveyor's Guidelines) “trial visits, if possible, by the resident to a new location.” 10/29/201126 ©2011, John B. Payne, Attorney

27. Curb Appeal Appeal involuntary discharge within 10 days. – Wait until day 10! – Appeal form is not required. Hearing request stays discharge. Exhibit C. 10/29/201127©2011, John B. Payne, Attorney

28. To Pay Or Not To Pay: The Bed-Hold Dilemma Pressure to Pay Familiarity of surroundings and a feeling of control Desire to return to same facility and room Expensive 10/29/201128 ©2011, John B. Payne, Attorney

29. Hospital–Nursing Home Cycle 20 days of Medicare-covered skilled care after three-day period of acute care 80 days of Medicare-covered skilled care, with co-payment that many Medi-gap insurance policies cover 10/29/201129 ©2011, John B. Payne, Attorney

30. Hospital–Nursing Home Cycle (cont'd) Provided there is a 60-day period off Medicare, each time the patient has a period of acute care of three days or more, the 20- and 80-day limitations are reset. Hospital stay is usually followed by 20 to 100 days of Medicare-covered skilled care. After Medicare, patient recycles back to Medicaid. 10/29/201130 ©2011, John B. Payne, Attorney

31. Pay Bedhold? After 3-day acute care, patient will be returning as Medicare patient. Medicaid pays 10- or 18-day holds, provided the facility has 98% occupancy. For longer absences, the patient has priority for next available bed. 10/29/201131 ©2011, John B. Payne, Attorney

32. The Final Breakdown—Placement Problems Gender Age Communicable illness/infection Care problems Size Motorized wheelchair Psychiatric diagnosis 10/29/201132 ©2011, John B. Payne, Attorney

33. The Final Breakdown—Placement Problems (cont'd) Behavior (Red Flag) Geography Source of payment Adversarial relationship with facility Potential litigation 10/29/201133 ©2011, John B. Payne, Attorney

34. The Final Breakdown—Placement Problems (cont'd) Gender – Male more difficult because fewer beds designated for men – Males are blamed for sexual activity 10/29/201134 ©2011, John B. Payne, Attorney

35. The Final Breakdown—Placement Problems (cont'd) Age – Difficulty inversely proportional to age. – Younger patients need higher level, subsidized care longer. 10/29/201135 ©2011, John B. Payne, Attorney

36. The Final Breakdown—Placement Problems (cont'd) Communicable illness/infection – MRSA – C.difficile – HIV/AIDS – Post-acute Tuberculosis – Requires private room or placement with same diagnosis or precautions. 10/29/201136 ©2011, John B. Payne, Attorney

37. The Final Breakdown—Placement Problems (cont'd) Complex Care/Special Equipment – Deep/extensive wounds – Ventilator – Unable to bear weight – IVs – TPN – High flow oxygen (>4 liters per minute) 10/29/201137 ©2011, John B. Payne, Attorney

38. The Final Breakdown—Placement Problems (cont'd) Size – Bariatric patients require more space, staffing and special medical equipment. – Older facilities cannot accommodate them. Motorized Wheelchair user – Inadequate space – Traffic hazards 10/29/201138 ©2011, John B. Payne, Attorney

39. The Final Breakdown—Placement Problems (cont'd) Psychiatric diagnosis Behavior issues – Impulsivity/Frequent multiple falls – Combativeness/Aggressiveness, especially without known triggers or provocation – Fecal soiling – Animalistic behaviors: screeching, grunting, crawling – Sexual disinhibition – Self-injurious behaviors: picking, head-banging, scratching 10/29/201139 ©2011, John B. Payne, Attorney

40. The Final Breakdown—Placement Problems (cont'd) Geography Payor Source: Medicaid is a problem Family has adversarial relationship with facility Potential litigation Dumps 10/29/201140 ©2011, John B. Payne, Attorney

41. The Final Breakdown—Placement Options Private Pay – Independent Living Apartment or own home with support services – Assisted Living – Home for aged – Adult Foster Care – Live with family + private pay respite 10/29/201141 ©2011, John B. Payne, Attorney

42. The Final Breakdown—Placement Options (cont'd) State and Federal Benefits – Community Mental Health SIP or AFC – Medicaid Waiver in home or towards Adult Foster Care or Assisted Living – Skilled Care Facility (only option for 24-hr. Medicaid subsidized care if mental illness diagnosis not primary) – Veterans Aid and Attendance benefit 10/29/201142 ©2011, John B. Payne, Attorney

43. The Final Breakdown—Placement Planning Hire an expert (certified care or case manager, or professional geriatric care consultant) to evaluate and assist with placement. Discharge planners do not have the time and resources—and may lack training—to find the best placement. 10/29/201143 ©2011, John B. Payne, Attorney

44. The Final Breakdown—Placement Planning (cont'd) The expert will: – Obtain thorough medical history and current medical status report; – Interview responsible parties for social and financial background; – Identify and facilitate placement in best and most geographically favorable setting; – Counsel and support family in selecting facility; and – Empower family and offer resources for monitoring and advocacy. 10/29/201144 ©2011, John B. Payne, Attorney