Transcript Securing Public & Political Will

The War of the Beds
Bedhold Charges, Deposits, Discharges,
and Due Process in Nursing Homes
John B. Payne
www.law-business.com
Bed Deposits
• Medicare and Medicaid providers prohibited
from charging Medicare beneficiaries for
services that are eligible for payment by
Medicare
10/29/2011
©2011, John B. Payne, Attorney
2
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.
10/29/2011
©2011, John B. Payne, Attorney
3
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.
10/29/2011
©2011, John B. Payne, Attorney
4
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).
10/29/2011
©2011, John B. Payne, Attorney
5
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).
10/29/2011
©2011, John B. Payne, Attorney
6
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
10/29/2011
©2011, John B. Payne, Attorney
7
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.
10/29/2011
©2011, John B. Payne, Attorney
8
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.
10/29/2011
©2011, John B. Payne, Attorney
9
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.
10/29/2011
©2011, John B. Payne, Attorney
10
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
10/29/2011
©2011, John B. Payne, Attorney
11
Contesting Discharge (cont'd)
• There is no basis for a discharge simply
because the resident may now require longterm custodial care rather than rehabilitation,
or no longer qualifies for Medicare-covered
skilled care.
10/29/2011
©2011, John B. Payne, Attorney
12
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."
10/29/2011
©2011, John B. Payne, Attorney
13
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.
10/29/2011
©2011, John B. Payne, Attorney
14
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.
10/29/2011
©2011, John B. Payne, Attorney
15
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 psychosocial well-being of each resident.
–
–
–
–
10/29/2011
Pharmaceutical services
Dietary services
Ongoing program of activities
Dental services
©2011, John B. Payne, Attorney
16
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.
10/29/2011
©2011, John B. Payne, Attorney
17
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.
10/29/2011
©2011, John B. Payne, Attorney
18
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).
10/29/2011
©2011, John B. Payne, Attorney
19
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.
10/29/2011
©2011, John B. Payne, Attorney
20
It ain’t over ‘til it’s over
• 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.
10/29/2011
©2011, John B. Payne, Attorney
21
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
10/29/2011
©2011, John B. Payne, Attorney
22
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
10/29/2011
©2011, John B. Payne, Attorney
23
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.
10/29/2011
©2011, John B. Payne, Attorney
24
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
10/29/2011
©2011, John B. Payne, Attorney
25
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.”
10/29/2011
©2011, John B. Payne, Attorney
26
Curb Appeal
• Appeal involuntary discharge within 10 days.
– Wait until day 10!
– Appeal form is not required.
• Hearing request stays discharge.
• Exhibit C.
10/29/2011
©2011, John B. Payne, Attorney
27
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
10/29/2011
©2011, John B. Payne, Attorney
28
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
10/29/2011
©2011, John B. Payne, Attorney
29
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.
10/29/2011
©2011, John B. Payne, Attorney
30
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.
10/29/2011
©2011, John B. Payne, Attorney
31
The Final Breakdown—Placement
Problems
•
•
•
•
•
•
•
Gender
Age
Communicable illness/infection
Care problems
Size
Motorized wheelchair
Psychiatric diagnosis
10/29/2011
©2011, John B. Payne, Attorney
32
The Final Breakdown—Placement
Problems (cont'd)
•
•
•
•
•
Behavior (Red Flag)
Geography
Source of payment
Adversarial relationship with facility
Potential litigation
10/29/2011
©2011, John B. Payne, Attorney
33
The Final Breakdown—Placement
Problems (cont'd)
• Gender
– Male more difficult because fewer beds
designated for men
– Males are blamed for sexual activity
10/29/2011
©2011, John B. Payne, Attorney
34
The Final Breakdown—Placement
Problems (cont'd)
• Age
– Difficulty inversely proportional to age.
– Younger patients need higher level, subsidized
care longer.
10/29/2011
©2011, John B. Payne, Attorney
35
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.
10/29/2011
©2011, John B. Payne, Attorney
36
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)
10/29/2011
©2011, John B. Payne, Attorney
37
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
10/29/2011
©2011, John B. Payne, Attorney
38
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
10/29/2011
©2011, John B. Payne, Attorney
39
The Final Breakdown—Placement
Problems (cont'd)
•
•
•
•
•
Geography
Payor Source: Medicaid is a problem
Family has adversarial relationship with facility
Potential litigation
Dumps
10/29/2011
©2011, John B. Payne, Attorney
40
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
10/29/2011
©2011, John B. Payne, Attorney
41
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
10/29/2011
©2011, John B. Payne, Attorney
42
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.
10/29/2011
©2011, John B. Payne, Attorney
43
The Final Breakdown—Placement
Planning (cont'd)
•
The expert will:
–
–
–
–
–
10/29/2011
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.
©2011, John B. Payne, Attorney
44