Molly Wood, practicing Elder Law attorney, co-author of major works on Elder Law and a former visiting professor at the Elder Law Clinic at University of Kansas School of Law, reported recently on an incident at a nursing home in Topeka, Kansas where a woman had been a private pay resident. After the woman became eligible for Medicaid and applied in a timely, proper fashion, her husband was promptly given a “30-day notice of discharge,” with the nursing home citing “non-payment” as the grounds, despite having been kept abreast of the pending Medicaid application. It was clear the nursing home did not want the individual as a Medicaid resident; even after the nursing home was reminded that federal law (and in Kansas, state regulation) prohibited discrimination against Medicaid-funded residents, the nursing home reportedly offered the family “$3,000 if [she] would move.”
Was this an isolated incident in just one nursing home? Probably not.
While helping a member of my own family to consider options in Arizona in July, I visited an otherwise well-regarded nonprofit nursing home and was handed a form with this highlighted warning: “Applicants must pay privately for a minimum of two years before applying for any [state benefits].” Since 1985, federal law has prohibited facilities from requiring residents to “waive” rights to apply for Medicare or Medicaid coverage and has barred facilities from seeking promises of private pay. See e.g., 42 U.S.C. § 1396r(c)(5)(A) and 42 CFR § 483.12(c)(1) and (d).
At a minimum, it sounds as if, once again, it is time to stock up on copies of a brochure from the National Senior Citizens Law Center on 20 Common Nursing Home Problems and How to Resolve Them, authored by NSCLC attorney Eric Carlson. Eric successfully tackled a similar issue in a class action, Podolskyv. First Healthcare Corp., 58 Cal. Rptr. 2d 89 (Ct. App. 1996).
– Katherine C. Pearson, Professor of Law, Penn State Law