How to Be an Effective Nursing Resident Advocate
If you have a loved one or friend who requires rehabilitation or skilled nursing care, it is important for you and the resident to know the law that protects the resident’s rights. The following are some false statements that may be made by nursing facilities and how to effectively respond:
1. “We can’t give the resident therapy services because he/she isn’t making progress.”
Progress is not the only goal of therapy. The Nursing Home Reform Law says a nursing facility must provide “services and activities to attain or maintain the highest practicable physical, mental, and psycho social well-being of each resident.”
Respond with “Medicare reimbursement is not dependent upon a resident’s progress. To receive reimbursement, a resident must require ‘skilled nursing services’ or ‘skilled rehabilitation services’. Progress is not a criterion. Demand they bill Medicare and let Medicare decide. If Medicare denies the claim, then the patient must pay for the care received while the claim was pending.
2. “You can’t receive Medicare reimbursement anymore because we have determined you need custodial care only.”
Medicare may pay up to 100 days if a resident a) has Medicare coverage; b) has been admitted to a hospital for at least 3 consecutive nights in the prior 30 days; c) needs skilled nursing services or skilled rehabilitation. Medicare pays 100% of the first 20 days, and for days 21 through 100, the resident must pay a daily deductible.
The resident must be notified on a form of the facility’s determination and it must inform the resident that he/she may force the facility to submit a bill to Medicare to make the final coverage decision. While Medicare is reviewing the bill, the facility cannot charge the resident for any amount that Medicare may pay until Medicare actually denies the claim. If denied, you may appeal.
Notify your treating physician immediately. That physician’s opinion is entitled to deference. Ask the physician if the treatment is necessary, and if so, ask the physician to speak with the nursing home.
3. “Since you are not eligible for Medicare reimbursement, you must leave your Medicare-certified bed.“
A nursing facility only receives Medicare reimbursement for a resident residing in a Medicare-certified bed. It has a financial incentive to shuttle residents in and out of Medicare-certified beds once the reimbursement period ends.
A resident has the right to refuse transfer to another room within the facility if the purpose of the transfer is to relocate the resident from a portion of the facility that is Medicare certified to a portion of the facility that is not Medicare certified.
Medicare certification of a room does not prevent that room from being used for the care of a resident who pays privately or through Medicaid.
4. “We can’t admit your spouse/parent unless you accept financial responsibility.” “You have to be able to pay privately for a certain period of time.” “We don’t have Medicaid beds available.”
Federal Nursing Home Reform Law prohibits a facility from requiring a third-party to guarantee payment as a condition of admission or stay, regardless of payment source. Do not sign where it says ‘responsible party’. It is deceptive and illegal.
Financial screening is also prohibited by law. You cannot be required to disclose your assets or be asked to pay private for any length of time.
Tell them to fax a request to the Agency for Health Care Administration to certify additional Medicaid beds in their facility. It is not a reason for the parent or child to pay private when the parent may be Medicaid-eligible.
5. “We are going to discharge the resident because he/she is difficult.”
A resident can only be discharged if:
- he/she fails to pay the bill after reasonable notice or to have Medicare or Medicaid pay
- the resident’s health has sufficiently improved and no longer needs skilled care
- the safety or health of other resident is endangered
- the resident’s needs can no longer be met (the facility must have believed it could meet the resident’s needs or else it would not have accepted the resident)
The facility must make reasonable attempts to accommodate the resident and address the problem. The resident has a right to appeal a discharge notice.
File an appeal within 10 days to stop the discharge until there is a hearing.
Each county has a Long-Term Care Ombudsman who serves as an advocate for skilled nursing and assisted living facility residents. Their knowledge and presence are invaluable! Use this link https://ombudsman.elderaffairs.org/about-us/district-offices/ to find the ombudsman office in your county.
