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Protecting Nursing Home Residents from Eviction

Out of the 1.4 million nursing home residents in the United States, two-thirds are Medicaid beneficiaries. Medicaid is a government program funded jointly by the State and Federal government, and covers nursing home care in Medicaid certified nursing homes only when the Medicaid beneficiary has no other means to pay and the beneficiary is eligible for the Medicaid program.

Residents who can afford to pay for the cost of their nursing home care out of pocket are generally more profitable for nursing homes than Medicaid residents. Whether or not a nursing home participates in the Medicaid program is completely voluntary, however, problems have arisen with nursing homes improperly evicting Medicaid patients after they had been accepted by the facility. Further complicating matters is that the cost of care is such that many residents who begin paying out pocket end up depleting their resources and are forced to rely on Medicaid to pay their bills.

The Rights of Medicaid Residents

Congress addressed the rights of Medicaid residents with two laws. These laws apply to nursing homes that participate in either the Medicare or Medicaid programs. The first is the Nursing Home Reform Act of 1987, which identified what services nursing homes were required to provide their residents, and what standards are applied to those services. Importantly, it also established a Resident's Bill of Rights. These rights include the right to:

  • Privacy
  • Be informed about services, their condition, and medications
  • Be treated with dignity and respect
  • Be free from abuse and neglect
  • Make independent choices
  • Get proper medical care
  • Manage their own money or choose someone to do so
  • Participate in care choices
  • Refuse medication and treatment

The second law is the Nursing Home Resident Protection Amendments of 1999, which amended the Social Security Act to prohibit the improper transfer or discharge of a Medicaid resident when the nursing home withdraws from participating in the Medicaid program. Under the law, nursing homes are allowed to withdraw from the Medicaid program, but such withdrawal is not an acceptable basis for evicting current Medicaid residents.

Nursing homes that have withdrawn from the Medicaid program must give notice to future residents, orally and in writing, that they will not accept Medicaid payments. They must also obtain from the future residents a signed, written acknowledgment of receipt, verifying that they have received this information. The acknowledgement of receipt must be separate from other documents. Future residents are therefore aware that if they enter the facility paying for their care and become unable to continue paying, the nursing home can require that they move, even if the resident becomes eligible for Medicaid benefits.

An improper transfer or discharge of a Medicaid nursing home resident has the potential for violating both of the above laws.

When Can a Resident Be Transferred or Discharged?

Medicaid residents can be transferred or discharged from their nursing home under the following circumstances:

  • When transfer or discharge is necessary for the welfare, health, or safety of the resident or others;
  • The resident's health has improved such that nursing home care is no longer necessary;
  • The nursing home hasn't been paid for services provided to the resident; or
  • The nursing home closes.

Even when these circumstances exist, nursing homes have to follow specific procedures for a transfer or discharge to be lawful.

Rights When Notice of Transfer or Discharge Has Been Given

Nursing home residents have the following rights when a notice of transfer or discharge has been given:

  • They can appeal a transfer or discharge that they believe is unlawful.
  • A nursing home resident can't be forced to leave if the resident is waiting to get Medicaid (and the facility did not provide notice that they do not accept Medicaid).
  • Nursing homes must give a 30-day written notice of their plan and reason to transfer or discharge a resident, except in emergencies.
  • Nursing homes must safely and orderly transfer or discharge a resident.
  • Nursing homes must provide proper notice of bed-hold and readmission requirements.
  • Nursing homes must have a grievance procedure for complaints.

If a problem arises, speak with the staff. If the issue can't be resolved, work your way up to the staff's supervisor and administrator. A Medicaid-certified nursing home is required to post the name and contact information for certain state groups who can be contacted, such as the State Survey Agency, State Licensure Office, State Ombudsman Program, Protection and Advocacy Network, and the Medicaid Fraud Control Unit. It may also be necessary to consult with an Elder Law Attorney who specializes in nursing home abuse law.

Next Steps
Contact a qualified elder law attorney to help you
and loved ones plan care and address problems.
(e.g., Chicago, IL or 60611)

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