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Discharge Plan Needed For Sick Spouse
Jan L. Warner & Jan Collins

Question: My wife suffered a brain injury two years ago. Against the doctor’s advice, I took her home and tried to care for her there. It seemed like she never slept. She talked constantly and tried to get out of the house. I had to be alert every minute of the day. She was incontinent, and became so aggressive that I was afraid to go to sleep. She would hit me, curse me, and throw things at me. She even tore up some of the furniture in our home.

Finally, with the help of her doctor, I was able to get her admitted to a nursing home near us after a short hospital stay. Medicare paid for a month, I paid for six months, and she has been on Medicaid for the past two months. No one at the nursing home complained about her until I was called and told that I would have to take my wife back home because she was disruptive to other residents in the facility. I am no longer able to care for her at home. At 71, my health is failing, and I only have my house and $50,000 left. My monthly income is less than $1,500. We have no children and no family who will help me. The nursing home told me that if I didn’t pick her up, they would bring her to my house. What can I do?

Answer: Here’s what you need to know: Once admitted to the nursing home, your wife became entitled to the protection of very stringent federal regulations that restrict the ability of the nursing facility to transfer or discharge her. A major ingredient of any such effort obligates the nursing home to prepare an “appropriate discharge plan” that includes finding placement in a suitable facility where the required care can be provided.

According to the Nursing Home Reform Act of 1987, legitimate reasons for discharge or transfer include 1) the resident’s welfare cannot be met by the facility; 2) the resident has improved to the point that the services of the facility are not needed; 3) the resident is endangering the safety and/or health of others in the facility; 4) the resident has failed to pay – either individually or through Medicare or Medicaid – for his/her stay; and 5) the facility is no longer operational.

The basis for discharge must be clearly documented in your wife’s record, and if the transfer or discharge is based on her health or medical needs, your wife’s doctor must document the same. And, unless there is an emergency, you must be given 30 days’ advance notice of the intention to discharge or transfer your wife. After receiving notice, you have rights to a hearing and may appeal any adverse findings.

Bottom Line: Regardless of the reason for seeking to discharge your wife, the facility must provide assure that your wife receives a safe, orderly transition and continuum of appropriate care. Under the circumstances you describe, it does not appear to us that sending your wife back home under your care cuts the mustard.

Taking the NextStep: Do not accept delivery of physical custody of your wife under any circumstances, and immediately demand a copy of all of your wife’s clinical and medical records from the facility. Contact an elder law attorney immediately who is knowledgeable about this subject. Visit NAELA to find an attorney,NAELA WEB SITE

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