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NH Discharge of Incapacitated Client
Jan L. Warner & Jan Collins

Question: After my father was hospitalized and treated for a stroke, he was discharged to a nursing facility for rehabilitation. Medicare was paying the bills. He is incontinent and needs help bathing, dressing, and moving in bed, but his mind is still very sharp. He has been very depressed, cries a lot, and continues to tell me and the nursing home personnel that he wants to be sent home and cared for there. He is 81, my mother is deceased, and because of my job and family, there is no way I can be there for him. In addition, his only income is Social Security, and his only asset is his small house, which would require costly modifications before he could be sent there. I had just filed a Medicaid application for him when the nursing home told me that Dad would be discharged home to receive care there based on his wishes. He signed his consent, but I told the administrator that I did not agree. I was then sent a discharge notice based on his wishes and lack of payment. Is there anything I can do about this? What about my Medicaid application? Please answer quickly.

Answer: Your fatherís depression is certainly understandable given the loss of your mother, his health problems, and his loss of independence. These all make him extremely vulnerable. Why the facility and his physician did not include psychiatric or psychological counseling as part of his care plan is, in our view, a serious question that needs to be answered. And, since your father continues to be totally dependent on facility personnel to provide assistance with most of his daily activities, we donít think discharging him would be proper at this time, if ever.

Your father, in fact, may be too vulnerable to consent to being discharged. Even though he isnít mentally incapacitated to the extent that he shouldnít be allowed to participate in decisions about his care, it appears that his ability to make rational decisions has been affected by his depression.

As a participating provider in both the Medicare and Medicaid programs, the facility is obligated to provide notice of discharge under federal law to you and your father. Neither Medicare nor Medicaid will pay for nursing home services in advance, but Medicaid will retroactively pay for services provided since the date of application Ė assuming your father is eligible. Therefore, lack of payment is not an appropriate reason for discharge under the circumstances you describe.

Lastly, without appropriate modifications to your fatherís house and without plans for a trained person to be at home with him after discharge, given his condition, we donít believe that his needs could be met at home. Therefore, in our view, the proposed discharge is both premature and inappropriate.

Taking the NextStep: Under federal law, a licensed long-term care facility must provide residents with sufficient preparation and orientation in order to assure they enjoy a safe and orderly transfer or discharge from the facility. In addition, the facility must provide each resident with the care and services required to help attain or maintain the best physical, mental, and psychosocial well-being possible. We suggest that you contact a qualified elder law attorney ( and appeal the discharge notice immediately to preserve your fatherís rights. Review this site for more information about residentsí rights at the time of discharge.

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