Question: My father’s last illness and nursing home stay -- he died two years ago -- left my mother almost destitute. Aside from Social Security and a small pension (totaling less than $900 per month), she has her small home and little more. Early this year, at age 80, she suffered a stroke and, after being hospitalized, she was discharged for rehabilitation to the same nursing home where my father died. Now, 45 days into her stay, she is still unable to walk, get out of bed, go to the bathroom, etc., and her doctor says that she has reached maximum improvement.

Her care in the nursing home has been paid for by Medicare and her Medigap insurance; however, I have now been told that nothing more can be done for my mother and that, unless my sister and I agreed to pay $140 per day (plus medication and supplies) to keep her there as a private pay patient, they would discharge her. When I informed the nursing home that I was in the process of applying for Medicaid, I was told that they did not have a Medicaid bed and that we could either pay privately or take her home and care for her there. Her doctor says that she needs to be watched around the clock -- an expense that she, my sister, and I cannot afford. What can I do to make sure mother gets the care she needs? By the way, this is the same nursing home where my father stayed as a private pay patient for more than a year before he died. We did not apply for Medicaid then because my mother wanted to make sure he was taken care of.

Answer: Under the circumstances as you state them, the nursing home cannot discharge your mother. In fact, the threatened action by the facility violates both federal and state regulations which prevent discharge of your mother unless (a) the facility can not meet her needs -- which is clearly not the case; (b) your mother’s health has improved to the extent that she no longer needs long term care -- which is clearly not the case; or (c) your mother has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare or Medicaid) her stay at the facility -- which is clearly not the case. The fact that your mother is converting from Medicare to Medicaid as a source of payment is not a legitimate reason for discharge.

In addition, before transferring or discharging a resident, the facility must (a) give 30 days notice to your mother and you of the proposed transfer or discharge, (b) state in writing the reason(s) for the discharge, the date of the discharge, and to the location of the place to which your mother is to be transferred or discharged; and (c) a statement that the resident has the right to appeal to the state agency that administers the Medicaid Program in your state. The names/designations of the agencies vary from state to state. Clearly, telling you to take your mother home is not appropriate.

Lastly, by telling you that your mother could stay if you guarantee the private pay rate, the facility has breached other federal and state laws which prohibit a facility from requiring third persons to guarantee payment as a condition of admission, expedited admission, or continued stay in the facility. If your mother qualifies for Medicaid, the facility cannot require any consideration as a precondition of admission, expedited admission or continued stay in the facility.

We suggest that you contact an experienced elder law attorney in your area. We also suggest that you contact your local ombudsman’s office to report this situation. Under no circumstances should you remove your mother from the facility.

Taking the NextStep: Your situation also points up the need for long-term care planning when both spouses are alive. Here, when your father was ill, your mother gave up the spousal resource allowance to which she was entitled by not seeking Medicaid benefits for him. For individuals who can not afford or qualify for long-term care insurance, long-term care planning is essential.