Question: My father, an Alzheimer’s patient, has been a resident of a local nursing home for nearly three years during which time his care has been paid for from his savings. While he is sometimes difficult to handle, there were few complaints by the facility about caring for him – that is, until I told them that we were almost out of money and would be applying for Medicaid. Now they tell us that they must discharge Dad because he is too hard to handle. They are asking us to come and pick him up. Should we?

Answer: No. The Nursing Home Reform Act of 1987 established requirements for all facilities which participate in either the Medicare or Medicaid programs including prohibitions against the transfer or discharge of residents except under the following certain limited circumstances:

1) Where the transfer or discharge is necessary to meet the resident's welfare and the resident's welfare cannot be met in the facility; 2) Where the transfer or discharge is appropriate because the resident's health has improved sufficiently so the resident no longer needs the services provided by the facility; 3) Where the safety of other individuals in the facility are endangered; 4) Where the health of other individuals in the facility would otherwise be endangered; 5) Where the resident in question has failed, after reasonable and appropriate notice, to pay for a stay at the facility; or 6) Where the facility ceases to operate.

The facility must also document the reason for the transfer or discharge in the resident’s medical record. To discharge a resident who is in the facility under the Medicare program, the facility must document reasons 1) through 5) in the resident’s clinical record. To discharge a resident who is in the facility under the Medicaid program, the facility must document only reasons 1) through 4).

Prior to transfer or discharge, the facility must notify the resident and a family member of the reason for transfer or discharge. This notice must inform the resident about his/her right to appeal the transfer or discharge to a state agency, and must include the name, mailing address, and telephone number of the State Long Term Care Ombudsman.

As a general rule, the facility must provide 30 days notice of the transfer or discharge of a resident; however, there are some exceptions. For example, if there are "exigent circumstances," federal law permits earlier discharge for any reason other than nonpayment and the facility ceasing to operate.

And, finally, the facility must provide the resident with discharge planning, and sufficient preparation and orientation to residents to assure safe and orderly transfer or discharge from the facility. Saying that you should come and get your father is not sufficient.

Due to the complexities involved in the discharge and transfer process, we suggest that you not voluntarily remove your father from the facility, demand notice of discharge, secure a copy of your father’s clinical record, and hire an experienced elder law attorney in your area immediately.

NextSteps Fact: Annuities and self-canceling installment notes are two kinds of investment vehicles that can be used in the Medicaid planning process to transform excess assets into an income stream so that the nursing home spouse can qualify for Medicaid.

Jan Collins Stucker is an award-winning writer and editor. Jan Warner is a matrimonial, elder, and tax attorney. Both are based in Columbia, South Carolina.

Please send your questions to P.O.Box 11704, Columbia, S.C. 29211 or send your questions by email to janwarner@flyingsolo.com.

© 1998 Jan L. Warner