Question: Since our father died seven years ago, Mom has been on a steady decline. Her doctor diagnosed her with dementia and said it would be ok to leave her at home, but it got to the point that she was getting lost when she drove (we once found her 55 miles from her home), she was not bathing, and her house was filthy and full of rotten food. So we sold her small house and admitted her to a small assisted-living home where she stayed until three years ago, when they told us they could no longer take care of her there.

She has been on a locked dementia wing of a nursing home for the past two-and-a-half years that we have paid for privately. We paid the cost by supplementing her Social Security and small survivor pension check with her savings. We have now spent all of her savings to pay for her care privately at both the assisted living and nursing home. Months ago, we told the nursing home that we intended to apply for Medicaid once Mom’s money ran out, which was with last month’s payment.

We are now being told that there is no “Medicaid bed” for Mom whom they now classify as a “high care” resident. They told my sister and me that since they couldn’t take care of her, we should make plans to pick her up and take her to one of our homes or they would discharge her. We tried to find a lawyer who could help us, but this is a very small town. We feel over a barrel because neither of us can take care of her. Do we have to pick her up and take her home?

Answer: While we have answered similar questions in the past, due to the recent barrage of e-mail we have received about this topic, it bears restatement:

First, under the law, once your mother was admitted to this Medicaid-certified nursing facility, she has the legal right to remain in that facility – regardless of how her care is paid for – and to not be transferred or discharged unless (1) it is necessary for her welfare and the facility can’t meet her needs; (2) it is appropriate because her health has improved to the extent that she no longer needs the services provided by the facility; (3) she endangers the health or safety of other individuals in the facility; (4) after appropriate notice, she has failed to pay for -- or to have paid for under Medicare or Medicaid – her stay at the facility; or (5) the facility stops operating. You should remember that for people like your mother who become Medicaid-eligible after admission to a facility, the facility may charge only allowable charges under Medicaid.

In addition, the “notice of discharge” that was given to you is inadequate. Before a facility can transfer or discharge your mother, it must not only notify her -- and, if known, a family member or legal representative -- of the transfer or discharge and the reasons in an understandable written format at least 30 days before transfer or discharge, but also record the reasons for the discharge or transfer in your mother's clinical record. We doubt that the clinical record contains any such notations.

The notice to transfer or discharge must contain, among other things: (1) The reason for the transfer or discharge; (2) The effective date of transfer or discharge; (3) Where your mother is to be transferred or discharged; and (4) A statement that your mother has the right to appeal the action to the State, including the name, address and telephone number of the State long-term care ombudsman.

Taking the NextStep: Under no circumstances should you or your sister accept your mother from the facility as, once you do, the obligation of the facility ends. Instead, file your mother’s Medicaid application immediately and call the State ombudsman.