Question:-From Nebraska--Our mother, who suffers from moderate Alzheimer’s disease, has lived in a local nursing home for nearly three years. Our father died prior to her admission, and we have used the money and assets he left her to pay for her care privately at the rate of more than $6,000 monthly. She is in the locked ward because she wanders. As her money began to dwindle, we told the administrator of our intention to apply for Medicaid once the money ran out. When we paid last month, we were told that because there was no Medicaid bed available and because our mother was, as they put it, a “high maintenance” resident, they could not keep her any longer, and we would have to make plans to take her home or they would discharge her.

My sister and I live out of state, and they really have us over a barrel because neither of us has made any other plans to care for her. Can the nursing home do this? What are our options?

Answer: No, the nursing home can’t do this if it is a Medicaid-certified facility because once admitted to such a facility, each resident has the legal right to remain in the facility – without regard to source of pay – and to not be transferred or discharged unless (1) the transfer or discharge is necessary for the resident's welfare and the facility can not meet the resident's needs; (2) the transfer or discharge is appropriate because the resident's health has improved to the extent that he or she no longer needs the services provided by the facility; (3) the resident endangers the safety of individuals in the facility; (4) the resident endangers the health of individuals in the facility; (5) after reasonable and appropriate notice, the resident has failed to pay for -- or to have Medicare or Medicaid pay for – his or her stay at the facility. (It is important to remember that for residents who become Medicaid-eligible after admission to a facility, the facility may charge only allowable charges under Medicaid); or (6) The facility ceases to operate.

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

By law, the notice to transfer or discharge must contain, among other things: (1) the reason for 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’s long-term care ombudsman. Number 3, above, is most important because the facility must prepare an appropriate discharge plan, including where your mother will be cared for. A discharge to your home or your sister’s home is not, in our view, an appropriate discharge plan.

There are other requirements for the protection of residents who either have developmental disabilities or are mentally ill. We suggest that you contact an elder law attorney in your state to secure a referral to an experienced lawyer in the state where your mother resides as quickly as possible. In the interim, under no circumstances should you or your sister accept responsibility for your mother and remove her from the facility.