Question: My parents have lived in the same small house for more than 50 years. They have very little savings and have existed on Social Security and Dad’s small pension. My 77-year old father was always healthy, and my 75 year-old mother was always frail. So it was a big surprise when Dad had a stroke and became unable to take care of himself. But it was no surprise that my mother was virtually no help, so I moved in with them and took care of him because there was no one else. After nearly a year of this stress, my wife left me and has gotten a divorce.

Dad was recently readmitted to the hospital, but this time was discharged to a nursing home. From what I had read, since he had Medicare and Medigap insurance, I was sure his care would be paid for the first 100 days while he was getting therapy, so I began filling out the Medicaid papers. But before he was approved, he became ill again, and was readmitted to the hospital.

Even though he still had 29 days left on his 100 Medicare nursing home days and was making progress, the nursing home told me that if we did not pay more than $300 per day to hold his bed while he was in the hospital, they would have no choice but to discharge him. The private pay rate at this facility is $200, and I have been frantically trying to handle my mother at home and take care of Dad the hospital. My folks don’t have the funds to pay to keep the bed, and I was ravaged by the divorce. Can the nursing home do this? What happens if I just take Dad home from the hospital?

Answer: You are facing what is called a "bed-hold" policy, which requires that certain nursing home residents be returned to their beds if they are absent from the facility temporarily. Based on the circumstances you describe, we are afraid that the nursing home can demand payment to hold your father’s bed. Had your father been receiving Medicaid, the answer would have been much different, but Medicare patients who, for example, must go into the hospital for a few days, may be charged significant fees to hold their beds.

The Nursing Home Reform Act about which we have written so much gives residents who qualify for Medicaid benefits what are called “Bed-Hold and Readmission” rights, but these rights to not extend to Medicare beneficiaries. This means that Medicaid recipients who are required to leave the facility due to hospitalization or therapeutic reasons have the right to return, and the nursing home must hold that resident’s bed for a certain period of time. Should the absence exceed the bed-hold period, and should the resident still require skilled or intermediate nursing care services, he or she is entitled to the first available bed in a semi-private room at the facility.

Federal and state law and regulations require that nursing facilities give written information to the resident and a family member detailing the facility’s bed-hold policy under the State Medicaid plan. However, this is not the case for those whose care is reimbursed by Medicare; they can be required to pay bed- hold fees established by the facility. At the time of your father’s admission, the facility should have explained its bed-hold policies to you in writing.

This means that folks like your father, who are insured by Medicare, are not protected. Therefore, your choices are to 1) pay the daily rate and retain the bed or 2) take your chances that you can find a bed elsewhere after you father qualifies for Medicaid, which is getting more and more difficult. Given your father’s condition, taking him home voluntarily is probably not an option.

No matter what you decide to do, before you make that decision, we believe you should enlist the services of an elder law attorney in your area to advise you, because the best choice may differ from state to state based on local circumstances. To find one click