We sign all sorts of paperwork when a senior loved one is admitted to a nursing home, assisted living, or memory care community. But often we don’t know what we’re signing. Elder law attorney Jim Koewler joins Suzanne to explain exactly what we’re signing, and helps us spot legal red flags in the paperwork.
This segment focuses on a care facility’s threats to discharge or evict a loved one. These rules apply to communities that take Medicare or Medicaid, regardless of whether your loved one is using those programs. If they’re private pay, if there’s a problem along the way, these laws may still apply:
Must give 30 days advance notice, unless
- Resident’s health has improved
- Resident hasn’t yet been there for 30 days
- Health or Safety Emergency to anyone in the facility
- Medical Emergency for Resident (Hospitalization)
Must still give notice as early as is practical
The “health or safety emergency” is often used in cases where a resident has improperly touched or threatened others.
The notice of discharge must contain:
- Reason for proposed discharge
- Proposed date of discharge
- Proposed new care facility
- Right to a hearing and how to request it
- Long-Term Care Ombudsman contact information
The proposed new facility may not be the site where the loved one ends up going, because of circumstances that happen in the ensuing 30 days, but a site must be proposed.
While preparing to discharge:
- A new place must be able to meet care needs
- New place needs to agree to take the personNot necessarily at time of notice of dischargeRequired at time of actual discharge
- Old place must ensure a safe, orderly discharge
Given the threat of discharge to your residence, anyone challenging the discharge should say that your residence is unable to meet care needs, or else the hearing officer can assume whatever is on the notice is appropriate. They may say you have to come and take your loved one, but no, that is not a safe discharge. They have to make transportation arrangements.
The ombudsman should give you this information, but we don’t know that they will, or how much they know. Services in the Seattle area such as Sound Generations and Homage Senior Services help seniors with discharges and qualifying for Medicaid. Reach out to your city or county departments of aging but
Watch on YouTube to see slides from Jim’s presentation. Learn more about Jim Koewler at his website.
View Episode Transcript
*The following is the output of transcribing from an audio recording. Although the transcription is largely accurate, in some cases it is incomplete or inaccurate due to inaudible passages or transcription errors.
The following podcast is by Mr Jim Taylor, elder law and special needs attorney, helping and protecting those who need long term care. And Welcome back everyone to answers for elder’s radio network. And we are here with Jim Taylor, elder law attorney, on admission into assisted living, skilled nursing, etcetera, etcetera, types of facilities, and there’s all kinds of paperwork that we sign and obviously we oftentimes don’t even know what we’re signing, but we’re getting hugely, at least my eyes are being open on all kinds of things that I didn’t even know. So Anyway, Jim Uh, this is a segment four. It’s it’s amazing this hour is flown by for me because it’s just I’m like, well, in my face, yeah, I’ve hit you where. You’ve had experience. So it’s ugly, huge. Yep. Okay, so we’ve talked about admission agreements or residency humans or you know whatever that nursing homeware system wants to call them, and I want to jump from there into threats to discharge a loved one. Okay, now these rules that I’m describing here under center for Medicare and Medicaid Services. So if we’re if you’re talking to a nursing home or assisted living, and it’s very few nursing homes, but there are some that don’t take Medicare or Medicaid. They’re not something to do these rules. Okay, there’s lots of assisted livings that don’t take Medicare Medicaid and I think that with every new construction that’s a new one that probably doesn’t at least is going to try not to, but after a while you end up having to cave in and take Medicaid. But you got to check. Okay, even if your loved one is not on Medicare or Medicaid, these rules still apply, as I interpret as I read the rules. Okay, so they’re private pay. Well, if they’re private pay they’re prime not apt to be discharged anyway, because that’s that’s the high level of payment the nursing homes and assistant livings like Um. But if there’s some problem along the way, some of these apply, okay, even even to a loved one private pay. So we’re talking about the nursing home, work system living wants to discharge or evict or whatever you wanna call it, your loved one, their resident, from from the nursing home or assisted living. Since this is a pseudo medical situation, we tend to use the word discharge rather than evict. Okay, although in assistant livings they frequently call themselves leases, call their documents leases. So eviction would apply, but if they take medicure or Medicaid, these rules should still apply. Okay. So, Um, the resident who is who the nursing homework system living, wants to evict or wants to discharge must receive thirty days advanced notice us. Now, I’ve seen this get very squirrelly. So you want to be careful when and let’s go all the way back to the beginning and choosing a mailing address for your loved one. You want to have their mail come to the house in addition to whatever they get at the nursing home, because I’ve heard of discharge notices actually had. This happened to a client, but fortunately the family visited the the nursing home left a discharge notice on the nightstand for a client who was asleep most of the day. But they got service because it was left on the nightstand. Fortunately we found it before the thirty days was up. Okay, now that thirty days notice requirement does not apply if the resident’s health has improved and they no longer need to be there. Well, okay, yeah, we’RE NOT gonna keep you here if you don’t need our services, because now you know we can’t charge you for all that. or You really ought to be moved out. So the resident’s health has improved, you don’t need it. Thirty Day nowice. If the resident hasn’t been there thirty days yet, then thirty day knows, isn’t required if there’s a health or safety emergency to anyone in the facility, anyone in the facility. Okay, so not just this resident. This is often the trigger for a resident who UM improperly touches others or threatens others and the thirty notice is not required for that. And I had I didn’t have a client. I actually had award. I’m a volunteer Guardian. I’m not a professional guardian. I’m a volunteer Guardian in my county, Summit County in Ohio, and one of my wards Um had traumatic brain injury in his twenties but was built like an ox Um and when he wasn’t allowed to smoke, on his birthday because this place took away smoking privileges if you misbehaved. And with traumatic brain injury, he really had very little impulse control. He lost his he has lost is as is cool, Um, and really did a lot of damage to a nurse’s station which was right where, right near where they go out to smoke. Um. And he was immediately discharged, uh, sent to a psychiatric place. Um, and I couldn’t really say that they needed to have thirty days notice. That was appropriate. Okay, I did use a I did appeal and we’ll talk about appeals, I think, in my future slides. Um, but we uh, he he had to be discharged and then, uh, so, you know, some health or safety emergency to someone else, and improper touching is the big one, Um, because you know people demnition, have lost their boundaries. Um, or there’s a medical emergency for the resident, which means they’re going to the hospital. Okay, Um and eve. But even if there isn’t a thirty day notice requirement, they must give notice as early as practical. So there does notice or crime, it does not go away. It simply is not thirty days long. Okay, Um. So the notice of the of the intent to discharge. The thirty day or whatever advanced notice there is has to contain why you’re being discharged. Most often, I see it in my world, because Medicaid hasn’t come through and the nursing Al wants to get paid and they want to blame somebody or, frankly, I think this is a trying to get uh, put a scare into the family where they will just private pay for a while, like you had to do. Okay, UM, private pay for the time that Medicaid should have been covering but but isn’t. So. But that’s the reason proposed discharge. In fact, I have a discharge hearing for failure to pay because Medicaid improperly denied an approval, and that hearing is three days from now. Um, not my first Rodeo with these guys. Okay, I do enough of these in Ohio that the woman who takes them and knows me by nate where I was actually talking with a friend of mine who was studying for the certified Otal Law Attorney Exam, and ask Hey, what you know? What do you think? It’s just always great to learn about things I’ve never had to do, like a discharge. You’ve never done a discharge. I was stunned. She’s been in the out a law for years and never done a discharge. I don’t think I’ve gone a year without at least one. Yeah, so, uh, just so, the Lady of Department health in Ohio that that collects these knows me by name. That’s not a good sign. I shouldn’t do that many. It has the notice has to include a proposed dat of discharge. When is it going to happen? Has To propose a new care for city. Where are we going to send you? Okay, it might be home. Yes, it might be home and we’ll talk about that later. Okay, but the proposed new care facility may not be the one. Let’s assume the discharge actually goes through. It may not be the one that actually is where she, the little one, is going, because in the thirty days that placed me fill up or may say we don’t want that race. Okay, but they have to have some proposal. Okay, and I have one of these one time where all they did was was call around and say, who do you have an opening? Yes, they put that one down, um in the proposal or in the in the notice of discharge. Okay, it has to explain that there’s a right to hearing and how do you request it, and it has to have contact information for the long term Care Ombudsman’s office. That’s the the office that is supposed to be looking out for the resident, at least piled and I’m sorry you can get Usan’s office, but it tends to be one that tries to keep the peace between the nursing home and the resident. If you ever get through to the here and what she state. I remember reaching because I had the ambusman Um number. I called, all I got was a voicemail. I left a message and Um, it was like seven weeks before I got a call back. That’s a shame. But that isn’t that is a staffing issue and we see it frequently in preparing to discharge that this is the nursing home or the six of livings obligations and preparing to discharge then, uh, the place they choose must be able to meet the care needs. That’s a big one. About sending them home. Okay, home probably, or to to a daughter’s home. Home probably cannot meet the care needs. However, in practice, what I have seen. Now this may be a house specific, but given the threat of discharge to your place. I’m not sure it’s o how specific, at least in my practice, the anyone opposing the discharge has to say that place is not appropriate. Otherwise the hearing officer assumes that whatever is on the discharge notice is appropriate, even if it’s complete. Okay. Um, the new place must agree to take the person, and that again that the agreement is not necessary at the time of the notice to discharge, because that maybe a three day lead time. It is required at the time of the actual discharge. And then the place that is moving the loved one out must ensure that the move is safe and orderly. They must arrange transportation, must arrange for all the stuff to go, that sort of thing. Okay, but by that time the discharge is a fatal complete okay, but you can make sure that they can say, oh well, you have to take your loved one. No, that’s not a safe discharge. They have to make arrangements. Interesting, interesting, Um. And so obviously if somebody gets a notice like this, Um to me it’s like if if you call the Obbsman, well, the Osman give you this information that you’re giving us today. Usually I know that that’s always should but I don’t know, because you remember, you’re talking to one person at an ambles office. I’m not sure how much each of the Ombud has been representatives really knows. Right. That’s my question. And and the other thing Um. I know here in Washington state we have things Um organizations that are nonprofits, like sound generations or senior services or things like that. Um Appear. In snahamish county we have what’s called homage and they do and they help seniors with Um, you know, discharge planning, with qualifying for Medicare, Medicaid, things like that. Obviously there might be a resource there, but it obviously depends on what you’re doing. Obviously right. Yeah, and you should reach out to your area agencies on aging. Should reach out to your county departments of aging or Your City Department of aging or whatever is appropriate. Um and, but some of them don’t deal with discharges. They do an awful lot of planning and trying to stay home, but discharges are different animals. Sure, sure, and so, Jim, we’re gonna be back right after this. State of Ohio residents, you have a friend to help you navigate long term care while protecting your assets. You can reach Jim at www dot protecting seniors dot com, or just email him at J K O E W L E R Pyphen a F e. that’s J Kaylor a F E at protecting seniors dot com.
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Founder and CEO of Answers for Elders, Inc., Suzanne Newman proclaims often, “Caring for my mom was the hardest thing I ever have done, but it was also my greatest privilege.” Following a career of over 25 years in sales, media, and marketing management, Suzanne Newman found herself on a 6-year journey caring for her mother. Her trials and tribulations as a family caregiver inspired an impassioned life mission outside of the corporate world to revolutionize the journey that so many other American families also find themselves on. In 2009, she became the founder and CEO of Answers for Elders, Inc., subsequently hosting hundreds of radio segments and podcasts, as well as authoring her first book. Suzanne and Answers for Elders, Inc. have spent 14 years, and counting, committed to helping families and seniors along their caregiving journeys by providing education, resources, and support. Each week on the Answers for Elders podcast, Suzanne is joined by vetted professional experts in over 65 categories including Health & Wellness, Life Changes, Living Options, Money, Law, and more. Suzanne lives in Edmonds, Washington with her husband, Keith, and their two doodle dogs, Whidbey and Skagit.
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