How to Deal With Threats to Discharge Your Loved One, Part 2

*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 the answers for elders radio network with Jim Taylor, elder law attorney, and we are talking about agreements, paperwork, discharge papers, all kinds of things, paperwork in regards to senior living, assisted living and nursing homes, nursing still nursing facilities, memory cares, you name it, Um we’re out given paperwork to sign and we are on the whole fact of this is part five. Jim, take it away. Okay, so we’ve been talking about we talked about mission agreements or residency agreements earlier and for the last in our last segment we were talking about the nursing home. We’re assisted living wanting to discharge the resident. You’re up and now we’re going to continue that discussion. There are specific rules under federal rules when a discharge is for a proposed discharges for a failure to pay. There is no quote failure to pay if there’s a pending Medicaid application. Now I’ve had some nursing homes argue and I assume they’ve done this successfully in department health hearings in Ohiout Department health handles that discharge hearings, even though it’s a federal law. Higher Department of Health handles and discharge hearings. So whatever each state does, the federal rules still apply for UH, nursing of them assistant livings that accept money from Medicare or Medicaid. So Um, I suspect that some nursing homes have successfully argued that a, it’s a sham application if it’s no different than an earlier application. They got rejected. Uh. And frankly, as I mentioned a last segment, I’ve got a discharge hearing in three days and I suspect they’re going to argue that. But I can show how it’s different. Um, this medicates turned us down because they didn’t understand that money and probate court isn’t available to the heirs until the probate court releases it. I don’t know why they don’t understand that, but they yeah. So, uh. So, if there’s if there’s a penning Medicaid application that is at all different from any prior Medicaid application, or if there’s no prior Medicaid application, then there’s no failure to pay yet, okay. Um, if there’s, if Medicaid turned down the resident or gave the resident a penalty period because of what they’ve viewed as improper transfers, if there’s a state hearing or an administrative appeal, which is in Ohio, above a state hearing, Um, then there’s still no figure to pay while the while, the while the appeal or state hearing or administrative appeal is going on. Okay, and if you want to take it to court in Ohio anyway, that’s the next step and that would still mean no faigure to pay. However, plenty of nursing homes and assisted livings will ignore all that and will try to discharge someone despite appending Medicaid application. If they can scare the family into taking a Medicaid depending person home or scare the family into paying to keep the resident in, even though there’s no obligation to pay, then they’ve made money or they’ve cut someone out who’s a problem resident. So just the fact that they are prohibited from from pursuing these discharge threats doesn’t mean they aren’t going to try and if they can get away with it, because the family didn’t know any better than they got away with it. If someone wants to challenge a threat to discharge, the appeal instructions must be in the discharge notice. If they’re not in the discharge notice, then you find whether they are somewhere and say inadequate notice and you can make them start all over. Nursing homes and assistant livings have these things down. They have forms. Okay, so the feel instructions are in there in Ohio through the Department of Health and I fact my appeals in because I can prove it got there, and then it tells you where to appeal. There should be a government office in Ohio, US Department of Health, of the General Counsel’s Office, Um are office of Legal Counsel, I think they call it, and it has to say in the notice where you send your appeal. You have to include in your appeal a notice of the proposed discharge. So you have to have it in print, you have to have it on paper or at least you know, a scan or a photograph of it or something that you can attach to your appeal going in. And you have to copy the facility on your notice to the government agency that you’re appealing. So make sure you cross off all those steps, get it to the right office, include a copy of the proposed discharge and include a copy of everything you sent to the government office when you send it to the facility, the nursing home or assisted living, so you have these instructions need to be in the discharge notice. So that’s why it’s very important to have their written discharge notice before you go down this road. Okay, and since it’s you know you’ve got thirty days, so you don’t wait till the end because if they if you can’t appeal soon enough, they can go ahead and discharge. If you with the appeal, they can. You then are first in line for your resident to move back in. But we don’t have an empty bed. You’re waiting until they have empty bed. Okay. Now, right now, with all the fallout from covid most places of empty beds, not every place, but they are filling up again. The needs hasn’t gone away because of Covid they absolutely are filling out here significantly. And then, finally, our last slide today. The possible defense is, in other words, what you want to argue when you’re trying to beat back a discharge threat. Okay, so you can challenge the reason for the discharge. For example, if the discharges for failure to pay show the depending application or appending appeal, and again you may have to show that it’s different application than some prior application. You can challenge the new destination or destinations that the appeal I have on Monday, uh, three days from now, if it happens to be your Friday. Um has four or five different places on it where they could discharge. So we have to argue what each one of them is inappropriate, even though none of them may be the place that take them because they may fill up in the meantime. U. The big thing is to show that where the proposed where the client, sorry my client, your loved one with land, does not meet their needs. And if the proposal is to send them home or send them to a loved one’s home, maybe yours, you show how it doesn’t meet the needs. You can’t. You’re not twenty for our care. You have stairs, you don’t have a first floor full bath. You don’t have a bedroom that and a full bath together available. Um. You have stairs from the living area to a sunken living room, whatever it is show why you can’t meet their needs in your home. If that is what it is. Okay. If they need memory care and they’re proposed to send a place that doesn’t have memory care, there’s there’s an answer right there. If they’re sending to a lousy place, a lousy reviews, you can maybe make that argument. I don’t know if that one will fly, but it’s something right. So you may want to look them up at the nursing home compare or assistant living compare on the Medicare dot Gov website. There are places where you can see the star ratings of the different facilities all around the country based on the last survey. So there if you’re trying to find out what place is highly rated or not. If you have a care manager, someoney from Aging Life Care Dot Org that we’ve talked about in our first segment, maybe they can give input on this place cannot meet your loved one’s needs. You may have to listen them as a witness. You may have to pay them to be a witness. Okay, but if you’re trying to beat off a discharge too from a place that is acceptable to a place that is not, that that testimony may very may be very, very important. And then, finally, if the nursing homework system living didn’t give proper notice, it didn’t give the care of the appeal instructions, it didn’t give the reason for discharge, it wasn’t far enough in advance. Um, even if, even if they arguably fit one of those reasons not to give thirty days notice, no reason not to argue thirty days notice. Um. And but if you’ve got one of those, if if they were central hospital, don’t fight the discharge. They had to go to the hospital. Okay. If they were spent to the hospital for a hangnail because they want to be rid of the of the resident, now you can complain, okay. But if they were sent to the discharge to the hospital for pneumonia, yeah, okay, they need to go to the hospital. Okay. So you can. You can challenge any of these things in your appeal of the discharge notice. Now, any hearing, the nursing homework system living should go first because they carry what’s called the burden of proof making your quotes now. It’s a legal term, you know, just like the prosecution goes for it’s on a criminal trial. Houston doesn’t prove their case the defense doesn’t have to say anything. Right. Okay, UH, now I’m not I’m not suggesting you’d never say anything in discharge hearing because you say that the UH nursing home didn’t make their case, because the hearing officers probably not going to make that decision. You don’t. These are very informal, at least in no high out. So you probably can’t make emotion dismiss uh after the nursing home speaks because he said we didn’t show a need. Okay, but remember in your when you’re trying to defeat a discharge notice, you’re probably gonna have to show why the new place isn’t appropriate, even though it’s required to be appropriate. When when going onto the discharge notice, the practice in my experience is that if it’s there, it’s assumed by the hearing officer to be appropriate, even if that’s complete garbage. So you have to respond. You can’t now you can ask why is that appropriate? You can ask questions in at least in my experience in Ohio, you get to ask questions of the nursing home. Nursis a living. Why did you choose this place? Prove to me it’s appropriate. Why is it appropriate doesn’t meet all our needs. You can make them go through the list of you know, of your of your residents care plan and how this place meets the care plan. But they may respond, Oh, we checked in, then we showed on the care plan and they said it’s okay, that’s probably okay response. You need to be ready to be specific in your evidence that you put on. So challenging them is not easy. Yeah, and you know what? Furthermore, it says that every family should have an elder law attorney in their back pocket because there’s all kinds of situations that happen and certainly with what we’re dealing with every day in this country, with healthcare and how things are changing. Um, we never know what’s been slid underneath us. You know that we don’t realize is going on. So, Jim, thank you so much for sharing this information. Listeners, you need to keep in mind for you, you’re worried about your loved ones care. Yes, for the nursing home, where assisted living, it’s all about the money. Thank you so much for sharing with us today, and this is valuable information to each and every one of you. Thank you so much, Jim. Thank you appreciate the opportune to be on 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