The Legal Checkup Blog

Wrongful Intent to Discharge Is Elder Abuse

Posted by Judith Flynn on Mon, Jun 09, 2014 @ 10:06 AM

I just received confirmation from a new client that the nursing home has rescinded its notice of Intent to Discharge her grandmother.  While this is great news, and our advocacy has paid off, this case represents a disturbing trend.

 

This is the third case in the past six months in which I was hired to advocate against a wrongful notice of Intent to Discharge an elderly resident of a nursing home on the basis of non-payment.  In all three cases, MassHealth coverage was in place, but there was an outstanding balance ranging from $6,500 - $13,000, for a period prior to the MassHealth approval.  In all three cases, the amount owed represented the Patient Paid Amount (PPA) for a period prior to the time when the client received a notice from MassHealth informing them of their duty to pay a set amount each month.

 

Most people are aware that there is a duty to pay something each month under the Medicaid regulations based on their income less any allowed deductions (the PPA).  Clients are certainly advised of this when working with an elder law attorney and most nursing homes will inform clients of this duty when they are assisting with the application.  (As a side note, I advise against using the nursing home or a non-attorney service that they may refer you to, but that is a separate topic.)  There are instances when the client is not informed in advance, however, through no fault of their own. 

 

By the time the client receives a notice informing them that MassHealth benefits have been approved, and detailing the amount that must be paid each month RETROACTIVELY to the date of eligibility (which could be as much as four months prior to the date of application), the funds may not be there to pay the outstanding PPA.  If a client is not informed that they must hold the funds or pay an estimated PPA each month while the application is pending, they may not have the funds available by the time they receive the notice from MassHealth.

 

In all three of these cases, the balance was owed not because funds were gifted and not due to misappropriation of funds.  The clients were simply not informed that they would need to pay a PPA back to the date of requested eligibility.  The nursing home assisted with the application in one case, and referred the clients to a Medicaid service in both other cases.  Nobody told the client to pay an estimated PPA while the application was pending or to hold the monthly income pending the approval from MassHealth.

 

In the most recent case, when MassHealth ultimately issued an approval notice and indicated the resident's duty to pay a PPA each month going back a couple of months, the nursing home continued to bill for the outstanding balance.  They sent a threatening letter to the resident's granddaughter, who managed the resident's checking account.  She tried to explain the situation to the nursing home administrator, and showed the bank records documenting where the funds went - they were not gifted - they were used to purchase items her grandmother needed.

 

When the granddaughter explained that she had four children and worked full time and barely made ends meet, and simply did not have the funds to pay the nursing home the outstanding amount, the nursing home issued a Notice of Intent to Discharge the resident for non-payment.  My client's grandmother is still mentally competent, so the law required that the nursing home staff serve the notice on her directly.  Imagine the fright my client's 88 year old grandmother experienced when she was handed a notice informing her she was going to be discharged from the facility that had been her "home" for the past two years.

 

To make matters worse, the notice indicated that the facility planned to discharge the resident to her granddaughter's home 30 days later (the law requires 30 days notice).  My client had informed the facility that she could not take care of her grandmother and, furthermore, that the setup and amount of stairs in her three-level condominium was an unsafe environment.  Her grandmother would require two people to assist her with transfers in and out of bed or up and down the stairs to the bathroom.  The facility knew that a discharge to my client's home would not be safe.  They knew that my client worked two jobs to make ends meet.  They knew that she did nothing wrong in this process, and that they had actually failed to inform my client that they were filing a conversion from community MassHealth to long-term care MassHealth on her grandmother's behalf, so she should either pay an estimated PPA from that point on or hold the funds pending the approval.  While they are not solely to blame either, they are more responsible for the situation than my client, yet they issued this notice to try to bully my client to find a way to pay the outstanding balance.  I find this tactic to be nothing short of elder abuse!

 

The time, energy, and expense the facility expended to pursue a wrongful discharge of this resident would have been better spent developing a better system to ensure that this problem does not happen again with another resident.  I am not un-sympathetic to these facilities.  I know that they suffer as a result of the delays and abuses in the MassHealth system.  So do my clients. But, I suggest that we would all fare better if we communicated in a collaborative manner to address these recurring issues, rather than defensively on a case by case basis.

 

Tags: long-term care, elder law, duress, Elder Financial Abuse, family, nursing home, rights, admission agreement, Medicaid, exploitation