Can the Nursing Home Kick Dad to the Curb?

When a client of mine goes to live in a nursing home, his family members often have a great number of concerns.  One of the most frequent concerns I hear is the fear that the nursing home will kick the client out of the nursing home for one reason or another.  The family member believes that the nursing home will force her to bring the client home to the client’s house, if the client still owns a house, or to the family member’s house if the client no longer has a home because he sold it.

For the most part, nursing homes are privately owned businesses.  As I discussed recently in another article, nursing homes charge residents for each day of services, much like a hotel, and issue a bill to the resident on a monthly basis.  So, if a resident lives in a nursing home for fifteen days, he will receive a bill for fifteen days of services.

Nursing homes do not have super-creditor enforcement powers.  Many people believe that nursing homes can simply seize all of their assets the moment they enter the nursing home.  A common question that I receive from clients is “Won’t I have to turn dad’s home over to the nursing home?”

If nursing homes had the power to simply seize a person’s house the moment the person entered the nursing home no matter how many days of service that the nursing home provided to the resident, I would buy as many nursing homes as I could.  For instance, does the nursing home get to keep the house even if it provides one day of service to the client?  That would equate to hundreds of thousands of dollars of payment for one day of service.  I only pose this extreme hypothetical to show the absurdity of this very common misconception.

Nursing homes are simply private businesses providing services in a community, hoping to get as many customers/residents as they can accommodate and hoping to bill each resident the most money they can bill given the current market conditions.  Nursing Home A could not charge $1,000 a day for services if Nursing Homes B, C, and D in the same area only charged $400 a day for the same level of services.  That’s a basic tenet of capitalism.   When Nursing Home A charges an exorbitant fee for the same services as its competition, Nursing Home A goes out of business.

I understand that family members have a lot of angst when their loved one is in a nursing home, and I understand that in this state of angst a tremendous amount of confusion and doubt can be sown.  But once you know that nursing homes are private businesses, that they cannot seize all of your assets, and that your feelings may be overtaking your rational thought—we can begin to address the reality of the situation.

And the reality of the situation is, once a person enters a nursing home either for rehabilitation or for long-term custodial care, the nursing home has a duty to care for that resident. Part of that duty of care is the inability of the nursing home to discharge the resident unless the discharge can be accomplished in a safe manner.  In New Jersey, the nursing home’s duty to safely discharge the resident is not met by the facility stating that the family must take the resident home.

On top of the duty to ensure a safe discharge is the fact that there are only a handful of reasons that a nursing home can discharge a person—the discharge is necessary to meet the resident’s welfare, the safety of other individuals in the facility is endangered, the health of other individuals in the facility is endangered, the facility ceases to operate, the discharge is appropriate because the health of the resident has improved, or the resident fails to pay the facility for services rendered after reasonable notice to pay.  For instance, the resident would have to fail to pay after reasonable notice and the discharge would have to be safe before the facility could discharge the resident.  If the resident is applying for Medicaid benefits, then he is deemed to be paying.

Given all these obligations, once a person is a resident of a nursing home, the resident, not the nursing homes, holds most of the cards.  The nursing home is actually stuck with the resident because it is the nursing home that must create a safe discharge plan and can only discharge for a limited number of reasons.

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