Sea Girt  (732) 974-8898         Middletown  (732) 706-8008

Your Rights in a Nursing Home

by | Oct 29, 2018 | Eldercare, Nursing Homes & Assisted Living

Last week, I described the different long-term care facilities.  There are three primary long-term care facilities:  assisted living residences, nursing facilities, and continuing care retirement communities (or CCRC).

This week, I wanted to write a little about the practical aspects of entering these facilities.  Your rights can vary quite a bit in these different facilities, and those rights can have a practical aspect on you.

Nursing facilities are governed by the Nursing Home Reform Act, a law that has existed since 1987.  There are various rights guaranteed to every nursing facility resident.  The right to privacy, the right to confidentiality, the right to be free of restraints, the right of free choice are just a few of the rights guaranteed to every nursing facility resident in the United States.

A nursing facility also cannot obtain a guarantee of private payment from a third-party and it cannot require a prospective resident to guarantee private payment for any length of time or to refrain from applying for Medicaid benefits. Nursing facilities also cannot treat residents who are eligible for Medicaid benefits differently than those residents who are ineligible for Medicaid benefits.

For those residents who are eligible for Medicaid benefits, nursing facilities must accept Medicaid as payment in full. For instance, a nursing facility cannot ask the resident’s family to supplement the resident’s stay in the nursing facility if the resident is eligible for Medicaid benefits.

Almost every nursing facility in the state of New Jersey accepts Medicaid benefits. If the facility accepts Medicaid benefits, then it must agree to accept a minimum amount of its residents as Medicaid beneficiaries.  For instance, a facility must agree to accept at a minimum 45% of its residents as Medicaid beneficiaries.

In almost every nursing facility, every bed in the facility is dual certified for both a Medicare and Medicaid patient, meaning that in those beds, the facility must accept a resident who is eligible for Medicare or Medicaid. This can be very important because most people enter a nursing facility after being discharged from a hospital.  The resident enters the nursing facility to receive rehabilitative services, frequently as a Medicare beneficiary.

The family may decide that the resident needs to remain in the facility after his rehab is over. The resident will then switch to being either a privately paying resident or a Medicaid beneficiary.

The nursing facility might tell the family that they don’t have any Medicaid beds, but as stated above, in most facilities, every bed is dual certified for Medicare and Medicaid patients. Chance are quite high that the resident already is in a Medicaid bed—the same bed from which he was receiving rehabilitative services covered by the Medicare program.

Since the nursing facility cannot require a resident to refrain from applying for Medicaid benefits pursuant to the Nursing Home Reform Act, the facility cannot prevent the resident from applying for Medicaid benefits to cover the cost of the Medicaid certified bed in which he currently lies his head. The facility also must refrain from requiring the family (a third-party) from guaranteeing private payment for the resident’s stay.

Knowing that they cannot discharge you simply because you are converting from a short-term Medicare beneficiary to a long-term Medicaid beneficiary, many nursing facilities pressure the resident or his family to remove the resident from the facility. “We don’t have any Medicaid beds.”  “We don’t take a person Medicaid pending.”  “You will have to take the resident home and care for him in your home.”  These are common statements that nursing facility staff make to family members.  These statements are almost always incorrect.

Next week, I will write about your rights in an assisted living residence and a CCRC. Hint:  Those rights are substantially less than your rights in a nursing facility.

Categories

Recent Posts

Protecting Your Home from Long-Term Care Costs

For many families, the home is their largest and most meaningful asset. It represents a lifetime of work and is often what parents hope to pass on to their children. Unfortunately, rising long-term care costs put that goal at serious risk. In New Jersey, nursing home...

Living Documents

For more than 26 years, I have practiced elder law in New Jersey. Over that time, I have drafted tens of thousands of estate-planning documents—last wills and testaments, financial general durable powers of attorney, and advance health care directives. These documents...

Gift and Estate Tax: The Boogeyman

Beginning in 2026, the federal lifetime exclusion against gift and estate tax is scheduled to increase to $15,000,000 per individual. In simple terms, this means that a person can give away—or die owning—up to $15 million in assets without paying any federal gift or...

Understanding the Role of a Guardian in New Jersey

Planning for the future is something many people postpone until it is too late. In New Jersey, when an individual becomes unable to manage their own personal, financial, or health-related affairs, the absence of proper planning can lead to the need for a...

Why Everyone Should Have a Power of Attorney

Few legal documents offer more practical protection than a Durable General Power of Attorney (POA). It ensures that someone you trust can manage your finances if you become ill, incapacitated, or simply unavailable to sign a document. Yet many residents of New Jersey...

Archives

Additional Articles

Living Documents

For more than 26 years, I have practiced elder law in New Jersey. Over that time, I have drafted tens of thousands of estate-planning documents—last...

To schedule a consultation with the Law Offices of John W. Callinan, call our office closest to you:
Sea Girt  (732) 974-8898         Middletown  (732) 706-8008