By Brendan Daly
As an elder law attorney, I’ve been advocating for my senior clients for twenty years, but I recently discovered that my 78-year-old dad still has a few things to teach me.
It was a lesson I maybe should have seen coming.
I help many clients navigate the complexities of maintaining their autonomy as they age. The issue usually comes up when I’m working with an estate planning client, and their children disagree with how certain assets or gifts are being allocated. The children can become quite adamant, thinking that they know best simply because they are younger and more active in the world. I often have to gently remind them that their parent is my client, and what they say goes.
My own experience resetting my assumptions about who is actually in charge came after my dad broke his hip. The challenge that ultimately brought us into conflict was common enough—the nursing home where he was staying for rehab trying to send him home (in my opinion) prematurely. What I didn’t foresee was how my advocacy on my dad’s behalf might be misplaced.
When Medicare ends before 100 days is up
The situation was one I frequently hear about from clients. After being hospitalized for four nights, my dad was discharged to a nursing home for rehab. As is routine in most such cases, Medicare covered both the hospitalization and his nursing home rehab stay (Medicare pays for up to 100 days) to get him back on his feet. The challenge arose when the nursing home told my dad that his Medicare coverage was ending (well in advance of the allowed 100 days), and that he would be going home.
When I heard the news, I immediately called the nursing home administrator. I knew the drill, and I wanted to ensure that my dad was able to stay at the facility a little longer. What happens in many of these cases is that the nursing homes providing rehab create confusion by conflating the discharge from Medicare with the discharge from the facility. Patients sometimes get the impression that they must leave the facility because the Medicare coverage is ending. In fact, a nursing home resident has the right to remain in the facility even if Medicare coverage discontinues.
Being discharged early
The reasons for this vary, but in many cases nursing homes choose to discharge rehab patients based on their assessment that the patient has plateaued. This motivation is not completely unwarranted, since nursing homes are subject to Medicare audits; and if Medicare finds that the nursing home has been treating patients for longer than is necessary, the nursing home becomes responsible for reimbursing costs to Medicare.
When I’m working with my clients in such a predicament, the approach is pretty straightforward. There are two main things to consider.
- If a nursing home has determined that there is nothing more they can do for a patient and decides to send that patient home, they are obligated to provide a written notice stating that Medicare is ending and giving the patient three days to appeal the decision. Appealing is a fairly simple matter that involves calling the number on the notice. Decisions are typically made within 72 hours, and while the appeal is pending, Medicare continues to cover rehab costs.
- Even if Medicare determines that the patient no longer qualifies for coverage, the patient still has a right to the bed in the rehab facility. Involuntary discharge from a nursing home almost never happens, so no senior should ever feel like they lack options if they want to remain where they are. They can pay privately or potentially arrange for Medicaid.
In my dad’s case, the nursing home administrator quickly changed her position on discharging my dad once I noted that he wasn’t given a Medicare discontinuation notice and that he has long-term care insurance. I was pleased with this outcome because neither my sisters nor I felt that Dad was ready to go home.
Here’s where I learned my lesson…
Imagine my surprise when I realized Dad had different ideas. He desperately wanted to get home, and was completely on board with the discharge plan the nursing home had originally proposed. While this is a situation I’ve helped many of my clients manage, when I was in it with my own family, I just didn’t see what was actually happening.
Once my sisters and I realized what our dad wanted, we backed off and changed course to arrange for home care.Medicare does have a home-care benefit. It’s limited, and often needs to be supplemented by private payment for a home care aid from an agency; but it’s still worth pursuing. We got my dad home per his wishes, and were able to coordinate the additional support he needed to ensure that his transition back to independence was a smooth one.
It can be challenging to respect an aging parent’s autonomy, especially when you think you know best. But to be a good advocate, it’s critical to really listen to your loved one. You have to be able to put your own assumptions and concerns aside, and really hear what they are trying to tell you about what they want. That will always lead to the best outcomes for everyone involved.
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