More AL Communities Abandon Medicaid
2008; Elsevier BV; Volume: 9; Issue: 2 Linguagem: Inglês
10.1016/s1526-4114(08)60057-8
ISSN2377-066X
Autores Tópico(s)Legal principles and applications
ResumoKathleen Wilson has a PhD in health policy and is director of government affairs for AMDA. An increasing number of states are “rebalancing” their long-term care programs, shifting Medicaid beneficiaries from nursing homes to assisted-living communities. But in the past year, several large assisted-living corporations have stopped admitting new Medicaid residents and have forced the eviction of current Medicaid residents, warns the newly formed Assisted Living Consumer Alliance (ALCA). “The human toll from this is significant,” said ALCA Vice President Toby S. Edelman, JD, adding that an Oregon case manager told a state legislator of watching frail elderly people, called in one at a time, pleading with a company vice president to let them remain at the center. Yet, “terminations of Medicaid contracts are not a new phenomenon,” Ms. Edelman told long-term care stakeholders in a recent teleconference. “When we first started hearing about evictions from assisted-living facilities, we wanted to think about how to challenge these terminations.” ALCA turned to its experiences with nursing homes. Nearly 30 years ago, a number of nursing homes withdrew from the Medicaid program. Some residents challenged their facilities' actions in court. More recently, Vencor Corp.'s similar withdrawal from Medicaid led Congress to enact the Nursing Home Resident Protection Amendments of 1999. The law prevents nursing homes that voluntarily decide to withdraw from Medicaid from evicting current residents who are receiving Medicaid assistance or who subsequently qualify for Medicaid; a nursing home may terminate its Medicaid participation only prospectively. Although the assisted-living industry is not regulated at the federal level, and the 1999 amendments to the Nursing Home Reform Law apply only to nursing facilities, experience with nursing home withdrawals from the Medicaid program suggests strategies to advocate representing AL residents who want to remain in their homes. When assisted-living facilities emerged as a new type of congregate residential care about 15 years ago, there was no public source of payment. People had to pay for their own stay, and they had to leave if they ran out of money. Over the years, states began to view assisted living as a more affordable alternative to nursing homes. More and more, assisted living facilities began accepting Medicaid patients under home- and community-based waivers by the early 2000s. Now, most states use assisted living in their home and community-based waiver programs and more than 120,000 residents (10% of assisted living residents) receive assisted living services through Medicaid. The number of Medicaid beneficiaries residing in assisted living facilities is increasing rapidly. However, Medicaid's home and community-based waiver program does not address admission or retention of beneficiaries. While nursing home residents are protected by the transfer and discharge provisions of the 1987 Nursing Home Reform Law and its 1999 Resident Protection Amendments, the law does not apply to Medicaid beneficiaries using home- and community-based waivers. As a result, assisted living corporations that terminate their Medicaid contracts are able not only to say they are no longer admitting other Medicaid residents, but also, in some cases, to evict current Medicaid residents. According to news reports cited by the Center for Medicare Advocacy (CMA), in the first quarter of 2007, one assisted living organization declined to renew 14 Medicaid contracts and withdrew 226 Medicaid units. “Hundreds of residents” were required to move from that company last year, including 209 people in 19 Texas facilities, according to Ms. Edelman, who also is a senior policy attorney at CMA. ALCA suggests that there are lessons to be learned from the nursing home eviction cases in the 1990s and that legal theories used in those cases —breach of contract, duty of care, and human rights laws—could be applicable in litigation against assisted living facilities. Early nursing home cases were based on breach of contract. If a resident was promised at admission that he or she could remain as a Medicaid beneficiary after his or her private funds ran out, then the facility had to honor that commitment if the resident chose it. This legal theory, called promissory estoppel, enforces the contract that the facility made. Residents also argued that withdrawal from Medicaid, which places residents at risk of harm (transfer trauma), is a tortuous breach of the duty of care. State human rights laws that prohibit discrimination against an individual in their status as recipients of Medicaid may provide alternative theories. In a Minnesota nursing home case, residents argued that their facility's termination of its Medicaid provider agreement with the state, and subsequent eviction of Medicaid beneficiaries, violated the state's Human Rights Act, which prohibits owners of real property from discriminating against people because of their status as recipients of public assistance. Generally, these early nursing home cases were settled and not litigated. Under the terms of the settlements, facilities were allowed to withdraw from the Medicaid program, but only prospectively. A resident who was admitted after the facility terminated its Medicaid participation and who later spent all of his or her private funds would have to leave and could not use Medicaid money to stay. But all current residents could remain in their homes. In addition to federal laws and regulations, Ms. Edelman noted that one may wish to expand on state initiatives, such as those in New Jersey and Illinois. New Jersey requires facilities to have 10% of assisted living beds available for Medicaid beneficiaries as a condition of state licensure. The regulation is modeled on a New Jersey regulation for nursing homes, which requires facilities to admit and keep indigent people, defined as Medicaid-eligible individuals, as a condition of state licensure. In Illinois, the state enacted emergency regulations in 1999 that require facilities to retain current residents, preventing evictions just because the Medicaid contract was terminated. Without federal protections such as those guaranteed nursing home residents, ALCA sees a greater need for protection of residents who move into “non-institutional” alternatives such as assisted living. ALCA Board member Lori Smetanka, Director of the National Ombudsman Resource Center at NCCNHR, said that ALCA will work to educate others on ensuring the rights of residents during the transfer process to ensure residents' dignity and rights are maintained. She recommends that resident advocates become familiar with state regulations and protections available to residents. Some of the protections offered in individual states include providing residents with written notice of intentions to terminate Medicaid contracts; providing a minimum of 30 days' notice of transfer; and providing the resident with information on the location to which the resident will be transferred. When a resident is required to leave, the transfer must be safe and orderly. Trauma and anxiety must be minimized. Ms. Smetanka suggests asking questions prior to the transfer—finding out whether the facility or staff in the new location can meet the needs of residents; asking whether the resident has the ability to choose where he or she is going; and checking whether the resident had the opportunity to visit multiple alternative locations. The Long-Term Care Ombudsman should be notified of the withdrawal from Medicaid and the impending transfers so that he or she can work with residents and families during this process. “The facility cannot just give them the notice of discharge and tell them to find another place to live,” said Ms. Smetanka. Instead, the facility should take steps to ensure the resident can find an appropriate and safe location. The facility needs to provide transportation for the resident and make the staff at both locations communicate about when the transfer should occur and how to best assure that the resident arrives safely and comfortably. There need to be inventories and checklists to make sure all medications, personal items, and valuables go with residents as they move, she added. When facing eviction, ALCA stresses “residents should be treated with utmost respect.” Robert Jenkens of NCB Capital Impact's Coming Home Program, says one cannot rely on the Medicaid system to compete with private pay without deliberate efforts. The issue is that for-profit organizations obviously seek the highest revenue source. For-profits are unlikely to remain in the Medicaid market if the rates differential grows too wide and the private pay market expands, which Mr. Jenkens says is expected for the foreseeable future. “If states want to expand and preserve the availability of high-quality apartment style assisted living for Medicaid eligible people, they either have to have competitive reimbursement rates or help mission driven non-profits create affordable assisted living.” In both scenarios, states need to be mindful to create systems that are easy to navigate and minimize financial and staff burden—otherwise good providers will not be able or want to participate, Mr. Jenkens said. NCB's Coming Home Program, which is funded by the Robert Wood Johnson Foundation, has focused on creating policies, programs, and demonstrations to providing affordable models of assisted living, with a focus on smaller and rural communities and low-income seniors. The program's strategy includes working with policy makers to implement and revise state assisted-living Medicaid programs; creating or modifying state regulations; and aligning and focusing state housing subsidy programs. To date, the program has resulted in the completion of 45 affordable assisted-living facilities with 1,681 affordable units in 13 states. The program also has projects in development in 9 other states. For more information on The Coming Home Program, visit www.ncbcapitalimpact.org or call Candace Baldwin at 703-647-2352. Nursing home facilities should take steps to ensure safe transportation to the resident's new location in the event of a discharge. The following tips can help your staff to facilitate an orderly discharge: ▸ Ensure that possessions are not left behind or lost. ▸ Involve the Long-Term Care Ombudsman Program, which advocates for the rights of residents in long-term care facilities. ▸ Talk with staff at the new facility or location about the resident's daily patterns and needs. ▸ Follow up after the move to make sure things went smoothly. Source: ALCA
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