According to a 2015 report by the Department of Health and Human Services and the Urban Institute, approximately 52% of Americans turning 65 today will require long-term care services in their lifetime, spending on average $138,000.
Millions of low-income Americans have turned to Medicaid—the largest public payer of long-term care services—for coverage. Unfortunately, having insurance does not guarantee access to health care. In its Fall 2019 newsletter, the California Advocates for Nursing Home Reform (CANHR) reported an alarming trend of discrimination against Medi-Cal beneficiaries seeking skilled nursing home care. The reason for this practice is obvious. Medicare and private insurance pay more than Medi-Cal, thus denying admission to Medi-Cal eligible applicants is an easy way for nursing homes to increase revenue.
There are numerous state and federal laws against insurance-based discrimination in admissions, and potential applicants should know their rights. Medi-Cal certified nursing homes are prohibited from requesting or requiring, as a condition of admission, that the applicant: (1) waive rights to Medicaid; (2) give oral or written assurance that the applicant is not eligible (and shall not apply) for Medicaid benefits; and (3) provide a third party guarantee of payment. In addition, a nursing home must not charge, solicit, accept, or receive any gift, money, donation, or other consideration as a precondition of admission for Medicaid-eligible applicants. Nursing homes must also give applicants oral and written notice of their legal rights, including their rights and obligations under Medicaid.
Pretextual Grounds To Deny (or Impose Illegal Preconditions for) Admission of Medicaid Beneficiaries
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Despite state and federal regulations against insurance-based discrimination, skilled nursing homes can rely (and have relied) on a variety of pretextual reasons in refusing (or imposing illegal preconditions for) admission to otherwise qualified individuals on Medicaid.
Under federal law, a “skilled nursing facility” is defined as an institution primarily engaged in providing medical, nursing, or rehabilitation services—but not the care and treatment of mental illnesses. Thus, an applicant with medical issues that include severe dementia could be rejected on the basis that the nursing home is not equipped to treat mental illnesses—even if the facility would accept the applicant if he or she were a Medicare beneficiary.
Discrimination against Medicaid beneficiaries applying to skilled nursing facilities is not new, nor is it limited to California. In its Summer 2002 Elder Law Newsletter, the Oregon State Bar outlined examples of Medicaid discrimination facing Oregonians and how to combat them. In the article “Medicaid Discrmination in Long Term Care,” attorney Jennifer L. Wright notes how facilities might require applicants to enter into a “duration of stay agreement” whereby applicants pledge in writing or verbally not to apply for Medicaid for a period of time. Other facilities may ask family members to enter into a “responsible party agreement” whereby family members agree to be personally responsible for paying for the applicant’s care. As previously noted, such preconditions to admission are illegal. Even if an applicant is admitted after signing a duration of stay or responsible party agreement, such agreements generally are not legally enforceable.
What To Do If You Suspect You Were Denied Admission to a Long-Term Care Facility Because You Are a Medicaid Beneficiary
If you believe you have been the victim of insurance-based discrimination, you have options. You can complain directly to the skilled nursing home. Armed with knowledge of your rights and remedies under state and federal law, you can pressure the facility’s board of directors to reverse their decision. Facilities may stand firm in their rejection, but they could also respond favorably to pressure in order to avoid regulatory scrutiny.
If informal efforts at resolution fail, there are resources and regulatory enforcement mechanisms at your disposal. For example, each state has an Office of the State Long-Term Care Ombudsman statutorily mandated to help individuals and families navigate disputes with skilled nursing homes. Non-residents who believe they have been wrongly denied admission to a skilled nursing home due to their Medicaid status are also entitled to support from their local ombudsman. Offices of the Ombudsman are assisted by thousands of local ombudsman staff and volunteers specially trained to advocate for your rights and help you obtain long-term care.
Individuals also can file formal complaints with the state agency tasked with regulating long-term care facilities—typically a subdivision of their state’s health department. In California for example, you can file a confidential complaint with the local district office of the Licensing and Certification Division of the California Department of Public Health (DPH), a subdivision of California’s Health and Human Services Agency. DPH has 60 days to complete its investigation. If DPH finds that a skilled nursing home is not in compliance with all state and federal regulatory requirements, it can impose a variety of state monetary and regulatory sanctions. DPH is also authorized to recommend the imposition of federal enforcement remedies. In particular, the Secretary of Health and Human Services may impose up to $10,000 in civil penalties for each day of non-compliance.
If you are dissatisfied with DPH’s findings, you have five business days to request in writing an informal conference with your DPH county office. If still dissatisfied after the informal conference, you may submit a written request for appeal to the Deputy Director of the Licensing and Certification Division within 15 days of receipt of the conference’s findings. Click these DPH hyperlinks for more information on the California complaint and appeals process.
For those living outside California, the “Helpful Contacts” page at Medicare.gov has a comprehensive search tool providing information on state, federal, and non-profit resources that can assist with a variety of eldercare issues—including skilled nursing home disputes. Click the following hyperlinks (under each page’s “Contacts Results List” tab) for the contact information of Ombudsman and Health Departments in all US States and territories. Medicare.gov also provides a sample Nursing Home Complaint Template for your benefit. Individuals can prepare and submit these complaints themselves, or they can seek assistance from their local ombudsman.
We understand this can all seem daunting, especially since proving you were denied admission on the basis of Medicaid status can be difficult. It is our sincere wish that the information provided empowers you going forward. You are not alone in this struggle, and we at Eldercare Resource Planning are here to help.
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