Compilation of regulations and authority to counter a nursing home's threat to discharge a resident whose Title XIX application (or request for Fair Hearing, or appeal) is pending, originally collected from the NAELA listserv by Alice Reiter Feld, Esq., 5701 North Pine Island Road #260, Tamarac, FL 33321
Transmittal 274, State Operations Manual, Provider Certification. This is the guide for Surveyors, and interprets the Federal Regulations. At page pp-33 it says
"A resident cannot be transferred for non-payment if he or she has submitted to a third party payor all the paperwork necessary for the bill to be paid. Non-payment would occur if a third party, including Medicare and Medicaid, denies the claim and the resident refused to pay for his or her stay."
On the next page it states, "conversion from private pay rate to payment at the Medicaid rate does not constitute non-payment".
42 CFR 483.12(a)(2)(5) states:
"... the facility must not transfer the resident unless "the resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare or Medicaid) a stay at the facility...."
From Linton v. Commissioner, 65 F.3d 508, 515-516 (6th Cir. 1995):
"The Medicaid program through its contract system is predicated upon provider compliance with the Medicaid Act in exchange for compensation. Under the Act, "any individual eligible for medical assistance...may obtain such assistance from any [provider] who undertakes to provide him such services." 42 U.S.C. sec. 1396a(a)(23). Regulation of such services includes prohibitions on improper transfers. See 42 U.S.C. sec. 1396r(c)(2)(A) (facilities must allow a resident to remain in the facility and may not transfer or discharge the resident from the facility unless the resident's needs cannot be met or the resident's health or safety is endangered, the resident has failed to make proper payments to the facility, or the "facility ceases to operate"). Even when a resident has failed to make payment, contractors must continue to provide care pending an opportunity for administrative review regarding funding. See 42 U.S.C. sec. 1396r(c)(2)(A)-(C). Tennessee regulations bar involuntary transfer of even non-paying patients when necessary to prevent "traumatic effect on the patient." Tenn. Dep't of Health and Env't R. 1200-8-6.02(7)(d).
Nowhere does the Medicaid Act permit involuntary transfer on the basis that a facility chooses to withdraw from the Medicaid program because it thinks it can make more money serving private patients. A nursing facility is required to "establish and maintain identical policies and practices regarding transfer, discharge, and the provision of services required under the State plan for all individuals regardless of source of payment." 42 U.S.C. sec. 1396r(c)(4). Similarly, admission decisions may not be based upon eligibility or future eligibility under Medicaid. See 42 U.S.C. sec. 1396r(c)(5).
From: Nursing Facility Service Coverage and Limitations Handbook:
"A nursing facility may charge an applicant or his designated representative private pay rates during the Medicaid eligibility determination period. Once eligibility has been approved, if the individual was determined eligible for any of the months in which he or she resided in the nursing facility as a private pay resident, the nursing facility must bill Medicaid for the nursing facility care provided during those months. This policy applies even if the resident was not in a "Medicaid bed." After Medicaid reimbursement has been made, the nursing facility must refund the entire private payment made for the period covered by Medicaid. The nursing facility cannot change any administrative fees concerning refunding private payments."