A session of last month’s 2012 NAELA National Aging and Law Institute explored advocacy strategies to combat involuntary discharge from hospitals and other care settings that participate in Medicare and Medicaid.
Newport News, Virginia, practitioner Veronica Williams described two cases she handled in which hospitals attempted to discharge patients, even seeking guardianship against the wishes of the patients and their families.
Hospitals that participate in the Medicare and Medicaid program must provide discharge protections to all patients, whether or not their care is paid for under these programs. Many states have additional discharge protections.
However, enforcing these rights gets tricky for family members who need to get along with hospital staff. Attorney Williams recommended working with a geriatric care manager or other experts with medical expertise, both for potentially less adversarial relations with the facility and because of the knowledge they can provide the attorney about the medical system. But, at some point you may have to come in with heavier artillery – the lawyer.
Hospital Petitions for Guardianship Despite POA
Both of the cases Attorney Williams discussed involved patients needing a high level of care and who were inherently difficult to place. The first was a man on both hemodialysis and a ventilator who had been in the hospital more than 90 days when she became involved. The hospital was seeking to discharge the patient to a facility hundreds of miles away.
Ultimately, the patient was in the hospital for more than 150 days, which was the limit of coverage under traditional coverage. It turned out, however, that the patient participated in a Medicare Advantage plan that had no limit on hospital coverage. Neither the family nor the hospital had any understanding of the benefits of the patient’s policy. Such information is important for families to have because with the end of coverage they can lose considerable leverage in negotiating with a facility. Attorney Williams counseled against relying on the family for information about the patient’s benefits; attorneys need to look at the policies themselves.
In this case, the patient was cognitively sharp and Attorney Williams had him execute a durable power of attorney. The hospital petitioned for guardianship nevertheless. The facility also continued to be adversarial with the family, which undercut everyone’s efforts to find an appropriate discharge setting because other facilities do not want to take on a patient or family seen as difficult or a patient who has been on a discharge list for a lengthy period of time.
Attorney Williams and her gerontologist were able to intervene with the other facilities to explain the actual situation.
The family asked the discharge planner for a list of all of the facilities in the state that had refused to admit the patient. It turned out that the hospital had simply sent the request to a broad list of facilities with no follow-up or documented reason from each facility as to why it would not accept the patient. Such documentation is required before an out-of-state discharge and is often missing because discharge planners do not have the time to document their searches.
The hospital gave a family member notice of discharge at 4:29 pm on a Friday. The family appealed to the Medicare Quality Improvement Organization (QIO), which always buys at least a few more days of Medicare coverage.
Ultimately, Attorney Williams and her gerontologist were able to buy more time and locate a closer facility willing to take the patient.
Attorney Williams strongly recommended that families in these situations hire a care manager, health care advocate or gerontologist, both for their knowledge but also because they may be able to work with the facility. In effect, they can play “good cop, bad cop” telling the facility that “no one wants to get the attorneys involved, let’s work this out.” It’s important in terms of client expectations to let the family know at the outset about this part of the strategy and the cost.
Case Two: Discharge Plan "A Death Sentence"
The second case involved a 53-year-old developmentally delayed man with quadriplegia who was also ventilator dependent. The hospital asked his mother to consider withdrawing ventilator support, which would have led to his death. She refused, and over time the hospital was able to wean him from the ventilator, but not his tracheotomy tube.
The hospital characterized the mother as uncooperative and their relationship deteriorated. By the time Attorney Williams got involved, the hospital had filed a guardianship petition.
The patient had also acquired methicillin-resistant Staphylococcus aureus (MRSA) while in the hospital, which the hospital denied and which made the patient even more difficult to place. The Centers for Medicare and Medicaid Services will not reimburse hospitals for treatment of so-called “never” events such as MRSA, bed sores and contractures.
The hospital’s discharge plan was for the patient to move out of state, which would have meant his losing Medicaid waiver benefits and dropping to the bottom of a 6,000-person waiting list to regain those benefits.
Attorney Williams’ gerontologist found two placements, both of which the hospital discredited. Ultimately, the case was the subject of a five-hour guardianship hearing in court. At the end of the hearing, the judge told the hospital’s attorney that “I think your proposed discharge plan is cavalier and tantamount to a death sentence for this patient.”
For information on recordings and materials from the 2012 National Aging & Law Institute, visit https://www.naela.org/store/ or contact naela@naela.org.
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