FAQs & Resources

Questions about the Right to Readmission from the Hospital or Therapeutic Leave

(Therapeutic Leave is when a resident leaves the nursing home to visit family or friends overnight or goes to a rehabilitation center for a limited time period.)

Click to Open or CloseIf a nursing home resident is sent to the hospital or goes on therapeutic leave, does he or she have the right to come back to the same facility once he or she is ready to be released from the hospital or to return from therapeutic leave?

If the resident is Medicaid-eligible and still needs nursing home care, she does have the right to be readmitted to the same facility as soon as a bed in a semi-private room with the same gender roommate becomes available. This right clearly applies to all Medicaid residents as long as the resident still requires nursing home care and is eligible for Medicaid nursing facility services; it is less clear whether this right also applies to residents who are not covered by Medicaid. The facility must have a written policy regarding the readmission rights for those whose hospital stay or therapeutic leave exceeds the state’s bed hold period.

Significantly, a facility is required to readmit a resident even if the resident has an unpaid bill, the facility considers the resident to be a danger to the health or safety of others, or the facility claims the resident’s needs cannot be met by the facility. The facility must readmit the resident, but if there is a justifiable reason for transfer or discharge, the facility could then begin transfer/discharge proceedings by following the requirements set out in federal and state law. (See Transfer/Discharge Rights)

Click to Open or CloseWhat is Virginia’s bed hold coverage for hospital stays or therapeutic leave?

Virginia Medicaid does not pay for any bed hold days when a nursing home resident is admitted to the hospital. Unless the resident or family chooses to pay to hold the specific bed, the facility has the right to offer the bed to another person. However, while the hospitalized resident may not be able to return to the same bed if it has already been filled, he or she still has the right to be readmitted to the same facility to the next available bed in a semi-private room, as long as the resident still requires nursing home care and is eligible for Medicaid nursing facility services.

Virginia Department of Medical Assistance Services (DMAS – Medicaid) does cover up to 18 therapeutic leave days within a 12 month period. During these 18 days, Medicaid will pay to hold the bed of the resident if the leave is within the resident’s plan of care and that is noted in the resident’s chart. Therapeutic leave includes visits to relatives or friends or admission to a rehabilitation center for up to 7 days for evaluation, but it does not include admission to an inpatient hospital.

Click to Open or CloseWhat should I do if the admissions agreement contains a responsible party or third party guarantee provision?

Read any responsible party or third party guarantee provision very carefully.If the provision seems to make you (as the responsible party) personally liable for the resident’s bill out of your own pocket—over and above your duty to pay the facility out of the resident’s income or resources-- you should consider either refusing to sign that provision or crossing out that provision and writing your initials next to the crossed out section.You should, politely but firmly, explain that you understand such a provision to be illegal and unenforceable. The nursing home staff may be embarrassed or surprised by your refusal, and may simply go ahead with the rest of the admissions packet and not object to your refusal to sign this provision.

If you have already signed an admission agreement as the responsible party and the facility is now asking you for payment or if you are sued by the nursing home for payment, you should get advice from an attorney who knows about nursing home law.

Click to Open or CloseWhat is an arbitration agreement? How is arbitration different from going to court?

An arbitration agreement is an agreement that any future disputes between you and the nursing home, other than those specifically excepted, will be handled by a private judge called an arbitrator, rather than by going to court.Often arbitration agreements in nursing home admissions contracts require all claims of the resident to go to arbitration, but allow the facility’s claims to be heard in court.Most advocates believe that the arbitration process is generally not good for residents. Arbitration tends to be more expensive than a case in court because the arbitrator is paid an hourly fee by the parties.Most advocates also believe that courts are generally more sympathetic to the kinds of cases a resident or a resident’s family might bring against a nursing home than an arbitrator would be.It is best to make a decision about arbitration after a dispute has arisen and after talking with a lawyer, rather than agreeing to arbitration at the time of admission before any dispute has arisen.

Click to Open or CloseShould I sign an arbitration agreement which is part of the admissions agreement or contract with the nursing home?

Not if you can avoid it.If possible, you should avoid signing the arbitration agreement at the time of admission.Often, the facility will not object if you or your representative simply refuses to sign the arbitration agreement.You can say you’d prefer to make the decision about arbitration after a dispute has come up, but do not want to commit to arbitration now.

Whether or not you have signed the arbitration agreement, if the facility attempts to send your claim against the facility to arbitration, you should contact an attorney right away.The agreement may or may not be binding, depending on the circumstances surrounding the signing, the language or terms of the arbitration agreement, who signed it, etc.Before agreeing to have your claim sent to arbitration, check with an attorney to see if there is a way to challenge the arbitration agreement.

Click to Open or CloseWhat is a negotiated risk or indemnification provision (also called a “hold harmless” or “limitation of liability” provision)?

An indemnification or negotiated risk provision essentially says the facility does not provide one-on-one care 24 hours per day and that the facility will not be liable for any injuries to a resident which result from the resident’s decision not to obtain supplemental private duty nursing care.

Click to Open or CloseShould I sign a negotiated risk or indemnification provision if it is included in the admissions agreement?

Do not sign such a provision if you can avoid it.Nursing homes are obligated, by law, to have sufficient nursing staff to provide nursing and related services “to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.”The resident should not have to pay extra for private duty nurses, in addition to the monthly nursing home bill, in order to receive adequate care.No facility should be able to avoid liability for the negligence of its staff by, in effect, blaming the resident for failing to hire private duty nurses.If such a provision is in the admissions contract, consider crossing out that provision and initialing the crossed out provision to show your refusal to be bound by that section.

Click to Open or CloseCan a nursing home require an applicant to make a donation or gift, or promise to pay at the private pay rate for several months?

No. Because the facility receives a higher monthly payment rate for a private pay resident than for a Medicaid-eligible resident, a facility may prefer to admit a private pay resident instead of a Medicaid applicant.The facility may want some assurance that an applicant will be a private paying resident for some specified length of time.As to any Medicaid-eligible resident, a nursing home may not charge, request, accept, or receive any gift, donation or other consideration, other than what is allowed by the Medicaid state plan, as a precondition of admission, expedited admission or continued stay of the individual in the nursing home.

In addition, a facility cannot require a resident or potential resident to waive his or her right to Medicaid or Medicare, or require any promise that a resident or potential resident is not eligible for, or will not apply for, Medicaid or Medicare.Under federal law, a facility cannot require an applicant to promise to pay the private pay rate for a period of time, because such a promise would prevent the resident from applying for Medicaid as soon as he becomes eligible.

Click to Open or CloseCan a nursing home treat Medicaid residents differently from private pay residents?

No. Federal law says that a nursing home “must establish and maintain identical policies and practices regarding transfer, discharge, and the provision of services required under the State [Medicaid] plan for all individuals regardless of source of payment.”Medicaid-eligible residents should receive the high-quality care required by federal law, without any discrimination based on payment source (or amount).