Q. My father is being cared for in our home near Old Town Alexandria but needs more care than we can provide. We are seriously considering nursing home care as the best option for him. With the incredibly high cost of care, we are also considering Medicaid asset protection planning, so we can retain some of the assets he’s worked so hard for his whole life and hopefully use those assets to enhance his quality of life in the nursing home.
Before we begin Medicaid planning, we were hoping you could clarify a couple of things. Of course we want to ensure that Dad has the best care, but I’m concerned that if we get him on Medicaid, he’ll get substandard care compared to the care he would get if we paid privately. When it comes to nursing home availability and quality of care, do Medicaid patients get worse care than private-pay patients?
Also, I have heard that, in the better facilities, there are far fewer Medicaid beds, and the best way to secure one of those beds is to private pay for a while. Is private pay for several months first something we should consider before we embark on Medicaid planning?
Lastly, in doing my research, how can I see how many beds in a nursing home are Medicaid beds in four- or five-star facilities? Thanks for your help!
A. This is a very common question that we get almost every day, and most people have significant misunderstandings when it comes to this area of the law and the reality of nursing home care. Nursing homes that accept Medicaid (which includes over 99% of all nursing homes) as a source of payment are required by federal law and state laws to provide the same level and quality of care for all of their residents — regardless of whether the resident’s stay is being paid for privately or by Medicaid or by any other source, such as long-term care insurance.
It’s Against the Law for Nursing Homes to Discriminate Against Residents Based on Method of Payment
Nursing homes DON’T discriminate based on Medicaid status, in large part because they CAN’T, as it would be illegal for them to do so. Nursing homes must follow federal law because approximately 99.9% of all nursing homes accept federal funding through Medicare and Medicaid.
Please understand that this article is talking about nursing homes and not assisted living facilities, which are completely different types of facilities that are subject to completely different sets of regulations in states where they are regulated; assisted living facilities, which often have memory care units and are sometimes even called memory care facilities, are not health care facilities and are not regulated by federal law and, in most states, are prohibited from accepting Medicare as payment, and in the vast majority of states are prohibited from accepting Medicaid as payment.
Please also do not get confused by the various different names that nursing homes call themselves. Nursing homes are also known as skilled nursing facilities, and most nursing homes call themselves “health centers,” “health and rehabilitation centers,” or “health and rehab centers.” Regardless of what they call themselves, they are all nursing homes; that is the term used by the federal government, and that is the term I will use in this article.
Nursing homes are regulated by CMS (the Center for Medicare and Medicaid Services, which is part of the Department of Health and Human Services). The federal statute and regulation that prohibits discrimination based on Medicaid status is the Nursing Home Reform Act, which says that nursing homes “must establish and maintain identical policies and practices regarding transfer, discharge and the provision of services under the State [Medicaid] plan for all individuals regardless of source of payment.” 42 U.S. Code § 1395i–3 (c)(4).
This law is also embodied in the Code of Federal Regulations at 42 CFR § 483.15 (b), entitled Equal access to quality care, which states:
(1) A facility must establish, maintain and implement identical policies and practices regarding transfer and discharge, as defined in § 483.5 and the provision of services for all individuals regardless of source of payment, consistent with § 483.10(a)(2);
And of course all states are required to follow these federal laws regarding Medicaid, and there are also corresponding state laws in most states.
As you can see, disparate treatment between Medicaid recipients and private pay residents is ILLEGAL. Disparate treatment also doesn’t happen because the practical reality is that the nurses and nurse aides in nursing homes providing the day-to-day care generally do not know (nor would they care even if they did know) whose care is being paid for privately and whose care is being paid for by Medicaid. In any given double room in a nursing home, one person may be funded by Medicaid and the other person may be funded through private payment — same room, same caregivers, same care provided. In most nursing homes, only the billing office knows how someone is paying; this is simply not something the caregivers out on the floor know about or care about. In fact, Medicaid recipients who have worked with an experienced Elder Law Attorney, such as myself, often enjoy a much higher quality of life than their private‑pay counterparts because the money that has been protected is often used by a loving family member to help the elder obtain better quality care to maintain dignity and improved quality of life.
How to Determine Nursing Home Quality
Since more than 99% of all nursing homes accept Medicaid, the acceptance of Medicaid provides no indication of the quality of the nursing home. However, there are of course significant differences between many nursing homes in the quality of care they provide.
You can see for yourself by using the CMS Nursing Home Compare website.
Nursing Home Compare features a quality rating system that gives each nursing home a rating between one and five stars in various different quality measures, and an overall rating. Nursing homes with five stars are considered to have “much above average quality.” Nursing homes with four stars are considered to have “above average quality.” And at the other end of the spectrum, nursing homes with one star are considered to have quality “much below average.” There is one overall five-star rating for each nursing home, and a separate rating for each of the following three factors:
- Health Inspections: Inspections include the findings on compliance with Medicare and Medicaid health and safety requirements from on-site surveys conducted by state survey agencies at nursing homes.
- Staffing Levels: The staffing levels are intended to indicate the numbers of nurses and nurse aides available to care for patients.
- Quality Measures: The quality of resident care measures are based on resident assessment and Medicare claims data.
CMS enters every nursing home approximately once a year and conducts an unannounced inspection survey. The agency also conducts inspections whenever a complaint is received about a nursing home. Consumers can find the results of all of these surveys on the Nursing Home Compare website.
By using Nursing Home Compare, you can see for yourself that almost all nursing homes accept Medicaid, and a huge percentage of these are the highest rated nursing homes in the area. As an example, let’s look at Alexandria, Virginia. There are 97 nursing homes within 25 miles of the zip code 22315, and 93 of those nursing homes accept Medicaid. Fifty-eight of these are five-star and four-star nursing homes!
Should I Pay Privately for a Nursing Home for a While and Then Try to Qualify for Medicaid?
Some people are under the misconception that in the better facilities, there are far fewer Medicaid beds and the best way to secure one of those beds is to private pay for a while.
This is a complete misunderstanding, as every nursing home that accepts Medicaid, as a general rule, accepts Medicaid regardless of what bed the resident occupies.
You can easily see this by first looking at the NH Compare website, clicking on a specific nursing home, and scrolling down to see how many Certified Beds they have.
For example, let’s look at five-star nursing home and a four-star nursing home. If you click on the link for five-star nursing home Fairfax Rehabilitation and Nursing Center and scroll down, you’ll see they have 200 beds certified for Medicare and Medicaid. If you then Google the facility by searching “Fairfax Nursing Center number of beds,” you’ll quickly see they have 200 beds in their nursing home, clearly showing you that ALL of their beds are Medicaid-certified beds! Likewise, if you click on the link for four-star August Healthcare at Leewood and scroll down, you’ll see they have 132 beds certified for Medicare and Medicaid. If you then Google that facility, you’ll see they have 132 beds in their nursing home, again clearly showing you that ALL of their beds are Medicaid-certified beds!
Many nursing homes regularly misinform potential residents and their family members about this fact — telling people that they only have a limited number of Medicaid beds — so the general public’s misunderstanding is understandable.
Here’s the CMS official transmittal on this issue, which explains on the bottom of the second page:
“Certified Beds.–The Medicare/Medicaid program does not actually “certify” beds. This term means counted beds in the certified provider or supplier facility or in the certified component [“component” means the nursing home portion of a continuing care facility that has multiple levels of care including nursing home care]. A count of facility beds may differ depending on whether the count is used for licensure, eligibility for Medicare payment formulas, eligibility for waivers, or other purposes. For Form HCFA-1539, all the following are excluded from “certified beds:” pediatric visitors, newborn nursery cribs, maternity labor and delivery beds, intensive therapy beds which a patient occupies for only a short time (such as in radiation therapy units), and temporary extra beds. The following are included: designated bed locations (even though an actual bed is not in evidence) and beds which a patient occupies for an extensive period of time in special care units such as cancer treatment units, as well as all routine inpatient beds.” [emphasis added]
Ensuring Your Loved One Gets the Best Quality of Care
When your loved one enters a nursing home, federal law requires every long-term care facility to create a care plan. The care plan begins with a baseline assessment, which should occur within two weeks after a resident moves into the facility. Please read today’s Critter Corner for more details on what is included in a Care Plan.
Although development of a care plan is something required to be done by a nursing home, a care plan can, and ideally should, be created in advance, well before the need for nursing home care. By planning in advance, when you have a clear mind and the ability to communicate effectively, you can much better guarantee that your wishes, lifestyles, and desires are documented and will be communicated to your future caregivers, whether these be family members, private nurses, home health aides, or staff in a nursing home.
The easiest way to develop your own care plan in advance of the need for long-term care is to use our proprietary Long-Term Care Directive® which is part of our proprietary 4-Needs Advance Medical Directive® (part of every level of planning we offer). Our Long-Term Care Directive helps you organize, store, and disseminate information provided by you as part of your Long-Term Care Directive in order to better serve your future long-term care needs and to guide those who you will depend on for future care. The Long-Term Care Directive identifies your specific needs, desires, habits, and preferences and guides your caregiver. Learn more about our proprietary Long-Term Care Directive® here.
Plan in Advance for Nursing Home Care
Nursing homes in the DC Metro area are very expensive, costing $12,000-$15,000 a month, which can be catastrophic for most families. Life Care Planning and Medicaid Asset Protection is the process of protecting your assets from having to be spent down in connection with entry into an assisted living facility or a nursing home, while also helping ensure that your loved one gets the best possible care and maintains the highest possible quality of life, whether at home, in an assisted living facility, or in a nursing home. The Farr Law Firm offers an initial consultation. Please call whenever you are ready to make an appointment:
Elder Care Fairfax: 703-691-1888
Elder Care Fredericksburg: 540-479-1435
Elder Care Rockville: 301-519-8041
Elder Care DC: 202-587-2797
About Evan H Farr, CELA, CAP
