YOU CAN DO BETTER !!!
True Story: The Case Of The Wandering Therapist
Picking up quickly, where we left off, this in Part One of this entry (article, blogging-post): here is where we are: as we quickly end this discussion with some AMAZING insights into the law, the well-being of your loved one, you, or a friend, i.e., someone who has already “suffered” admission into a Nursing Home, when much more could have been done, in the so-called perfect world.
YES: Even I admit that all is not operating in a “Perfect World”: thus, the point is not to point to PIE-IN-THE-SKY remedies, alternatives to Nursing Home placement; rather, here we focus on how to make ABSOLUTELY the best out of a bad situation.
A bad situation ???
Yes. Remember where we are, and with a few more details before we proceed further into this True Story of one of my clients for whom I successfully advocated:
First: Know This: While in the Acute Care Hospital setting, this patient (my client) had suffered a stroke: it was a very unfortunate
(INPATIENT) thing to have happen to anyone: especially one who had been under close (and Acute Care) scrutiny and care.
RECALL ALSO THIS: The Nursing Home into which I had gotten her admitted, had NEVER, EVER admitted a resident coming as a patient, out of an Acute Care Hospital, unless what ???
UNLESS WHAT? My patient, who had an estate, albeit small, was NOT eligible for Medicaid: because of monies, etc. she had not spent down to, this at the point of her admission into this Nursing Home. This meant what. ANSWER: This RESIDENT, was admitted to this Nursing Home as a
Here is where the rubber meets the road:
Recall, that in the acute care setting, my client had suffered a significant stroke: and as a result of this stroke, she was left with a number of deficits. But there was one, that above all, which is the focus of this narrative: it was the MOST SERIOUS DEFICIT from which she suffered, this from the very first day of admission to this Medicare Skilled Nursing Home bed: and it was this:
My client, and former acute care patient, now a Nursing Home resident, continued to suffer terribly from a “SWALLOW FUNCTION DEFICIT”. Even to this point:
My client, now a N.H. resident, even had surgically implanted a PEG-Feeding Tube: this meant that she could not swallow ANY food, not even liquids: as she would have choked to death, even with liquids. THUS ALL OF HER FOOD INTAKE….came through the Stomach-Tube (PEG-Tube). She was appropriately placed in a SKILLED NURSING HOME BED: of course !!!
Because it was going to be a Skilled Nurse, i.e., a Registered Nurse, perhaps the Director of Nurses, herself, who would supervise the feeding of my client, this resident.
In looking back on things, I guess I consider this case, with the wonderful assistance of this Resident’s FAMILY…to be one my most interesting, and successful cases involving my hand, my advocacy intervention: in any way, small or large, i.e., my advocacy on behalf of a Nursing Home Resident.
NOTE: I have already stressed that it is important to have immediate (if possible) or other family involved, and VERY involved, early on: in any Nursing Home stay: in a case like this, I was fortunate to have a very educated daughter, who lived only a few miles from the Nursing Home.
NOTE ALSO: All else being equal, and you can ask any Nursing Home advocate about this, it is VERY important to select a
Nursing Home which is as close geographically to the relative (who will be visiting) as is physically possible.
PROXIMITY TO THE ACTUAL BUILDING IN WHICH YOUR RELATIVE RESIDES, FOR HOWEVER LONG can be critical.
Again: One of my client’s two daughters lived about eight (8) miles from this facility: and MORE IMPORTANTLY, this N.H was a building, a facility, in front of which, by barely rearranging her trip home from teaching, the daughter, could be expected to pass, drive by, both in the early morning, as well as the late afternoon.
As a consequence, I got a DAILY report of this Nursing Home.
SO: By this point in time, i.e., once admitted to this rural Nursing Home, out East, the only Nursing Home in the county there, this is where we were, so to speak:
(1) Patient (now Resident) had been admitted with payment promised for up to 100 days by Medicare:
(2) In order to get Medicare (ever) to pay for Nursing Home care, the patient (Resident-To-Be) MUST be shown to need either Skilled Nursing and/or Skilled Rehab Care, in order to get the “max” of 100 days paid for by Medicare;
(3) This Nursing Home had no trouble justifying (accepting) this patient, to become a Resident in their Nursing Home, because, quite simply, she was so seriously ill that she, once discharged from Acute Care, needed both SKILLED NURSING as well as SKILLED “REHAB” !! Keep in mind, that this patient/resident was admitted post-acute care stroke, and was doing bedside therapies while in the hospital: AND: had been diagnosed as needing CONTINUED REHAB, while in a Nursing Home setting:
with specific orders having been written, stating such in any Transfer Papers (chart);
(4) FINALLY, and MOST IMPORTANTLY: This N.H. resident was admitted to a Skilled N.H. Bed: this because she had the SPECIFIC need to have evaluated whether Swallow Function could be recovered: this how? Answer: By SWALLOW-FUNCTION THERAPY !!!
NOTE: First, A Brief Review, Restatement Of Where We Are, With Regard To This Patient, Now Nursing Home Resident:
As was this case, any Nursing Home would have (as did this one) continued the resident on both bedside therapies, get her standing and thus “Weight-Bearing”: this with MAX-ASSIST, i.e., with one person under each arm.
THIS IS CRITICAL:
ANSWER: When a resident enters a Nursing Home, especially in need of a Skilled Nursing Home bed, there is the assumption (not to mention the law) that insists that as a prerequisite that the person (resident) will receive that skilled care: and while the idea of what constitutes SKILLED CARE varies, and given that there are NO PHYSICIANS, anywhere near 99% of all Nursing Homes, except for End-of-Month Re-certification for Medicaid, and rarely, but sometimes, a Medicare-level of care/Re-certification:
Again: Because this Resident was in a Skilled Bed, she had to be re-certified for a Medicare-Reimbursed service, period !!!
USUALLY: There is no huge debate about the need for Skilled Care, given a stroke patient coming out of a Hospital: and into the Nursing Home, immediately thereafter: but the CRUX of this case is this: WHAT KIND OF SKILLED CARE ??? Put another way, there is the issue of whether the N.H. is maximizing the Resident’s return to normal body functioning, per its care. With minimal (no) daily involvement of a physician, what gives ??
Put another way, WHAT CARE, THERAPIES are called for ???
AGAIN: THE TEST: THE LAW: THE MANDATE: For Every Nursing Home, Is What ????
ANSWER, again: ….is to RETURN the Resident to the MAXIMUM level of “recovery” that Therapies as well as Nursing will deliver, can deliver !!!
And please recall: THERAPIES (as in REHAB Therapies) are defined thus:
(1) Physical Therapy
(2) Occupational Therapy, and
(3) Speech Language Therapy (Speech Language Pathology)
While there are a number of SKILLED ways in which a Resident can benefit from the care delivered in a Skilled Wing of a Nursing Home, in the absence of any REAL physician involvement in Nursing Homes, the question often becomes, what is it that the FAMILY (or any close friend, e.g., one holding a Power of Attorney) can know, will know to ask for !!!
The Squeaky Wheel is (often) the one that gets the attention. Or, if there are no family around, no person who (now, per you) and this blog, will understand the potential for “recovery” with Skilled Therapies: well, you can see that friends and family are OFTEN the only thing that can and do make the difference in the kind of, level of, and quality of care a Resident receives: whether it is Skilled Nursing and/or Skilled Therapies. In the instant case, it was an attorney stuck out in California (me) and an extraordinarily competent physician, in fact a Physiatrist !!! Fortunately for me, the Physician-Rehab Doc (PHYSIATRIST) was back out East !!
Now, comes the fun of advocacy !?!?
Further, NOW comes the need, the essential need for a Nursing Home advocate !!!
While this True Story has many interesting twists and turns, NOW:
We are going to, guess what…..
A CUT TO THE CHASE: With A Summary of Much Else, and a discussion of the difference our advocacy made in this case: we have now arrived at the kernel of truth (the law) and the way in which our dear client and patient needed us, both !!!
AGAIN: While I was trying Medicare cases out in California, and visiting with certain of my California hospital clients, naturally this is when the crisis of all crises, would arrive: and it DID ARRIVE.
IT IS ALSO: ….”The Case Of the Wandering (in) Therapist”.
SUFFICE IT TO SAY: That this Nursing Home, not really adequately staffed, was doing what it thought the law required, this in providing our client and patient (Resident) with both Skilled Nursing and Skilled Therapies, above-referenced. However, there was one critical therapy, within the realm of Speech Language Pathology, for which this Nursing Home was pitifully unacquainted, and certainly thus had no staff, no nursing and/or therapy staff to layer on any Plan of Care for this Resident.
THIS IS A TEST !!!
By NOW, you should be able to GUESS which Therapy was missing from any Plan of Care ….for our Resident !?!?!!!
(DID YOU ?????)
The answer ???????
In order to have any hope of a somewhat normal life, this good, country lady needed to have a return to eating: and NOT live out the remainder of her life with a PEG-TUBE in her stomach !!!!!
BUT, how ?????? (How to get this PEG-feeding tube out ?)
As Fate Would Have It ?????
It was SWALLOW FUNCTION RECOVERY ….which this delightful, older lady required, this in order to have removed her Feeding-Tube in her stomach, known as her PEG-TUBE !!
* * * * * * * * * * * * * * * * * * *
HOORAY !!! (An answer to her greatest problem, or not ???)
RECALL: Speech Language Pathology is one of the three (3) “rehab” therapies which every Skilled Nursing Home is REQUIRED to offer, deliver, to assist and return residents to a MAXIMUM LEVEL OF FUNCTIONING !!
ENTER: “The Wandering Early Speech Language Therapist”.
On an early morning visit, well before even 7:00 a.m., sure-nuff: a person entered this Resident’s Room, and announced that she was a “therapist” !!
A therapist, you ask?
Not only that, but she was, perhaps because there was an obvious need for such a therapist, i.e., a Speech Language Pathologist-Therapist. That is what the Nursing Home had ordered, layered on, by way of proving to Medicare, that they were deserving (the N.H.) of BILLING for the much larger per-day, Skilled Nursing Home/Rehab Care Bed. However the daughter was shocked to find ANY therapist in with her mother at 6:30 in the morning: and one who CLAIMED to be a Speech Language Therapist… but who was doing what with her mother ??
ANSWER: This therapist was retained (hired) by this Nursing Home, as a Speech Language Therapist ….because the N.H did NOT have any such Speech Language Pathology Therapist on-staff: NOT ONE !!!
Even more perverse was the way this Therapist, “serving, working with” her mother, introduced herself:
FIRST THE DAUGHTER’S QUESTION: “What on earth are you doing therapy of ANY kind on my mother, at 6:30 in the MORNING ?!?!?
Without missing a beat, this Therapist stated that she was doing Vocabulary Lessons with the Resident: and the reason it was so early, was that she was a “consultant” to this Nursing Home: why?
BECAUSE: The Nursing Home did not have their own Speech Language Pathologist Therapist, on staff: i.e., they did not have a single such therapist in any part of the building, and the only way to meet Medicare’s Conditions of Participation (for care and $$$$) was for her (the therapist) to stop by, and do therapy on her mother, this while…….
ON HER WAY TO HER REAL JOB !!!!
(I know: you are asking, what kind of operation, admittedly in a somewhat rural but now very populated area of the county, was this facility running???)
ANSWER: Essentially an ILLEGAL, non-conforming pretense of operating a Skilled Nursing Facility (for Medicare purposes, Medicare reimbursement): but with no full-time such therapist.
FURTHER: The daughter was a brilliant Special Education Teacher, and knew that what her mother needed was most assuredly NOT any kind of Vocabulary Lessons:…so, recall, what did this Patient-Resident REALLY need, by way of “Speech Therapy”, as it is sometimes called, simply.
THE ANSWER: This “Skilled” Resident was in need of “Speech Therapy”: but the older resident was herself, brilliant: and certainly had recovered her mind to where she did not need any kind of therapy which involved Vocabulary Lessons: ..even though some post-stroke residents DO require, need vocabulary lessons, to regain their memory.
WHAT FOLLOWED WAS JUST AMAZING:
The daughter went to the Nursing Station, and sought out the DON (Director of Nursing). The DON confirmed that, indeed, they did not have on staff a real “Speech Therapist” (Speech Language Pathologist): then added, but Medicare allows us to contract for what services we do not have on staff: and this is why your mother
is being seen by a Consulting Speech Therapist: ..and, yes, admitted that services could ONLY be delivered early in the morning, as the therapist did, in fact, have to go on to her real job, say by 8 or 8:30 a.m. !!!
And, yes: the daughter was first horrified, then astounded !!!
As I recall, the daughter reminded the DON that her mother required the type of Speech Language Pathology which would return her “swallow function”.
Later that day, the daughter called the “Rehab Physician”, a Specialist who had seen and treated this lady, the Resident, and who had told the family that she required the type of Speech Language Pathology, which would involve “Swallow Function Recovery”: if there were to be any HOPE of getting the Stomach (PEG) Feeding Tube out of her mother’s body. Then this doctor added: but Swallow Function Recovery Therapy is complicated.
This physician, again, (A PHYSIATRIST) is a Specialist in Rehab, and thus Speech Language Pathology. He told the daughter something that stunned her: he said this:
“As far as I am concerned, there is only ONE person in this entire area, here in the city, who can do this kind of therapy.”
FACT: As it turns out, “Swallow Function Recovery” he explained, was such a delicate, and potentially dangerous therapy, that only one person he knew would attempt to return the swallow function to a patient, just one therapist: and not, of course, one that ever would be appearing in the Resident’s Skilled Nursing Home. In fact, she practiced in an office near the physician, there in the city, where the daughter taught.
DELICATE, DANGEROUS-POTENTIALLY ..kind of therapy???
YES: “Swallow Function Recovery” Therapy, is a delicate kind of therapy, which involves a very, very sophisticated and well-trained therapist: the reason? BECAUSE: It is accomplished by very, very gradually getting the patient to begin by sucking on ice: finally getting to the point of being able to swallow melted ice !!
AFTER THAT: The patient would have to work hard, daily, until the patient gradually was moved into, up to a soft, i.e., liquid diet, nutritionally speaking: …all the while, continuing to receive feeding through this patient’s PEG-Tube, i.e., through her Stomach Feeding Tube: the goal of which (SWALLOW FUNCTION RECOVERY) was eventually to get rid of …have REMOVED FROM HER BODY, once full swallowing returned, i.e., once the patient had progressed to tolerating, SWALLOWING solid food.
This daughter was no fool: she took the next day off, and into the city they went, with an order from her Physiatrist (recall, REHAB DOC): and to see the one and only known therapist who was safe, and qualified to work with “Swallow Function Recovery”.
As far as the Nursing Home knew, the daughter had taken her mother out of the N.H. for a private lunch in town: but somehow the word got back, perhaps from the City Therapist, that she was doing Speech Language (Swallow Function Therapy) on one of their residents:
THEN, ALL HELL BROKE LOOSE !!!!!
UPDATE RE THE PRINCIPAL PARTIES: Again, having been an outpatient with a city doctor, a physiatrist, rehab doc, the family member (a teacher) immediately contacted him and told him what happened to all of them (the Resident, the daughter: and the Director of Nursing at the Nursing Home of the Resident): and what happened, was awful, and nothing short of outrageous !!
Once the DON at this Resident’s NH learned that one of their Residents had been taken to another physician, not the one, so-called Facility Physician (on a small monthly retainer): the DON was LIVID !!! In fact, she made crystal clear the following: by speaking to the daughter, thus:
Meeting the daughter at the NH’s front door on “Day Two” of this dramatic sage, the DON stated, angrily, and firmly, the following, to wit:
“If your mother is going to have ANY type of therapy, while here in OUR Nursing Home, she absolutely will have it HERE: by OUR therapists, and none other: you will NEVER take your mother out of this facility for any kind of “outside” therapy, of any kind, NOT AS LONG as she is a RESIDENT OF THIS FACILITY.”
Bright, and not oblivious to what was happening, the daughter spoke up: she explained that her mother was in need of a kind of Speech Language Therapy, that there CONTRACTED-only kind of therapist COULD NOT DELIVER !!! Simply put the daughter very graciously, then firmly explained that she had a doctor’s order, which explained (and ordered) such a SPECIFIC “Swallow Function Therapy” was needed, and greatly, and at this time !!!
NOW !!! Without delay: otherwise, this Resident’s PEG-Feeding Stomach Tube would never stand a chance of being removed: not then, NOT EVER !!! The Nursing Home DON responded, again, thus:
“Let me make myself clear: if your mother is to get ANY type of Medicare-reimbursed therapies, while in her bed at their N.H., it would ALWAYS, and forever have to be done by THEIR staff”:
i.e., since they were providing Speech Language Therapy, then it was to their therapist, in this case, their Speech Language Therapist, from whom this Resident must look to, seek, and from whom, get such care !!! In other words: the DONN gave then orders, NOT to remover their Resident, the daughter’s mother: EVER: for any out-of-facility therapy, of any kind, or at any time: NEVER, EVER !!!
A Geographical Update Of This Therapist, And Me: My brilliant physician, and many-time Expert Witness, at most of my Medicare Appeal Hearings, where together we REVERSED all of the cases we were handed (100% of such cases, in whole, and not in part): was working out of his office, in this East Coast city:
At the very moment, I was, when the word came down from this Nursing Home’s idea of “On High”, i.e., through their Director of Nursing, she was practically shouting over the poor Resident’s ears, to the daughter: one might say, or consider it, as I did, a real THREAT !!! At stake was everything: including the other Skilled Nursing and Rehabilitation Therapies which this poor Resident at that time, at that EXACT time, admittedly needed, required: but what was NOT needed, was the “lame”, all too early-in-any-morning ….so-called, and charted as required and done, up until this confrontation: again, by what kind of therapist ??
The Wandering In At 6:30 a.m., so-called, and contracted (not employed) Speech Language Therapist, who by now admitted that
SHE was totally INCAPABLE of providing the sophisticated level of therapy, which an out of the facility (as if there EVER were an in-facility) physician had ordered for this Resident.
Put another way: it was now crystal clear by the family, and this loving, caring daughter, that her mother required a kind of therapy (“Swallow Function Recovery”) which could ONLY be obtained no in the Resident’s current Nursing Home: rather, such care, if at all, would require an “out-of-facility” Medicare therapist !!
What followed this colloquy ??
THE SAGA OF THE TALKING VOICE MAILS: both my Physiatrist/Rehab doc and I fortunately had our own Voice Mails: and, indeed, it was the so-called “Talking Voice Mails” which greatly (entirely) facilitated my client, and this physician’s patient, getting the care that she needed !!
Care that she (right then) needed??
First came the voice mail from my physician friend, who summarized the care that his patient needed: sent to my phone: as I was then in California: 2500 miles away: then this additional fact:
Himself a wonderful advocate (!!) on behalf of his patients, he had taken it upon himself to get through, telephonically, to this Nursing Home’s Director of Nursing: at which point this wonderful physiatrist was told, what would seem at first blush, unthinkable:
“Doctor, I’m sorry: but as long as your patient is a Resident in our Nursing Home, she will be FORCED to get/receive ALL therapies, of any kind, especially Medicare-reimbursed, from our in-house therapists !!”
In other words, to hell with what was wrong with this patient: and what was CLEARLY medically indicated: and by now, had been ordered, by the only such Specialist-Physician, anywhere around: and who knew the one (1) ONLY competent therapist to do it.
In Summary: A Nursing Home DON had over-ruled my physician, to this extent: she made it abundantly clear that no one of their patients could EVER be removed from their facility, by authorized family (or friends) to receive care which was, allegedly, available to such a Resident: albeit it, really NOT available, since no one in that rural county who claimed to be a Speech Language Pathologist (THERAPIST) was trained, or could perform the needed, REQUIRED therapy, if this patient (and now N.H. Resident) was truly, to recover one of her basic bodily functions !
What Happened Next ?? IMMEDIATELY, Dr. “X”, my good friend phoned me: and even though we worked closely together in hearings, reversing every Determination Medicare had ever
made, denying an enrolled Medicare Beneficiary certain (mostly) acute care benefits, number of acute care (reimbursed) days: I cannot now recall whether this physician knew I was out West at one of my California hospitals, or …back, in my old (1899) rural Farm Victorian home, It was, however, in the end, irrelevant: this based on the advice I gave him for dealing with this awful Nursing Home DON. Here is what I immediately, if I do say so, not missing a best: as I knew I had the law behind me, to wit:
The Law: Remember our earlier discussion: The DUTY of every Nursing Home, but especially ones that have been awarded the very special Skilled (NURSING HOME) beds, and “staffed up to serve these MOST MEDICALLY NEEDY patients in those beds”: is what? Answer: ALWAYS: To MAXIMIZE the Functional Recovery of Every Nursing Home Resident !!!! It is, truly, just that simple: and EXACTLY, just as complicated.
THE CLIMAX: In fact, I was out West, both trying certain of the cases originating from my client hospitals, both Medical-Surgical Hospitals, but far more cases emanating from my Acute Care Hospital In-Patient Rehabilitation facilities: that and making certain stand-up presentations at the request of certain of my rehab hospitals, i.e., that they offer up an opportunity to have residents of the local communities, come and visit their facilities: in the process, I made presentations, several times, regarding the critical need to UNDERSTAND what difference aggressive “rehab” could mean, especially in the way of restoring the frail elderly to a truly good, in some instances, return them to a wonderful state of life: as nearly to the point before their bodies had suffered whatever “medical insult”, as the medical “lingo” speaks of, etc.
SO: I RECEIVED MY EAST COAST REHAB DOC–SPECIALIST’S PHONE CALL VIA MY OWN VOICE
MAIL: THEREAFTER: The REAL fun began !!~!!
Remember: It was our Voice Mails that were talking with each other, this because of the rather radical time-warp, Time-Zone difference between my East Coast home: and my California work.
And, yes: I was SHOCKED to hear the horrid news of what this particular with Medicare-Certified Skilled Nursing Home beds, was, apparently, fully prepared to do (to) my client, i.e., DENY HER the very therapy she absolutely, and at that very time, required, beyond all doubt: that being what ?
“Swallow Function Recovery”: ..and THIS delivered by the one (1) and only therapist in her geographic area, qualified to do such:
albeit it one such therapist, who had no affiliation with the one Nursing Home in issue: my client’s Nursing Home !!!
One Last Diversion Is Necessary: You should know this: for years, I had been the beneficiary of both grants and contracts from the U.S. Administration on Aging, both in Texas, but most recently, in Los Angeles, my West Coast home. During such time, I had become well acquainted not only with certain folk in the D.C. area, where I first worked full-time as a licensed attorney. Of much more importance, this had led me, along with my grant and contract work, to gain an understanding of how it was that the U.S. Department of Health and Human Services worked: this
out of ten Federal Regions: with “Regional Cities”/HEADQUARTERS from Boston to Seattle, etc. Thus, putting my Thinking Cap on, I decided it was time to raise to true VISIBILITY what this awful Nursing Home was proposing, i.e., that to hell with the needs of any N.H Resident: whatever therapies a given Nursing Home has, is what you, “Buddy”, are stuck with: i.e., you can’t go shopping around for better therapists !!!
Better therapists !?!?!
At that point I realized that I had to put on my “Advocacy Hat”: even pulled ‘rank’: yes, me the Attorney at Law !! At that particular point in my life, with now decades of work in and around Nursing Homes, and Nursing Home issues, not to mention what are commonly called, referred to as a facility’s (any facility receiving either Medicaid and/or Medicare)..well, I realized that THIS particular Nursing Home was, as we used to say in grade school, all too full of bologna: bologna?
Then the real sadness hit me: but for my involvement, and more to the point, the family’s knowledge which they were willing to share (by my Physiatrist friend, M.D.) I would have been as lost as were my dear “clients” when they notified my M.D. friend, and physiatrist in the city of this sorry state of affairs: i.e., the situation, Totally Unacceptable, to me and him: but even he was at a loss at to what we could do: right then and there.
I was not. Here is the good ending to this story of my wonderful, older client, a beautiful lady from the surface to the very spirit, to
her soul: something she never ceased to amaze me with. She was the kind of client who, in the summer, would have her daughter drive out to my old farmhouse, to deliver to me the very latest Vine-Ripened Tomatoes, almost until the day, many years later, when she, as we say in the South, simply passed away: thanks to her two daughters having ensured that she lived a very good life, in those last years. Thus, when this terrible Nursing Home was staring my M.D. friend and me down, and in effect, saying, “Hell no!” We had to act, the one or both of us, and in a hurry: time was precious and everything about this case was now exigent. Here is the way all ended.
FROM CALIFORNIA: I called my M.D.-physiatrist friend, and told him the following, as he was certainly lost as to any next step:
Precisely what I told him was this: Telephone the Nursing Home. Ask to speak with the DON (Director of Nursing.) In these exact words, I instructed him, in her same Time Zone, to say exactly the following:
Begin by thanking the DON for taking his call. Then continue thus: I iterated the following, by way of a Temporary Agreement, a temporary stand-down by all parties: the Nursing Home, one in which they would not lose any right(s) they were claiming. Likewise, we wanted this N.H. to recognize our rights under law, only so far as we were at that time simply “claiming”: this ON BEHALF OF OUR PATIENT-CLIENT: until the Philadelphia officials could render their Decision: again this all per your classic “Labor Negotiation”.
Until such time as I could get back to the East Coast, now mere days, tell the N.H., I said, that I wanted them (as well as us) to have the equivalent of a Labor Negotiation “Stand-Down” at which point they would give up NONE of the rights they thought they were rightfully clinging to: we would, of course, do the same.
However, given that I was still days away from returning East, I told him to add one last thing, to wit:
Add, in your discussion with the DON, the following: since Mr. Buford is not here, and cannot first-hand access whether the Nursing Home were fully complying with the Medicare Act and Regulations, this with regard to what?
MAXIMIZING THE FUNCTIONAL CAPACITY OF EVERY…single patient, Nursing Home Resident, still being the issue, I quickly added this: that for now, I was (again) going to ask two staff persons from the Philadelphia Regional Office of Medicare and Medicaid Services (back then referred to as HCFA: for Health Care Financing Administration to come on-site!): this to determine who was right !?!? Again, I concluded that this was a black and white issue. I ALSO concluded that I was right, legally, and that the N.H. could not possibly prevail, in any way !!
I think somewhat to the surprise even of my physician-physiatrist associate, he heard, when he called the Nursing Home’s DON, that they at least understood that nothing was going to happen to them,
right then and there: e.g., that they were not going to be served court paper, seeking an immediate (legal) court injunction.
But what none of us was fully prepared for, was what happened NEXT to my family, my client-Resident, as they next entered the Nursing Home: fully aware of the previous days conversation: the one in which the Director of Nursing (DON) had made adamantly clear, that all therapies this Nursing Home Resident received, MUST come from, be done by THEIR N.H’s. Own therapists: consultants or hired staff.
HERE WAS THE REAL SHOCKER: And it is the end of this story. The family thought that they would meet a hostile staff, especially in the person of the DON. Instead what happened was a surprise. As soon as the daughter walked through the door, the DON met her cordially (what !!!) then added the following:
“We were WRONG !! Your mother can receive her therapy wherever she wants to receive (…it…) !!” In other words, the Nursing Home made a 100% REVERSAL of its position, which it had taken only the day before !! What was also clear was this:
This Nursing Home wanted NOTHING to do with any Federal Inspectors from Philadelphia, or from anywhere, making a sudden and entirely legal entry into their facility: I am guessing because of all the other things that might not have met with, shall we say, oversight, and a federal inspection, this from and by the highest levels of the Federal Government.
So, what really happened to this Nursing Home Resident?
Under the close watch of her now NEW (once again) treating physician, and the outpatient Speech Language Pathologist to whom he referred her for therapy, this lovely lady, my client, stayed through her 99th day at this Skilled Nursing Home. Unlike most persons who entered, even with an order for SKILLED care, done from, in one of their SKILLED (Medicare-Certified Beds, for SKILLED care): this lady stayed not only the full time she was entitled to stay: INSTEAD, she left her SKILLED (Medicare NOT Medicaid) bed: one day early, and was moved up the hill to her daughter’s house !!
She Had Two Identical Twin Daughters: one lived in Atlanta, the other in the same rural county as this Nursing Home. At some point, and I cannot recall when, and after a FULLY SUCCESSFUL treatment for “Swallow Function Recovery”: ..this wonderful client of mine had the simple surgery (all is relative) to remove her PEG-Tube.
Because she was eating solid food by that time, and swallowing with no difficulty!!!
Copyright ©, August 2015
Albert D. Buford, III, Esq.
Remember: …we’re an electronic news magazine: devoted to the issues relevant to the general public, but especially those persons involved in Health Care Reform …
…our focus, among others, is to assist consumers, attorneys and medical practitioners: this in explaining new statutes and regulations, but on a more day to day basis, help those involved in Estate Planning, such that every effort can be made to provide for, and when possible, ensure, that for the disabled and older Americans, Nursing Home placement need not become a permanent “reality”:
…..we are thus walking you, consumers and concerned friends and relatives (again) through the alternatives to Nursing Home placement: we do this (here, in this issue) by demonstrating the huge benefits of Physical Medicine and Rehabilitation (PM&R): including (a) Physical Therapy, (b) Occupational Therapy, and (c) Speech Language Pathology: all of which, in some part, in some way, are covered services by Medicare:
…….here, in this issue of A Better Wrinkle, we look at the problems in accessing, on a timely basis, such care: …the legal/medical “setting”? Point in time? We are now living through a radically reduced number of Acute Care “Rehab” beds: because of the very low (new) reimbursement formula Medicare now uses. But, there is a better “wrinkle”, a better way to access more aggressive care (rehab care) than any (ANY !!) Nursing Home will ever provide anyone !!
…..again: this article is directed at having you, your loved one, friend, anyone and everyone avoid using a Nursing Home, thinking that it, or any like venue, can provide the critical care needed.
YOU CAN DO BETTER !!!
True Story: The Case Of The Wandering Therapist
While under contract with a large California health care company, one that ran many, many free-standing (excellent) Acute Care Rehabilitation Hospitals, as well as Acute Care Inpatient rehabilitation Units (usually floors, in a Med-Surgical Hospital) a problem arose with one of my clients, out East. There, I worked with an extremely talented PHYSIATRIST: (pronounced: FIZZ-I-A-TRIST):….that is NOT a counselor, or psychiatrist. The word, Psychiatrist: (an M.D. who works with disorders of the brain, and much more): the two are spelled so alike that many lay persons fail to realize in a quick read-through, the difference.
PHYSIATRIST: Obviously the word of the moment, and that I am speaking of, is derived from Physical Medicine, again, sometimes, simply referred to, as “PM&R”. There was a time when Physical Medicine and “Rehab” was not even covered at all by Medicare. The problem today, which you will soon see, is that Medicare has DRASTICALLY, and RADICALLY reduced the number of dollars available for any kind of Medicare-reimbursed PM&R. It is, in my mind, absolutely, “penny wise and pound foolish.” (More on the $$$, Medicare reimbursement later.)
THE PROBLEM AROSE THUS: I had a client whose family lived near my old Victorian farm house, back East. Me? I was in California when serious problems started to occur with regard to the kind of Nursing Home care my client could access, this when she was being discharged from an Acute Care Hospital, into a rural Nursing Home: there was only one N.H. in this rural county.
FIRST CAME THE PATIENT’S DISCHARGE FROM A MEDICAL-SURGICAL FLOOR: this at an Acute Care Hospital. Again, this patient was headed to a rural Nursing Home, soon to become one of their residents. Whenever a patient is transferred out of an Acute Care Hospital, the local, and I would think, all too often, custom was the following, to wit:
To transfer the patient out of Acute Care, attached to the gurney (ambulance transfer) are what are known as TRANSFER DOCUMENTS. And even though my client had Medicare, and was going into a (Medicare) Skilled Nursing Home (bed), one with Medicare-Certified Skilled Nursing Home care, I was informed that the Hospital Discharge Planner, a Social Worker, had informed the family that on the top of the Transfer Chart, there had to be, quite simply, a Welfare Application !?!
A “Welfare Application”?
In the vernacular, I was being told that this Medicare patient, had to, MUST, fill-out (or more likely, have the family fill out) a MEDICAID application: for Nursing Home care. What, you say? And rightfully so. WHY ? ANSWER: My client was not eligible for any kind of “so-called” welfare, i.e., she ABSOLUTELY was not eligible for the state MEDICAID Program. In fact, she had some small private resources, not many, but clearly, as I had finally screened her, I knew that she was eligible for MEDICARE, not Medicaid !! Skilled (Medicare-paid) N.H. care (beds).
More particularly, my client was eligible for the Nursing Home’s limited number of Medicare-reimbursed beds (up to 100 days, per Medicare.) I was, to say the least, rather incensed, almost irate, given that I knew exactly what TRICK the N.H had up its sleeve.
MEDICAID DISCRIMINATION: Simply put, know this: there is a RADICAL difference in the amount of money ($$$$$) which Medicaid will pay for a “regular” (NON-SKILLED) Nursing Home bed: as opposed to having the Nursing Home reap the benefits of admitting someone NOT eligible for Medicaid, and thus paying for care, PRIVATELY !!
Private Paying Residents versus …..Medicaid Reimbursed Residents. It was then, and REMAINS: all about the $$$ !!
PUT ANOTHER WAY: Except for 100 days of Medicare-reimbursed Skilled Nursing Home care/beds (which Medicare pays for up to and including the 100th day of any stay, or “Spell of Illness): Nursing Homes care is not paid for by Medicare !!!!.
More on a ‘Spell of Illness’ later.
OTHER LITTLE KNOWN FACTS ABOUT NURSING HOMES: FIRST, every resident has the right to have her OWN physician: not the corporate doc the facility has on a low-pay retainer. Why? Corporate docs (really) provide little oversight of the facility: rather, show up every 30 days, talk with the DON (Director of Nursing): then check a box in each chart, which says the patient, if on Medicaid, CONTINUES to be eligible for another 30 days: for reimbursement by the State’s Medicaid Program: which pays Nursing Homes, again, far, far less than any private pay patient: and far less than the Medicare-Reimbursed (all) Skilled Nursing Home beds. Medicare is the payer of first resort, unless there is some kind of silver-plated Insurance Policy, and which stands in front of Medicare, per the Skilled N.H. beds, care.
AGAIN: Medicare has virtually nothing to do with Nursing Homes, except for the FEW adults, who are SO VERY ILL: that they require the most Nursing Care available, in any N.H. with Certified: Skilled Nursing Home beds, which come with Medicare-reimbursed therapies, and SKILLED nursing.
HOWEVER: All care, including therapies, MUST have an M.D.’s ORDER: for exactly what care, what Nursing, and what “REHAB” therapies are to be performed on the very, very ill new resident, just discharged (some PREMATURELY) from the Acute Care setting.
Reference in this publication our discussion of premature discharge: given that the Acute Care hospital is usually paid the exact same (LUMP-SUM PAYMENT): for the same diagnosis, the hospital patient is treated at the Acute Care level: AND: Recall: The hospital is paid the same amount of money, say for an 89-year old patient, Hip Replacement, regardless of whether she is in Acute Care for 18-hours, OR: For 18 days !!!! Note: See above blog/issue re the Diagnosis-Related way in which all 89 year old patients are grouped together: and it is the hospital’s decision to DISCHARGE this frail elderly patient (usually): whether or not they are REALLY stable and ready for discharge. Some remaining Acute Care Rehab Hospitals even have their very own, say, renovated MOTEL: now converted into an outpatient (not hospital) setting: thus allowing the hospital (corporation) to collect the LARGE-$$$$-figure for the HOSPITAL surgery (the LUMP-SUM PAYMENT): while billing at a much lower rate (the only rate allowed) at what is now referred to as SUB-ACUTE CARE: the “motel” in Florida, particularly, and some in Texas, that I know of, personally: these PREMATURE DISCHARGES FROM ACUTE CARE REHAB, have actually killed several of my clients. Why? Go figure: then ponder the two levels of care: and the avaricious (greedy) health care systems Medicare (legally) allows, etc.
SO: Back to my client, now a resident of a Rural Nursing Home: and in need of very skilled care, post-surgery. She was thus admitted to this Nursing Home as a Skilled Nursing Home patient, resident. AGAIN: Why are her SKILLED needs relevant: they are and remain the ONLY gateway into SKILLED NURSING and/or SKILLED REHAB care which is paid for, at the Nursing Home level of care: this by Medicare.
FURTHER: As proof that such a resident (patient) is REALLY in need of this higher level of care, it is available under Medicare, paid for by Medicare, ONLY per the following, to wit:
MEDICARE REGULATIONS: Provide that before ANY patient coming into a Skilled Nursing Home (bed) must as proof of how seriously ill they are, FIRST: be treated for three (3) days IN AN ACUTE CARE HOSPITAL: immediately preceding their entrance into any Skilled Nursing Home Wing (or Skilled Nursing Home bed). Such is the legal prerequisite, the requirement before (even if in a Skilled Nursing Home bed): especially if Medicare will actually, truly pay for such care, in the N.H. setting. Note: Many Nursing Homes do not even have ANY Skilled N.H. beds !! Fortunately, in this rural jurisdiction to which I am referring, the sole N.H. in this rural county, DID have Medicare-Certified Skilled Nursing Home Beds. And it was there, that my client’s Nursing Home “story”, a real “trial ….” , begins ……
IF ALL THIS SEEMS STRANGE, just not right: then you are, in all likelihood, looking at a situation which is not fair, AND: the manifestation of poor Public Policy (law and regulations).
SO: what are you, a family member to do: regarding any such Premature Hospital Discharge: …or TOO EARLY discharge to Sub-Acute Care ???
ANSWER: You must grab the reigns, and act. If something doesn’t seem right, it probably isn’t, e.g., premature discharges from Acute Care Medical-Surgical Hospitals, or Acute Care Rehab Hospitals.
Now, do you see the GREED !?!?
As a good attorney friend once told me: “Bert, if it doesn’t SEEM right, then it probably is not !!!” AND: If it does not seem right, THEN IT IS PROBABLY ILLEGAL !!!
Let me say it AGAIN: Premature Discharge from any Acute Care Hospital is illegal:
It’s ILLEGAL, under Medicare: but for all practical purposes, you, the family, are the only ones (usually) who can get it together to file an eviction APPEAL from Acute Care, by way of PART ONE AND INTRO AUG SEPT 2015 Medicare’s appeal process: this alone buys you two more FULL hospital days.
ALSO: If after a Premature Discharge (or what appears to be): and then, later, the patient is readmitted, within 30 (thirty) days: of the original DISCHARGE: guess what!?!?
ANSWER: The Hospital automatically gets, suffers a complete REVIEW and FULL AUDIT of the… (likely) Premature Discharge.
END: Part One: Part Two follows, NEXT.
How To Defer, Delay and/or Eliminate
The Need For Nursing Home Care:
(How Current Medicare Reimbursement
Law Makes Such Now Very Difficult)
MEDICARE: A Brief History of Relevant Amendments
In 1983, Medicare completely changed the way hospitals are paid (reimbursed) for providing acute care to any Medicare Beneficiary.
In short, that year, hospitals stopped receiving “per diem” reimbursement: put another way, since 1965, hospitals were essentially reimbursed when treating a Medicare Beneficiary, this by simply billing Medicare for the number of days during which a given patient was “in-patient and receiving acute care services”. Since the Medicare Program’s inception, hospitals (literally) sent a hard copy billing to Medicare, eventually, through an Insurance Company (Intermediary): and this insurance company, acting as an agent for Medicare, simply paid the local hospital an agreed upon amount (hence, the term, per diem payment) for each day of care delivered to a Medicare in-patient.
THEN: Came the era of new drugs, pharmaceuticals, and much more sophisticated diagnostic machinery, e.g., think of all of today’s tomographic imagining machinery, including CT-Scans, MRI’s as well as PET-SCANS !! These, all, were very expensive to purchase, and expensive to run, to operate inside of hospitals. Hence the spending for Medicare began to burgeon, and finally came to a ‘breaking point’: in terms of federal, Medicare costs.
ENTER A NEW FUNDING FORMULA: Referred to by its acronym, called Medicare DRG’s. In plain English, this stands for Medicare Diagnostic Related Groupings. AGAIN: Medicare passed this law, made this change for virtually all hospital stays, in 1983. There was at least one exception to this universal rule !!
Avoiding Nursing Home Placement/p.2
The MOST significant exception to all patient hospital stays being billed out to Medicare per a “DRG”, came in the arena of Acute Care Rehabilitation. For acute care patients, each of whom is absolutely unique in the level of care they require to “recover”, e.g., the intensity of care for one patient differs radically to the next. This makes it (really) impossible to bill Medicare for such care and treatment, i.e., in-patient Acute Care Rehabilitation: PM&R. (Physical Medicine and Rehabilitation). Right now, get acquainted with the acronym for such care: it is real simple: “PM&R”. Then came the ugly problems, i.e., after this new acute care funding formula for HOSPITAL In-Patient ‘Rehab’ stays!!
First, however, know this also: as most of you in fact may be familiar with: in order not to drop such needy patients in the middle of the road, so to speak, federal Medicare LAW now provides for two other LEVELS OF CARE: (1) Home Health Care PM&R, as well as (2) Very limited days in a so-called Rehab Nursing Home Skilled Care (100 days, if you are lucky: as in Las Vegas lucky), ALL such patients in need of PM&R, must FIRST be admitted (in-patient) to an Acute Care Hospital for THREE (3) DAYS: then, only then, Medicare Nursing Home “rehab” is, theoretically, possible: but again, per the order of an Attending Physician, or PM&R Medical Specialist, i.e., an MD. (or D.O.). While the acute care patient is medically stable for discharge, she is often NOT ready to ambulate, walk on her own, or even with what is called MAXIMUM ASSISTANCE (with two persons assisting her, one under each arm). As she begins to receive rehab treatment, e.g., the Endurance Training, required, this under a kind of “eventual” physician supervision, and delivered at a Skilled Nursing Home by a Physical Therapist: often with the help of aides, and/or nurses, the kind that are often serving up to 100 folk….meaning, NOT AVAILABLE. Some basics: You can understand better, per this: $2000/ day, Hospital Rehabilitation.
Avoiding Nursing Home Placement/p.3
THUS: PLEASE INDULGE ME AS I CUT TO THE CHASE:
Today, most frail, elderly acute care patients who are (remember) per hospital $$$$’s, always going to be shoved out of the acute care hospital door: thus never getting the kind of PM&R (rehab) they require, at the level they require !! Nursing homes are paid a fraction of the money amount which HOSPITALS claim, bill and most often GET !!! Why? Because Congress revisited the one, most needed kind of care, where the DRG System simply does not work, in the lion’s share of cases, i.e., when a very frail elder or disabled person, is “prematurely discharged” from the very acute care/hospital setting, which may have done a beautiful surgery. It is ludicrous to think that once out of any kind of hospital rehab, a patient will be served just as well with “sub-acute care”. It often comes down to the dollars: $2000 per day, vs. a few hundred, once out of the ACUTE CARE setting. (See any problems?) Answer: The most obvious need for continued “rehab” is that following an Open Reduction (surgically opening the skin, real surgery) and having a Replacement Hip fitted to the patient, beautifully.
But under today’s Medicare Acute Care Hospital system, the next in line to care for such a frail person, very, very often never gets the right order at Discharge, for the right TYPE of rehab care, this from the Attending Hospital Surgeon, just one example, one problem at the point of Hospital Discharge. REMEMBER: Only a physician can order up rehab, at any level, but most critically, when the frail elder is going out of the Acute Care (Hospital) door.
And always remember this: The hospital (even now for patients needing rehab care) will be eager to get the patient, even post-surgical patients, out the door as soon as possible. Why? AGAIN: Even rehab hospital care under the “DRG SYSTEM”, means that the hospital will be paid the same amount of money for a patient’s stay !!!
Avoiding Nursing Home Placement/p.4
THUS: Whether for eight (8) hours, eight (8) days or even, i.e., VERSUS: eighteen (18) days. Thus, simply put, as family, as an advocate for the most frail, you must always be looking at the possibility of a premature, EARLY, (too early) discharge from Acute Care !!!!
And you can appeal such premature HOSPITAL discharges:
NEXT ISSUE: Next Time: ….we continue our look at PM&R care: essential care to returning FREEDOM, independence, and all that can lead to a return individuals to a more normal life, especially for the most frail …..THUS AVOIDING ANY RETURN TO A NURSING HOME SETTING, EVER !!!!
Albert Buford, Esq.
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