The State Bar of Georgia has provided this pamphlet to inform people about some of their legal rights regarding nursing home residency. It explains what you need to know before signing a nursing home admissions agreement, what your rights are as a nursing home resident and provides a list of agencies to contact for any assistance or with any questions or concerns you may have.
Some Helpful Terms to Know
The process of entering a nursing home facility can be somewhat confusing. Here is a list of terms that may help make the process a little clearer.
The Admissions Agreement
A nursing home admission often follows an unexpected, sudden and debilitating illness. If you or a loved one is in need of nursing home care, you may be desperate to find placement in a facility as quickly as possible. However, the decision to enter a nursing home facility should be made with great care and attention to the admissions agreement. If the contract is not thoroughly reviewed, residents and their loved ones may end up ignoring important provisions or agreeing to illegal terms.
It is of utmost importance that admissions agreements are read and understood before they are signed. You have the right to take the agreement home and review it on your own. You may wish to have an attorney review it as well. You also have the right to ask the facility to make changes to the contract before signing it, though the nursing home is not required to agree to your suggested modifications. Before you sign the contract, make sure that all the terms agreed on by you and the facility are included. Also, be sure to obtain a copy of the signed documents for your records.
The laws governing admissions contracts depend on the type of payment a facility accepts. Facilities accepting Medicaid or Medicare payments for their residents are governed by federal and state laws. If a facility does not participate in Medicaid or Medicare, only state law applies. You should find out whether the facilities you are considering are Medicaid and Medicare participants. It is also important to note that a resident does not have to leave the nursing home once his or her Medicare benefits have been exhausted. Residents are federally protected from discrimination based on methods of payment. In fact, nursing homes must inform each resident who is entitled to Medicaid benefits which services are paid for by Medicaid and how a resident can apply for these benefits. This information must be given to the resident in writing either at the time of admission or at the time when the resident becomes Medicaid-eligible.
Duration of Stay Agreements
Georgia nursing homes can give preference to an applicant who is able to pay privately over an applicant who is Medicaid eligible. However, federal law prohibits nursing homes from doing any of the following:
Responsible Parties and Guarantees of Payment
Federal law bars nursing homes from requiring payment guarantees from third parties (i.e., anyone other than the resident) as conditions of admission, expedited admission or continued stay. Facilities can require third-party payment guarantees for services not covered by Medicaid.
Personal Needs Allowance Under Medicaid
Residents who receive Medicaid are required to contribute most--but not all--of their income toward the cost of their nursing home care. They are allowed to keep $50 ($100 for married couples) of their monthly income for clothing, toiletries, haircuts, personal phone calls and other personal needs. For example, if a resident receives a monthly income of $600 from Social Security, that resident may keep $50 for personal needs, while the remaining $550 is paid to the nursing home. Medicaid then pays the balance of the cost of monthly care.
Transfer and Discharge
State regulations require that, unless an emergency situation exists, all nursing homes must pursue all reasonable alternatives prior to initiating transfers or discharges of residents. Still, nursing home facilities may transfer or discharge resident against their wishes in the following circumstances:
A resident's change in status from private pay to Medicaid does not constitute a non-payment of allowable charges in a Medicaid-participating facility. If a resident is eligible for Medicaid, Medicaid will retroactively reimburse the nursing home for up to three months prior to the month of application. An admission agreement allowing for the involuntary discharge upon becoming Medicaid eligible is illegal and unenforceable.
As long as a resident's displacement is not an emergency, a nursing home is required to provide a written notice to the resident, the resident's representative and the resident's physician 30 days prior to the proposed date of transfer or discharge, regardless of the admission contract terms.
A transfer or discharge notice must contain the following information:
If a resident disagrees with a notice of transfer or discharge, the resident should immediately request a hearing. This will protect the resident's right to continue to receive services while the appeal is pending. Also, the resident should consult with one of the resources listed at the end of this pamphlet as soon as possible.
Medicaid-participating facilities must provide written notice of the state bed-hold policy to residents and family members prior to hospital transfers or therapeutic leave. In Georgia, Medicaid will pay for a hold on a resident's bed during the resident's absence for up to seven days. Family members or others may arrange for the nursing home to hold the bed for a longer period of time. The facility may charge a mutually agreed-upon rate that does not exceed the total allowable per diem billing rate that the facility would have been paid had the resident been in the facility.
Requiring Payments for Services Included in Medicaid or Medicare Programs
For Medicaid and Medicare-covered residents, expenses included in the approved reimbursement rate for that facility are covered. These goods and services must be provided to the resident at no additional charge. These services include, but are not limited to, nursing services, routine personal hygiene items and services and medically related social services.
If an admission agreement requires payment for the above-mentioned services, that provision is unenforceable. Any list of covered services in an admissions contract should be reviewed carefully. Nursing home facilities may offer additional services not included in the Medicaid or Medicare reimbursement rates, provided that the facilities give residents proper notice of the availability and the cost. Facilities are not permitted to require payment for additional services as conditions for admission or continued stays.
Contributions to Facilities
State law and regulations prohibit facilities from requiring contributions of any kind from residents.
Georgia law provides for the rights of residents concerning admission, transfer, discharge and care in nursing home facilities. The state laws also provide remedies when those rights have been violated. These rights include:
Limitations on Residents' Rights
The admissions contract may not seek to limit rights afforded to residents by federal or state laws. If you have questions or concerns about residents' rights, please consult the resources listed at the end of this pamphlet.
Violations of Residents' Rights
Nursing home residents' rights are sometimes violated in connection with transfers and discharges. Complaints about inadequate medical care, food quality, neglect and abuse also arise. To address violations, the resident may either file a grievance or request a fair hearing.
Residents may make complaints orally or in writing to facility administrators who must then act to resolve the problem. If an administrator is unable to resolve the complaint within three business days, he or she must respond in writing to the complaining party. If the resident is not satisfied with this response, the resident may submit an oral or written complaint to the community or state ombudsman.
Should the ombudsman be unsuccessful in resolving the complaint, an impartial referee may be mutually agreed upon to convene a hearing on the issue. This hearing is to be held at the nursing home. A written decision must be rendered within 72 hours of the hearing and must include any recommendations for corrective action. A resident also has the option of bringing a private cause of action in court and requesting an administrative hearing.
The Fair Hearing
A nursing home resident or a resident's representative may request an administrative hearing through the Georgia Department of Human Resources, Office of Legal Services. The hearing must be held within 45 calendar days following the department's receipt of the hearing request. Notice will be sent to the administrator and to the complainant with the date, the time and the location of the hearing. No transfer shall take place until all appeal rights are exhausted, unless there is an emergency situation. The decision of the administrative law judge will state whether a violation of rights occurred, and, if so, what action should be taken. The decision must also include information about the right to appeal.
To assist you with any questions or concerns you may have regarding nursing home residency, please contact the resources listed below for assistance and information.
Georgia Long-Term Care Ombudsman Program
Georgia Senior Legal Hotline
404-657-9915 or 1-888-257-9519
Legal Rights of Nursing Home Residents
2 Peachtree St. NW, Suite 9385
Atlanta, GA 30303-3142
Elder Rights Advocacy
Office of Regulatory Services
(to file a complaint)
Long-Term Care Section
2 Peachtree St. NW, 31st Floor
Atlanta, GA 30303-3142
404-657-5850 or 1-888-454-5826
To find out more about your local Long-Term Care Ombudsman Program, contact the Georgia Long-Term Care Ombudsman Program, the Legal Services Developer or your local Georgia Legal Services Program. You may receive additional assistance, including information about Medicaid eligibility, by contacting your local Department of Family and Children Services office.
This pamphlet was prepared by the Elder Law Committee of the Young Lawyers Division of the State Bar of Georgia as a public service. It is not intended to be a comprehensive statement of law. Its purpose is to inform, not to advise on any specific legal problem. If you have specific questions regarding any matter contained in this pamphlet, you are encouraged to consult an attorney.
© Copyright MMXIII State Bar of Georgia