FAQS ON NEW YORK STATE
NURSING HOMES / SKILLED NURSING FACILITIES
Last Updated: March 26, 2021
Q. A facility has threatened to take or has already signed over my stimulus payment, what can I do?
If you or a loved one in a nursing home has witnessed or experienced this practice, please reach out for legal assistance immediately. The CARES Act Economic Impact Payments (stimulus payments) are considered tax credits and this money belongs to the resident. Tax credits do not count as “resources” for purposes of federal benefits programs like Medicaid (for 12 months, then it becomes a resource if it is not spent). This means that nursing facilities cannot take money from residents simply because the resident is on Medicaid. Click here for recent guidance from the Federal Trade Commission on this issue. You can also report this issue to the NYS Attorney General Fraud unit – https://ag.ny.gov/nursinghomes (online form), or call OAG Help Line at (800) 771-7755.
Q. A facility is threatening me or my loved one with involuntary transfer and/or discharge, what can I do?
There are concerning stories circulating about facilities attempting to discharge or transfer residents to unsafe or remote locations during the crisis. Despite concerns about COVID-19, a facility may still be the safest, or perhaps the only, option for you or your loved one’s ongoing care. All nursing home residents have rights, whether you are covered by Medicaid or Medicare, another form of insurance, or a private pay resident. Most importantly, you have the right to be given 30 days written notice before a discharge, you have the right to file an appeal to NYS DOH, and to remain in the facility pending the appeal determination, which may include a discharge hearing before an Administrative Law Judge. Under a current and temporary rule, this notice right does not apply to a resident who is facing an impending transfer to another facility.
During the crisis, we understand that direct access to most facilities is severely restricted. If you or a loved one becomes aware of an impending involuntary transfer and/or discharge, and you wish to start the appeal process, please contact your local state long term care ombudsman immediately for assistance and for a possible referral to legal services in your area.
Q. Can a Nursing Home (NH) refuse to admit or readmit a resident during the crisis?
Maybe. According to a recent Executive Order issued by the Governor, a hospital shall not discharge a patient to a NH unless the NH has first certified that it is able to properly care for the patient. Further, the hospital must perform a diagnostic test for COVID-19 and obtain a negative result before discharging the patient to a NH. Click this link to read the full Executive Order.
While there is guidance regarding a COVID test requirement for discharging someone from a hospital to a NH, there is no such directive for NH to community discharges. While some NHs in certain areas of the state have an internal policy of waiting for a COVID test result before discharging a resident, unfortunately, the state/Department of Health does not require that the NH test the resident for COVID prior to discharging them to the community.
Q. Are Nursing Homes (NHs) in New York allowed to have visitors?
Yes. Beginning March 25, 2021, NHs in New York will be allowed to coordinate limited visitations under a new, revised policy issued by the NYS Department of Health. This policy supersedes and replaces any previously issued guidance. For the full policy, click here.
This information is up to date as March 26, 2021. If you have any further questions, or need assistance on a health insurance matter, please contact our health team by email, email@example.com.
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