Medicare, Medicaid and Health Care Section

Answer to Question No. 1: Yes, Please Get Me Out of Here!

By Lauren S. Marinaro, Esq.

The nursing home Minimum Data Set screening brings elder law dilemmas into focus.

ccording to the Centers for Medicare & Medicaid Services (CMS), the Long-Term Care Minimum Data Set (MDS) is part of the federally mandated process for clinical assessment of all residents in Medicare- and Medicaid-certified nursing homes.1 Failure to properly administer the MDS places a facility’s Medicaid and Medicare reimbursements in jeopardy. The MDS is supposed to provide a comprehensive assessment of each resident’s functional capabilities and help nursing home staff identify health problems.

MDS assessments are completed for all residents in certified nursing homes, regardless of source of payment, on admission to the nursing facility, periodically, and on discharge. In most cases, participants in the assessment process are licensed health care professionals employed by the nursing home. MDS information is transmitted electronically by nursing homes to the national MDS database at CMS.

On May 20, 2016, the U.S. Department of Health and Human Services’ Office for Civil Rights (OCR) issued guidance2 to help long-term care facilities comply with their civil rights obligations by administering the MDS appropriately under Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act, as interpreted by the U.S. Supreme Court in Olmstead v. L.C.3

An important highlight in this guidance to note for elder law attorneys who frequently interact with married nursing home residents or nursing home residents with close family caregivers is the following:

Facilities must recognize that residents can make a free choice about where to receive services and cannot be pressured to remain in the facility. Facilities must not deny residents a referral to the Local Contact agency for inappropriate reasons, including but not limited to:

• The facility inserts its judgment and overrides the resident’s expressed interest based on factors such as a belief that the resident’s disability is too severe to transition;
• A belief that discharge is not possible because the resident has no home or support in the community, or a previous transition was not successful; and/or
• The family or caregiver does not want the resident to move.

The only reason a facility may refrain from making a referral to the Local Contact Agency when requested by the resident is when the resident has an active discharge plan.4

NAELA is strongly in favor of community integration wherever possible, and because of this, the MDS guidance should be seen as moving in the right direction. However, in practice, NAELA members encounter many families who are struggling with the day-to-day aspects of community-based care giving and eventually turn to nursing home placement as what they perceive to be a last resort. Many of the services we provide seek to transfer assets from the institutionalized individual while maintaining potential eligibility for Medicaid. We sometimes work closest with spouses, caregiver children, and disabled children who assume that the nursing home placement will continue indefinitely and wish to coordinate asset preservation planning accordingly. However, the resident family member is often not on the same page. Spouses and children placate and buy time with the expectation that the resident will eventually “get used to” the nursing home.

The May 20 MDS guidance, if implemented accordingly, might stir the pot for these families. No longer can facilities assume what setting is best for a resident based on their own opinion, medical advice, or family input. If a resident wants to try to transition out of a facility, he or she must be allowed to engage in such a process with the applicable local agency, regardless of whether he or she mistakenly assumes that the spouse or other family has buy-in on such a plan or even if such a plan would be considered a “safe discharge.”

Elder law attorneys frequently counsel the transfer of real estate and cash assets to the well spouse and the complete impoverishment of the resident spouse as permitted under federal law. If a well spouse does not want the resident spouse coming home, asserting the resident spouse’s rights to community placement and discharge planning could create major discord, with the nursing facility and responsible local agency in the middle. Further, the guidance does not address the role that court-appointed guardians, conservators, and surrogate decision-makers of residents play in nursing home placement decisions and discharge planning.

This guidance will take the question of “who is the client” to the next level. Elder law attorneys must take note of this OCR guidance and work it into our written advice to spouses and legal representatives. We should also stay informed of any alterations to this policy that the new administration might implement. Right now, families should always have the expectation that there will be mandatory periodic reassessments of the resident’s wish to be in a nursing facility and that the family’s wishes will not be seen as a substitute for that of the resident.


1 See 42 C.F.R.§ 483.315 (2009).

2 U.S. Department of Health and Human Services, Office for Civil Rights, Guidance and Resources for Long Term Care Facilities: Using the Minimum Data Set to Facilitate Opportunities to Live in the Most Integrated Setting (May 20, 2016),

3 Olmstead v. L.C., 527 U.S. 581 (1999).

4 U.S. Department of Health and Human Services, Office for Civil Rights, supra note 2 at 5.

About the Author
Lauren S. Marinaro is a partner with Fink Rosner Ershow-Levenberg LLC in Clark, New Jersey. She practices elder and disability law with a strong emphasis on estate planning, guardianship, and Medicaid asset preservation. She is a member of NAELA’s Public Policy Steering Committee and Litigation Committee.