Medicare Regulations, Chronic Care, Legal Tests

First, the good news: Mrs Ruthie Webster has been moved to a long term care facility that can offer her dialysis. The bad news, this case is still being used to test the Texas Advance Directive Act, Section 166.046.

This was not a choice between death and life. This was a choice concerning where medical care was to be given.

As far as I can tell, the conflict between Mrs. Webster and the hospital began over the issue of discharge to a lower level of care. It appears that Medicare Long Term Acute Care Hospital regulations and the scarcity of facilities that could provide dialysis for a patient who could not sit up were a problem in Mrs. Webster's case. The family members did not wish to "be forced to move their mother," although the hospital had attempted to arrange the transfer from the beginning and some sort of post-acute care must have been a part of the discharge plan before admission. Mrs. Webster would never have been - in fact never was - in danger of being unable to access dialysis. She will be dialyzed at her new nursing home or she could have had home dialysis, either at her home if someone lived with her there or at the home of a relative. (See the comment from Jerri Ward, here.)

Long term acute care hospitals are required by law to have a discharge plan for any patient who is admitted to their facility, before they are admitted. The patient must meet strict criteria including an anticipation of being able to follow that discharge plan. In each case, the institutions are required to periodically review each patient's medical status and determine whether he or she meets the regulations under which the institutions work.

Reading the very few newspaper articles available on this case, all from August 18th, led me to believe that the hospital and doctor were requiring the patient's family to follow through with the discharge plan to the other hospital, rather than deciding that it was time for the patient to die. I have no idea whether 166.046 is the only law that allows doctors to do this or whether another would have been appropriate.

Tough questions must be asked about chronic care and end of life care as regulated by laws and the government. The issue goes far beyond "funding," although that is complicated enough.

In the last week, I've had conversations with several people involved in hospice care and a former hospice nurse who now works as an administrator for a Rehabilitation Facility. I asked them questions in an attempt to understand what happens when patients are no longer eligible for Medicare benefits under Medicare laws and regulations.

The consensus is that the administrators, lawyers, doctors and nurses who run and work for these institutions believe that admitting or continuing care for patients who fall outside of Medicare qualification guidelines will endanger the institutions' license and that the penalties for not following the guidelines include demands for payment of money that Medicare has paid them extrapolated to the first time they billed Medicare, fines, jailtime and the confiscation of their homes and assets for the administrators. (See Association of American Physicians and Surgeons for for more.)

The Rehab administrator said, "We can't keep them" on the Medicare plan if the patient is not making progress or otherwise becomes ineligible for Medicare. I asked about families who did not want to move the patient, especially in cases such as Mrs. Webster. He explained that the facility cannot bill Medicare any longer so the patient then becomes liable for fees of $140 for "room and board" per day plus any medical care necessary. The facility also risks its standing with Medicare, since they are supposed to only care for patients who meet Federal standards and they are required to have "compliance plans" and "compliance officers" to ensure this.


I've posted information about long term acute hospitals. Here is similar information on Rehabilitation hospitals from the Center for Medicare Advocacy, which have similar regulations.