With a home- and community-based services waiver from the federal government, state Medicaid programs can support people living in assisted-living facilities. Residents benefit from receiving care in settings that are much less institutionalized than nursing homes, while state and federal governments benefit from Medicaid assisted-living rates that are significantly lower than nursing home rates. However, there can be considerable downsides: consumer protections are slight, nursing home reform laws do not apply to assisted-living facilities, and quality-of-care standards are lacking.
Commonwealth Fund grantee Eric Carlson, J.D., directing attorney for the National Senior Citizens Law Center, suggests strategies elder law attorneys can use to advocate for their assisted-living clients when their rights are compromised. For instance, some facilities require residents to pay the private-pay rate for a certain period before accepting Medicaid reimbursement—a violation of federal Medicaid law, which obligates a Medicaid-certified facility to accept Medicaid without preconditions. Carlson suggests that residents and their attorneys challenge the validity of the private-pay precondition.
In another example cited, facilities may claim that Medicaid payment is insufficient and will solicit extra payments or "gifts" from residents' family and friends. In these situations, family members should decline to pay the supplements and report the defiant facilities to the state Medicaid agency or the Centers for Medicare and Medicaid Services.
Medicaid payment for assisted-living services has become more common, but there has been little attention to safeguarding the consumer. "To protect residents and their families, elder law attorneys must develop sharper eyes for these issues, and be prepared to advocate for residents both in individual disputes with facilities and in policy determinations before state Medicaid agencies," the author concludes.