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Capitol Correspondence - 06.16.20

Key Senators Call for Investigation of Nursing Homes’ Confiscation of Residents’ COVID-19 Economic Stimulus Payments

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Since some individuals with intellectual / developmental disabilities reside in nursing homes, we are sharing complaints that have caught key Senate committee leaders’ attention. The complaints pertain to nursing homes confiscating the $1,200 COVID-19 economic stimulus funds given to U.S. citizens through the CARES Act. We also share a federal announcement below which has details on how to file a complaint on this issue.

As reported by Politico Pro:

“Nursing homes and assisted living facilities are breaking the law by demanding that Medicaid-dependent residents surrender their federal economic stimulus payments, and the Department of Health and Human Services’ watchdog needs to let them know, the Senate’s two top tax writers said Tuesday.

‘We ask that your office look into these practices targeting elderly Americans and individuals with disabilities and issue alerts to raise awareness that this practice is improper and contrary to congressional intent,’ Senate Finance Chair Chuck Grassley (R-Iowa) and ranking member Ron Wyden (D-Ore.) wrote the department’s acting inspector general in a letter circulated Tuesday.

Key context: Recent complaints to the Federal Trade Commission, state attorneys general and advocacy groups such as AARP have spotlighted the problem, and the FTC last month issued an advisory that the payments had been improperly taken from residents enrolled in Medicaid.

[…]

What’s next: Grassley and Wyden want HHS acting Inspector General Christi Grimm to formally issue two alerts, one to the public and another to the operators of such facilities.

The stimulus payments are tax credits, not taxable income, Grassley and Wyden said. That disqualifies them from seizure by care facilities like nursing homes and assisted living facilities, they said.”

The Centers for Medicare and Medicaid Services (CMS), which oversees nursing homes funded by Medicare and Medicaid, responded to Senators Grassley and Wyden’s request for an investigation with the announcement below.

“The Centers for Medicare & Medicaid Services (CMS) is aware of allegations that some nursing homes are seizing residents economic impact payments (or “Stimulus Checks”) authorized under the CARES Act.  This practice is prohibited, and nursing homes that seize these payments from residents could be subject to federal enforcement actions, including potential termination from participation in the Medicare and Medicaid programs.

While CMS has not received any specific complaints regarding this practice, we believe it is important for residents and families to know their rights, and for nursing homes to understand the liability associated with this practice.

Seizing residents’ stimulus checks could be a violation of federal regulations at 42 CFR §483.12, Freedom from Abuse, Neglect and Exploitation.  Specifically, this could be considered misappropriation of resident property, which is defined as “the deliberate misplacement, exploitation, or wrongful, temporary, or permanent use of a resident’s belongings or money without the resident’s consent.”   Further, nursing homes requiring residents to deposit their stimulus check with the nursing home could be in violation of 42 CFR §483.10 which gives residents have “the right to manage his or her financial affairs.”  Further, “The facility must not require residents to deposit their personal funds with the facility. If a resident chooses to deposit personal funds with the facility, upon written authorization of a resident, the facility must act as a fiduciary of the resident’s funds and hold, safeguard, manage, and account for the personal funds of the resident deposited with the facility, as specified in this section.”

Residents or their family who were compelled to sign their stimulus check over to their nursing home, are encouraged to file a complaint with their state survey agency for investigation of the nursing home.  State specific complaint contact information is available here: https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Complaintcontacts.pdf

CMS and State investigators will make referrals to the States Attorneys General, as appropriate, if they find a nursing home in violation of these requirements.

Residents and families are also encouraged to contact their State Attorney General, directly, for redress of their individual loss.  State Attorneys General contacts are available here:  https://protect2.fireeye.com/url?k=c95c1830-950911e0-c95c290f-0cc47a6a52de-4c6b303bff891263&u=https://www.naag.org/naag/attorneys-general/whos-my-ag.php