My spouse suffered a stroke and he/she doesn’t respond to anything, and the doctor says he/she never will. I know my spouse wouldn’t want to live like this. What does the law say about keeping him/her alive?

A competent person has a right to refuse any form of medical treatment. An incompetent person can be protected from unwanted medical procedures as well if that person has executed a living will or has appointed a medical power of attorney. A living will is a document the person writes that says life-prolonging intervention is not to be used if that person is ever in a persistent vegetative state. A medical power of attorney is a document that designates a person to make health care decisions for you if you are unable to make those decisions for yourself. Living wills and medical powers of attorney help ensure you have control over your health care decisions even after you are unable to make those decisions for yourself. These documents can remove the stress of decision making during what can be a very difficult time for family members. 

The situation is more complicated when there is neither a living will nor a medical power of attorney and the individual is in a persistent vegetative state. However, West Virginia law helps safeguard against potential conflicts. If an individual is terminally ill or in a persistent vegetative state and determined as incapacitated by the attending physician, the physician can name a health care surrogate. The surrogate has authority to make all health care decisions on the person’s behalf without court order or judicial involvement. The physician must make a reasonable inquiry to determine who the most qualified person is. Usually the health care surrogate is a close family member. If there are no close family members available, then your physician may consider any other person or entity, including, but not limited to, public agencies, public guardians, public officials, and corporations. Health care providers, unless related to the patient, may not be the surrogate.  

The health care surrogate makes decisions based on the incapacitated individual’s expressed values and wishes, or, if unknown, the individual’s best interests. The surrogate can request that the nursing home withhold or withdraw life-prolonging intervention. Life-prolonging intervention is any medical procedure or intervention that serves only to artificially prolong the dying process or maintain the person in a persistent vegetative state. Among other things, it can include artificial respiration and artificial nutrition and hydration (often called a feeding tube). It does not include the administration of medicine or the performance of any other medical procedure deemed necessary to provide comfort or alleviate pain. Before the decision to withhold or withdraw life-prolonging intervention is carried out, at least one other qualified physician must examine the person and determine that the person is incapacitated.  

For more information, see: West Virginia Health Care Decisions Act, W. Va. Code §§ 16-30-1 to -25 (2015); Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 110 S.Ct. 2841 (1990); In the Matter of Conroy, 486 A.2d 1209 (1985); Betancourt v. Trinitas, 1 A3d. 823 (2010); Joan M. Krauskopf et al., Elderlaw: Advocacy for the Aging §§ 13.11, 13.16, 13.19, 13.20, 13.23, 13.24 (2nd ed. 1993).

How can I pay for long-term nursing home care?

Nursing home care is generally paid through one of four ways: Medicare, private insurance, Medicaid, or private payment.


Medicare coverage for nursing home care is quite limited. Medicare only covers skilled nursing care for a limited period of time. Skilled nursing care is performed in a Skilled Nursing Facility (SNF). Federal law designates only certain facilities as SNFs. In addition, there are several criteria that you must meet to qualify for Medicare coverage of an SNF. You must:

•be a Medicare recipient,
•be hospitalized for three consecutive days,
•be admitted to the nursing home within 30 days of discharge from the hospital.
•require the services of the SNF and the treatment there must be related to your hospital stay, and
•receive approval by a Medicare Peer Review Organization (PRO) to stay in the nursing home for the reasons you have claimed.

If you meet the above criteria, then Medicare will pay all or a portion of your care for up to 100 days. During the first 20 days of care, Medicare will pay for the entire cost. From the 21st day to the 100th, you must pay a co-payment, which means you pay a portion of the cost and Medicare pays the rest. The patient co-payment for 2015 is $157.50 per day. Medicare does not cover any nursing home care after day 100 of your stay.

You may be able to obtain supplemental insurance to pay what Medicare will not pay. This type of insurance is called a Medicare Supplement or Medigap insurance policy because it covers the “gap” that Medicare does not cover. This insurance is only available if you have Medicare Part A and Part B.

Private Insurance 

You may obtain private long-term care insurance to cover the cost of nursing home care. Long-term care insurance premiums are generally lower the earlier you purchase them, and premiums can be several thousand dollars annually for elderly people. Even with high premiums, long-term care insurance can be a good value because the cost of nursing home care is typically several thousand dollars a month. When choosing a policy, carefully evaluate coverages as well as costs.

Medigap policies can be used to supplement Medicare coverage. A Medigap policy would pay a portion or all of whatever Medicare would not pay. Medigap policies usually rely on partial coverage from Medicare. Thus, a Medigap policy will not generally provide any coverage of a cost that Medicare does not cover. Before purchasing any insurance policy, evaluate the strengths and limits of the policy. Medigap offers standardized policy types from which to choose and a variety of companies offer these policies. Medigap coverage is only available from private insurance companies, not from the government.


Medicaid can pay for long-term nursing home care for people who cannot afford to pay for the care themselves. Medicaid is a form of welfare, so applicants must have very limited income and assets to qualify for the program.

If you are already receiving Medicaid coverage, whether as part of a full Medicaid coverage group or as a QMB recipient then you are automatically eligible for nursing home coverage if you qualify medically. If you are not receiving Medicaid coverage, then you can qualify by satisfying the income and asset requirements. You may meet Medicaid income requirements if your countable income is less than 300% of the maximum Supplemental Security Income (SSI) monthly amount. If you do not meet the income requirement, you may be able to spend down your income to be eligible for Medicaid. Determining your spend down amount can be complicated, so you may want to consult an attorney to help you determine if you can meet the income requirement this way.

It is important also to realize that this is an eligibility requirement only. How much you will have to actually spend on your nursing home care is determined in the post-eligibility process only after you meet the eligibility requirements.

After it is established that you meet the income requirement, your assets must be considered. Medicaid will look only to countable assets. The rules for asset determination are different for married couples than they are for single people. If you are married your spouse’s assets will be counted together with yours in the initial asset consideration. But spousal impoverishment protections designate a portion of the couple’s total assets for the community spouse (one who is remaining at home while the other spouse enters the nursing home). The maximum amount of countable assets you may have to qualify for Medicare to pay toward your nursing home expenses is $3,000 for two people if both spouses are in the nursing home, and $2,000 if a single individual (or one spouse) is in the nursing home (after the community spouse’s share is calculated and attributed to him or her). The assets that are not countable in this part of the eligibility process include your home, one car, your household furnishings, an irrevocable burial trust, and others. If your countable assets are above the limit, they must be spent down until you meet the asset requirement before Medicaid will pay toward your nursing home care.

Finally, if you meet both the asset eligibility requirement and the income eligibility requirement, then nursing home care must be medically necessary. A physician must fill out a Medicaid form that states that nursing home care is medically reasonable and necessary.

After you are admitted to the nursing home, and you obtain Medicaid coverage, you may have to contribute some of your monthly income to your care. The amount you must pay is determined in the post-eligibility process. You will be allowed to keep a very small amount of your monthly income for your personal needs, like haircuts, and your spouse and other dependents may be entitled to some of your income. Everything else will go to pay for your care, with a few exceptions in special circumstances.

Private payment 

If you cannot finance nursing home care in any of the ways above, then you will have to pay for the care out of your pocket by making private payments. Because nursing home care is considered necessary care, spouses may be liable for support. Relatives, including adult children, may also be liable for support.

For more information, see: 42 U.S.C. §§ 1396r, 1396r-5(f)(2)(A), 42 U.S.C. § 1382(e)(1)(B)(i) (2015); W. Va. Code § 48-29-303 (2015); 20 C.F.R. 416.414(b)(1), 42 C.F.R. §§ 409.20, 409.30-34, 409.85 (2015); West Virginia Department of Health and Human Resources, Income Maintenance Manual, §§ 11.3, 11.4, 11.4(BB)(1), 11.6(C)(1), 17.9, 17.10(A)(1), 17.10(C), 17.11, (last visited May 27, 2015) ; Joan M. Krauskopf et al., Elderlaw: Advocacy for the Aging §§ 10.47-.52, 12.5 (2nd ed. 1993).

The nursing home says they are going to discharge me next week. Can they do this?

Maybe. A nursing home must have a legitimate reason for discharging or transferring a resident. Involuntary transfers may be harmful to elderly residents. Transfers often involve separation from family, friends, and familiar surroundings. 

The Nursing Home Reform Act (NHR) addresses this problem. This law lists the only permissible reasons an individual may be discharged from a nursing home. It is possible that the nursing home may tell you that you are being discharged for one of the permissible reasons when in fact the discharge is not permissible. 

Before discharging you, the nursing home must give you a written notice listing the reason(s) you are being discharged. The notice must tell you that you have a right to request a fair hearing. Adequate notice must be given to allow you and your family to plan for your discharge. The nursing home must provide you with sufficient preparation and orientation to ensure a safe and orderly transfer or discharge. If your nursing home has decided to discharge or transfer you, and you do not agree with that decision, you may contact: 

Erika H. Young Chairman of the Board of Review DHHR Phone: (304) 558-0955 

Bldg. # 6  Fax: (304) 558-1992  

Capitol Complex

Rm. 817-B e-mail:

Charleston, WV 25305   

You may also contact your regional Long-Term Care Ombudsman. Every nursing home is required to post the name and contact information for the regional ombudsman. If you do not know who your Ombudsman is you may contact: 

State Ombudsman, West Virginia Bureau of Senior Services Phone: (304) 558-3317 

1900 Kanawha Boulevard, East Toll-free: (877) 987-3646 

Charleston, WV 25305

fax: (304) 558-5609 

For more information, see: West Virginia Department of Health and Human Resources, Income Maintenance Manual, § 17, Appendix C(D), (last visited May 27, 2015); Toby S. Edelman, National Senior Citizens Law Center, Nursing Facilities (March 1997).

I reside in a nursing home but I have to go to the hospital for surgery. The nursing home told me I must prepay in order to return after my hospital stay. Do I have to pay?

Yes, you must pay to reserve your bed while you are in the hospital. This reservation is called bedhold and the charge is legal. The nursing home is allowed to charge you if you temporarily leave for medical treatment or for other reasons with the intent of returning. This charge is different from the illegal practice of requiring prepayment. Prepayment refers to duration of stay contracts where a nursing home may ask you to pay privately for a room before you apply for Medicaid. Medicaid will pay the bedhold rate for a maximum of twelve days in a calendar year if you must leave for medical reasons. Medicaid will also fund six bedhold days per year if you leave for other reasons, such as visiting family.

Nursing homes are required by law to give you a copy of the Medicaid bed reservation policy prior to medical leave. They must also notify you if your hospital stay exceeds the number of days Medicaid will pay the bedhold charge. If you must stay in the hospital for longer than twelve days, the nursing home can charge you to reserve your bed only if there are no vacancies in the facility and there is a waiting list for admission.

For more information, see: Medicaid Program Instruction, MA-92-30, Memorandum from Ann Stottlemyer, Director, Office of Medical Services, WV Department of Human Resources to Nursing Home Facilities (September 17, 1992); Medicaid Bedhold Policy, The West Virginia Long Term Care Ombudsman (Legal Aid Society of Charleston), Vol. 2 No. 2, Summer 1999.

Must nursing homes provide special meals for residents with special dietary needs?

Yes. Under federal regulations, a nursing home facility must provide each resident with a diet that meets his/her daily nutritional and special dietary needs. If, for some reason, the nursing home only offers limited services as a general policy, it must notify the patient or his/her family before admission.

For more information, see: 42 C.F.R. § 483.35 (2015).

Can a nursing home require that I have a responsible party co-sign my admission contract before admitting me to the nursing home?

Probably not. A nursing home receiving Medicare or Medicaid cannot require a responsible party to co-sign the admission contract. This practice is forbidden by federal law. The law is called the Nursing Home Reform Act (NHR). The NHR states clearly that a nursing home cannot require a third party to guarantee payment as a condition of admission to the nursing home. This law applies to all nursing homes that receive Medicare or Medicaid. If the nursing home does not receive Medicare or Medicaid, it may require a co-signature.

For more information, see: 42 U.S.C. §§ 1395i-3(c)(5)(A)(ii), 1396r(c)(5)(A)(ii) (2015); Joan M. Krauskopf et al., Elderlaw: Advocacy for the Aging §§ 12.10, 11 (2nd ed. 1993).