Are there limits to compassion, even for religious-affiliated nursing homes and long-term care facilities? Attorney and law professor Marshall Kapp and Rabbi Peter Knobel examine the case of a woman whose family left her without resources.
Through individual donations of both money and time, the Jewish community creates and supports a rich variety of agencies and institutions to serve those who belong to it — who are members of our tribe. Sometimes, however, the unreasonable and unnecessary demands of a single person can seriously threaten the viability of an agency or institution, even to the point of compromising its capacity to serve the larger Jewish community. The moral balancing act in such situations can be wrenching. The case of Miriam L. presents this dilemma starkly.
Miriam's Medicaid Mess
Miriam L.* is a 60-year-old Jewish woman who has had a severe stroke. Following resolution of the acute crisis and stabilization in the hospital, she is transferred to the Jewish long-term care facility (JLTCF) in her city for an indefinite period. She is expected to need extensive, ongoing rehabilitative and nursing services for the foreseeable future.
The JLTCF accepts Miriam as a new resident because (a) its stated mission is to provide needed services to members of the local Jewish community and (b) it expects Miriam, acting through her family, to pay for her care either directly out-of-pocket, through private insurance, or by applying and qualifying for the state's Medicaid program. Owned by the local Jewish Federation, the JLTCF is sustained financially — on a shoestring budget with few reserves — by a combination of payments made by Medicare, Medicaid, private long-term care insurance, and individual residents and by donations from members of the local Jewish community, made either directly to the JLTCF or indirectly through the annual local Jewish Federation campaign.
Unfortunately, Miriam's family situation is a picture of tsouris (troubles). She and her husband separated, with intent to divorce, a week before her stroke, and her two teenage children have moved in with friends. There is palpable hatred between her husband and Miriam's four siblings, Israelis who emigrated to the United States many years ago.
Miriam's payment status for the JLTCF's services is as confused as her family situation. Her private long-term care insurance, provided through her husband's employer, will approve payment to the JLTCF for only a fraction of the time she would need to reside there. Both Miriam's husband and siblings are uncooperative in making available either to the JLTCF or to the state Medicaid agency information about Miriam's personal financial status. Thus, although they claim that she is unable to pay for services out-of-pocket, their lack of cooperation prevents the state from approving her Medicaid application. None of the relatives are willing to comply with the JLTCF's request, reiterated by the local long-term care ombudsman, that one of them initiate a guardianship petition so that a particular individual can be formally authorized to act on behalf of Miriam and be made responsible in a fiduciary manner for her welfare. Under these circumstances, the JLTCF confronts the likelihood of caring for Miriam for a potentially long, intensive, costly period of time with no apparent payment source available.
The Moral Dilemma
Under federal and state regulations, the JLTCF would be within its legal rights to discharge Miriam, even against her or her family's objections, when her private insurance expires. While most states forbid involuntary discharge based on conversion to Medicaid status, the resident's refusal to either pay personally or apply for available public programs is legitimate grounds for expulsion. Most proprietary, and indeed many private nonprofit, nursing facilities surely would exercise this legal option.
However, the JLTCF is different because of its mission to serve local Jews. Miriam's plight is not her own fault; she herself is the victim of the bad relationships between her family members. Why should she be punished by an institution that, as an embodiment of her religious community, ought to be showing her kindness and compassion in her hour of need? Don't the Jewish traditions of tzedaka (charity) and tikkun olam (repairing the world) compel the JLTCF and the Federation to subsidize Miriam to the extent necessary to assure her proper care? If not, how is the Jewish community distinguishable from a corporation whose only obligation is to its shareholders' bottom line?
One more point must be considered: a substantial financial loss as a result of subsidizing Miriam's care may jeopardize the JLTCF's ability to assure appropriate care for its other current and future Jewish residents. Members of the religious community have been generous, but their resources are nonetheless finite. Since the vast majority of JLTCF operating revenues derive from Medicaid, raising private pay rates for others is not a viable option, and even if it were, questions of fairness would arise. To what extent do Miriam's relatives, through their unreasonable, selfish, un-menschlike conduct, have the right to infringe on the Jewish community as a whole, particular donors to the JLTCF and the Federation, and other current and future residents? When this sort of utilitarian clash of "goods" occurs, are there no limits to the compassion owed by the Jewish community even to one of its own members? Unlike Solomon, we can split neither Miriam nor those others who depend on the JLTCF in half to resolve our conundrum.
*The facts of the case discussed in this article have been altered to protect the privacy of those involved.
Marshall Kapp is the Frederick A. White Distinguished Service Professor at the Wright State University School of Medicine in Dayton. He currently serves as the Dr. Arthur Grayson Memorial Distinguished Visiting Professor of Law and Medicine at Southern Illinois University.
