“Difficult” Patients Are Being Thrown Out Of Nursing Homes

By | 2017-02-27T15:59:16+00:00 February 27th, 2017|Nursing Home Abuse|

New government statistics suggest that seniors deemed “difficult” are being evicted from nursing homes in record numbers, according to a recent analysis from the Associated Press. Since 2000, the number of complaints filed with ombudsmen over potentially illegal facility discharges has increased by around 57%, reaching 11,331 complaints on the subject in 2014 alone. That year, nursing home evictions were the most reported grievance among elder care residents.

 

Complaints in general, however, have fallen over the last decade, the report found, as has the number of nursing homes in America and the total number of residents living in those nursing homes. But complaints centered on nursing home evictions have decreased only slightly in the same time period. Every year, reports of illegal evictions continue to account for a larger and larger share of all complaints, the Associated Press’ Matt Sedensky writes.

When Is A Nursing Home Eviction Legal?

Of course, not every eviction is illegal. But elder rights advocates say that, at least in their own experience, most of these “involuntary discharges” are based on misrepresentations of existing laws. “The majority of the time,” Tony Chicotel, attorney for the group California Advocates for Nursing Home Reform told the Associated Press, “it’s because the resident is considered difficult.”

Is “difficulty” a legitimate reason to evict a nursing home resident? No, not when “difficult” takes on its everyday meaning, as “disruptive” or hard to manage behaviorally. The federal Nursing Home Reform Act of 1987 allows evictions under the following six circumstances:

  1. a resident’s need cannot be adequately by an elder care facility
  2. a resident’s health has improved to the point at which the facility’s services are no longer necessary
  3. a resident’s behavior or condition has come to threaten others in the nursing home
  4. a resident’s remaining in the facility would endanger the health of others in some way
  5. a resident has failed to pay or failed to apply for Medicare or Medicaid coverage
  6. the facility itself has gone out of business

It’s the first justification when an elder care facility can no longer care for a resident adequately, that’s usually cited in illegal evictions, according to Chicotel.

Enforcement Options Rarely Used

Sara Anderson’s father, Bruce, sustained a traumatic brain injury over ten years ago. After the accident, he was shuttled between different facilities, ultimately ending up at Sacramento’s Norwood Pines Alzheimer’s Care Center.

While Norwood is certainly billed as a rehabilitation center for Alzheimer’s patients, it’s website clearly states that, “as a skilled nursing facility, we are also well qualified to care for and recover residents that have been hospitalized due to a variety of reasons.” Some pages on the site specifically refer to “brain injury” as a condition targeted by Norwood’s services.

But soon after Bruce landed in Sacramento, Sara says Norwood Pines began “insisting” that it wasn’t an appropriate facility for her father. After he was hospitalized for pneumonia, the facility wouldn’t allow him to return. Sara believes the discharge didn’t come down to the adequacy or inadequacy of Norwood’s services, but the frequent complaints she’d made about her father’s level of care. Nursing homes are not allowed to evict residents in retaliation over complaints, and even though the family eventually won their appeal of Bruce’s discharge, he’s still in the hospital. Norwood Pines, according to Sara, continues to refuse Bruce’s readmission. The facility would not return the Associated Press’ calls for comment.

“The hearing,” Anderson told reporter Sedensky, “was pointless.”

Discharges Often Come Down To Economics

Of course, it’s become common practice for nursing homes to evict residents for less-than-legal reasons. Chief among them is simple market economics. Nursing home beds are in short supply, says Eric Carlson, JD, an attorney at the National Senior Citizens Law Center, and that supply is frequently outstripped by the number of seniors looking to be admitted. Simply evicting unwanted residents, usually poor seniors with dementia, has become the easiest way to keep up with demand from other seniors, many of whom may not require the rigorous care and attention that people with Alzheimer’s require.

Tony Chicotel agrees with Carlson’s take on the subject. She says residents who are evicted are almost always beneficiaries of Medicaid. Medicaid usually reimburses facilities at much lower rates than private insurers or even Medicare, and most nursing homes, Chicotel says, would rather take a short-term rehab patient on Medicare than care for a long-term Medicaid patient.

Medicare doesn’t cover long-term care, only short stints for rehabilitation. When it covers a nursing home stay, the coverage usually only kicks in after three days of hospitalization, and extends to no more than 100 days of care. That limitation works to the advantage of nursing homes, creating a “revolving door” dynamic in which beds are always open for new patients, as Medicare recipients are phased out of the system by the national insurer’s own restrictions.

Economics certainly seemed to factor into the eviction of Vicki Becker’s mother. Becker’s mother, now 96, had been living in a Washington State assisted living facility for six years, paying over $5,000 a month, before the facility’s management began hounding her family about having the woman transferred to a different center. Turns out the assisted living facility only began suggesting a transfer after Becker’s mother had exhausted her savings and switched over to Medicaid.

Clearing House

Many of these cases appear to begin with threats of eviction, or strongly-worded “suggestions,” like the ones leveled against Vicki Becker and her mother. Threats aren’t a violation of federal law, however. Under the Nursing Home Reform Act, a facility has to give written notice of the scheduled eviction, within 30 days of the potential discharge, and provide facts to support the decision. Here’s where potential legal violations come in, when those “facts” are either untrue, insufficiently provided or can’t reasonably be interpreted to satisfy one of the six conditions we covered earlier.

Residents have every right to appeal a nursing home eviction, but it has to be done quickly. Residents have only ten days within receiving a written notice of discharge to request an appeal hearing. This is when seniors who believe their rights are being violated should consider contacting an experienced attorney. Ten days isn’t very long, and you’ll want to give an attorney ample time to prepare for the hearing.

Once Hospitalized, Some Residents Never Return

Time is another big issue when it comes to hospitalizations, which the Associated Press says have become a common opportunity for facilities to deny their residents’ rights. After a resident is brought to the hospital, nursing homes have to hold their bed for no less than seven days under federal law. Some elder care facilities just “refuse to let the person back in,” says Eric Carlon, an attorney who works on eviction cases for the non-profit Justice in Aging.

Others have found even more under-handed tactics, taking out restraining orders against hospitalized patients so they’re unable to return legally. It’s not as hard as you’d think, California Advocates for Nursing Home Reform reports. Just claim that the resident was assaultive or combative to a “reasonable probability,” a low legal standard, and find a judge who is unfamiliar with nursing home residents’ rights.

Long-term care ombudsmen are appointed officials tasked with resolving problems in nursing homes, assisted living facilities and other elder care facilities. Most are volunteers, appointed by state-run agencies that ultimately answer to the federal Administration on Aging.

Ombudsmen act as the interface between three key stakeholders in the elder care world: the government, which subsidizes most nursing homes through Medicare and Medicaid, elder care facilities and, of course, residents, prospective residents, and their families.

About the Author:

Laurence P. Banville is the managing partner of Banville Law. As an experienced personal injury attorney, Mr. Banville helps clients recover compensation from those responsible for his clients' injuries. Our firm is located in New York City, serving clients from the five boroughs: Manhattan, Brooklyn, Queens, The Bronx, and Staten Island.

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