by Tyra Phipps, Ed.D. (tyra.phipps@gmail.com)

Ms. Phyllis Hotchkiss with her son, Mr. Glen Hotchkiss. Ms. Phyllis, 93, was involuntarily discharged. Photo: Carlos Osorio

Involuntary discharges and evictions are a national problem for families, caregivers, and the elderly.  The numbers of involuntary discharges from long-term care facilities have increased dramatically since 2010.

This quote from Mr. Matt Sedensky’s article, “It’s an epidemic," said Sam Brooks, who has litigated evictions for Community Legal Services of Philadelphia. 

Nursing Homes Turn to Eviction to Drop Difficult Patients was written by Mr. Matt Sedensky, an Associated Press Journalist. The full online article first appeared May 8, 2016.  The following excerpts highlight important personal stories and legalities of discharges/evictions.

"When they get tired of caring for the resident, they kick the resident out," said Richard Mollot of the Long Term Care Community Coalition, a New York advocacy group.

That is often because the resident came to be regarded as undesirable — requiring a greater level of care, exhibiting dementia-induced signs of aggression, or having a family that complained repeatedly about treatment, advocates say. 

The American Health Care Association, which represents nursing homes, defends the discharge process as lawful and necessary to remove residents who can't be kept safe or who endanger the safety of others, and says processes are in place to ensure evictions aren't done improperly.

Dr. David Gifford, a senior vice president with the group, said a national policy discussion is necessary because there is a growing number of individuals with complex, difficult-to-manage cases who outpace the current model of what a nursing home offers.

The numbers of both nursing homes and residents in the U.S. have decreased in recent years; about 1.4 million people occupy about 15,600 homes now.  The overall number of complaints across a spectrum of issues has fallen precipitously in the past decade, though complaints about evictions are down only slightly from their high-water mark in 2007, the federal figures show.  The share of complaints that evictions and discharges represent has steadily grown, holding the top spot since 2010.

Advocates say hospitalizations are a common time when facilities seek to purge residents, even though the Nursing Home Reform Act of 1987 guarantees Medicaid recipients' beds must be held in their nursing homes during hospital stays of up to a week.

Federal law allows unrequested transfers of residents for a handful of reasons: the facility's closure; failure to pay; risk posed to the health and safety of others; improvement in the resident's condition to the point of no longer needing the home's services; or because the facility can no longer meet the person's needs.  Though that final category is often cited in evictions, advocates dispute how often it fits.

"The majority of the time, it's because the resident is considered difficult," said Tony Chicotel, an attorney for California Advocates for Nursing Home Reform, which represented Wilson and Anderson.  "Federal law is pretty clear:  They're all required to be able to provide comprehensive, basic care.  Every nursing home that takes Medicare or Medicaid funding should be very good or great at providing dementia care."

Mr. Chicotel said involuntary discharges are almost entirely focused on Medicaid beneficiaries and that economics sometimes play a role in the ousters.  Rather than a long-term Medicaid patient, many facilities would prefer to fill a bed with a private-pay resident or a short-term rehabilitation patient, whose care typically brings a far higher reimbursement rate under Medicare.

Glenn Hotchkiss (pictured above) of Temperance, Michigan, unsuccessfully fought the transfer of his mother, a dementia patient, from a nearby home to one about 35 minutes away.  He's able to visit far less often because of the distance.

Richard Danford of the Center for Independence of the Disabled, who directs the New York City Long Term Care Ombudsman Program, said even small changes can be hard on the most fragile residents, and so an eviction can be devastating.

Agyemang Bediako knows the feeling well.  After breaking both legs in a jump from a burning building, he found himself recovering at a New York City nursing home.  He said he was still undergoing rehabilitation when the facility told him it would be discharging him to a homeless shelter.

"I was panicked," he said, describing his thoughts before an ombudsman successfully appealed his case:  "What am I going to do?  I couldn't even eat.  I became depressed.  I wanted to kill myself."

The link for the complete story is: http://bigstory.ap.org/article/95c33403b5024b4380836d3ed3dfecb0/nursing-homes-turn-eviction-drop-difficult-patients

 This reprinted article was last modified April 24, 2013 by the Elder Lawyers.

 In 2008, 39 states allowed a facility to discharge a patient if the facility could no longer meet the patient's needs, according to the National Senior Citizens Law Center.  The other 11 states (Connecticut, Georgia, Kentucky, Maryland, Massachusetts, Minnesota, Nebraska, New Hampshire, New Jersey, North Dakota, and Rhode Island) were either silent about discharge or provided other reasons for discharge, such as the resident required services that exceed the facility's license or the resident violated the admission agreement.

Almost all states require facilities to give residents notice of discharge, but the rules vary widely from state to state.  In addition, laws regulating assisted living facilities are vague.  While this gives facilities a lot of discretion, you can also use it to your advantage.

If you are facing a discharge that you don't believe is fair, you should stay put, if possible.  

If all else fails, you may be able to use anti-discrimination laws to challenge the discharge.  The Americans with Disabilities Act, the Fair Housing Amendments Act of 1988, and Section 504 of the Rehabilitation Act all protect tenants against discrimination on the basis of a physical or mental disability.    Using anti-discrimination law is very difficult and would require the assistance of a lawyer.

For state-specific information relating to assisted living, visit the Web site of the Assisted Living Consumer Alliance.

Reader Opinions:

On June 28, 2016, Dr. Gerald Thompkins stated, “Until the federal government and state agencies do a better job on regulating and monitoring the standards and health and safety code enforcements in assisted living and nursing home facilities, these blatant violations are going to persist and innocent people are going to continue to die and suffer needlessly.  We have become a country that is consumed by profit driven thinking and reckless disregard for human life, particularly when it comes to those individuals who are most vulnerable, our seniors and those with debilitating diseases and conditions.  When will this madness stop?”

Mr. David Berry wrote on June 29, 2016, “These stories are heartbreaking. They're a reality that we most times don't want to confront.  If I don't know about it, it's not happening … -- a sentiment that comes to mind.  Such tragedy.  Your blog's cherry picking paragraph touched me most.  The dehumanization of life in the name of profit should be a death-penalty offense. Reading about the P&L conniving of these places made my teeth grind.”

Ms. Jean Tyler also wrote on June 29, 2016, that, “Unfortunately, I have come to the conclusion that there are no easy answers to the eviction process or nursing home care.  As far as evictions go, it seems the nursing homes have many open ended reasons they can use to move people out.  Not sure at the present time what Medicaid's position is but only holding a bed in the nursing home for one week does not seem fair.  It is truly disturbing.”

Mr. Gene Marshall contributed on August 3, 2016, “They do play games with beds. Independent, short term rehab, long term rehab, assisted, nursing, Medicaid.  Some have good resident’s councils to help solve problems.  Others don't want any input.  Staff turnover and poor pay cause plenty of problems.  Minimize cost and maximize the money for salaries or patient subsidies at non-profits.”

Ms. Tammy Todd on October 24, 2018, “Let’s talk protocol!  Protocol is used by people who want to get you out of the way and do not want you to see things.  Chances are if you hear this word, they do not like what you are saying.  Protocol changes from person to person, shift to shift.  Now please know when your loved one is moved from a hospital to rehab, assisted living or nursing home, all meds are changed or are not giving on time.  Waiting on new doctors’ orders can take up to 12 hours or more. This is also with food and water even if a patient has a feeding tube.  They have dehydrated my husband, Steve, many times.  This is what they call protocol.  Every time he must stay in hospital, he gets dehydrated, feeding tube gets clogged and he comes home with a bed sore.  Now this is our local hospital, South Lake Hospital in Clermont, Florida.  Some nurses listen some do not.  Some love me some do not. Protocol when arriving at hospital means checking the patient over and taking pictures of wounds if any.  Then when a patient leaves with a wound, there are no pictures, or wound care orders.  Now that should be protocol, but it is not. Going in with a clear feeding tube and then sent home with it clogged. Protocol is just a word that doctors and nurses use.  Do not let it intimidate you when you are at any of these places.  It will change with the next person on staff.  Trust me I can write a book on protocol changes.  So be persistent on what you or your loved one needs.”                  

During the month of May, 2020, Dr. Travis Shipp wrote of his experience in nursing homes and VA Hospitals. He noted that where a nursing home only uses bed pads there are no bed sores or limited problems with wounds. Have you been in any long-term care facility where residents are wearing briefs? Dr. Shipp warned of nursing situations where residents are put in poorly fitted briefs or pull-ups that irritate the skin and cause breakdowns. He explained that it is important to look at the actual care a loved one will receive if there is a problem with incontinence.  He also emphasized the importance for changing wet pads and basic hygiene. Too often an incontinent resident is left to sit in a wheelchair or lay for hours in soiled clothing.  Dr Shipp advised family members to always check their loved ones for any skin breakdowns and make unannounced visits for a better idea of the actual care that is provided.

On August, 16, 2016, Ms. Julie Ann Kreger advised, “Do your homework, families of loved ones!  And visit the sites!  Information on the Internet is not always correct.  Some places  that might not show good ratings can actually be better than those with the highest ratings.  You must check them out!  It’s your loved ones lives!”

Resident Rights:

All residents have rights guaranteed by the Federal Nursing Home Reform Law.  They include:

For more information about Residents’ Rights, or questions or concerns, contact your Long-Term Care Ombudsman Program. Long-Term Care Ombudsmen are advocates that promote and protect the rights of residents in licensed long-term care facilities. Visit www.theconsumervoice.org for more information.

April, 2021