Advocates for the elderly are calling attention to nursing home evictions that violate federal law. Their complaints find support in an Associated Press investigation.
According to elder law attorneys, nursing homes are weeding out their most challenging residents, including those with dementia and severe disabilities. Nursing homes want to replace those residents with others who require less attention from staff.
About 1.4 million patients live in about 15,600 nursing homes. Both numbers have been steadily declining as children increasingly find other housing options for elderly parents, including assisted living facilities and in-home care providers. Perhaps because demand is declining, the AP investigation suggests that nursing homes are maintaining profitability by “cherry picking” the easiest patients.
AP Analysis of Nursing Home Evictions
The Associated Press examined complaints filed with the federal Long-Term Care Ombudsman Program. Each state has an ombudsman who attempts to resolve problems faced by residents of nursing homes, assisted living facilities, and other adult-care facilities.
The AP determined that complaints about involuntary transfers and evictions have increased by 57% since 2000. More than 11,000 discharge complaints were made to ombudsmen in 2014, making transfers and evictions the top-reported grievance that year.
An elder law attorney who directs the Michigan Elder Justice Initiative told the AP that evictions and involuntary transfers are emotionally devastating to nursing home patients, who are deprived not just of a home but of the community to which they have formed an emotional bond. Evictions separate patients from the friends and companions who provide a shield against depression.
Nursing Home Regulations
Nursing homes are permitted to discharge or involuntarily transfer patients under certain conditions. The Nursing Home Reform Law of 1987 permits patients to be involuntarily transferred or discharged when:
- the facility can no longer meet the needs of the patient’s welfare;
- the patient no longer needs the services provided by the facility;
- the safety or health of individuals in the facility is endangered by the patient; or
- the patient has failed to pay for care (provided that the patient has been given 30 days’ notice of nonpayment).
Residents are presumptively entitled to 30 days’ notice if eviction is for reasons other than nonpayment. Since there are several exceptions to the 30-day notice requirement, however, the amount of notice that is required in any particular case is often unclear.
Eviction Motivations: Safety or Profitability?
Nursing homes must attempt to alleviate disruptive or aggressive behavior rather than turning to transfer or discharge as a first option. Patient advocates say that nursing homes stretch the rules, claiming (for instance) that they cannot provide adequate care for a patient with dementia even though the patient is still in the early stages of the disease, or that the patient poses a safety risk even though the patient’s behavior has been disruptive but nonthreatening. In many cases, the facility could provide adequate care but would prefer to serve patients who are less demanding.
A trade association for nursing homes takes the position that procedures are in place to assure that evictions comply with the law. The association’s senior vice president told the AP that some patients “require so much staff attention to manage them that the other residents are endangered.”
Advocates for the elderly agree that patients are evicted when nursing homes perceive them as taking too much staff time. They contend that the solution is to hire more staff, not to discharge the patients who need attention. Advocates also complain that nursing homes discharge patients whose children have made complaints about substandard care.
Managing only “easy” patients allows nursing homes to handle more patients with fewer staff members. Maintaining a balance of “easy” and “difficult” patients, on the other hand, requires nursing homes to increase staffing levels. Elder advocates argue that too many nursing homes maximize profits by operating with too few staff members.
Elder advocates also point to nursing homes that discharge patients who are on Medicaid so that beds can be made available for private-pay patients. Nursing homes make substantially more money per patient when they are not limited to the Medicaid reimbursement rate.
Poor Enforcement of Laws
Patients are entitled to appeal a discharge or transfer decision. Even when patients are aware of that right and muster the resources to pursue an appeal, nursing homes often disregard adverse decisions. A number of children told the AP about nursing homes that refused to follow orders to readmit their parents.
According to an elder law attorney with Community Legal Services of Philadelphia, illegal evictions have reached epidemic levels. After reviewing nursing home violations in Philadelphia over a three-year period, the attorney could find only one instance in which an operator was actually cited for an involuntary discharge. The citation that was issued in that case carried no fine. Knowing that eviction rules have no teeth, nursing homes don’t worry about the law’s bite.
Proposed reforms range from stronger enforcement of existing laws to holding nursing home administrators personally liable for illegal evictions. Assuring that patients understand their legal rights is another option. Higher reimbursement rates for Medicare patients, particularly those with dementia who may require more staff time, might also encourage nursing homes to comply with existing laws.