REGULATORS TAKING NOTE AS COMPLAINTS KEEP RISING
they maximize their advantage,” said Tony Chicotel, a lawyer at California Advocates for Nursing Home Reform, a nonprofit group.
Complaints about evictions have caught the attention of federal regulators, who are now seeking ways to step up enforcement of the federal laws that protect residents of the nation’s 15,000 nursing homes.
In December, federal regulators sent a memo to state officials across the country who inspect nursing homes for compliance with federal standards, saying they would begin examining discharges that appeared to violate the rules.
David R. Wright of the federal Centers for Medicare and Medicaid Services said in the memo that wrongful evictions were “of great concern” because they could be unsafe or traumatic for patients, uprooting them “from familiar settings” and moving them far from family and friends.
The number of complaints about the discharge and evictions of residents was rising through 2015, the most recent year for which data is available. That year, there were 9,192 complaints about the discharge and eviction of nursing home residents, out of a total of 140,145 complaints, according to the Department of Health and Human Services. But some legal advocates said they believed these figures understated the problem, since many residents do not contest their discharge.
Even as the Trump administration has said it has been looking for ways to address improper evictions, it has scaled back the use of fines against nursing homes that harm individuals, in keeping with the administration’s broader deregulation push.
Chicotel, the advocacy group lawyer, said federal regulations governing nursing homes were already strong but enforcement was weak. Even when nursing homes are cited for violations, he said, they frequently “get a modest fine, and it’s often a cost of doing business.”
Dr. David R. Gifford, a senior vice president of the American Health Care Association, a trade group for nursing homes, said the perception that residents were being moved against their will for financial reasons was wrong.
“There’s a tension in the regulations,” Gifford said. “They clearly state that if someone can harm themselves or others, either through infections or their behavior or whatever, the individual can be discharged. But the regulations also clearly say that the goal is to not discharge people, and they have a right to stay there and receive care.”
Bill Wilson, a lawyer representing the nursing home where Zwaschka-blansfield was a resident, said he could not comment on the specifics of her discharge because of privacy laws. But he said that patients could not be discharged without a physician’s order and that the facility complied with all regulations. He also said the home “unequivocally” denied that it wrongfully discharged the patient.
Federal law stipulates that a nursing home must follow the same policies and practices for the discharge and transfer of residents, “regardless of source of payment.” But, legal advocates say, nursing homes often begin to pressure residents to leave when their Medicare coverage — which pays nursing homes at a higher rate but for a limited period — is close to ending and may be replaced by Medicaid. This happens to patients who have been sent to homes for rehabilitation or therapy, which often is covered by Medicare. Elderly residents who are deemed difficult or require extra assistance — and who may cost more overall — are more frequently discharged as well, advocates said.
Reimbursement rates for Medicare and Medicaid differ substantially, according to the National Investment Center for Seniors Housing and Care, a nonprofit group that collects data on the industry. Nursing homes receive about $200 a day for a Medicaid patient on average, compared with about $500 for a patient in the traditional Medicare program and $430 for a Medicare patient in a managed care plan.
Patty Ducayet, the long-term care ombudsman in Texas, said that disputes over whether a particular nursing home can meet a patient’s needs are common. That, she said, is often “a gray area.”
A nursing home may be justified in saying it cannot care for patients who cannot breathe on their own. But, Ducayet said, it would not be justified in discharging patients because they refused to take medications or because they filed complaints with state officials.
Even when residents win an appeal of an eviction, they have no guarantee they will be welcomed back. That was the case with Gloria Single, an 82-yearold with Alzheimer’s who often became agitated, according to her legal complaint.
After being discharged from the California nursing home where she lived with her husband, Single won an appeal. But the nursing home would not accept her. “They don’t take you back and there are no consequences,” said Kelly Bagby, a lawyer at the AARP Foundation who is representing Single.