Shay Jacobson, RN, MA, NMG, LNCC, CNLCP
Martha Kern

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Just this week we started work on a case involving a man being discharged from a rehab facility to a homeless shelter.  He suffers from dementia.  His daughter was told that a Medicaid application was filed on his behalf but, as became apparent when we investigated, no such thing had occurred.  Efforts to ensure a safe, smooth discharge to an appropriate long-term care environment were negligible. The patient was being “dumped”.

This client, like many who are involuntarily discharged, is not an easy patient to manage.  He exhibits behaviors that care providers find both annoying and intractable.  He is not going to recover or get better.  He stretches resources and frays nerves.

Most commonly, patients who are “dumped” (a popular term for wrongful discharge or improper eviction) struggle with dementia and/or difficult or aggressive behaviors.  They typically require high levels of care.  If they are Medicaid patients, the high levels of care they require are compensated at a nominal rate.

From a cost perspective, difficult patients are bad for business.

The Incidence is Rising
Perhaps because people are living longer and developing more chronic conditions requiring care, the number of difficult patients has increased and, along with them, the number of complaints related to improper eviction.  Since 2000, the number of eviction and discharge complaints is up 57%.  The Long-Term Care Ombudsman program received over 11,000 complaints in 2014 alone.

It appears that the Affordable Care Act may have unintentionally contributed to growth in the involuntary discharge realm.  In its push to shorten hospital stays and prevent readmissions, the ACA has made the medically fragile patient an unwanted entity in hospitals and nursing facilities.  This population poses a sharp risk for readmission.  Readmissions are punished with financial penalties.  One of the best ways to avoid penalties is to minimize exposure to patients who appear destined for readmission.

It is not unheard of for hospitals to discharge a high-risk or problematic patient to a geographically distant post-acute facility – in doing so, they virtually assure that if the patient suffers a reversal, he or she will be taken to some other hospital.

Nursing homes have been known to send a difficult patient to the hospital and then refuse to take them back upon discharge.  This practice triggers a mad scramble to find another placement and skirts federal regulations.

Isn’t Dumping Illegal?
There are federal regulations governing involuntary discharge from nursing homes.  In fact, there are only six permissible reasons for involuntary discharge:

  • The nursing home is unable to meet the patient’s needs;
  • The patient has improved and no longer needs services;
  • The resident endangers the safety of others;
  • The health of other residents is endangered by this patient;
  • The facility has not been paid;
  • The facility has ceased to operate.

If one or more of these circumstances is alleged to exist, the facility must do the following:

  • Document the reason for discharge;
  • Notify the patient’s family and/or agents;
  • Provide at least 30 days’ notice (a few exceptions exist);
  • Offer discharge planning to assure a smooth transfer.

The 11,000 people who complained to the Long-Term Care Ombudsman in 2014 likely had experiences that deviated from the regulatory ideal.  Because there are no real teeth in the administrative appeals process, families can appeal but find their loved one is still denied continued residency at the facility.

It’s important to study nursing home contracts for a number of reasons, not the least of which are clauses allowing the facility to discharge without cause or for reasons not allowed by federal regulations.  It is a good idea to have an attorney review contracts to ensure they do not limit facility liability or furnish overbroad, poorly-defined terms for involuntary discharge.

New Federal Rules Revisions Effective This Year
As of January 1, 2017 when federal rules revisions went into effect, residents can no longer be discharged while their involuntary eviction is under appeal.  Once they have applied for Medicaid or other insurance, they cannot be discharged for non-payment.  Similarly, if residents are waiting for a payment decision or are appealing denied claims, they cannot be discharged for non-payment.

If a nursing home refuses to accept a resident who wants to return from a hospital stay, the resident can appeal the decision. Also, residents who enter the hospital have a right to return to the room they previously occupied, if it is available.

A state’s long-term-care ombudsman must now get copies of any involuntary discharges so the case can be reviewed as soon as possible.

Resident Rights
Many families and agents are unaware of resident rights and are thus unable to insist they be honored.  Nursing home residents have a wide array of rights, inclusive of the following:

  • The right to refuse treatment;
  • The right to be free of chemical/physical restraints;
  • The right to be free from abuse, neglect or exploitation;
  • The right to appeal involuntary admissions, transfers and discharges, and to receive a statement of the right to appeal.

Several additional remedies to the issue of involuntary discharge have been offered up as potential legislative solutions.  Among these is the notion of treating wrongful eviction as a form of elder abuse and/or fining facilities for wrongful evictions.

An understanding of resident rights and the resources/expertise to hold facilities accountable can sometimes put professional advocates in a better position to resist efforts to “dump” patients.  The man described at the beginning of this article – struggling with dementia and being discharged to a homeless shelter – has, thanks to quick and experienced intervention, been successfully placed in another facility.

Engaging an attorney and/or care manager may help circumvent the “dumping” process and spare your client or loved one the upheaval of involuntary discharge.

© Lifecare Innovations

Resources:

http://bigstory.ap.org/article/95c33403b5024b4380836d3ed3dfecb0/nursing-homes-turn-eviction-drop-difficult-patients

http://khn.org/news/new-nursing-home-rules-offer-residents-more-control-of-their-care/

http://www.slideshare.net/LegalLeader/nursing-home-hospital-dumping-a-new-form-of-elder-abuse

http://publish.illinois.edu/elderlawjournal/files/2015/02/Pipal.pdf