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Nursing home discharges under scrutiny

December 21, 2017
by Jocelyn Wiener, Kaiser Health News
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Anita Willis says the social worker offered her a painful choice: She could either leave the San Jose, California, nursing home where she’d spent a month recovering from a stroke — or come up with $336 a day to stay on.

She had until midnight to decide.

Willis’ Medicaid managed-care plan had told the home that it was cutting off payment because she no longer qualified for such a high level of care. If Willis, 58, stayed and paid the daily rate, her Social Security disability money would run out in three days. But if she left, she had nowhere to go. She’d recently become homeless after a breakup and said she couldn’t even afford a room-and-board setting.

In tears, she said, she agreed to leave. Thus began a months-long odyssey from budget motels to acquaintances’ couches to hospital ERs — at least five emergency visits in all, she said. Sometimes, her 25-year-old daughter drove down from Sacramento, and Willis slept in her daughter’s car.

“They kicked me out in the cold,” said Willis, a former Head Start teacher.

Complaints about allegedly improper evictions and discharges from nursing homes are on the rise in California, Illinois and other states, according to government data. These concerns are echoed in lawsuits and by ombudsmen and consumer advocates.

In California alone, such complaints have jumped 70 percent in five years, reaching 1,504 last year, said Joseph Rodrigues, the state-employed Long-Term Care Ombudsman, who for 15 years has overseen local ombudsman programs, which are responsible for resolving consumer complaints.

Around the country, ombudsmen say many patients like Willis end up with no permanent housing or regular medical care after being discharged. Even when the discharges are deemed legal, these ombudsmen say, they often are unethical.

“Absolutely, it’s a growing problem,” said Leza Coleman, executive director of the California Long-Term Care Ombudsman Association. Coleman says the practice stems from skilled nursing facilities’ desire for better compensation for their services and from the shortage of other affordable long-term care options that might absorb less severe cases.

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In Willis’ case, she ultimately lost her appeal to return to the nursing home, Courtyard Care Center. A state hearing judge determined that she had left the home voluntarily because she refused the opportunity to pay to remain there.

Top administrators at Sava Senior Care, which owns Courtyard, did not return repeated calls for comment.

Among other recent cases of allegedly improper discharges:

  • In October, California’s attorney general moved to prevent a Bakersfield nursing home administrator from working with elderly and disabled people, while he awaits trial on charges of elder abuse and wrongful discharge. State prosecutors said one patient was falsely informed that she owed the home money, then sent to an independent living center even though she could not “walk or toilet on her own.” The administrator did not return messages left at the nursing home.
  • A pending lawsuit by Maryland’s attorney general alleges a nursing home chain, Neiswanger Management Services (NMS), illegally evicted residents, sending them to homeless shelters or other inadequate facilities to free up bed space for higher-paying patients. NMS countersued state regulators, alleging they are trying to drive the chain out of business.
  • Last month, a 73-year-old woman with diabetes and heart failure sued a Fresno, California, nursing home for allegedly leaving her with an open wound on a sidewalk in front of a relative’s home. The suit said conditions in the residence were unsafe and a family member refused to allow her inside. The state cited the home in July and issued a $20,000 fine.

Of course, not all complaints or lawsuits are well-founded. Federal law allows a nursing home to discharge or evict a patient when it cannot meet the resident’s needs or the person no longer requires services; if the resident endangers the health and safety of other individuals; or if the patient has failed, after reasonable and appropriate notice, to pay.

The law also generally requires a home to provide 30 days’ notice before discharging a patient involuntarily and requires all discharges be safe and orderly.

Deborah Pacyna, spokeswoman for the California Association of Health Facilities, a trade organization that represents nursing homes, questions why nursing homes should be responsible for providing a safety net for the indigent and homeless.

“Nursing home residents reflect society,” she said in a written statement. “Some nursing home residents live in homeless shelters or hotels. They may request that they go back ‘home,’ or to their local shelter or hotel upon discharge. We must honor their choices as long as their needs are met.”

Pacyna also noted that eviction and discharge complaints represent a tiny fraction of the hundreds of thousands of residents released from the state’s nursing homes each year.

Nationally, discharge and eviction complaints have remained more or less steady in recent years after rising significantly between 2000 and 2007, according to data collected by the federal government. Still, these complaints remain the top grievance reported to nursing home ombudsmen as the number of overall complaints about everything from abuse to access to information has dropped in the past decade.

The rate of complaints can vary considerably by state. Jamie Freschi, the Illinois state ombudsman, says discharge and eviction complaints have more than doubled in her state since 2011.

She recalled one wheelchair-bound nursing resident who was in severe pain from osteoarthritis, scoliosis and fibromyalgia when she was discharged from a nursing home and sent to a homeless shelter. After the shelter rejected her because it could not accommodate her wheelchair, the resident went to a motel, which kicked her out when she ran out of money. She has since cycled between the emergency room and the streets, Freschi said.

“It’s an example of a really, really broken system, all the way around,” Freschi said.

Advocates say such decisions are often money-driven: Medicare covers patients for just a short time after they are released from hospitals. After that, these critics say, many nursing homes don’t want to accept the lower rates paid by Medicaid, the public insurance program for low-income residents.

Even when they appeal and win, advocates say, it doesn’t always help the patient. The Centers for Medicare & Medicaid Services has advised California on two occasions — including this past summer — that it must enforce decisions from appeals hearings. (The state contends that it uses a variety of strategies to enforce the law.)

Last month, the California Long-Term Care Ombudsman Association joined with the legal wing of the AARP Foundation to sue a Sacramento nursing home, alleging it had improperly discharged an 83-year-old woman with Alzheimer’s — requiring the nursing home to readmit her.

“The facilities are getting the message that they don’t have to follow the rules here, so they’re emboldened,” said Matt Borden, a San Francisco attorney helping with the lawsuit.

Willis and her advocates were convinced that Courtyard Care Center broke the rules in her case.

Willis “did not leave Courtyard ‘voluntarily’ in just about any sense of the word,” said Tony Chicotel, a staff attorney with California Advocates for Nursing Home Reform.

At a hearing in April, held at the nursing home and attended by a reporter, Chicotel and an ombudsman argued that Willis’ discharge violated legal requirements, including lack of written notice. They asked that she be immediately readmitted.

According to hearing documents, Willis’ documented medical problems were many: an aneurysm, an ulcer, difficulty walking, muscle weakness, gastritis, anemia and heart and kidney disease. During her stay at the nursing home, she said, she’d fallen and hit her head while visiting the doctor, resulting in a severe concussion.

For their part, Courtyard staffers explained that Medicaid wouldn’t cover Willis anymore based on their assessment of her condition. They said she had “almost returned to her prior level of functioning.”

During the hearing, Willis repeatedly told those in attendance that she felt dizzy and nauseated. Her head pounded. “I’m not good,” she said. Afterward, she begged for a ride to the emergency room, where she was admitted with a torn aorta and bleeding ulcer.

She was still in the hospital when the hearing officer issued her decision a few days later. Eventually, she was released to another nursing home, which also discharged her after a month, she said. Then she resumed sleeping on friends’ couches. She chose not to file another appeal.

“This time in my life,” Willis said, “it’s very discouraging.”

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.

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