AFTER E.R. TRIPS, CAN NURSING HOMES EVICT? Is Nursing Home Hospital Dumping Elder Abuse? The Law Office of Kevin P. Kane, ESQ.

Transcription

1 AFTER E.R. TRIPS, CAN NURSING HOMES EVICT? Is Nursing Home Hospital Dumping Elder Abuse? A White Paper Presented by The Law Office of Kevin P. Kane, ESQ.

2 AFTER E.R. TRIPS, CAN NURSING HOMES EVICT? Is Nursing Home Hospital Dumping Elder Abuse? It s a scenario that happens all too often in nursing homes. A resident is sent to the ER for acute medical treatment. A day or two later, when the patient is cleared for discharge, the family receives alarming news: their loved one has been added to the RTR refusal to readmit list. The nursing home slams the door shut and effectively evicts the senior. With nowhere to go, the patient languishes in the hospital. Eventually the family may find a different nursing home. But often the trauma of being shut out unable to return to a familiar setting of friends and caregivers takes a physical toll. The nursing home may have been the senior s home for years or even decades. The upheaval begins a downward spiral that rarely ends well. Hospital Dumping A Growing Trend This practice called hospital dumping is far more prevalent than you might think. Take this tragic example: After a brief hospital visit, an elderly San Francisco woman is told she can t return to the elder care facility that has been her home for the past seven years. Her daughter later discovers there are still open beds at the facility. The daughter appeals the discharge. Nine months after a hearing officer ruled in her favor, the elderly patient still hasn t been accepted back. 1 1 California Nursing Home Evictions On The Rise, CBS San 2 Francisco (August 1, 2011), com/2011/08/01/some-bay-area nursing-homes-kicking-outhospitalized-patients

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4 In another case, a 76-yearold Parkinson s patient gets dumped at the ER for allegedly aggressive behavior. Less than 24 hours later, the patient s son receives a discharge notice from the nursing home, effectively saying his father can t return. 2 The patient could just as easily be your father, mother, grandfather, grandmother or spouse. So why do nursing homes evict patients by dumping them on hospitals? On the surface, they usually claim they can no longer properly care for the patient. Yet this explanation rarely stands up to scrutiny. The real motivation often boils down to dollars. Nursing homes have a limited number of beds. How much money can they make for each bed? The answer depends on how the patient is paying. ARE NURSING HOME BEDS GOING TO THE HIGHEST BIDDERS? RATE $500 PER DAY RATE $177 PER DAY MEDICARE & PRIVATE PAY PATIENTS MEDI-CAL PATIENTS Medicare and private pay patients typically earn the nursing home nearly $500 a day. 3 By contrast, Medi-Cal patients who make up the vast majority of California s nursing home population have average reimbursement rates of a mere $177 a day. 4 2 Kindred Nursing Centers W., LLC v. California Health & Human Servs. Agency, No. D044215, 2005 WL (Cal. Ct. App. June 22, 2005). 3 Paul Barr, In The Preferred Setting? Reimbursement s Role in Hospice vs. Skilled Nursing, Modern Healthcare (January 19, 2013), 4 Facts and Statistics: Long-Term Care Providers, The California Association of Health Facilities (June 2013), 4

5 These numbers paint a clear picture: Medi-Cal rates are woefully inadequate. And as a result, nursing homes have an incentive to allocate as many beds as possible to non- Medi-Cal patients. Financial pressure often leads to questionable bed management strategies. Meanwhile, taxpayers must foot the bill for an evicted resident s extended hospital stay, which could cost up to $375 more per day than nursinghome care. Silencing The Squeaky Wheel Apart from financial motivations, nursing homes may use hospital dumping as a tactic to get rid of undesirables for example, squeaky wheel residents (or relatives) who complain too much or are too demanding. As the age-old saying goes, The squeaky wheel gets the grease. Unfortunately the squeaky wheel sometimes gets replaced. 5

6 Rather than jumping through the legal hoops of an involuntary discharge, nursing homes bide their time until the patient needs a hospital visit. Then when an already fragile elder is at his or her most vulnerable the nursing home abandons the resident. For Medi-Cal patients, the law is clear: Nursing homes must immediately readmit them to the first available bed in a semiprivate room, regardless of the length of time the patient is away for medical reasons. 7 Why Hospital Dumping Is Illegal Nursing homes can t simply evict residents at any time. Under federal regulations, nursing homes that accept Medicare and Medi-Cal can only involuntarily discharge patients on the basis of six limited grounds, and they must adhere to detailed legal requirements when doing so. 5 The law also recognizes that nursing home patients should not shy away from needed hospital care for fear of losing their beds. Federal and state regulations give patients important bed-hold rights in these situations. 6 TRANSFER AND DISCHARGE REQUIREMENTS 1 The transfer or discharge is necessary for the resident s welfare and the resident s needs cannot be met in the facility. 2 The transfer or discharge is appropriate because the resident s health has improved sufficiently so the resident no longer needs the services provided by the facility. 3 The safety of individuals in the facility is endangered. 4 The health of individuals in the facility would otherwise be endangered. When nursing homes fail to readmit Medi-Cal patients after an ER visit or hospital stay, they are in clear violation of the law. 5 The resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare or Medicaid) a stay at the facility. For a resident who becomes eligible for Medicaid after admission to a facility, the facility may charge a resident only allowable charges under Medicaid. 6 The facility ceases to operate C.F.R (a)(1) (2014) 6 6 See id., (b); 22 CCR 72520(c), 73504(c) 7 42 C.F.R (b)(3)

7 Appealing The Discharge: A Futile Remedy? When your loved one has been discharged from a nursing home, you have the right to an administrative appeal through the California Department of Health Care Services (the state agency responsible for regulating nursing homes). However, you must contact the DHCS Office of Hearings and Appeals to request a hearing. Hospital dumping situations are often slam-dunk cases. Yet even if you receive a decision in your favor a legal order stating that the nursing home s action is illegal the nursing home may still refuse to comply. In fact, according to one source, 95 percent of hospital dumped patients prevail against nursing homes at the administrative hearing. Yet startling few ever get readmitted to the bed that s rightfully theirs. 8 For these nursing homes, the financial incentive outweighs basic principles of law and ethics, and the hearing officer s ruling ends up being an empty gesture. 8 Hospital Dump, The Advocate (Spring 2012), 7

8 Sending A More Forceful Message Through A Financial Elder Abuse Claim How can we hold nursing homes accountable for these wrongs? How can seniors and their loved ones gain a meaningful voice in the legal system? The answers may lie in California s robust laws against elder abuse. The law takes a strong stance against all forms of elder abuse including not only neglect, physical harm and inadequate care, but also financial abuse. Defining Financial Elder Abuse Financial elder abuse takes place when an individual or institution deprives an elder of any property right, knowing it will likely result in harm. 9 The crux of the issue is this: Does an elder s right to return to his or her nursing home amount to a property right? From a commonsense perspective, an elder s nursing home bed and private quarters are his or her property. Many seniors in nursing homes have no other home. Their ability to stay in a nursing home has undeniably great value to them and their loved ones. Hospital dumping by nursing homes is systematic elder abuse against society s most vulnerable elders. Is there an adequate legal framework for addressing this unjust, unethical practice? From a legal perspective, the definition of property is broad; it includes anything you have the right to possess and use to the exclusion of others. 10 It also includes ownership rights granted through contracts, regardless of whether those rights can be bought and sold. 11 Thus Medi-Cal nursing home residents have the right, rooted in both contract and law, to be readmitted to the first available bed after a hospital stay. 11 See Yuba River Power Co. v. Nevada Irr. Dist., 207 Cal. 521, 523, 279 P. 128, 8 9 Cal. Welf. & Inst. Code (b), (c) 129 (1929) (defining property to include contractual rights); Hector v. Superior 10 Cal. Civ. Code 654 Court in & for Placer Cnty., 15 Cal. App. 2d 552, 554, 59 P.2d 591, 592 (1936) (recognizing that property rights are not limited to marketable interests).

9 If a hairbrush, photograph and other personal items are unquestionably property, then how much more is a senior s residence the place he or she spends virtually every waking hour a valuable property right? The upshot is this: When nursing homes refuse to readmit Medi-Cal patients, in clear contravention of the law, they deprive residents of their property rights. This type of financial elder abuse invariably results in harm emotional trauma and, in many cases, physical deterioration. What This Means For Elders Rights voice and rights have finally been acknowledged. What s more, these claims have the potential to influence the behavior of other nursing homes, sending a strong message that they can t get away with illegal hospital dumping. An elder abuse claim has teeth. It raises the threat of real consequences for nursing homes. Winning an elder abuse claim against a nursing home is a victory on many levels. As the family of a vulnerable elder, it means your loved one s A SUCCESSFUL CLAIM COULD RESULT IN A SUBSTANTIAL MONETARY AWARD OF: COMPENSATION for out-of-pocket expenses PUNITIVE DAMAGES intended to punish the nursing home MONETARY DAMAGES for your loved one s pain and suffering (unlimited if the elder is still living, and up to $250,000 if the elder passes away) ATTORNEY FEES and costs Cal. Welf. & Inst. Code

10 Nursing homes may be able to ignore a hearing officer s order. But what they can t ignore is a legal judgment holding them liable for thousands or even millions of dollars. In an industry where dollars speak volumes, financial elder abuse claims may be the only viable framework for holding nursing homes accountable. Visit our site: Call our firm: Share the white paper: T l G f The content of this paper is provided for informational purposes only and does not constitute legal advice by The Law Office of Kevin P. Kane, Esq. All rights reserved. Design and editorial services by FindLaw, part of Thomson Reuters. 10