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Know Your Rights!

Published on February 21st, 2020

MarketWatch had a great article last month on the problem of wrongful eviction or involuntary discharge of nursing home residents.  Eviction stories like those mentioned in the article happen to thousands of nursing home and assisted living residents each year. One common reason residents are told to move out: behavioral issues related to dementia or mental illness. But experts say these discharges are often unwarranted. Often agitation and anger are a form of communication to notify caregivers of neglect, pain, hunger, thirst, fear or boredom.

Involuntary discharge [from nursing homes] is the number one complaint that [long-term care] ombudsmen have had to deal with for the past seven years,” says Lori Smetanka, executive director of the National Consumer Voice for Quality Long-Term Care.  More than 10,000 consumers complained about involuntary discharges in 2018, according to national ombudsman data.

In 1987, Congress passed the landmark Nursing Home Reform Act, guaranteeing a set of comprehensive rights for residents, such as the right to receive adequate care, to be treated with dignity and respect and to make personal choices about how you dress or spend your time.  Included in the Nursing Home Reform Act is a section on a resident’s right to remain in a nursing home, unless a transfer or discharge “is necessary to meet the resident’s welfare” or “is needed to protect the health and safety of other residents or staff.”

The nursing home must give a resident at least 30 days notice, put the reason for the discharge in writing, indicate where the person will be moved and include contact information for the state ombudsman.

Residents have the right to appeal. If the eviction is due to nonpayment, the resident has the right to remain in the nursing home if the person has applied for Medicaid assistance and is awaiting a decision.

In 2016, the Centers for Medicare and Medicaid Services (CMS) revised the nursing home regulations. CMS found that some nursing homes were inappropriately claiming they could not meet a resident’s needs.

With the new regulations, the nursing home has to document specifically what the unmet need is, what attempts they took…and what services the new place is providing that the original place says they couldn’t provide.

 

But if a formal discharge letter is sent, saying the family has 30 days to move the person, there are several steps to take.

The first is to contact the long-term care ombudsman. If regulations are being followed, the nursing home should have sent a copy of the letter to the ombudsman at the same time as the resident.

The ombudsman should be your advocate, although this is not always the case. Sometimes the ombudsman is more an advocate for the nursing home than the resident.

Ask the ombudsman what assessments have been conducted and what measures the care facility took to ameliorate the difficulty. Find out what services the staffers say they are unable to provide, and ask if the new place has them.

If you feel the discharge is unfair and not in your loved one’s interest, appeal the decision to the facility.

 

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