Resident evictions from skilled nursing facilities (SNFs) are becoming a more prominent issue, as legal actions involving the matter make national headlines.
The recent case of California resident Gloria Single, for example, is a clear illustration of what happens when a resident and the SNF where he/she resides become involved in a legal tangle over allegedly improper evictions.
The entire eviction and proceeding appeals process can be daunting, according to Eric Carlson, directing attorney at Washington, D.C.-based Justice in Aging, a non-profit legal advocacy organization whose work focuses on fighting senior poverty.
Carlson presented on the matter during a recent webinar for the National Center on Law & Elder Rights (NCLER).
“Oftentimes, residents are so intimidated by the entire process that sometimes when they get [an eviction] notice, they just pick up and go—they’re too afraid to do anything,” Carlson said during the webinar.
There are legal procedures residents can take to contest an eviction; but equally important, there are proper protocols SNFs should follow in the event they need to discharge a resident.
Rules to follow
The federal Nursing Home Reform Act (NHRA) applies to any nursing facility that accepts reimbursement from Medicare or Medicaid, or both, according to Carlson.
Under this law, patients are afforded various rights as a resident of a nursing facility. Further, the law mandates that a transfer or discharge of a patient is permissible only for one of six of the following reasons:
1. The resident needs a higher level of care;
2. The resident no longer needs nursing facility care;
3. The resident endangers others’ safety;
4. The resident endangers other residents’ health;
5. Failure to pay; or
6. The facility is closing.
A notice must be provided as to the reason why the patient is being discharged, the proposed effective date, the location where he/she is going to be transferred or discharged, the residents’ appeal rights, and contact information for agencies that could assist the resident, according to Carlson.
A clear rationale
SNFs most commonly discharge residents when they require a higher level of care than the property is able to provide, Carlson explained.
But for SNFs to make this claim, they must provide a variety of documentation to make their case plausible—including the needs that it allegedly cannot meet, its attempt to meet those needs, and the ability of the proposed receiving facility to meet those needs, he added.
“If [the SNF is] claiming that it can’t meet the resident’s needs, it has to be clear about the needs it allegedly can’t meet,” Carlson said. “You’ll see this oftentimes where a facility will just try to send a resident to some other nursing facility down the street. It’s less likely to be successful for them now because they’re going to have to explain why it is that that second facility could do something that they supposedly cannot.”
In addition, SNFs must have a transfer/discharge plan ironed out for the patient, which should be included in the resident’s care plan.
“There shouldn’t be this unthinking assumption that once a person is in a nursing facility, he or she is likely going to be there on a long-term basis, or indefinitely,” Carlson said. “One regulatory requirement that is specific to transfer/discharge is that there has to be sufficient preparation and orientation, and in addition to that … the resident should have an existing discharge plan in his/her care plan that will address what the resident may want when he or she leaves the nursing facility.”
Overall, prior to pursuing discharging procedures, Carlson stressed the need for SNFs to evaluate the role they play as a caregiver for the patient, particularly in cases that involve residents who they claim are misbehaving or non-compliant.
“You’ll see a lot of improper justifications [where SNFs are] blaming people for their ‘behaviors’ when their behaviors are the completely anticipated result of their medical condition [like] dementia,” he said.
For this reason, SNFs must remain cognizant of their ability to care for patients with special needs, like dementia.
“The person has a significant dementia—that’s why they’re in your nursing facility. You are set up to deal with that,” said Carlson.
“It’s important to understand that nursing facilities are set up to deal with people who have some significant care needs,” he added.
Written by Carlo Calma