By Logan Quirk
We are in the midst of a dangerous period in human history brought about by the ongoing COVID-19 pandemic. Seeking protection and shelter is a must during this time, but sadly, the residents of certain nursing homes are finding themselves at risk due to an alarming trend.
You or someone you love could be a victim of that trend.
To prevent falling into a dire situation, it’s important to learn about the laws regarding nursing homes. If someone is forcibly evicting you or your loved one, see if the reason the facility provided is in line with the law.
Find out more about this unfortunate trend and how to protect your family from it by reading on.
The Importance of Nursing Homes
Nursing homes have an important role as they care for some of the most vulnerable members of our society. According to Medicaid.gov, nursing facilities primarily offer three types of services.
The first of these essential services are skilled nursing.
Skilled nursing is licensed professionals and encompasses a wide array of services. These services include catheter care, injections, IV therapy, physical therapy, vital sign monitoring, and dressing wounds, to name a few.
Occupational and speech therapists may also be called upon to help nurse a resident of a facility back to health, according to Aging Care.
Hospitals and homes are not the only places where people can rehabilitate following their recovery from a severe illness or involvement in an accident. They can also stay in a nursing facility and recover there.
Nursing facilities are also capable of providing long-term care for their residents who may be suffering from a variety of mental and physical ailments. This is typically the kind of care provided to elderly residents who are staying at the facility permanently.
In addition to the primary services listed above, nursing facilities also help with personal hygiene, maintain the beds and rooms of residents, and provide other services that improve a person’s quality of life.
Who Are Qualified for Nursing Homes?
Considering how essential their services are, it’s easy to see why admission into nursing homes is in such high demand among members of the community. But who is qualified to receive their care?
To answer that question, we must first address a few other matters.
Among the most important matters to discuss is how a resident is planning to pay for a stay at a nursing home.
If you are planning to pay for your stay using personal funds, you have the option of choosing whichever establishment you prefer, provided that the one you settle on accepts personal payments.
Individuals with private insurance must check their plans to see which facilities they can go to.
Things get a bit more complicated if a person is planning to use Medicare or Medicaid to pay for a nursing home stay.
How to Qualify for Medicare
People can also pay for their nursing home stay with the help of Medicare. It’s important to note that you must stay in a Medicare-licensed facility if you want the program to cover your stay.
Only individuals aged sixty-five and over qualify for Medicare coverage, per WebMD. Furthermore, the program only covers the first 100 days of a person’s stay at a nursing facility. The patient in question must also have a doctor’s referral to the Medicare-licensed facility after being discharged from the hospital if they want the program to pay for their stay.
How to Qualify for Medicaid
Medicaid may also cover a nursing home stay, but you must meet certain conditions first.
The patient must first pay for their nursing home stay using their available assets. In most states, an individual can hold on to $2000 worth of countable assets before Medicaid kicks in and starts covering their stay at the facility, according to Investopedia. Do note that your home and other personal belongings are not included in your countable assets.
Any income you’re making will also go toward paying for your nursing home stay, but you may be permitted to have a small allowance.
The COVID-19 Pandemic’s Impact on Nursing Homes
We noted earlier that nursing facilities are not exclusively home to senior citizens, but they still make up the bulk of the population. This article from US News notes that under 85 percent of nursing home residents are aged sixty-five or older. Many of those residents rely on Medicaid to pay for their long-term stays.
In a lengthy report, The New York Times highlighted how the pandemic may have caused a shift in how some nursing facilities are handling residents.
Twenty-six long-term care ombudsmen from eighteen states told The New York Times that they discharged more than 6400 nursing home residents to homeless shelters since the start of the pandemic.
The reasons behind these evictions remain unclear, but there seem to be different factors in play.
One explanation for the spike in evictions is the need to make room for COVID-19 patients. The article points out that states such as California, New Jersey, and New York have already contacted nursing facilities and urged them to accept COVID-19 patients to accommodate the surge in cases.
Knowing that more COVID-19 patients are coming, some facilities have also taken the initiative and moved their vulnerable residents, fearing that having them stay could put them at risk of infection.
However, the need to clear beds for infected patients and the desire to protect senior citizens may not be the only factor motivating facilities to evict some of their residents.
As The New York Times pointed out, nursing facilities are becoming incentivized to accommodate patients who are paying using Medicare or private insurance over those who are relying on Medicaid because Medicare and private insurances pay more to nursing homes.
The difference between admitting a Medicaid patient or someone infected by COVID-19 who has Medicare can amount to $600 per day.
This also comes at a time when many nursing facilities are struggling financially due to new restrictions made necessary by the pandemic. Currently, nursing facilities are not seeing as many patients who are going through post-surgery rehabilitation. Losing them is a big deal for nursing homes as they are among the patients that pay the most.
How They Evict Residents
There’s a proper procedure they must follow before discharging a nursing home resident. The nursing home must have a legitimate reason for discharging a patient, plan properly for the move, and then notify the patient before the eviction.
Even if they carry out an eviction, the patient discharged from the facility can still appeal the decision.
Alarmingly, that proper protocol is not followed by all nursing homes at this time.
Fifteen long-term care ombudsmen expressed in interviews with The New York Times a belief that some nursing facilities may be taking advantage of the conditions brought about by the pandemic to evict residents. They hinted that nursing facilities could be getting away with evictions because there are no visitors who can question them. On top of that, the ombudsmen themselves are not allowed to visit the nursing homes they monitor.
Some nursing homes resort to pressuring their residents to leave because those patients don’t know that they have a legal right to stay in the facility.
This is a situation where not being aware of the law can prove costly. Protect you and your loved ones from illegal evictions by learning more about the laws currently in place.
The Legal Reasons Why They May Discharge or Transfer a Patient from a Nursing Facility
There are only six reasons a nursing home can legally cite if they want to evict or transfer a resident, according to the American Bar Association.
The reasons are as follows:
- The facility can no longer meet the needs of the patient.
- The patient has recovered and no longer requires the services provided by the nursing facility.
- The patient has not paid for the stay in the nursing facility even after receiving reasonable and appropriate notice.
- The individuals in the nursing facility are in danger due to the behavior or clinical status of the patient.
- The health of the individuals in the nursing facility are in danger.
- The nursing facility has ceased operations.
Those are the only legitimate reasons that a nursing home has for involuntarily discharging one of their patients. As long as one of those conditions is not met, the facility has no legal ground to stand on if they want to evict you or your loved one.
The Proper Protocol for Notifying and Discharging Nursing Home Residents
Let’s say that you or your elderly relative did meet one of the conditions mentioned in the section above. Does that mean that the nursing home can now legally discharge you? They can indeed move forward with their plans, but they must first follow the correct protocol.
The first step of this protocol involves the facility preparing a summary of the patient’s current physical and mental status.
Next, the nursing facility must craft a post-discharge plan.
This plan will help the resident receive care after leaving if that is still needed. As part of this post-discharge plan, the nursing facility must also find an alternative facility capable of accommodating their resident. Facilities they consider include assisted living facilities, apartments, and homeless shelters.
Lastly, the nursing facility must notify the resident as well as their family or legal representative of their eviction plans.
The notice must be in writing, and it must explain why they are discharging the resident. The nursing home must also give this notice to both the resident and their family member or legal representative 30 days before the planned discharge date. They also send a copy of the notice to the ombudsman responsible for the area.
Appealing a Potential Eviction
If the nursing home sends you a notice informing you of your pending eviction, do not hesitate to act if you believe that they are being unfair. According to Aging Care, residents can contest the pending eviction and appeal to have it reversed.
To get the appeal process started, the family member or legal representative can go to the state’s long-term care ombudsman after receiving the written notice. If you cannot get in touch with the ombudsman, you can also talk to the Department of Health governing where the nursing facility is located.
Partnering with an attorney specializing in elder law during this appeals process is highly recommended to improve the odds of things turning out in your favor.
Handling a Hospital Transfer
In some cases, nursing homes may attempt to circumvent the legal process by transferring the patient to the hospital. After transferring the patient to the hospital, the facility may then refuse readmission to the patient.
You can still do something even if the facility employs this tactic in your case.
In the state of California, nursing homes must reserve a bed for their resident for at least seven days if they transferred to the hospital. The resident can return to the facility if the stay does not exceed seven days.
Even if the hospital stay does exceed seven days, the facility must readmit the resident if he/she still requires care.
Some nursing homes may not follow that rule, however, and still refuse to readmit their patient. In that case, the patient can approach the Department of Health Care Services to gain a readmission order. Notably, though, nursing facilities are not always going to honor that order, so you may still be denied readmission.
Residents can also go to court in the hopes of gaining readmission that way, but that does not happen often.
Unfortunately, residents are being forced out of nursing facilities at a time when a deadly virus is currently threatening the population. Now more than ever, you need to protect yourself and be aware of your rights.
Fight for your right to stay in the nursing facility of your choice by working with us at the Quirk Law Group. Contact us today to find out how we can assist you.