Dumping or Involuntary Discharge

“We can’t take care of you any longer,” is a message countless long-term care residents have heard from facilities soon before they are evicted from the facility and left with no place to go.

Dana White and Chris Knoblock worked to capture this heartbreaking situation that too often takes place in their 12-minute short film, “Involuntary.” The film illustrates the real-life event of nursing home resident, Carlton, being involuntarily discharged and dumped outside of a shelter. The film ends with two employees walking away from Carlton in the middle of the night, alone and cold.

Unfortunately, the film captures an event that is far too common in the U.S. According to the American Council on Aging, involuntary nursing home discharges are one of the top 5 complaints that the State’s Long-Term Care Ombudsman Programs receive. Further, the LTCOP works to resolve about 14,000 of these complaints every year. To clarify, that’s 14,000 people that nursing homes or skilled living facilities are forcibly evicting against their will—and that’s only the cases that get reported.

Many of these illegal discharges occur when nursing homes want to ditch a resident paying with Medicaid in order to accept a higher-paying resident. Other times, residents’ Medicaid runs out, so the facility immediately evicts them—even if they have no other place to receive care from.

In other instances, a resident may be sent to the hospital only to find that when they’re ready to be discharged, the nursing home has given someone else their bed, and they no longer have a place to stay at the facility. This is referred to as “hospital dumping,” and may be legal depending on the state.

It is vital that facility residents and their loved ones are aware of their rights when it comes to involuntary discharges. The Nursing Home Reform Act of 1987 outlines federal guidelines that work to prevent Nursing Homes from overriding the rights of their residents. It works by denying facilities funds from Medicare and/or Medicaid if they do not follow such guidelines, which ultimately ends up being relatively effective considering the profit-minded nature of nursing facilities.

However, wrongful evictions still occur against our most vulnerable populations, and here are the only reasons when a nursing home can legally evict a resident:

1. When the nursing home is not able to meet the needs of the resident, or a discharge would positively benefit the resident. This was likely the case of the resident, Carlton, in the film, “Involuntary.” Yet this is a peculiar case, as facilities are required, upon admission of a resident, to conduct a comprehensive analysis of the resident to fully understand their needs. Therefore, if a facility admits a resident, it should be aware of their needs and prepared to serve them accordingly. The law also requires nursing facilities to adjust their staffing ratios when necessary to provide the best care possible.

Oftentimes, nursing facilities will lie and say they do not have the capability to meet a resident’s needs when they really do. This makes involuntary discharges illegal, and an appeal should be filed as soon as possible to the state Long-Term Care Ombudsman. With a pending appeal, a resident cannot be forcibly removed from the facility.

2. “Reasonable and appropriate notice” has been made to the resident that they are not making their payments, and the resident continues not to pay and has not applied for Medicare or Medicaid. This may become complicated, as the definition of “reasonable and appropriate notice” varies by state, but residents should essentially be given a reasonable amount of time to come up with an alternative source of payment. However, no matter the current payment plan of a resident, they cannot be evicted if they have a pending application for Medicaid.

The only exception here is if a facility does not accept Medicaid payment, then they are able to kick residents out regardless of their Medicaid application. Although if a facility accepted Medicaid at the time of admitting the resident, they cannot discharge a resident if the facility later decides to withdraw from Medicaid funds. This is against The Nursing Home Resident Protection Act of 1999.

3. The resident has improved so much in their health that nursing home services are no longer necessary.
4. The resident’s presence actively endangers the health of other residents.
5. The resident’s presence actively endangers the safety of other residents.
6. The nursing home facility closes.

In these situations, it’s also important to be aware of the different options that Medicare and Medicaid offer: Medicare is federal health insurance made for Americans 65 years and older, and will cover short-term skilled nursing care. Short-term care refers to up to 100 days in a Medicare-certified nursing home. For qualifying individuals, Medicare may also pay for the first 20 days of a resident’s stay and just pay a portion of the cost between 20 to 100 days.

Medicaid, however, is both a state and a federal program that offers health insurance to individuals with low income. Unlike Medicare, Medicaid will cover longer stays in skilled nursing facilities. Therefore, anyone in all 50 states (and the District of Columbia) who qualifies for Medicaid can receive long-term nursing home coverage with no specific time limit. As long as the individual remains eligible, they can receive long-term care indefinitely.

Ultimately, situations like Carlton’s should never take place. Members should be aware of their rights in nursing facilities and know the resources available to them when it’s time to fight back.

No matter what, a nursing home must provide a written discharge notice of at least 30 days prior to the eviction. If any illegal advances are made to discharge the resident, an appeal should immediately be filed with the state’s Long-Term Care Ombudsman. Remember that a resident cannot be discharged while they have an appeal pending or a Medicaid application pending.

In the end, it’s always best to contact an attorney to gain full awareness of the rights and compensation you or your loved ones are entitled to. Those who have experienced a wrongful discharge are especially encouraged to contact a lawyer and help stop nursing homes from putting more vulnerable individuals through the pain and suffering that Carlton and thousands of others have experienced.