What Do You Do If A Loved One Gets Kicked Out of Nursing Home?
Some nursing home patients can be difficult for a staff. They may even be dangerous to themselves, staff members or other patients. However, most patients that pose challenges are those that are suffering from cognitive decline and related illnesses such as dementia or Alzheimer's disease.
Sadly, rather than working to protect these individuals, many nursing homes instead choose to evict their most challenging residents. Advocates for the elderly and disabled see this approach as being a direct attack on society's most vulnerable citizens. These evictions have spurred a number of lawsuits across the country.
When a loved one is evicted from a nursing home, deciding what to do next can be emotional and confusing. It can also be downright frustrating.
Here, we take a closer look at what you can do if your loved one gets kicked out of a nursing home in West Virginia.
Is Evicting or Transferring a Nursing Home Resident Legal?
According to a Florida TV station, ABC Action News, an Associated Press analysis of federal data found that the rate of nursing home evictions in the U.S. is on the rise.
Since 2000, the number of complaints about discharges and evictions has grown by a whopping 57 percent. In fact, in 2014 alone, complaints about discharges and evictions were more common than any other grievances, with a total of 11,331 complaints logged.
While it is certainly unethical to evict a nursing home patient who is suffering from a serious condition, it appears to be legal.
In fact, the American Health Care Association adamantly defends the practice of discharging nursing home patients who are deemed to pose a threat to others or who cannot be kept safe.
Further, federal law allows for transfers of patients for a number of reasons, including due to:
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- Closure of the facility
- Resident's failure to pay
- Inability of the facility to meet the resident's needs
- Resident's improvement of condition
- Safety risks posed to others due to the resident's behavior.
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West Virginia law mirrors federal law on this issue. In our state, a nursing home resident must be allowed to remain within a nursing home unless:
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- The discharge is necessary for the resident's welfare
- The discharge or transfer is appropriate based on an improvement in the resident's health
- The health or safety of other persons in the nursing home are endangered
- The resident has failed to pay
- The nursing home ceases to operate.
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Still, many believe that federal and state laws are exploited and abused, with facilities insisting that they are no longer an appropriate setting for residents based on the fact that the resident is simply too difficult for staff members.
This claim is supported by the fact that most evictions target Medicaid beneficiaries. A member of the California Advocates for Nursing Home Reform spoke to ABC Action News and implied that "economics sometimes play a role in the ousters." The advocate suggested that many nursing home facilities would rather fill a bed with a private-pay resident rather than a long-term Medicaid patient.
Unfortunately, a person who is involuntarily discharged from a nursing home may have a very difficult time finding placement in a different nursing home. The eviction can create a health and safety risk for the patient, who may be in need of constant care. It may also place a burden on the shoulders of family members.
Your Loved One Was Evicted from a Nursing Home: What Do You Do Next?
Here are some steps you should take immediately following the involuntary discharge of your loved one from a nursing home:
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Consult with an elder law attorney. The very first thing that you should do is to hire an elder law attorney. A lawyer can advise you of your rights, explain state and federal law and review your options for fighting an involuntary discharge.
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Ask for documentation of cause of discharge. If your elderly loved one is discharged involuntary, you should ask for a thorough explanation of why and evidence in support of that reason. For example, if the loved one is evicted because the nursing home claims that it cannot care for the resident to the necessary extent, ask for documentation of this claim.
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Appeal or file a complaint. You have the right to appeal an involuntary discharge or file a complaint with the state if you believe that your elderly loved one has been discharged in violation of federal law or for reasons that are economic or retaliatory in nature. You also have the right to request a hearing to contest the discharge (or, in some cases, a transfer).
When you are given a notice of discharge - which is required to be issued at least 30 days before discharge is to occur, according to West Virginia law - the notice will include information about your right to request a hearing, the date by which you must request a hearing and the procedures you must follow in order to request a hearing.
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It is important that you act immediately if you are given notice of discharge. This is because the notice of discharge must be given before discharge actually occurs, and you have the right to file your appeal and/or request a hearing during this window of time.
In fact, if you file an appeal, your loved one cannot be moved until the hearing is held.
You can learn more about nursing home discharge laws, notice of discharge and your rights following a discharge notice at Medicare.gov.
Contact Our Experienced West Virginia Elder Law Attorneys
Involuntary discharge is one of the most common nursing home complaints. An eviction or transfer raises questions about the violation of the rights of a nursing home resident.
If your loved one is evicted or transferred, and you need legal help, contact our experienced Charleston elder law attorneys at Mani Ellis & Layne, PLLC.