Dear Hayek,
I heard about a court case involving a woman with dementia who was evicted from a nursing home. I worry this could happen with my sister, as she has dementia and can become angry and aggressive. What does someone do if this happens to a family member?
Thanks,
E. Victett
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Dear E. Victett,
The court case you described involves Gloria Single, an 82-year-old woman with dementia in California. Please read today’s “Ask the Expert” article for more details on this case.
Nursing homes sometimes try to remove residents that they perceive as disruptive or challenging, such as individuals with dementia who are aggressive or have other behavioral symptoms. These facilities claim that they “cannot meet the resident’s needs” as an excuse for evicting them. This cannot be true, because once nursing homes open their doors to residents, they have already determined they CAN meet the residents’ needs. What is happening is called “dumping,” and it’s an illegal practice.
To help provide insight on what to do if a loved one is illegally discharged, let’s look at the reasons and what to do in each instance:
– Medicare Coverage is Ending: The end of Medicare coverage is not sufficient cause for involuntary nursing home discharge. Legally, the resident must be given a reasonable amount of time to come up with another source of payment, such as private pay or Medicaid.
What to do in this situation: Contact an experienced Elder Law attorney, such as Evan Farr, to apply for Medicaid immediately or to protect assets first and then apply for Medicaid at the appropriate time.
– Private-Pay Resident No Longer Has the Funds: As mentioned, the nursing home resident needs to be given a reasonable amount of time to come up with another payment source. If a Medicaid application is pending, a nursing home resident cannot be evicted.
What to do in this situation: Again, contact an experienced Elder Law attorney, such as Evan Farr, and apply for Medicaid immediately.
– Nursing Home Claims it “Cannot Meet the Needs of the Resident”: A nursing home resident can be involuntarily transferred legally if the nursing home cannot meet their needs. However, a nursing home may claim they cannot meet a resident’s needs, but in reality, do have the capability to meet their needs. If this is the case, an involuntary transfer is illegal.
What to do in this situation: Again, contact an experienced Elder Law attorney, such as Evan Farr, to appeal any threatened involuntary transfer or discharge. As long as there is a pending appeal, a nursing home resident cannot be forced to move out of the facility.
– Nursing Home No Longer Accepts Medicaid: This is extremely rare, and typically only happens when a nursing home is performing so badly that it loses its Medicare and Medicaid certifications. But if it does happen, although the nursing home does not have to accept new Medicaid-funded residents, they cannot kick out the ones they already have.
What to do in this situation: Again, contact an experienced Elder Law attorney, such as Evan Farr, to appeal any threatened involuntary transfer or discharge. Until a hearing decision has been made, a resident of a nursing home facility cannot be forced to leave.
– After Rehabilitation, the Nursing Home Claims there is No Long-term Care Bed Available: Legally, a nursing home is required to hold a resident’s bed for a period upon hospitalization, but typically requires a bed hold fee. For residents on Medicaid, despite the length of hospitalization, the nursing home must readmit the individual as soon as a bed is available, and must allow the resident or the family to pay a bed hold fee.
What to do in this situation: Persons on Medicaid should be persistent on readmittance and keep checking if there are available beds. If the nursing home makes it clear that they do not plan to readmit the individual, you can file a complaint with the state long-term care ombudsman, but your best bet is to hire an Elder Law attorney, such as Evan Farr, to file an appeal or to help get your loved one into a different nursing home.
What a Resident/Family Can Do
If a nursing home resident is being pressured to leave, has been threatened with being evicted, or has received a written notice of discharge and does not feel they are ready to be discharged, there are steps that can be taken.
- Don’t panic and move the nursing home resident: Remember, the nursing home must provide a written discharge notice a minimum of 30 days prior to the effective discharge date.
- File an Appeal: An appeal should be filed with the appropriate agency in the appropriate jurisdiction.
- Apply for Medicaid: For persons who have run out of Medicare coverage and can no longer pay privately for nursing home care, an application for Medicaid should be filed. Consult an experienced Elder Law attorney, such as Evan Farr, to get the process started as soon as possible.
Hope this helps!
Hayek
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