New York Estate Planning & Elder Law Blog
LEADING COMPLAINT ABOUT NURSING HOME IS EVICTIONS
On February 25, 2016 National Public Radio (NPR) ran a story about what is looking to become like a national epidemic: nursing home evictions. According to statistics between 8,000 and 9,000 nursing home residents complain each year about nursing home evictions. The problem with this statistic is that it only measures the complaints, not the actual evictions. As if not being able to measure the full extent of the actual problem is not enough, there is a larger, more grievous issue wrapped up in the issue of nursing home evictions. According to the ombudsman to the Federal Department of Health and Human Services, Administration on Aging, it is the number one complaint regarding nursing facilities. In many cases the nursing home wrongfully evicted the resident(s) but will not honor rulings that find that the nursing home wrongfully evicted the resident. The entity that decides if a facility wrongfully evicts a resident is not the same entity to enforce its own decision. Without a sister state agency to enforce its decision (much like one state honoring a sister state’s money judgment on full faith and credit), such legal endeavors by residents are simply an exercise in futility. The rulings are not worth the paper they are printed on. It is a prime example of a bureaucracy run amok; without teeth to enforce its own ruling. One can and should rightfully ask, why do the agencies even bother to engage in a hearing to only allow the offending party to blithely ignore its ruling?
FEDERAL CASE TO FORCE CALIFORNIA TO ACT
Some residents and activists filed suit in federal Court in San Francisco to force California to enforce its own rulings. Not surprisingly the state is defending its own actions. It claims that displaced or evicted residents have sufficient legal resources at their disposal to effectively deal with these matters. While California obviously does not have 8,000 to 9,000 improper evictions in the state each year, it only fined 11 nursing homes for wrongfully discharging nursing home residents. The remaining number are essentially stuck in prison in the hospitals that house them until they can find another nursing home to move to. To properly evict a nursing home has to meet a heightened standard to evict, as found under federal regulations relating to the admission, transfer and discharge of nursing home residents. The nursing home must:
- Inform the resident of the impending eviction in writing, if possible the residents relative and/or legal representative; and
- The reason for the discharge; and
- The location the resident will be transferred to; and
- A statement that the resident has the right to appeal the decision and the appropriate timeline to do the same; and
- The resident and/or their legal representative must be able to review their medical documents and other documents relied on by the opposing side; and
- The name and contact information to the national ombudsman for Long-Term care; and
- Notice that the resident may employ legal counsel to contest the matter and present witnesses at the hearing; and
It is important to keep in mind that sometimes facilities close. If this happens, the facility must inform the residents as soon as practicable. Other reasons for discharge of a resident relate to the well-being of other residents is at risk, a transfer is necessary on medical grounds or the resident’s health has improved.