Updated: May 28, 2020
NBC NEWS November 29th, 2019
BISHOP, Calif. — When Jamie Moore arrived home on a Thursday evening in March, she was surprised to find her mother-in-law in her living room. Glenda Moore, 67, had been sitting in her wheelchair for hours. Without anyone to help her to the bathroom, she’d had an accident. She was also having trouble breathing. “It was awful,” Jamie Moore recalled.
Glenda Moore told Jamie that she had been discharged from the Bishop Care Center nursing home, in Bishop, California. She had been living at the nursing home — a sprawling brick building on the side of a state highway — for several weeks, recovering from a back surgery that unexpectedly left her unable to walk much or take care of herself.
Several days earlier, nursing home administrators had shown Glenda Moore a letter from Medicare, explaining that her rehabilitation coverage was ending. She was unable to pay the nursing home’s more-than-$7,000 monthly fee, so, thinking she had no other options, she left. (A relative dropped her off at Jamie’s home, where Glenda Moore had lived previously, without telling Jamie.)
“They pushed her out and she was not ready,” Jamie Moore, who has worked as a nursing assistant, said. “She was not ready at all.”
As the family later learned, Glenda Moore had the right to appeal the Medicare decision, or to apply for Medicaid — and, if she qualified (which she later did), to stay in the nursing home on Medicaid for as long as she needed nursing care. Instead, Moore’s family said, Moore became one of thousands of Americans discharged against their wishes or evicted from nursing homes each year. (The Bishop Care Center maintains that Moore's health had improved and that she voluntarily left the facility, and points out that they gave her a document noting her right to appeal the Medicare decision.)
Nationally, long-term care ombudsmen, who advocate for elderly and disabled residents of nursing homes and assisted living facilities, received 10,610 complaints about discharges and transfers in 2017, up from 9,192 in 2015. The ombudsmen, whose work is federally mandated and state-funded, receive more complaints about discharges and transfers than any other grievance.
The complaints likely expose just a small fraction of the problem, said Kelly Bagby, vice president at the AARP Foundation, a nonprofit that serves vulnerable people over 50.
“Most people don’t even know they have rights,” she said. And many complaints never result in a formal state investigation.
Advocates, experts and the federal government say that nursing homes tend to evict low-income, longer-term residents who receive Medicaid, to make room for shorter-term rehabilitation patients who are covered by Medicare. Medicare reimburses nursing homes at a higher rate than Medicaid, so it’s more lucrative for facilities to house Medicare patients who stay for short stints before recovering and moving elsewhere.
In California, for example, the average state Medicaid reimbursement for a nursing home is $219 per day, according to the California Association of Health Facilities, while Medicare may reimburse more than $1,000 per day, but only for up to 20 days, when patients must begin paying part of the fees. (Medicare coverage ends completely after 100 days.) Advocates say that eviction notices are often handed out around the 20-day mark.
“It is illegal to discriminate against residents based on payment source, but it happens all the time,” said Tony Chicotel, attorney at the California Advocates for Nursing Home Reform, a nonprofit that supports long-term care residents in the state. “It feels like there’s just a tidal wave of cases.”
Chicotel said he receives calls every day from panicked residents or family members being threatened with discharge from a long-term care facility.
Deborah Pacyna, director of public affairs at the California Association of Health Facilities, a trade association representing nursing homes, told NBC News that improper and illegal discharges are “a really rare thing,” and that the issue is exaggerated by media attention.
She added that California’s Medicaid program, Medical, does not provide “adequate funding” to care for many patients with complicated health issues and behavioral disorders. “Medicare pays more. Those people are rehab patients; they’re in and out,” she said. “That is how they break even,” she added of nursing homes. “Society’s problems are manifesting themselves on the doorsteps of nursing homes.”
Nursing homes are legally permitted to evict residents under several conditions:
if a resident’s health improves sufficiently
if his presence in a facility puts others in danger
if the resident’s needs cannot be met by the facility
if he stops paying and has not applied for Medicare or Medicaid
or if the facility closes.
Facilities are obligated under federal law to give 30 days’ notice, in writing, and also to work with the resident on a transition plan.
Bagby, of the AARP, said that while some residents are issued formal discharge letters with advance notice, others are asked or pressured to leave with “no due process rights, no notice.”
In one case in Los Angeles, in April 2018, Ronald Anderson said he was woken at night by the nursing home staff at the Avalon Villa Care Center and told he was being evicted. Anderson, 51 at the time, had moved into the facility over a year earlier to recover from a partial foot amputation. He said he was loaded into a van and dropped off on a sidewalk in downtown Los Angeles, which has one of the largest homeless populations in the country, according to a report from the California Department of Public Health.
Anderson, who is diabetic, was left in a wheelchair without his insulin or testing supplies — on a street cluttered with tent encampments and broken glass. The Department of Public Health report noted that he could have slipped into a coma or died.
“You’re just a piece of garbage,” Anderson said, from the Union Rescue Mission homeless shelter in Los Angeles where he now lives. “They’ll kick you right out on the curb.”
Avalon Villa Health Care, which runs the nursing home, later paid $450,000 to settle a civil complaint filed by the Los Angeles city attorney in response to Anderson’s case and other evictions of homeless residents, with the money going toward civil penalties, hiring and training Avalon Villa staff and finding temporary housing for the facility’s homeless residents. The city attorney set up an emergency hotline and invited members of the public to report cases of resident abandonment.
A lawyer for the Avalon Villa Care Center told NBC News that the facility “strongly disputes that it has inappropriately discharged any patients” and “rejects the allegations of the city attorney.”
The Rev. Andy Bales, director of the Union Rescue Mission, said “resident dumping” from nursing homes and hospitals is so common that the shelter set up a security camera outside — which Bales calls “the dump cam” — to capture evidence of it. He said he is aware of at least four instances from the last year in which people have been dropped off on nearby streets by hospitals or nursing homes — though he believes the number is higher. As a result of the security camera, he said, “They won’t dump them off in front of us anymore.”
California’s long-term care ombudsmen received 1,404 complaints about nursing home evictions in 2018, up from 1,022 in 2014. Several lawsuits concerning nursing home discharges have recently been filed in the state.
Molly Davies, a California long-term care ombudsman, said that in addition to receiving more complaints about evictions, “there has also been an uptick in the egregiousness of some of these cases.”
In some instances, she and other experts said, nursing homes drop residents off at a low-cost motel and pay for a night or two. “We’ve seen cases with residents who have dementia put into a van and dropped downtown onto the streets, without the ability to care for themselves,” she said.
The California Department of Public Health does not track where nursing homes discharge patients, according to a department spokesman, nor does the California long-term care ombudsman program. In some instances, however, routine state inspections and inspections following complaints uncover problems.
In a 2018 incident, described in a California Department of Health and Human Services report, a Rosemead nursing home discharged a resident to a hotel without any medical equipment and without ensuring that the hotel was “a safe environment.” The female resident still required assistance with activities such as using the toilet and bathing, and was found to lack “the capacity to make her needs known.” The nursing home received a federal “deficiency” citation.
In another case that resulted in a deficiency citation, a nursing home resident who “needed extensive assistance” to move between locations in his bedroom was discharged to a motel — and, a few days later, ended up in a hospital for emergency care.
These practices are not unique to California. In Maryland, one nursing home resident was dropped off in Baltimore, a city she had never been to, according to the state attorney general’s office. In another instance, a Washington County Sheriff’s deputy accused a nursing home of discharging a resident to a storage unit on a hot summer day.
Even when residents appeal eviction decisions through a state process and win the right to return to a nursing home, that nursing home sometimes refuses to readmit them, a group of plaintiffs told the Ninth Circuit Court of Appeals found in July. The case is still pending, but the appeals court agreed with the plaintiffs that federal law does not allow “meaningless show trials that allow nursing homes to persist in improper transfers and discharges.”
The California Department of Health Care Services, the California Department of Public Health and the federal Centers for Medicare & Medicaid Services all declined to comment, citing department policy not to comment on pending litigation.
In 2016, the Centers for Medicare & Medicaid Services strengthened regulatory requirements around nursing home discharges and transfers, specifying that residents cannot be evicted for nonpayment while they are in the process of applying for Medicaid or appealing a Medicaid denial. A year later, the agency announced an initiative to prevent illegal nursing home discharges, acknowledging that “some discharges are driven by payment concerns, such as when Medicare or private pay residents shift to Medicaid as the payment source.”
So far, the agency has approved $784,630 for a program in California that focuses on training nursing home staff on discharge regulations, a spokeswoman said in an email. The agency also provided $84,00 for a smaller project in Montana. Beyond that, the agency is not acting directly to address illegal evictions but is instead encouraging states “to propose projects that seek to address facility-initiated discharges that violate federal regulations,” the spokeswoman said by email.
Advocates for nursing home patients said more is needed. They want both federal and state agencies to do more to enforce existing rules on evictions.
“We haven’t seen any change in practice,” said Davies, the California long-term care ombudsman. “We haven’t seen a reduction in inappropriate transfers and discharges. There are certain enforcement tools that they have that they aren’t using consistently.” These tools, she said, include substantial fines.
But the federal government has made changes that reduced fines against nursing homes that harm or endanger residents. Nursing homes used to receive fines for each day a violation was observed, but after a change the Trump administration implemented in July 2017, nursing homes are now usually fined just once per retroactive violation.
Robyn Grant, director of public policy and advocacy at the National Consumer Voice for Quality Long-Term Care, an advocacy group, says this change can affect the way illegal evictions are punished. For instance, a nursing home that evicts a patient and refuses to readmit the person may be fined one time, instead of every day that the resident is denied access to a bed.
In the first 18 months following the change in guidelines, nursing homes across the country paid about $47 million less in fines for all violations compared to the previous 18-month period, said Dr. David Gifford, senior vice president of quality and regulatory affairs at the American Health Care Association, the nursing home industry’s main lobbying group.
Gifford told NBC News that the change was not about saving the industry money, but was meant to ensure consistent standards. He said the new fine structure incentivizes nursing homes to report violations and improve resident care.
After she left the Bishop Care Center nursing home in March, Glenda Moore grew sicker. Over the following weeks, she cycled among her son and daughter-in-law’s home, several emergency rooms and another nursing home an hour away. According to her son and daughter-in-law, she was diagnosed with a bladder infection and pneumonia.
“I don’t want to be a burden on the kids,” Glenda Moore told NBC News in an interview in April. “I had retirement insurance, I had Medicare, I thought I was completely covered. That doesn’t count for anything … I had no idea.”
In May, her family appealed her discharge from the center. At a hearing conducted by the California Department of Health Care Services, the nursing home’s administrator said Glenda Moore had left willingly, according to the state’s summary report.
The state’s hearing officer ultimately found that the facility “failed to meet all of the regulatory-mandated discharge planning requirements.” However, the hearing officer ruled in favor of the nursing home, noting that Glenda Moore agreed to leave and was given paperwork notifying her of her right to appeal Medicare’s non-coverage decision.
By late July, her weight had dropped to about 80 pounds. She was hospitalized, and on Aug. 2 she died from acute renal failure and cardiopulmonary arrest.
Her family believes she wouldn’t have become so sick if she had been able to stay in the Bishop Care Center for a few weeks longer, until she was more stable.
Jamie Moore said her mother-in-law’s experience has changed the way she thinks about her own retirement.
“I never thought about it much until now. It scares the crap out of me,” she said. “The system is the system. What are you doing to do?”
Article Submitted By: Richard C. Tizzano, Elder Law & Estate Planning Attorney
Sherrard McGonagle Tizzano & Lind