When Do Nursing Home Evictions Qualify as Abuse?
Abuse and NeglectThe decision to place a loved one in a skilled nursing facility is not one that concerned family members take lightly. Whether you have a family member who is aging and can no longer remain at home safely, or your loved one has a disability or is recovering from a serious injury and requires more care than you can realistically provide at home, you want to depend on these facilities to keep your loved ones safe.
Families who have learned that nursing homes discharged their loved ones without following proper procedures or feel nursing homes are discharging their loved ones without proper plans for follow-up care should contact a nursing home abuse attorney right away.
Nursing Home Eviction Statistics
According to the Centers for Disease Control (CDC), more than one million residents live in long-term nursing facilities across the United States. While most of these residents are between the ages of 65 and 84, nearly 45 percent, there are nearly 17 percent below the age of 65. This raises concerns for everyone, particularly when a nursing home attempts to discharge patients against their will or evicts nursing home patients illegally.
Understanding Nursing Home Evictions
Nursing home evictions are not legal; however, according to My Elder, an advocacy group, more than 8,000 of these evictions occur annually. This does not mean that a nursing home does not have any legal methods for removing a patient from a facility. Facilities may transport patients to other facilities, or nursing homes may discharge patients under certain conditions.
These conditions include:
- Payment issues – If residents have failed to pay their outstanding balance, a nursing home can discharge a patient if it follows proper legal procedures.
- Safety issues – If a resident poses a danger to the safety or health of other patients in the facility, a nursing home may discharge that patient.
- Needs issues – When a resident no longer needs the care provided in a nursing home, or the nursing home can no longer meet the resident’s needs, the nursing home may discharge that patient.
- Closing – When a facility is closing, it will discharge all residents.
Even when nursing homes meet one of these conditions, residents and their advocates must receive proper notification in writing before the discharge.
COVID-19 and the Increase in Nursing Home Evictions
South Carolina has more than 2,000 long-term care nursing facilities, with more than 43,000 total beds. During the COVID-19 crisis, the state reported more than 1,500 cases of the disease and countless deaths, and by some news accounts, when accounting for the state’s morbidity rates, 41 percent of deaths in nursing facilities were traced back to COVID19.
The state does not yet have an accurate accounting of the number of nursing home residents that experienced an illegal eviction from South Carolina nursing homes to make room for COVID19 residents. Other states have reported significant spikes in illegal evictions to make room for COVID patients. One reason for the spike in illegal evictions—a facility makes more money from COVID patients than patients who pay privately or through Medicaid.
What is even more concerning about this trend is that, in many cases, not only were proper procedures ignored, but families were also not notified of these discharges. This meant nursing homes dumped those who needed ongoing care in hotel rooms with few resources or sent them to homeless shelters without the means or the necessities to care for themselves. Nursing homes discharged many residents without proper clothing, medication, or access to needed healthcare.
Standard of Care in Skilled Nursing Facilities
The Centers for Medicare & Medicaid Services mandates the basic minimum care that long-term care centers must provide to residents. There is a standard of care that emphasizes the quality of life of the residents of all facilities. At a minimum, every state must meet federal standards. While individual states may have their own regulations, all state regulations must be at least as stringent as the federal guidelines.
We expect our loved ones to feel safe in nursing homes. We anticipate that they will receive the care they need, be treated with dignity and respect, and remain safe. In South Carolina, nursing homes are subject to unannounced visits to ensure that they meet at least the minimum standard of care for each resident.
Procedures for Proper Discharge of Residents
There are specific procedures that nursing homes must follow to discharge a patient from a facility. The steps can prove complicated, however, and often, family members are unaware of their rights or the rights of their loved ones.
These are the typical steps that facilities must adhere to when discharging patients:
- Discharge planning – The resident, an authorized family member, or the resident’s legal representative must receive notice in writing of a pending discharge. Unless the discharge is an emergency, facilities must provide this notice at least 30 days before the discharge date.
When discharging a patient, facilities must provide a detailed report of the resident’s condition to the family or legal representative as well as to the resident. This report should include information about both physical and mental health.
Facilities must also prepare a post-discharge plan of care. This plan should include information regarding where the resident will reside following the discharge. Facilities should also include in their reports any additional pertinent information, including required medical equipment, care needed, services that the resident will need, and medications that the resident will require upon discharge.
The nursing home staff, as well as the patient and a family member or other legal representative, should remain involved in all aspects of the discharge plan.
The responsibility for the safe transfer of the resident, all personal belongings, as well as any patient funds, rests with the nursing home.
- Appeals process – Once the facility completes all of the necessary procedural elements, the patient still has a right to appeal an involuntary discharge from a nursing home. The discharging facility must provide information about how to appeal the discharge in the written notice of discharge that the resident, a loved one, or a legal representative receives. The South Carolina Long Term Care Ombudsman, which oversees the 2,039 long-term care facilities in the state, provides families with assistance. Keep in mind, however, that the ombudsman handles more than 8,000 complaints and appeals annually.
Options When a South Carolina Nursing Home Illegally Discharges a Resident
While COVID19 has exacerbated illegal discharges from nursing homes, this is not a new problem. Illegal discharges have been an ongoing issue for several years, and in fact, illegal discharge is the leading reason for filing a nursing home complaint.
One of the challenges that families face when learning a patient is on the verge of being involuntarily discharged is how to prevent the discharge. The first step is to seek immediate help from an elder abuse lawyer.
While it may seem unusual to classify discharge from a nursing facility as abuse, involuntary and inappropriate discharge does indeed constitute a form of neglect. When this occurs, families should have an advocate on their team who understands South Carolina and federal nursing home law.
An attorney who is familiar with both the state and federal guidelines that nursing homes must meet can ensure that a nursing home hears your voice and the voice of your loved one. Should a nursing home discharge your loved one without following the proper process, you should know what options are available to you and how to hold the facility accountable for its unlawful actions.
Holding Nursing Homes Accountable for Illegal Evictions
When a nursing home involuntary discharges a resident and dumps them in a homeless shelter or hotel without proper medication or care, the resident may suffer significant harm. The individual’s physical and/or mental health may deteriorate. It may take days, weeks, or even months before a family member becomes aware of the eviction.
Once family members or other legal advocates do become aware of the eviction, they must take immediate steps to ensure the former nursing home resident receives:
- Proper medical attention – Immediate medical attention is crucial. This is particularly true if the individual has missed doses of medication, has suffered physical harm or has medical or mental conditions that demand immediate assistance.
- Alternative housing – If a family member can’t accommodate the former nursing home resident at home, the family member must begin the painstaking and time-consuming process of seeking appropriate and safe housing for the individual. This could prove particularly challenging since it requires finding a facility with an open bed.
Families can spend hundreds of hours searching for a new facility, their loved ones may suffer from emotional trauma, and the discharge may even exacerbate or create new health challenges. Nursing homes must face accountability for their actions when illegal evictions harm former residents and their families. An elder abuse lawyer can help.
Nursing Home Lawsuits for Unlawful Eviction
A family can hold a nursing home accountable for unlawful eviction by filing a civil lawsuit. Even when the family has the backing of an ombudsman who helps the family navigate finding a safe place for the elderly individual, the nursing home will likely merely face a fine on the state, and potentially the federal, level. Your loved one will sadly become a mere statistic of unlawful evictions recorded by Medicaid and the state. You can change that narrative and help discourage this type of behavior in the future, however, by holding the nursing home legally accountable for its actions.
To file a civil lawsuit for this type of neglect, families must demonstrate certain elements. First, the family must prove that the action taken by the nursing home resulted in harm or a loss of rights to a loved one. Since a nursing home resident has a right to shelter and should expect a standard of care, an illegal eviction victim qualifies as a legal loss of rights. Furthermore, the harm to a resident’s physical or mental health from an illegal eviction is an actionable event and evidence of neglect.
Families can hold nursing homes accountable for financial losses, including unforeseen medical bills resulting from the facility’s actions, costs associated with the care of the victim while identifying suitable shelter, and other financial losses associated with the illegal eviction.
You should not have to live in fear that your loved one will face illegal eviction from a nursing facility to make room for a patient who can improve the financial status of the facility. Additionally, you should not have to worry about not receiving adequate notice of any change in care plans, including transferring your loved one to a new location. Should any of these issues arise, you should report this type of wrongdoing to the proper authorities and contact a lawyer immediately.
Protect Your Loved One’s Rights
When your loved one suffers harm because a nursing home acted poorly, you have the right to seek
justice. An elder neglect attorney can help make sure that the responsible parties face accountability for their actions. You don’t need to fight back alone; a skilled attorney can help you understand what rights state and federal law affords nursing home residents.
No matter what the nursing home has told you, facilities cannot force residents to leave unless explicitly allowed under federal law. Additionally, the resident must have exhausted the appeals process, and the facility must have followed the appropriate follow-up care plans.
Whether you are the victim of an unlawful nursing home eviction, or you are a family member or legal representative of a victim of an unlawful nursing home eviction, contact an experienced nursing home today. A lawyer can help you hold the nursing home accountable for its actions and prevent another family from having to suffer this type of undignified treatment.
Nursing homes have an obligation to care for our loved ones. Should a nursing home fail to follow the law regarding discharges, an experienced nursing home attorney can help you hold the facility financially accountable for its failures.
Nathan Hughey, an attorney and fourth-generation South Carolinian, founded Hughey Law Firm in 2007. Before that, he spent five years defending nursing homes and insurance companies. Leveraging his experience, he now advocates for those injured or wronged by such entities, securing over $220 million in verdicts and settlements.