Legal-Ease: An Attorney’s Perspective: Illegal Nursing Home Evictions

October 25, 2019 • Columnists, Legal-Ease

Judd Matsunaga, Esq.

This is a follow-up article to the “Getting Old Is Not for Sissies” article (Pacific Citizen, June 28-July 11, 2019) in which I said, “In order to protect your loved one from nursing home abuse and neglect, you need to know the law and your legal rights.” In this article, I want to discuss the illegal evictions of nursing home residents.

Although nursing homes and rehab centers are full of caring nurses and caregivers, the facilities themselves are in the “business” of making money. Therefore, decisions are often made not because it’s about which type of care is best for your loved one, but because it’s about money. Sorry — it’s the nature of the beast.

Since Medicare pays a relatively high rate, many nursing homes follow a business model that emphasizes bringing in residents for “short-term” Medicare payment, i.e., up to 100 days. But then, when Medicare payment ends, they push those residents out to be replaced with new Medicare-funded residents.

Then, of course, the process repeats itself, with residents continually being brought in for their Medicare payment, but then discarded when Medicare payment ends. This strategy clearly violates the Nursing Home Reform Law. Under the no-financial discrimination rule, a change in payment source must not lead to eviction. And change in payment source is not one of the six legitimate reasons for eviction.

But how many families know this? Very few. So, if the nursing home tells 10 families that it is discharging their loved one since Medicare payment has run out, and nine families take their loved one home, the nursing home makes out like a bandit. You need to know your rights under the law.

If you hear, “We are a short-term rehabilitation facility, and you need long-term chronic care,” DON’T MOVE OUT!!! Request an appeal hearing. In the hearing, the resident or representative should emphasize that the resident has paid or is prepared to pay for the nursing home stay, through either Medicaid or private payment.

As a practical matter, the short-stay-only eviction almost never reaches the hearing stage because the nursing home has no legitimate argument. The real decision-point occurs when the nursing home falsely claims that a resident must move out. If residents panic and leave, they lose. But if they stay put, the nursing home generally will change its tune and accept the residents’ payment.

The Nursing Home Reform Law allows eviction only for six reasons: The resident has failed to pay; the resident no longer needs nursing home care; the resident’s needs cannot be met in a nursing home; the resident’s presence in the nursing home endangers others’ safety; the resident’s presence in the nursing home endangers others’ health; and the nursing home is going out of business.

If a nursing home believes that it has grounds to evict a resident, it must give a written notice to the resident and resident’s representative.

In general, the notice must be given at least 30 days before the planned eviction, though in some cases, a shorter notice period is allowed. If the resident appeals, a hearing officer decides whether the nursing home will be allowed to carry out the eviction. Hearing procedures vary from state to state.

The nursing home is justifying eviction by claiming that it cannot meet the resident’s needs (#3). This is often employed when the resident or resident’s representative complains about something. They say, “You complain about how poor the care is here, so you can be evicted under the reason that the nursing home cannot meet your needs.”

A “cannot meet your needs” claim should be measured by what a nursing home is required to do under the law, and not by the nursing home’s potentially deficient care. If a nursing home is required by law to provide the needed care, then the nursing home cannot base an eviction on being unable to meet the resident’s needs.

If a nursing home claims that it cannot meet the resident’s needs, the resident’s doctor must document the resident’s unmet need(s), the nursing home’s attempts to meet the resident’s needs and the ability of a proposed new nursing home to meet those needs.

Of course, there is also something particularly unseemly in a nursing home weaponizing the resident’s care complaints to justify eviction.

In general, a resident’s complaints should lead to the nursing home improving its care, rather than evicting the resident. Also, a resident has a right to make requests and complaints without retaliation.

Judd Matsunaga is the founding attorney of Elder Law Services of California, a law firm that specializes in Medi-Cal Planning, Estate Planning and Probate. He can be contacted at (310) 348-2995 or judd@elderlawcalifornia.com. The opinions expressed in this article are the author’s own and do not necessarily reflect the view of the Pacific Citizen or JACL. The information presented does not constitute legal or tax advice and should not be treated as such.

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