Federal and state regulations limit the circumstances in which a nursing home may evict a resident. Based on the health circumstances of the average nursing home resident, eviction from their normal routine or surroundings can have catastrophic circumstances. Sadly, illegal evictions are on the rise. On this week’s episode, nursing home abuse attorney Rob Schenk welcomes attorney William Alvarado Rivera @billyriv of AARP Foundation Litigation @aarpfoundation to discuss how AARP is fighting illegal evictions.
Schenk: Hey out there, welcome back. My name is Rob Schenk and I am the host – I am your host, the hostess with the most-ess for this episode of the Nursing Home Abuse Podcast. I thank you for joining us. We’re going to have a great episode today. We’re going to be talking about a growing problem in nursing homes today and that’s the problem of wrongful eviction. At the top of the show, I said “discharge” as in discharging a resident from the nursing home, and I feel like that’s the term of art that is often used, but as I’ll get into the discussion with our guest, I think “eviction” is a better use of the term because these are residents. This is a home. And when you’re kicked out of your home, that’s usually called an eviction. But it’s a growing problem for the reasons we’re going to discuss, most of them have to do with money.
But I am bringing on a really great trial lawyer on this program. He is with the AARP. He’s a fantastic guy, glad to have him on the show. His name is Bill Rivera. Bill is the senior vice president for litigation at the AARP Foundation where he leads and provides strategic direction for AARP Foundation Litigation, AFL.
As the head of AFL, Bill manages a team of about a dozen litigators who advocate nationwide for the rights of people aged 50 and older, addressing diverse legal issues that affect their daily lives and ensuring that they have a voice in the judicial system. The team litigates and files amicus briefs in cases revolving, among other things, employment discrimination, employee benefits, housing consumer protections and elder justice.
Immediately prior to joining the AARP Foundation, Bill served as deputy associate general counsel and chief of litigation in the U.S. Department of Health and Human Services Office of the General Counsel. Bill is a graduate of Brown University and Stanford Law School. He spent a year as a Fulbright Scholar at the University of Stockholm in Sweden and has served on a number of nonprofit boards including as president of the Hispanic Bar Association in the District of Columbia, so he is extremely qualified, and I would say he’s in the trenches. He’s fighting the good fight in courts to bring justice for nursing home residents who’ve been wrongfully evicted and I’m glad we get to pick his brain on that in this episode. Bill, welcome to the show.
Bill: Thank you so much.
Schenk: Great. So Bill, one of the main reasons why I wanted to have you on the show today was to talk about this issue with what I call evictions, some people say discharged or whatever, but it’s basically evictions, but when a resident is wrongfully evicted from a nursing home. And I wanted to get your perspective on that because you’re an authority on this. So I guess for our listeners out there who are mostly just family members – they’re not attorneys, they don’t have an understanding of the law, let alone landlord-tenant law or nursing home regulations, but just from a layman’s standpoint, when is it okay for a nursing home to discharge or evict a resident?
Bill: Again, thanks so much for having me on. I think this is really a very topical question and it really is one of the, if not the leading complaints about nursing facilities in the nursing facilities in the country, and it is such a frightening and traumatic experience for residents and their families as you know. At minimum, it’s stressful and disruptive to worry about I think eviction is the right term – you’re being thrown out of your home, and that type of trauma leaves people frightened and disoriented, isolates them from their loved one if they can’t get back to where they’re supposed to be. They can really deteriorate physically and mentally, so it’s a huge problem.
It is okay for nursing homes to discharge residents under very specific circumstances, and Congress was very aware of the circumstances and the challenges that a wrongful eviction can present, so they really limited the circumstances under which a facility can discharge someone. So if you’re a federally certified nursing facility, and most of them are, that means they accept Medicare and Medicaid patients, and even if you are not a Medicare or Medicaid patient, this is true, you can only be discharged for six specific reasons, and it’s helpful, I think, for families to understand that the resident has a right to remain in the facility and they cannot be discharged unless one of those six reasons is provided and documented and done properly.
So those six are: 1) when the transfer or the discharge is necessary for the resident’s particular welfare and the resident’s needs cannot be met in the facility, 2) the discharge is appropriate because the resident’s health has improved sufficiently so the resident no longer needs the services provided by the facility, so if you don’t need the services, that might be a reason to say, “Okay, it’s time for you to leave,” 3) the safety of the individuals in the facility is in danger due to the clinical or behavioral status of the resident. Obviously the facility has a legitimate interest in the safety of the people who work and live in its facility, and if you are actually threatening the safety of other people due to your behavioral or clinical status, that may be a reason for discharge.
4) The health of the individuals in the facility would otherwise would be in danger – again, thinking about other people in the facility that the facility is responsible for. 5) The resident has failed after a reasonable and appropriate notice to pay for a stay at the facility. Facilities are running business. They are entitled to be compensated for the services that they provide, but as we talked about as well today, the change from Medicare to Medicaid, for example, is not a basis for evicting someone, so long as you have, for example, applied to get Medicaid, if your Medicare coverage for the stay has run out, you still have a right to remain in that facility. And finally 6) is if the facility ceases to operate, and that one is not that common but still does common, but obviously if a facility is no longer going to be in business of providing those services, then it can discharge the individuals who are in the facility.
And even if they can find one of those six reasons, there are still a number of procedural rights that individuals have to make sure that the basis is correct and that the facility is actually behaving according to regulations.
Schenk: And Bill, just so the listener knows that you’re not pulling this out of thin air, these are coming directly from the federal regulations that govern nursing homes, like you said, almost all nursing homes, and it’s because they accept Medicare and Medicaid. They do so in exchange for being regulated by these rules.
Bill: That’s exactly right. The Nursing Home Reform Act has provisions that apply for both Medicare and the Medicaid programs so that if the facility accepts Medicare or Medicaid, again, that’s going to be most facilities, then even if you are not yourself a Medicare or Medicaid resident, those rules still apply to you.
Schenk: So those are the six reasons that they’ll give, but why is illegal eviction so common? What’s the reason why it’s happening so often across the country?
Bill: It really is an increasingly common problem, as I said, the leading complaint about nursing homes and thousands of people a year throughout the country are finding themselves facing illegal eviction, and I think that there are several reasons. One, as Cyndi Lauper sang, money changes everything.
Schenk: That’s a good reference.
Bill: So nursing facilities want the highest paying customer they can get. There’s no secret there. So money is one of the drivers, certainly not the only one, but a significant one. If you can get private pay to pay higher rate for that stay than Medicare, that’s great. If you can get Medicare to pay instead of Medicaid, that’s great because in particular with respect to Medicare and Medicaid, Medicare has a higher reimbursement rate than Medicaid, so if you are running a nursing facility, you would like to have the opportunity to serve as many of the higher paying residents as you can. And because as we said, you have a right to be there, once you’re there, provided you qualify for the services of a skilled nursing facility, then once you’re there, you have a right to be there, and it can be difficult for nursing facilities to get their heads around that sometimes, and so unfortunately, they really have an incentive financially to try to turn people over so that they can have a better bottom line, especially if you can get rid of someone that’s perceived to be costly or difficult, which is a real problem.
The problem is more acute because these facilities are so often understaffed and the staff that they have are frequently undertrained and ill-equipped to deal with difficult but very common issues that arise in the nursing facility. Residents can communicate or behave in ways that are challenging in an everyday setting, yelling, acting out, wandering. It may be a lot easier to discharge a “difficult” resident than provide services that that individual resident is entitled to receive.
But nursing facilities exist to help care for the people who have physical and cognitive issues, and you can only be involuntarily discharged for those six reasons. Being difficult or needy or needing a lot of help isn’t one of those reasons.
In addition, you get away with it in part because a lot of people don’t know their rights, which I think is one of the great values of having a podcast like this to help educate people. People don’t know they have a right to 30 days’ notice, for example, before they are evicted or that they have the right to appeal the decision by the nursing facility. Many of those who are even aware of those rights are unable to exercise. Long-term care ombudsmen can be helpful but there aren’t enough of them and it’s difficult oftentimes to get that help that you need.
And then frankly in the situation that we are experiencing first hand with one of our clients, that even if you know your rights and you exercise them and you appeal and you get a successful decision that says that the nursing facility has wrongfully evicted you, there can be no meaningful enforcement. So we have a case where somebody was wrongfully discharged and her son valiantly representing his mom was able to appeal and the state agency said, “Yes, she was wrongfully evicted, and nursing facility, you need to take her back.” The facility essentially thumbed its nose at her and her son, continued to deny her readmission and frankly the state didn’t do anything about it. It’s pretty shameful and it’s frustrating and it compounds the problems that families face in that situation.
Schenk: So the money is the main driver from what I understand, and you touched on the difference between Medicare and Medicaid and reimbursement. For family members of nursing home residents who may not kind of understand that, can you kind of unpack what does that mean? What does reimbursement mean? What does Medicare mean? What does Medicaid mean? Why are they different? Why is it important from the nursing home standpoint and why is that the genesis for people being evicted?
Bill: Sure. Many people are familiar with Medicare, which will typically cover parts of your healthcare. It’s a vey complicated program for anyone who’s ever tried to navigate through that with Part A, Part B, D and so on, but essentially Medicare will cover for purposes most relevant here, part of your hospital stay. So people oftentimes will go into a nursing facility coming out of a hospital that they were treated at for some sort of acute need, and then they need to go to a nursing facility, because they’re not ready to deal with treating themselves on an outpatient basis, so they need some inpatient care. Maybe it’s some physical or occupational therapy. So Medicare, which generally will cover people 55 or older, will cover up to 100 days generally speaking for the care that is provided in skilled nursing facilities after they have spent at least three days in a hospital, and so if you were admitted to the nursing facility from the hospital where you stayed for a few days and you’re going in the nursing facility to help you recover from that condition you went to the hospital for, Medicare will pay for 100 days. That’s 20 days for full day, full payment, and then co-payment for another 80.
Medicaid is a program that is federal and state program that varies a little bit from every state, but generally speaking will cover lower income individuals. So Medicare is automatic because of age, Medicaid is principally based on income, and I think there’s a misconception in many that Medicare is the principal payer of nursing home and long-term care, and actually most of the nursing home care in the country is covered by Medicaid, not Medicare. They say Medicare is only going to be on a shorter term basis and Medicaid will cover longer term, but because of the way that each program is structured and rules that they have, Medicaid actually pays less for those services than Medicare, which gets back to, like I said earlier, the incentive for nursing facilities to try to get rid of lower paying Medicaid beneficiaries for a higher paying Medicare beneficiary for example.
Schenk: So that makes sense. So that’s kind of aimed to encapsulate what you just said for the audience is because often, not every time, but often Medicare particularly when there’s an acute case stay, there’s a nursing home ore rehab after that acute care stay, Medicare often pays for the first 100 days, at which time the individual either needs to private pay, pay themselves, or they can apply or maybe they were already eligible for Medicaid, and at that point, Medicaid kicks in, but the nursing home is not a huge fan of that because their profit margin is going to be cut because Medicaid does not pay for the same services as much as Medicare does.
Bill: That’s right. That’s right.
Schenk: And a lot of times in the press and in articles that I’ve read about the good work that you guys are doing at AARP, I hear about the Medicare 100-day rule, and that’s kind of what that is?
Bill: Right. Right, so that coverage for Medicare in terms of having 100 days, I think it is they’ll pay for 20 days in full and then the other 80 days there is a copayment or a daily coinsurance that they would share between Medicare and the individual. But after that 100 days, Medicare is done, so then as you said, someone would have to rely on private pay or oftentimes someone, if they don’t have the sufficient income or assets may newly qualify for Medicaid or may then make Medicaid-eligible, in which case the individual may be trying to change the status from having Medicare pay for that nursing home stay to having Medicaid pay for it.
Schenk: So tell me then about the wrongful evictions that you guys are fighting based on that specific story, that the nursing home says, “Yeah, we’ll take you,” but what they’re not saying to the resident is we’re willing to take for the hundred days while the money’s hot and then we’re going to throw you out after that. How widespread is that and tell me about essentially your understanding of that in the cases you’ve had.
Bill: This is a widespread problem. This happens as we are learning and getting more involved in this issue in states throughout the country and we’re seeing increased attention and activity at the federal level as well as the state level and in both the private and public sectors. So for example, the state of Maryland through its attorney general last year had settled a case involving a company called Niswanger Management and effectively was able to sue the company and settle to prohibit them from operating nursing facilities in Maryland because they were essentially dumping poor patients at homeless shelters or other inadequate living facilities as soon as they could no longer bill Medicare for their care, to your point of let’s try to get hospitals to send us, the facility, the prime, short-term, rehabilitative, Medicare-paying customers, and if our beds are filled with the lower-paying, frequently more intensively medically or otherwise needy, behaviorally challenging, Medicaid folks for whom we are not getting as much reimbursement, then we need to find ways to get them out, and there were some particularly egregious examples cited in that case.
We’re filing and have filed a lawsuit in California in which we represent a woman named Gloria Single and her son Aubrey. Ms. Single was then 82 years old. She lived in a facility in Sacramento with her 92-year-old husband Bill, and she was one of these people that the nursing facilities would say, “Well they were being difficult,” and if you remember, one of the criteria that you can actually evict someone for is they’re presenting some kind of danger to health or safety of others in the facility.
So the facility in our case called police to say that Ms. Single was acting out and that she was a threat to her own safety and the safety of others. The police come. They take her to the hospital. Within hours, the hospital looked at her and said, “She’s fine. She doesn’t need acute care,” and they said, “You can take her back now.” And the facility refused to take her back.
So think about that. You have your 82-year-old mother who lives with your 93-year-old father. You are now essentially denying her the ability to go back to where her husband is. She has cognitive impairments as it is. It’s traumatically undoubtedly to forcefully transport her from her home into a hospital and then she’s just laying in a hospital and not able to go back to be with her husband. So it’s a terrible situation unfortunately. This thing happens with great frequency.
She lived at the nursing facility for five years before this happened. She was in the hospital for four months. This is not just something that dragged on for a few days or a week or two while they sorted some things out. She was in that hospital for four months, and as you know, if you’re in the hospital, they’re not there to provide you with the kind of long-term care that a skilled-nursing facility is going to provide you. So within that four-week period in the hospital, she lost her ability to speak, her ability to walk. She deteriorated quite quickly because they’re really there to deal with her acute needs. They’re not there to make sure she’s getting the kind of occupational or rehabilitative therapeutic services that a nursing facility gives.
Eventually they found her another facility being away from her husband and further away from her son, so now this is becoming an even more isolating experience for Ms. Single, just an awful and traumatic situation. Her son, who is a wonderful client to have, is dedicated to trying to get his mom back into the facility to be with his dad and obviously make it easier for him to be able to visit and connect with his parents, files an appeal, actually has an hearing. The state issues an order saying that the facility did not satisfy the criteria for a lawful eviction, ordered the facility to take her back and the facility never took her back.
So we’ve learned more from colleagues throughout the country about this issue and our colleagues here within the AARP Family Enterprise Legal Counsel for the Elderly, which is the long-term care ombudsman for the District of Columbia, and really learning so much more about these awful stories like those of Ms. Single and got involved so that not just Ms. Single but all Ms. Singles out there can make sure that they have the right to remain in accordance with the federal regulations that apply. Not withstanding all of our efforts and the cases ongoing, we’re currently in discovery so that we not only have that individual facility but the whole family of facilities because we’re trying to make sure that the system overall is held accountable for these errors.
But Ms. Single unfortunately passed away recently, so she spent such a long period of time, the last 18 to 20 months of her life isolated from her husband because the facility found her essentially to be difficult to take care of, Medicaid patient who was not a resident who would be taking up some space and would cost too much to take care of appropriately, so she lost the opportunity to have her last days and months with her husband, adding additional stress, I’m sure, to him as well as to her son. We continue to represent her son so that we can get some meaningful change in behavior by facilities like Pioneer, not only in California but then looking more broadly for some national change.
Schenk: Wow, that’s a tragic story.
Bill: It really is.
Schenk: I wish you guys the best of luck on that. I hope that you guys get what you need in discovery to uncover what’s been going wrong with that chain and put a stop to it. But I just think it’s amazing that of the six reasons, I guess the only one they could try to throw against the wall and stick would be the one that’s either a danger to the others or a health danger or a safety problem or a health problem to others. Otherwise, I don’t know. Is that kind of what you’re seeing overall, that those are the two reasons that they give to throw these people out after 100 days? And then after any level of looking at the books, oh, everybody becomes unruly at approximately the 99th day.
Bill: That’s right. That’s right. So you see what we are seeing is claims about safety and health as well as the first basis where they say the resident’s needs cannot be met in the facility. That’s not really what that provision is meant to accomplish. It’s not “This person is too difficult and we can’t take care of him or her.” If a person develops a particular condition that your facility is not qualified to take care, that may be that then you need to transfer that individual to some other facility or environment because you don’t have the capacity to deal with something that you were not expecting or that that person didn’t come in with.
Schenk: Like they need to be quarantined or something or some component where they’re not equipped from a device or mechanical or physical standpoint to treat.
Bill: Right, not that, “Wow, this person’s dementia has gotten worse.” You’re a nursing facility. You deal presumably in this situation with dementia and cognitive impairments so that means that you need to do a better job of providing the care that that person needs. It’s again not that this person has become too difficult and it’s in the best interest of that individual resident’s welfare to be dealt with by somebody else.
Bill: That, I think, is often another cover that a facility will use to try to deal with people who are difficult, costly or otherwise require a more intensive level of expensive care that they would rather not have to provide.
Schenk: Right. Right. Well yeah, I mean that’s – I’m glad that case is ongoing. I’m glad that Aubrey the son has the wherewithal to keep it moving forward because I mean I think that as long as you all keep fighting, you’ll get the good result or at least from one standpoint, you’ll bring it to the court of public opinion.
Bill: Right, and I think that is an important place to us and other advocates to be is that you need not only some court victories and some helpful settlements that get at behavioral and systemic changes by the facilities, but I think we have already seen an increase in media coverage and in attention, even by the federal government and HHS issuing some guidance and memoranda about this problem. And so I think that court of public opinion is very powerful, getting states to really take ownership of a very serious problem and not only to empower and provide appropriate resources for the state long-term care ombudsmen who can be very helpful allies, but also to ensure that they put mechanisms in place to help to promote the compliance with rules that are already there. And frankly, recognizing that resources can be limited at the public level, if they can do some legislative changes or fixes to enable private entities to be able to bring lawsuits to hold these facilities accountable for those violations of federal law and standards of care. I think that’ll go a long with deterring bad behavior and in getting them to provide the services that people are entitled to.
Schenk: Exactly, well said. Bill, one more thing before we go, what are a couple of things that a family of a loved one that is facing wrongful eviction can do or what are a couple of resources that you may recommend for them? Where can they go?
Bill: So I think it is always helpful to try to get to know the long-term care ombudsman. They are available in each state. They are there to help be advocates for residents to identify any concerns that they have with the facilities. There is under the federal regulations now a requirement that the residents, that any residents of eviction have to trigger a notice to the state long-term care ombudsman, but the truth is as I said earlier, they’re under-resourced and overburdened in many respects, so getting notices like this on a monthly or other basis is not going to provide sufficient relief for families or opportunities to deal with the exercise of their rights for an appeal, for example, on ensuring both procedurally and substantively the facility is doing what it’s supposed to do.
So I think if you have a loved one in a facility, you should start getting to know the long-term care ombudsman’s office so that if you find that you are facing a situation like this, you can be proactive, because you really do need to be proactive in this environment. I think that oftentimes the state’s health agencies have resources for dealing with nursing home issues as well, but also I think the legal profession, your firm, organizations like AARP and AARP Foundation, CANA in California, Advocates for Nursing Home Reform and other organizations around the country can be very helpful in trying to connect the families and residents of facilities to legal and other services that can be helpful. The National Consumer Voice Long-Term Care is another good organization that has resources with respect to long-term care facilities and ombudsmen in every state and has resources on this issue as well.
Schenk: Fantastic. Those are great resources. We often have on this program ombudsmen not only from Georgia, but we’ve had ombudsmen from New Mexico, from Oklahoma. Ombudsmen are a great resource, a great group of advocates no matter what state you’re in.
Bill: Yeah, she is a dear friend and colleague, so we are always happy to help participate and to help spread the word. We recognize the work that we are engaged in here is very difficult, both legally and jurisprudentially but also on the human level and in a very personal way, so we really appreciate you doing this and being a leader in this space to help educate people and to alert people to their rights and talk about things that are really critically important to families across the country.
Schenk: Appreciate that, Bill, and again, hats off to you guys. You guys are fighting the real fight and we appreciate that. Awesome. Well Bill, thank you so much for your time and your expertise. Keep up the good work.
Bill: Thank you so much. I really appreciate it. It’s been a real pleasure.
Schenk: All right. I was telling Bill before we went to air that he has a voice for radio, probably a face for TV. I don’t know what he looks like at this point, but I found him to be extremely knowledgeable and extremely well versed in this and could rattle off those things off the top of his head. Not a lot of people can do that and that’s probably what makes him an excellent trial lawyer is that he can speak so persuasively and so well right off the top of his head. Great, great lawyer. Great guy.
But the AARP Foundation is a fantastic organization. Their litigation wing, we’ve had – as I mentioned, we had other members of AARP on the show before. They’re doing great work out there and we appreciate what they’re doing.
But that is actually going to conclude this episode. You can catch this podcast in general, you can catch us online on our YouTube channel or on our website, which is NursingHomeAbusePodcast.com, or you can check us out wherever you get your podcasts. New episodes every other Monday, that is bi-monthly, two times a month. What is that? Twenty-four times a year thereabout, give or take. Or you can go back and listen to old episodes. We’re now at Episode 140, so that’s 140 opportunities to learn about nursing homes, nursing home rights, residents’ rights, that kind of thing. We appreciate you being with us and with that, we will see you next time.