Why nursing homes illegally evict Medicaid residents
At its core, the practice of illegally evicting Medicaid patients is financial. Nursing homes have a strong incentive to prioritize residents with more lucrative payment sources, such as Medicare or private pay, over those on Medicaid. Medicaid reimbursement rates are often significantly lower than Medicare's, which can lead facilities to engage in illegal transfers to increase their profits. This financial imbalance drives several common, unethical tactics.
First, a facility may pressure a resident to leave once their short-term Medicare coverage, which offers higher reimbursement, expires. The resident, who may have recently experienced a hospitalization, is encouraged to find a new facility as they transition to long-term Medicaid, despite federal law requiring the facility to accept them. Second, some facilities may claim they can no longer meet the resident's needs, even if those needs were the same when the resident was admitted. This is a false pretext often used to remove residents deemed difficult or expensive to care for.
Finally, some nursing homes may refuse to readmit a hospitalized resident by claiming their bed is no longer available. This illegal practice, known as "hospital dumping," is particularly distressing for residents who rely on the continuity of care provided by their facility.
What are the legal reasons for a nursing home discharge?
Federal law, primarily the Nursing Home Reform Act of 1987, established clear protections for residents against involuntary transfer and discharge. For a discharge to be legal, it must be based on one of six specific reasons and include a detailed, 30-day written notice.
Here are the only six legal reasons for an involuntary discharge from a nursing home:
- The resident's needs cannot be met by the facility: This applies only if the resident's needs exceed what can be provided in any nursing home setting, not just that specific facility.
- The resident's health has improved: A resident may be discharged if their health has improved to the point where they no longer require skilled nursing care.
- Endangerment to others: The resident's presence endangers the health or safety of other individuals in the facility.
- Non-payment: The resident has failed to pay for their stay after receiving reasonable notice. However, a resident cannot be evicted for non-payment while a Medicaid application is pending.
- Facility closure: The nursing home ceases to operate.
- Failure to apply for coverage: While transitioning from Medicare, the resident fails to apply for available Medicaid or private pay after appropriate notice.
Comparison: Lawful vs. unlawful evictions
Understanding the difference between a legal and illegal discharge is crucial for residents and their families. An improper eviction is often characterized by a facility's failure to follow proper procedures or by their attempt to exploit a resident's payment status.
| Feature | Lawful Involuntary Discharge | Unlawful Involuntary Eviction |
|---|---|---|
| Basis for Action | Strictly one of six federally defined reasons (e.g., non-payment, danger to others). | Reasons not explicitly allowed by law, typically for financial gain. |
| Reason for Discharge | Clearly documented medical or safety necessity, or genuine non-payment after notice. | Vague claims of inability to meet care needs, resident "dumping" for higher-paying patients, or retaliation. |
| Notice Requirements | Requires a detailed, 30-day written notice stating the reason, new location, and appeal rights, except in emergencies. | Often involves abrupt verbal demands, shorter notice periods, or lack of proper documentation. |
| Appeal Process | Resident is informed of their right to a state hearing and can remain in the facility while the appeal is pending. | Facility may ignore or discourage a resident's right to appeal, moving them before the process is complete. |
| Medicaid Status | A change from private pay or Medicare to Medicaid is not a legal reason for discharge, as long as the facility accepts Medicaid. | Eviction is often initiated during or after a transition from a higher-paying source to Medicaid. |
How to fight an illegal nursing home eviction
If you or a loved one receive an involuntary discharge notice that seems illegal, there are important steps you can take to protect your rights. Remaining in the facility and immediately starting the appeals process is essential.
1. Don't move
The most immediate action is to refuse to leave. Do not panic and move out, as this can make it harder to reverse the action. You have the right to remain in the facility while your appeal is pending, unless a court-ordered eviction has been issued.
2. File an appeal
The written notice from the nursing home must include information on how to file an appeal with the state agency. You typically have 10 to 30 days to request a hearing with a state hearing officer, who will review the case. Filing an appeal within the designated timeframe prevents the facility from moving you until a decision is reached.
3. Contact the Long-Term Care Ombudsman
Reach out to your local Long-Term Care Ombudsman Program immediately. These advocates are mandated to protect the rights of residents and are often the most frequent source of help for those facing eviction. An ombudsman can intervene, educate you on your rights, and even attend the appeal hearing with you.
4. Consult an elder law attorney
An elder law attorney can provide legal counsel and representation throughout the appeals process. They can help identify whether the facility has violated federal or state law and can sue the nursing home for damages if necessary. In some states, attorneys can also file for an injunction to prevent the transfer.
5. Document everything
Keep a detailed record of all interactions with the nursing home, including dates, names, and what was discussed. Save copies of the discharge notice and any other correspondence. Good documentation is key to supporting your case during an appeal.
Conclusion
Illegal evictions of Medicaid residents from nursing homes are a serious and persistent problem, often fueled by financial incentives. However, residents are not without recourse. Federal laws like the Nursing Home Reform Act protect residents' rights and strictly limit the circumstances under which an involuntary discharge can occur. By understanding their rights, refusing to move, and utilizing advocacy resources like the Long-Term Care Ombudsman and legal aid, residents and their families can effectively challenge illegal evictions and ensure a safe and stable environment for their care.
Keypoints
- Illegal Evictions are Real: Medicaid patients are sometimes illegally evicted by nursing homes for financial reasons, as facilities prefer higher-paying Medicare or private-pay residents.
- Know the Legal Grounds: A nursing home can only legally discharge a resident for one of six specific reasons, such as non-payment (after proper notice), endangerment to others, or improved health.
- Illegal Tactics Exist: Common unlawful tactics include pressuring residents to leave after Medicare benefits expire, falsely claiming inability to meet care needs, and refusing to readmit a hospitalized resident.
- Fight Back with an Appeal: Residents have the right to appeal an involuntary discharge by requesting a hearing with a state officer, and they can remain in the facility while the appeal is pending.
- Ombudsmen are Advocates: The Long-Term Care Ombudsman Program provides free advocacy services to residents facing discharge and is a critical resource for resolving disputes.
- Legal Aid is Available: An elder law attorney can provide legal representation, help identify rights violations, and file lawsuits to prevent an illegal eviction.
Faqs
Q: What is “patient dumping”? A: Patient dumping is the illegal practice of a nursing home transferring or evicting a resident, often a low-income Medicaid recipient, to make room for a more profitable patient. This can include refusing to readmit a hospitalized resident.
Q: Can a nursing home evict me for non-payment if my Medicaid application is still pending? A: No, it is illegal for a nursing home to evict a resident for non-payment while their Medicaid application is pending. The facility must allow time for the application to be processed and cannot act on non-payment grounds until the process is fully resolved.
Q: What is the first step I should take if I receive an eviction notice from my nursing home? A: The first step is to stay put and refuse to move. Then, immediately contact your state's Long-Term Care Ombudsman and begin the process of filing an appeal with the state agency.
Q: How do I find my local Long-Term Care Ombudsman? A: You can find your local Long-Term Care Ombudsman by contacting your state's Department of Aging or by using the Eldercare Locator service. Their contact information should also be included in any official discharge notice you receive.
Q: Can a nursing home legally evict me for being “difficult” or having advanced dementia? A: No. Claims of a resident being "difficult," disruptive, or requiring too much attention are not legally valid reasons for eviction. The facility is responsible for providing care to individuals with complex needs, including those with dementia.
Q: What should I do if the nursing home ignores the appeal process and tries to move me anyway? A: If a nursing home attempts to proceed with an involuntary transfer during a pending appeal, this is illegal. You should contact your Long-Term Care Ombudsman and an elder law attorney immediately. Legal action can be taken to prevent the transfer.
Q: Do I have to move to a shared room if I switch from private pay to Medicaid? A: A nursing home can change your room from a private to a shared one once you transition to Medicaid, but only if they have established a policy allowing this for all residents, regardless of payment source. They must also provide proper notice and allow for an appeal.
