From unlawful eviction to improper use of physical restraints, there are common themes of neglect, abuse, and wrongdoing in the over 15,000 nursing homes across the country. This is why organizations like Justice in Aging @justiceinaging are fighting to educate families of nursing home residents. Their recent publication, “25 Common Nursing Home Problems- & How to Resolve Them” is an excellent resource. In this week’s episode,we welcome guest Eric Carlson, directing attorney of Justice in Aging, to talk about five common nursing home problems.
Schenk: Welcome back to the Nursing Home Abuse Podcast. My name is Rob Schenk.
Smith: And I’m Will Smith.
Schenk: And we’re a little under the weather. Today is a very informative episode. I was perusing the Internet the other day as I’m known to do, and I came upon a whopper of a resource over at JusticeInAging.org. It is a – I was saying it was like a white paper meets brochure meets pamphlet meets treatise, but it’s really a book. It’s called “25 Common Nursing Home Problems and How to Solve Them,” and it was authored by Eric Carlson, an attorney with JusticeInAging.org.
Smith: Yeah.
Schenk: He’s a heck of a guy. He actually has been on this podcast before. He was on this podcast back in March of 2019 talking about assisted living facilities and the regulations, the lack of regulations I should say, on assisted living facilities across the country, but he’s very knowledgeable. He’s an attorney with Justice in Aging, but Will is here to tell you a little bit more about him.
Smith: Right. So we’ve had him on here before and he’s the author of a tremendously popular and useful legal treaty, “The Long-Term Care Advocacy,” put out by Matthew Bender and company, but Eric is the directing attorney of Justice in Aging, which is a national nonprofit legal advocacy organization that fights senior poverty through law, securing access to affordable healthcare, economic security and the courts for older adults with limited resources.
He’s got broad experience in many forms of long-term care services including home and community-based services, nursing facility care and assisted living facilities. He led Justice in Aging’s extensive research funded through the Commonwealth Fund on Medicaid-funded assisted living and currently is leading a project to assist consumer advocacy on Medicaid-managed long-term care services and supports in Florida and New Jersey. He counsels attorneys from across the country and co-counsels litigation on consumers’ behalf. So we are very privileged to have Eric on the show today.
Schenk: Eric, welcome to the show.
Eric: Thank you, my pleasure.
Schenk: Eric, we mentioned at the top of the show about an excellent resource that your organization and you authored – Justice in Aging – it’s called “25 Common Nursing Home Problems,” and that’s kind of the genesis of why I wanted to have you on the show, to kind of walk us through that.
Smith: Just before we get in there, where is that? Where can people get that?
Eric: Go to the website of Justice and Aging, which is at JusticeInAging.org, and right now, it’s on the homepage. If for some reason, it doesn’t pop up immediately on the homepage, go to our Publications and choose “Issues Brief.” It’s available for free. If you scroll through the steps, you can download it on your own computer and print out as many copies as you’d like.
Smith: And we’re going to put that information up on the screen.
Schenk: Yeah, so people can – it’s on the screen if you happen to be watching this, but if you’re not watching it, again, go to JusticeInAging.org, and it’s the very informative document called “25 Common Nursing Home Problems,” and it’s a beast. It’s very good. But that’s why we wanted to have you on, Eric, just to have you walk us through five of them. That’s what we called the episode, is “Five Common Nursing Home Problems,” and we’ll have you walk through the first one. Pick them at random. Just pick one and let’s go for it.
Eric: Let me do this. Let me start with a theme that covers all five or all 25 as it were.
Schenk: Sure.
Eric: So this comes from my work representing residents and I know when I first started doing this work quite a long time ago, I was originally a little befuddled. I remember some of my early clients, some of the early situations, like I remember one person in particular who came in with an eviction problem, and the wife told me, “Well they told me my husband is in a Medicare bed and he has to leave within 48 hours because his Medicare ended.” And I was a young lawyer at the time and I looked at the law, that didn’t seem right, but here’s this national chain telling this woman that this is how it is. I go, “How can that be? What’s wrong with me as a lawyer if I can’t understand what’s going on here?”
What it turned out was I did understand what was going on here, and it’s an easy explanation is what they were proposing was just flat-out wrong. It was illegal. It still illegal. And that’s the unifying message behind all of these. The full title of the book is “25 Top Nursing Home Problems and How to Resolve Them,” and so for each of the problems, we listed the initial statement – “This is what you’re going to hear from the nursing home. This is what they’re going to tell you,” and it’s wrong. We want to tell you that right up front – if you hear that, your ears should perk up, bells should go off. They’re not telling you the truth. And then there’s a statement of what the law is and then an explanation of what people can do, should do to push back against that.
Schenk: Yeah. Excellent.
Smith: So…
Eric: So we can look at some of the… I think one of the problems all start with is number one because it’s so common, which is discrimination against Medicaid-eligible residents, and so residents often hear, “Oh, Medicaid doesn’t pay for that,” whatever it might be, one-on-one attention, the level of monitoring that you need, some level of rehabilitation services for example. You ask for it and a facility says, “Medicaid doesn’t pay for that,” and then they’ll go on and say, “Medicaid doesn’t pay us enough. We lose $3.78 every day on you. Medicaid doesn’t pay that enough.”
Whatever it is, and our response to that is that’s wrong that the nursing home has chosen to sign up with Medicaid, and when they sign up for Medicaid, they promise the state government, they promise the federal government that they provide good care, meet people’s needs completely in return for the Medicaid payment. And so it’s completely dishonest and unfair for the nursing home to accept the money and then to turn around and tell the weakest link in this chain, that is the resident, that we’re not going to give you what you need. All of us who are in business, whether it be lawyers or anything, if you take money from your clients and then say, “Oh, I’m going to do a bad job because I don’t consider the money that you’re paying me enough,” it doesn’t work like that and it shouldn’t work here either.
So people need to push back against that, refuse to get in conversations about money. The facility can’t be airing out their supposed financial problems. It’s not the resident’s problem. They need to comply with the law. There’s a provision of the Nursing Home Reform Law that requires nursing homes to do whatever is necessary to get residents to the highest practicable level of functioning and wellbeing, and they have to do that. And the specifics, you talk to the facilities, you may be able to enlist help from the local ombudsman. There’s a grievance procedure now in nursing facilities where if you make a grievance with a nursing facility, they have a grievance official, the nursing home has to respond in writing and there’s also the ability to make a complaint to the local survey and certification agency. But the big message is if you’re Medicaid eligible and 60 percent of residents around the country are, don’t accept second-class treatment. You shouldn’t be getting second class treatment.
Smith: Amen. Absolutely.
Schenk: Yeah, and then that’s a problem – I don’t know, what panel was it at the Consumer Voice Conference last year that the resident dumping, basically the Medicare, Medicaid, 100-day rule, people were just getting dumped. That was a huge problem.
Smith: And dumped to unsafe spaces.
Schenk: Yeah.
Smith: You know what I mean? That’s a huge problem as well. I don’t think people understand what their rights are when it comes to evictions. So is that something – Georgia’s one – unfortunately, we’re one of the worst places for nursing homes in the nation, but is that overall a huge problem nationally is just these evictions to unsafe places?
Eric: Let me take two pieces of that, and first I’m going to take a step back for a second and say that the law we’re talking about in reference to federal Nursing Home Reform Law applies across the country to any nursing home that accepts any money from Medicaid or Medicare. So it basically is every nursing home in the whole country. There’s maybe a handful that don’t have federal certification, but it’s a tiny handful of very, very high-end facilities that don’t have to worry about Medicaid or Medicare. So probably anybody listening to this, if you’re dealing with a nursing home, it’s almost certain that that nursing home is subject to the law that we’re talking about here.
So again, across the country, it applies to every resident in the nursing home regardless of reimbursement source. So even though the application law initially is tied to a sea of Medicare and Medicaid, it protects every resident even if the resident is paid out of pocket, for example, or through a long-term care insurance policy or whatever. So basically almost every resident that you’re going to deal with, if it’s you, it’s somebody in your family, a friend, a parishioners, whomever, is protected by this law.
So evictions – the law governs evictions from a nursing home. There’s only six reasons a nursing home can cite to force people out of a nursing home – failure to pay, the nursing home is closing, the resident needs more care than a nursing home can provide, the resident doesn’t need nursing home care anymore, the resident is a danger to others, a danger to the safety of others or a danger to the health of others. Those are the six.
And so as you mentioned, one of the issues is even assuming that the transfer discharge is proper. Just for the sake of this example, we’ll assume that the nursing home in addition has an obligation to make sure the resident goes to a safe place, and in these transfer discharges, the resident has a right to an appeal hearing, an administrative hearing. In most states, an administrative law judge hears it in the nursing home, sometimes I believe it’s over the telephone. But one of the defenses in those cases for the resident is the nursing home doesn’t have a good plan of transfer. And you see some completely inadequate proposals from nursing homes to send people to a daughter’s house, to a local hospital, hotels, homeless shelters, things like that. So that’s one reason why the hearing officer should reject the proposed transfer discharge.
You mentioned a Medicare issue. I’m going to try to discuss that briefly because that’s a clear problem across the country. Many – a lot of admissions to nursing homes happen after a hospitalization. A person’s in the hospital for a broken hip or whatever it is, and then goes to a nursing home. Oftentimes he or she will have rehabilitation services in the nursing home under Medicare for a limited period of time. It maxes out under fee for service Medicare at 100 days, but the average number of Medicare-funded days is 27. So that’s the average.
So a lot of nursing homes these days try to focus on these Medicare-funded people because Medicare pays a reasonably high rate. It’s a preferred reimbursement source. So its business plan is to bring these Medicare people in, and then as soon as the 27 days, for example, or 20 days or 35 days or whatever it is for that person, they want to push that person out so they can replace them with another Medicare person.
So you’ll hear nursing homes say things like, and this is that false statement here, “Oh, I’m sorry. We’re just a rehab facility. We focus on short-term rehab. We don’t take custodial level residents.” And all that is wrong. When a person’s Medicare reimbursement ends, he or she has a right to stay, pay out of pocket or under Medicaid, and it’s the extent the facility tries to say that’s not possible, the nursing home is not telling the truth. So people need to push back against that when they hear this language about, “Oh, we’re only short term,” or “We don’t do custodial care,” and the nursing home’s trying to push them out when they don’t want to be pushed out.” They need to just stay put.
And if a nursing home wants to force them out, the nursing home has to give notice and cite one of these six reasons. There’s the notice list of appeal rights, the list of contacts for the local ombudsman program, and then the person can make the appeal and contest it.
And just quickly to wrap up that part of the eviction discussion, the number one message to contesting evictions is don’t move. And it sounds like very remedial advice, and of course that’s obvious, but it’s actually not because people, I get it, feel intimidated by it. They’re in the nursing home and the nursing home is telling them they have to get out and the staff is obviously around them 24 hours a day and they get jittery, but people need to resist the jitters in that case, understand that the nursing home is trying to take advantage of them, and when you have these situations, when you have an eviction threat, the easiest way to lose is just to panic and move because you lost right there. You just need to sit tight and force the nursing home to think about it and force the nursing home to comply with the law.
Smith: Well I actually had a question. In those six reasons, there seems like there’s a lot of wiggle room with “we can’t meet your needs.” Is that the case? Because some of them are pretty clear – either you’re paying or you’re not paying. You’re a threat to somebody else or yourself.
Eric: I’m going to use that question to make a broad point is that if the law is interpreted properly, residents should almost always win. But for the non-payment situations – I get that, if you don’t pay, you’re subject to eviction the same way in an apartment setting or anything else. But in these other situations, residents very infrequently are a real danger to safety or health. Nursing facilities may allege that, but it’s almost always, the resident’s difficult. He or she has dementia of some sort and has calls out at night, doesn’t follow instructions. You see these allegations that the resident is noncompliant with the service plan or resistant and that sort of thing, and the response should be, “Yeah, that’s why they’re in a nursing home.” Nursing homes are set up to care for people who have dementias. There has to be competence for dementia. You can’t blame a nursing home resident for having Alzheimer’s. There needs to be competence within the nursing home to just understand that and to provide good dementia care. So that covers a lot of those proposed transfer discharge, is the nursing home trying to impose improper standards on a nursing resident, and the nursing home resident is doing exactly what he or she should be doing and it’s exhibiting, maybe exhibiting some “behaviors” that are just expected if you have a dementia, for example. So those are the danger ones.
And as you mentioned, we could not meet your needs, so that should be interpreted as “You need more care than any nursing home can provide.” So nursing homes are set up, licensed and certified to provide a high level of care. Again, a lot of these situations, we’re just talking about issues that come from dementia. It’s one thing – so it’s very rare that a nursing home resident really has a healthcare condition that can’t be met in a nursing home. Maybe when you get into ventilators or some sort of intravenous type of feeding situation, I don’t know – I’m a little bit out of my competence when you get to the high end of some of those questions as to where to draw the line, but at some point, you’re talking about those sorts of interventions, then maybe you can be talking about this person doesn’t belong in a nursing home anymore. He or she belongs in a sub-acute setting for example.
But that’s not the case in the vast majority of these proposed transfer discharges, the ones where I’ve represented people. It’s usually somebody with dementia who’s “difficult” or “challenging,” or however you want to describe it. But the person is absolutely within the level of care that’s appropriate for a nursing home and you know that oftentimes because the transfer discharge notice will say, “Alas, we cannot meet your needs anymore. May we propose to send you to another nursing home, somebody down the street?” So the response to that is, well, if this second nursing home, if you think that’s a proper referral place for this purpose, why can’t you provide that care?
And the new federal regulations, some have been effective a couple years now, are better on that point. So when a nursing home alleges these, “We cannot meet your needs,” they’ve got to have documentation that specifies what the need is that supposedly can’t be met, their efforts to meet that need, whether it’s a good faith effort to meet that need, and an explanation of why the recipient facility, nursing home number two or facility number two, whatever it is, can meet that need. So it’s trying to tease out exactly what the issue is to avoid some of the problems we’ve had in the past where facilities, like you pointed out, say, “Oh, we can’t meet your needs.” Now they have to say what’s the need, have you tried to meet it and what is it this second place can do that you supposedly cannot.
Smith: Yeah, like maybe if it’s a psychiatric ward or something like that, that might be…
Eric: Yeah, legitimate. I mean, right, if a person legitimately needed a locked psychiatric setting, legitimately, then yes, but again, in all the cases that I’ve ever presented with or discussed, that’s not what’s going on. So that should be the standard. Is it really true that these people’s needs can’t be met in a nursing home?
And in our medical system, the nursing home covers a broad expanse of care needs. You have to be able to say if this person doesn’t need a nursing home, what does the person need the nursing home can’t do? Like I said, that you suggested, then we’re looking at people who need locked psychiatric settings or people who need subacute who are comatose or the high care ventilator care, things like that.
Smith: Yeah. Well let’s talk about disregarding residents’ preferences, one of the problems you have in your thing, because this is something that’s near and dear to me, having worked in nursing homes. I would always be very upset when the staff would just be like, “Well look, you can’t have this,” or “You can’t do that” or “She’s not allowed to have that.” The phrase “she’s not allowed to have that” should never be uttered by anyone working in a long-term care setting.
Eric: Yeah, I do think this is a very central point. So the example in the book, we’ve got multiple examples, but one of them is when you wake up in the morning or go to bed at night, you’re just told, “This is the way it is. You’re waking up at 6. You’re going to bed at 8:30. Our activities are whatever they are,” and the presentation is, “Well that’s how it is.” And that’s wrong.
If you go into the Federal Nursing Home Reform Law, which all these nursing homes have to comply with, there’s an obligation to make reasonable accommodations for residents’ resting preferences. And so there’s some ambiguity to what’s reasonable, and you can imagine at some point, your residents just make extravagant requests for, I don’t know, full-on orchestras for their birthdays, that’s obviously way off on one end of the spectrum, but that’s not what residents are asking for, right? It’s not like residents are asking for full-on orchestras. They’re just saying, “Hey, can I just sleep in as long as I want?” Really simple things – “Can you try to provide me with food that I have liked for my whole life?” – that sort of thing, or “I hate bingo” or “What I really like to do is “I want to walk around. I want to get outside once a day,” or “I like frisbee. I like bridge. I like building models.” I don’t know – whatever, “I like talking about books,” whatever it is, the nursing home’s got an effort to make reasonable accommodations and not just say, “This is the way we do it and you’re going to have to deal with it. We staffed it in a way that the staff goes down the hall starting at 6 in the morning and you’re in Room 14, and so that means somebody will by around 6:45, and that’s how it is because that’s how we do things. And we play bingo because that’s ‘entertaining’ 50 people at a time with only one staff person and it’s really simple and the TV is on,” all that sort of thing, and there’s an obligation in the federal law to accommodate resident preferences.
And there’s more mentioned in the federal law now about person-centered care and it’s supposed to be based on the resident, not what’s easiest or cheapest or customary for the nursing homes. And a little message to the nursing homes here, and it’s a message to providers is it’s just good business to do this, and some of the better providers – I do run into some, when I present this to residents or other people, I’ll ask if people have knowledge of nursing homes that are actually doing this, providing person-centered care, and you get about 10 percent of people who say, “Yeah, I know somebody who’s actually doing a good job of that.” Anyways, so that point is there that if you want to distinguish yourself, if you want to be proud of the work that you do, if you want your customers to be happy and say good things about you and give you good online references and report cards, the idea of resident-centered care.
Another term is culture change. It’s to change the culture in the nursing homes, so residents feel happier and so the direct care staff feel more empowered. There’s a lot of work these days on the facility, on the provider side as well saying that that’s just the right thing to do and it should be a win-win.
Smith: Exactly. Well Eric, this guide is extremely informative.
Schenk: We’ll make sure that we put this on the screens and we’ll make sure that the website’s up and there are notes so that our audience can access it. Again, if you’re tuning in late, Eric is going over some of the problems that are contained within a booklet called “25 Common Nursing Home Problems and How to Solve Them,” and it’s an excellent resource.
Schenk: Very good. Well Eric, thank you again for agreeing to come on the show.
Smith: And being flexible with our mistake there.
Schenk: Yeah, technical problems.
Eric: Not a problem, that’s just life. It’s my pleasure.
Schenk: Awesome. Thanks, Eric.
Eric: Okay. Sure thing.
Schenk: Okay, bye-bye.
Eric: Bye now.
Smith: This is an extremely informative 50 pages. It’s succinct. It’s clear. It doesn’t really get into technicalities, which is good, because it communicates effectively across a broad range of topics. So JusticeInAging.org, if you have a loved one that may go into a long-term care setting, it is absolutely imperative that you download this from JusticeInAging.org and that you read through it because nursing homes…
Schenk: Keep it with you. It’s got everything in it.
Smith: …whether maliciously or ignorantly or whatever are not telling you the truth oftentimes, especially things about how you can be evicted, what your process is, what your rights are, all of this is important and it’s not common knowledge.
Schenk: Yeah. So what’s going on? Just as a reminder, this is the final week of it being May, and it’s Older Americans Month, so go hug your elder relatives. Go give them a hug. Give them a high-five. And that’s going to conclude this episode of the Nursing Home Abuse Podcast. You get a new episode every Monday morning either wherever you download your podcast from or online at NursingHomeAbusePodcast.com or our YouTube channel. And with that, we will see you next time.
Smith: See you next time.
