Increasing Use of Evictions in Nursing Homes: A Tool to Get Rid of Difficult Patients?

George IndestBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On May 8, 2016, the Associated Press (AP) covered a news story on the increasing rates of eviction in nursing homes and other health facilities. According to the AP, nursing homes are increasingly evicting their most challenging and difficult residents.  Those targeted for eviction are frequently poor and suffering from dementia, with families unsure of what to do, according to residents’ families. According to the AP, removing them allows staff members to avoid the demands of labor-intensive patients in favor of ones who are easier and more profitable. To read the original article from AP, click here.

A Spike in Patient Evictions.

The Associated Press allegedly conducted an analysis of federal data from the Long-Term Care Ombudsman Program and found that complaints about discharges and evictions are up about 57 percent since 2000. It was the top-reported grievance in 2014, with 11,331 such issues logged by ombudsmen, who work to resolve problems faced by residents of nursing homes, assisted living facilities and other adult-care settings.

Why This Increase in Patient Evictions?

The article published by AP conjectures that the involuntary discharge often happens “because the resident came to be regarded as undesirable — requiring a greater level of care, exhibiting dementia-induced signs of aggression, or having a family that complained repeatedly about treatment,” advocates say.

Federal law allows unrequested transfers of residents for a handful of reasons: the facility’s closure; failure to pay; risk posed to the health and safety of others; improvement in the resident’s condition to the point of no longer needing the home’s services; or because the facility can no longer meet the person’s needs.

Though that final category is often cited in evictions, advocates dispute how often it fits.

What Happens When a Patient Becomes a Danger?

The American Health Care Association (AHCA), which represents nursing homes, offers an opposing view of the discharges and evictions, explaining that in some cases it is “lawful and necessary to remove residents who can’t be kept safe or who endanger the safety of others, and says processes are in place to ensure evictions aren’t done improperly.”

Whatever the facility’s reasons are, family members are upset and increasingly filing complaints.  At The Health Law Firm, we represent assisted living facilities (ALFs), skilled nursing facilities (SNFs), group homes and home health agencies, as well as licensed health professionals, in defense of civil litigation, defense of investigations and surveys by state and federal agencies, defense of complaints filed against licenses, administrative hearings and in litigation seeking to evict unsuitable residents, as well as on other legal matters.

To read one of my prior articles on patient abandonment in home health care, click here.

Health Facilities Cannot Place Their Staff and Other Residents at Risk by Retaining an Unsuitable Resident.

The AP story, emotional and sensational, fails to objectively analyze the real problem.  Let’s just forget reality for a minute or two and the AP story gets some traction.

Most Nursing facilities and virtually all assisted living facilities, are staffed and operated to handle non-dangerous, nondisruptive patients.  They are meant to be the homes of the residents.  They are not lock-down mental health facilities that hold people against their wills or monitor them one-on-one 24 hours a day. There are other health facilities set up to do this, and when residents needs this type of attention, they should be immediately transferred to one.  The problem usually arises when the patient or the family want to fight the transfer to a more appropriate facility.  Then an eviction must occur.  The facility must do this to protect its other residents, to protect its staff and to protect that resident from him or herself.  There are probably many more suits involving complaints of resident on resident violence than there are evictions.  There are probably far more cases of resident violence against staff that aren’t even reported in most instances.

No resident wants to be the room mate of a dangerous, disruptive person.  What about their rights?

If you are a landlord and have rental properties, let’s say and apartment house, and you have a disruptive tenant or one who fails to pay his or her rent, isn’t it permissible to go to court and use the legal process to evict them?  Or does the tenant have the right to live there forever, do what he or she wants, drive out the other tenants and not pay rent?  If you are a landlord that has tenants that don’t pay rent and must occasionally be evicted, as most apartment complexes have experienced, you could also say about them that this is “because the resident came to be regarded as undesirable” or “they are probably from the lowest income group,” as AP indicates about nursing home residents evicted.

Contact Health Law Attorneys Experienced with Representing Health Facilities and Health Professionals.

The Health Law Firm and its attorneys represent ALF, HHA and nursing homes and their employees in a number of different matters including  defense of civil litigation, plaintiff’s litigation seeking to evict unsuitable residents incorporation, preparing contracts, defending the facility against malpractice claims, licensing and regulatory matters, administrative hearings, and routine legal advice.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Sources:

“Nursing homes turn to eviction to drop difficult patients.” Modern Healthcare. (May 5, 2016). Web.

Sedensky, Matt. “Nursing Homes Turn to Eviction to Drop Difficult Patients.” ABC News. (May 5, 2016). Web.
About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: Nursing home evictions, discharges in elderly care patients,  Long-Term Care Ombudsman Program, difficult patients, home health care agencies, labor-intensive patients, legal representation for nursing homes and home health agencies, health care defense lawyer, health law, The Health Law Firm

The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 2016 The Health Law Firm. All rights reserved

New OIG Guidance Publishes on Permissive Exclusions from Federal Health Care Program Participation

Miles Indest HeadshotBy Miles Indest, J.D./M.B.A candidate at Tulane University: Law Clerk, The Health Law Firm

On April 20, 2016, the U.S. Department of Health and Human Services Office of Inspector General (OIG) released updated non-binding criteria that disclosed when a company or individual can be barred from participating in Medicare, Medicaid, and other federal health care programs.

The OIG has permissive authority to exclude a person or company from participation in federal health care programs for engaging in certain prohibited conduct, such as false claims or kickbacks. The OIG has consistently asserted that there is a presumption in favor of exclusion. The new guidance updates the OIG’s position by stating that its presumption in favor of exclusion is rebuttable in certain situations. Importantly, the OIG guidance outlines those situations and the risk factors that trigger an exercise of its permissive authority.

Four Factors May Affect OIG’s Decision to Exclude an Individual or Entity.

In its release, the OIG outlined four non-binding factors that signal a compliance risk and can affect its decision to pursue an exclusion: (1) the nature and circumstances of the prohibited conduct; (2) the conduct during the Government’s investigation; (3) any significant ameliorative efforts; and (4) the history of compliance.

First, the OIG will evaluate the nature and circumstances of the bad actor’s conduct. For instance, conduct that causes physical, mental, or financial harm to others increases compliance risk, thereby increasing the likelihood that the OIG will pursue an exclusion. Similar to the Department of Justice’s heightened focus on individual accountability, the OIG stressed that it will scrutinize an individual’s role in planning or leading unlawful conduct, which increases compliance risk.

Second, the OIG will assess the bad actor’s conduct during the Government’s investigation. If that person obstructed or impeded the investigation of the unlawful conduct, then the OIG will be more likely to pursue an exclusion. Notably, the OIG stated that a prompt response to a subpoena is “expected” and will not favorably affect the risk assessment.

Third, the OIG will weigh the bad actor’s ameliorative or remedial steps taken after the prohibited conduct occurred. For example, an entity that takes disciplinary action against individuals responsible or the conduct will lower its compliance risk. Similarly, individuals that receive new training or retain a mentor to improve their health care practice will face a lower risk of exclusion.

Finally, the OIG will focus on the bad actor’s history of compliance with the OIG. Importantly, the existence of a compliance program will not affect the risk assessment— likely another “expected” requirement of health care organizations. In contrast, the absence of a compliance program will increase compliance risk and the likelihood that the OIG will pursue an exclusion.

The OIG update ultimately reflects the government’s increased expectations of compliance programs and heightened scrutiny of individual wrongdoing. As federal agencies continue to prioritize the prosecution of fraud and abuse, health care organizations and practitioners would be wise to proactively address these concerns internally.

Contact Health Law Attorneys Experienced in Defending Against Action to Exclude an Individual or Business from the Medicare Program and Assisting in Reinstatement Applications.

The attorneys of The Health Law Firm have experience in dealing with the Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS), and defending against action to exclude an individual or business entity from the Medicare Program, in administrative hearings on this type of action, in submitting applications requesting reinstatement to the Medicare Program after exclusion, and removal from the List of Excluded Individuals and Entities (LEIE).

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: Miles Indest, J.D./M.B.A. candidate, will graduate in May 2016 from Tulane University Law School and the Freeman School of Business. He has served three years as a member of Tulane Law Review, and currently serves as the Writing Skills Chair of Tulane Moot Court.

Sources:

“Criteria for Implementing Section 1128(b)(7) Exclusion Authority.” U.S. Department of Health and Human Services Office of Inspector General. (2016). Web.

Dani Kass. “HHS Watchdog Lays Out New Grounds For Exclusion List.” Law360. (2016). Web.

KeyWords: Health law, Office of Inspector General, exclusion list, defense lawyer, exclusion, OIG, OIG exclusion list, Florida defense attorney, reinstatement, application for reinstatement, OIG hearing,Medicare exclusion, Medicare reinstatement, Removal from List of Excluded Individuals and Entities, LEIE, Florida defense lawyer, defense attorney, The Health Law Firm

The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 2016 The Health Law Firm. All rights reserved.