Posted by: Matthew Frere & Kelly Frere on Nov 1, 2020

Journal Issue Date: Nov./Dec. 2020

Journal Name: Vol. 56 No. 9

An issue that is increasingly affecting seniors is being discharged or evicted — against their will and when they have nowhere else to go — from a hospital, long-term care facility or in-home care services.1

Unfortunately, this problem exists with little in the way of solutions. As the family’s lawyer, you need to know what resources are available — and be aware that there are not many.

Where is a Senior to Go?

If there is not another place for the senior to go when her placement is denied or a discharge is coming, the options are often limited. It may come down to the family figuring out how to care for the senior by taking turns, by finding an individual to help, or by finding a facility some distance away. 

A number of times we have received frantic calls from family members that a senior was going to be discharged from some level of care but was not well enough to live on her own. Perhaps there were not sufficient assets/income to pay for assistance. Perhaps there were no family members able or willing to provide direct assistance. The senior’s family was then concerned that they were required to go get the senior despite having no way to care for them. 

Fortunately, the family is not required to remove the senior from facility care if there is no “safe place” to provide care. The long-term care facility cannot simply ship them home with no way to care for them.2 Also, the facility must give 30 days’ notice and has some responsibilities with helping a family with discharge planning.3 But even with that, long-term care facilities that want to discharge seniors but the family refuses to retrieve them will usually find an “emergency” reason (perhaps a suspected fall) to send the senior to a hospital, then will refuse to take the senior back to the facility when the hospital is ready to discharge. It is worth noting that there is no difference in the eviction of a private pay patient versus a TennCare patient. 

COVID-19 Complicates Matters Further

Pre-COVID-19, these discharges and evictions were usually tied to either economic decisions made by the facility (either because the senior had run out of money and for some reason could not qualify for TennCare, or the facility is not a Medicaid facility), or because the senior had become more of a burden to the facility than other “easier” residents. (Perhaps they had become combative, disturbed the other residents, or refused to eat the food or take a bath without physically acting out.) Even if the family had gone to the trouble and expense of hiring a private home health care agency that agency may terminate services because the senior insists on smoking when supplemental oxygen is being used, becomes combative, or it would take more than one caregiver at a time to physically assist the senior. Once a senior has the word “combative” placed on his medical or agency records it becomes very difficult to find other placement.4

In the world of COVID-19 several things have further complicated a senior’s new or continuing occupation of a facility or use of a private agency: Facilities have lost many employees too fearful of the virus to continue; facilities have open beds or available hours to provide care but not enough disposable supplies to handle a full facility or provide services, or the families, too distraught that the senior might die under restrictions that do not allow the family to be present, take the senior into the home of a family member.

Solutions

Resources to help with this situation include the Ombudsman for the State of Tennessee, or the Ombudsman who serves your county. The Tennessee Commission on Aging and Disability website includes information about the Office of the Long-Term Care Ombudsman and related information.5 

If the situation goes on long enough, Adult Protective Service (APS) may be called to assume responsibility for the senior and there will likely be a placement in a facility that was neither chosen by family nor convenient for family and friends to visit. In these situations, the family usually bows to the pressure and will figure out some way to take responsibility for the senior’s care.6

Every so often there just is not a safe place for the senior to go, and no individual or agency or organization exists to, upon request, oversee the safe transition of care. Even when relatives can be located and made aware of the situation many are unwilling or unable to lend assistance of any kind. If the Public Guardian can take control then that is a possible solution, however, that state office cannot be petitioners in a conservatorship proceeding, and there are times when that office has no openings for additional clients.7 

Unfortunately, there are times when the senior, for his own safety, must be abandoned to the State of Tennessee. Because Tennessee has a statute requiring the mandatory reporting of elder abuse8 you can assist the family in contacting Adult Protective Services to make a report that a senior is at risk.9 The family must realize that they will have little or no control over what happens next, and that the senior may be placed, not only anywhere in Tennessee, but also possibly in another state if the senior’s need for certain care cannot be met close by.10

Another issue that arises in those cases is if the senior declines to such a point that someone else needs to make decisions for him. At the time of facility discharge a dispute may arise as to who is the best person among the family members to take care of the senior. This type of dispute can be avoided through powers of attorney, or, if need be, a formal Conservatorship proceeding. However, even with one of those processes in place an agent/conservator cannot be forced to personally care for the senior — or, to make anyone else in the family care for the senior. For that matter, another health care facility cannot be forced to admit the senior. 

Tennessee cares about our senior citizens. We have statutes, agencies and organizations — both public and private — in place to do whatever is possible to secure the well-being, both physically and financially, for seniors at risk. Food stamps, meal deliveries, health care clinics, discounted medicines, legal aid and housing have all been put in place — and, are still developing — for this very vulnerable population that is only going to increase in size. Limited options are available, and it is often up to you to find them for your client. |||

 

MATT and KELLY FRERE are husband/wife partners in the Elder Law firm Guyton & Frere in Lenoir City. They are members of the Council of Advanced Practitioners of NAELA. Matt was Tennessee’s first certified Elder Law attorney. 


 

NOTES

1. Long-term care facilities include homes for the aged, retirement communities, assisted living, memory care, in-facility rehabilitation and nursing homes. It can also include a home health care agency that will no longer care for the patient.
2. 42 CFR § 483.15 is quite detailed in admission, transfer and discharge rights, but it is not unusual for facilities to push their boundaries. An extreme example was a client who was placed in an ambulance by a hospital and delivered to the home of his sister because no local nursing home could accept his admission. The sister called us as the ambulance sat in front of her home. She repeated our instructions to the paramedics — that her home was not a safe place for him to be — and he was returned to the hospital until placement could be found.
3. “Understanding Nursing Home Discharge Regulations and Resident Rights,” by K. Gabriel Heiser, AgingCare.com, Aug. 17, 2020, https://www.agingcare.com/articles/patient-rights-and-nursing-home-discharges-205724.htm.
4. There are a few facilities in Tennessee, with geriatric psychiatrists on staff, that have dedicated themselves to providing care for seniors difficult to place because they are combative, but the family must go through the process with the facility to allow and order chemical restraints. If you visit a nursing home where a patient may appear listless, even drugged, it’s because they may be chemically restrained in order for them to safely reside there. Transfer to these facilities is usually after evaluation and discharge from a geriatric psychiatric facility.
5. The Tennessee Commission on Aging and Disability lists many resources at its website, https://www.tn.gov/aging, including caregiver support, health insurance assistance, and a directory to find your local area agency. The state Office of the Long-Term Care Ombudsman has detailed information at https://www.tn.gov/aging/our-programs/long-term-care-ombudsman.html. The ombudsman is Quiteka Moten, 502 Deaderick St., 9th Floor, Nashville, TN 37243; 615-253-5412 or 877-236-0013; quiteka.moten@tn.gov. Tenn. Code Ann. §71-2-109.
6. Sometimes the senior is physically active but has been in memory care for some form of dementia. The facility contacts the family and insists that the senior be removed because they have become combative. It is not rare in this situation for a senior to be confined in the home of a family member with all doors and windows locked from the outside, medicines and poisonous items to be secured, access to bathroom and kitchen and steps cordoned off, and a family member tasked with going to the home at lunch to check on the senior.
7. Tennessee has nine district Public Guardians. The Tennessee Commission Aging & Disability is the administrator of this program, https://www.tn.gov/aging/learn-about/elder-abuse/guardians.html.
8. Tenn. Code Ann. §71-6-103(b).
9. The Adult Protective Services statewide hotline is 888-277-8366.
10. Two examples: One of our seniors was discharged from a facility in East Tennessee and transported to a facility in Cumberland County that not only had an open bed but had the personnel to oversee the specific medical equipment she needed to survive. Another client was transported to a long-term care facility in Florida through an agreement reached between TennCare and Florida Medicaid to take care of his special needs. He had never lived in Florida, none of the family lived in Florida, and visits took at least several days of driving. But he was safe and receiving the maintenance care he needed.