Unlawful Nursing Home Eviction in Nebraska

Nursing home eviction, commonly referred to as involuntary discharge, has increased in recent years.  There is a commonly held belief by lawyers who work every day with families of nursing home residents that the tightening Medicaid payments incentivize nursing homes to “dump” nursing home residents soon after their 100 days of Medicare rehabilitation payments end.  
Medicare reimburses nursing homes at a higher rate than Medicaid, making brand new nursing home residents just transferred from a hospital with a fresh 100 days of Medicare reimbursement more attractive prospects than long-term residents that have been in a nursing home longer than 100 days but don’t have the ability to privately pay their $6,000 to $10,000 per month bill. 
A recent national public radio syndicated show highlighted the American Association of Retired Persons (AARP) defense of a California case of illegal nursing home eviction. 
Nebraska law states nursing home residents have the right to “be free from arbitrary transfer or discharge.”  Nebraska Administrative Code 175 NAC §12-006.05(5)
 
The entire regulation states:
 
(5) The resident must be informed at the time of admission that he or she may be transferred or discharged only upon the following terms:

1. Upon his or her consent;
   
   
2. For medical reasons, which must be based on the resident’s needs and be determined and documented by a physician;
   
   
3. For the resident’s safety or the safety of other residents or facility employees;
   
   
4. When rehabilitation is such that movement to a less restrictive setting is possible; or
   
   
5. For nonpayment of the resident’s stay, except as prohibited by Title XVIII or XIX of the Social Security Act as amended, or the Nebraska Nursing Home Act, Neb. Rev. Stat. §§ 71-6008 to 71-6037. Non-payment under the Nebraska Nursing Home Act must not include a change in resident economic status so that the resident receives Medicaid or becomes eligible for Medicaid if the resident has resided in the facility for a period of at least one year after July 17, 1986, unless 10% of the facility’s residents are receiving Medicaid or are eligible for Medicaid. This provision does not apply to Nebraska Veterans’ Homes established under Chapter 80, Article 3 of Nebraska Statutes.A minimum of 30 days written notice must be given to the resident or to his or her designee prior to involuntary transfer or discharge of a resident, except that:
   
   
6. Five days written notice must be given if the transfer is to a less restrictive setting due to rehabilitation.
7. Ten days written notice will be given if the resident is five or more days in arrears of payment for stay.
8. Written notice is not required in the event of emergency transfer or discharge if the transfer or discharge is mandated by the resident’s health care needs and is in accord with the written orders and medical justification of the attending physician, or if mandated for safety of other residents or facility employees as is documented in the facility’s records.Written notice must contain:
   1. The stated reason for transfer or discharge;
   2. The effective date of the transfer or discharge; and
   3. In not less than 12-point type, the following text:

 
“A health care facility or health care service shall not discriminate or retaliate against a person residing in, served by, or employed at the facility or service who has initiated or participated in any proceeding authorized by the Health Care Facility Licensure Act or who has presented a complaint or provided information to the administrator of the facility or service, the Department of Health and Human Services, the Department of Health and Human Services Finance and Support, or the Department of Health and Human Services Regulation and Licensure. Such person may maintain an action for any type of relief, including injunctive and declaratory relief, permitted by law.”
 
Stop Nursing Home Neglect and Abuse
Nursing home residents and their families cannot allow neglect or abuse to continue.  All instances of neglect or abuse must be immediately reported to the correct Nebraska authorities.  Steps must be taken to protect all residents from further harm. If your loved one has been harmed because of neglect or abuse in a nursing home or has been improperly evicted, contact trial lawyer Rich Hitz to learn your options.