Often lacking legal representation to defend themselves, elderly residents are being discharged from nursing homes directly into homeless shelters illegally and against their will without adequate due process.
For a vulnerable nursing home resident with medical needs, the prospect of an involuntary discharge to a homeless shelter can be terrifying – especially during the devasting COVID-19 pandemic. This is a widespread practice: according to New York City Department of Homeless Services’ records, over 1,000 nursing home residents are discharged to the New York City shelter system each year. Residents who have lived in a nursing home for years suddenly face discharge, with little or no help to identify a safe, appropriate setting with the necessary services in place.
Mobilization for Justice’s report, Involuntary Nursing Home Discharges: A Fast Track from Nursing Homes to Homeless Shelters, reveals the gross unfairness and harm caused by the nursing home discharge notice and hearing process, and offers solutions to ensure a fair process that results in a safe and appropriate discharge.
“After I called the State about problems at my nursing home, they started to deal with me differently – they told me I had to leave and tried to put me in a shelter, even though I was close to getting an apartment with services. From what I know, if you don’t have a lawyer, they walk on you. I felt good and secure in the discharge hearing having a lawyer and I was able to stop the shelter discharge and move to my apartment,” said Hortense Griffin, former resident of a Bronx nursing home.
The federal Nursing Home Reform Act of 1987 made the concept of person-centered care planning a cornerstone of the regulations governing nursing homes: “Person-centered care means to focus on the resident as the locus of control and support the resident in making their own choices and having control over their daily lives.” But according to our findings after years providing free legal representation to nursing residents, this is not at all the case. On the contrary:
- Nursing homes frequently fail to conduct even minimal discharge planning, proposing discharge to homeless shelters with little attempt to arrange for appropriate care in a safe setting
- Nursing homes frequently fail to provide timely Notices to Discharge to the Long-Term Care Ombudsman Program (LTCOP), as required by law
- The LTCOP receives inadequate funding to track Notices, advise residents, or provide advocacy to residents related to their involuntary discharges
- The DOH’s administrative law judges often authorize involuntary discharges for residents based on findings that they do not need “skilled care,” which is not a legally recognized basis for discharge
- Nursing homes are more than twice as likely as nursing home residents to have legal counsel in discharge hearings. Notably, during our study, nursing home residents with counsel won their case every time.
“The odds are stacked against nursing home residents in the involuntary discharge process. Protections are sorely needed to ensure due process for residents challenging proposed discharges to unsafe settings such as homeless shelters,” said Tanya Kessler, Senior Staff Attorney at Mobilization for Justice.
Consequent to the findings outlined in this white paper, and based on years of on the ground experience working with nursing home residents, Mobilization for Justice strongly recommends that in New York State:
- Nursing home discharge planning regulations should be strengthened and strictly enforced
- Nursing Homes should be required to provide a standard notice of discharge in clear, readable, large print and accessible formats
- All residents should be assigned counsel if they elect to appeal a Notice of Discharge
- Funding to the LTCOP program should be increased
- Discharges to homeless shelters should be prohibited.
For more information about Mobilization for Justice and our Nursing Home Discharge Prevention Project, please contact Tanya Kessler 212-471-3811 tkessler@mfjlegal.org.