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Protecting the Rights of the Elderly

Aging and Disabilities

Protecting the Rights of the Elderly

Date Posted: 
08/08/2013

At CLS, the Aging and Disabilities Unit helps to support the elderly, working to secure their rights and guarantee consistent and quality care.

Background

Philadelphia’s senior citizen poverty rate is almost double that of Pennsylvania’s, which means that elderly, low-income Philadelphians make up a significant part of the population and are in constant need of help to obtain benefits, assistance, and proper care.

Problems for the elderly are widespread and varied. Every day, members of this group may face problems ranging anywhere from being illegally or improperly discharged from a nursing home to being wrongly denied Medicare or Medicaid benefits. With few resources at their disposal, the elderly are not in the best position to challenge these injustices and stand up for their rights. CLS’s Aging and Disabilities Unit acts as a resource for these citizens, working in conjunction with state agencies to advocate on their behalf so that they will receive sufficient services.

Nursing Home Rights

Nursing home rights are little known by the public or even by private attorneys. CLS is unique in this regard, representing clients impacted by unlawful discharges and poor quality of care.      

Nursing homes are governed by both state and federal law. Under federal law, nursing homes receiving Medicare or Medicaid funding must comply with certain standards, such as having sufficient nursing staff and creating an individualized plan of care to meet each resident’s needs. Additionally, Pennsylvania has issued its own regulations on nursing homes and provides residents with even more rights.[1] Among the many provisions of Pennsylvania’s regulatory code, subsections 201.29(f) and 201.29(g), which govern the nursing home’s requirements for discharging residents, are often ignored by nursing homes or unknown to residents.

Simply, lawful involuntary discharge of a resident can only occur in a limited set of circumstances. Residents may only be discharged for reasons of nonpayment, if their medical needs cannot be met in a nursing facility, or if the resident presents a danger to himself or other patients. The nursing home must provide proper written notice – 30 days in advance of the discharge date – and make all records available. Further, nursing homes are required to provide a “safe and orderly transfer” so that the outgoing resident will end up in a place that can meet any needs he may have.  

Ultimately, however, many nursing homes fail to follow these procedures. Some don’t provide proper notice, while others may just drop a nonpaying resident into a homeless shelter, no matter the resident’s medical circumstances. Perhaps more disturbingly, some nursing homes have been following the trend of discharging residents who receive Medicaid benefits. When a resident applies and is determined to be eligible for Medicaid, participating nursing homes may not charge him or her more than the allotted Medicaid payments. That is, nursing homes may not require a resident to pay privately if the resident has chosen to apply and has been determined eligible for Medicaid. Because of the potential huge costs of long term care, some nursing homes may attempt to discharge residents rather than accept Medicaid.  However, it is illegal for a Medicaid-certified nursing facility to discharge residents because they receive or have applied for Medicaid to pay for their care.

CLS’ work with fighting illegal nursing home discharges is critical to the health and safety of the elderly. For example, in his May 2013 testimony before the Senate Judiciary Committee, CLS client James Daly, a 53-year-old former house painter with severe medical problems, detailed how CLS saved him from becoming homeless. Despite suffering from vertigo and being confined to a wheelchair, Mr. Daly was told by his nursing home that they would no longer be able to provide him with rehabilitation. Instead, they were going to send him to a shelter. CLS took the case and worked to appeal the nursing home’s decisions. CLS was able to make an agreement that allowed Mr. Daly to continue his rehabilitation in the nursing home until he could eventually move out to better accommodations. He testified, “If I had not had a lawyer to explain my rights and stop the nursing home from discharging me, I don’t know where I’d be now. I probably would have ended up on the street.”

Other stories are the same – only some of the small details are changed. In a current case, CLS is representing a recent immigrant who is a nursing home resident and has been denied Medicaid on the basis of a federal law prohibiting documented immigrants from receiving benefits for five years after entering the country.[2] The nursing home sought to discharge CLS’ client for nonpayment. Unfortunately, the home did not have a plan that would allow him to be discharged in a “safe and appropriate” manner, as nursing home regulations stipulate. With a Medicaid appeal still pending, CLS fought to ensure that their client received the care he needed and was not simply thrown to the streets.

In general, CLS will help clients who have been illegally discharged from their nursing homes by filing appeals on behalf of the client, taking the case to court if necessary, and by negotiating with the nursing home a fair and positive outcome.

Personal Care Homes

For those who do not need medical or nursing assistance, personal care homes (PCH) can offer a more intimate alternative to nursing homes. Legally, any residence in which four or more people (unrelated to the homeowner) require personal care is deemed to be a personal care home and must be licensed by the Pennsylvania Department of Public Welfare. PCHs are “supposed to be safe, humane, comfortable, and supportive residential settings for residents who require assistance with various activities of daily living.” In reality, though, some PCH and PCH operators don’t meet these standards. Common problems include operating without a license, failing to provide quality and consistent care, and involuntary discharge.

CLS’ Aging and Disabilities Unit represents and advocates on behalf of PCH residents. Partially funded by the Philadelphia Corporation for Aging (PCA), Philadelphia Area Agency on Aging,  the Unit helps advocate for strict PCH standards and reliable oversight.

Recently, CLS has dealt with personal care homes operating without a license. Personal care homes sometimes lose their licenses to operate if they fail to meet one or several PCH requirements. Though it is illegal for personal care homes to offer services without being licensed, some do so anyway, in some cases setting themselves up as Medicaid home and community based services providers for individuals who need nursing home level care.[3]  There is little or no oversight in such facilities, and advocates are concerned about the quality of care being provided.

In these cases, CLS may work in conjunction with the Department of Public Welfare to inform them of quality of care concerns and impel them to investigate alleged fraud or licensing violations. CLS also participates in quarterly meetings with the Department, helping evaluate the current state of personal care homes and make recommendation as to solutions for ensuring the rights of PCH residents.

Home and Community-based Services

Much of Philadelphia’s elderly population prefers to live in their own homes rather than  in nursing homes or personal care homes and opts instead for home-community based services, often paid for by the Medicaid program. The individual can either use an attendant provided by a home care agency or choose to “self-direct” their care by selecting and hiring their own attendant (for example, a relative or friend) .

A challenge to the self-directed model of care arrangement is that care attendants are required to be treated as employees and the person(s) they are taking care of are to be considered employers. This means that the senior (or his or her family) is subject to all federal, state and local employment laws, including the payment of minimum wage and overtime.

The state of Pennsylvania contracts with Public Partnerships Limited (PPL)[4] to handle the payroll and tax tasks involved in employing attendants. CLS has heard from many people trying to get or keep in-home care that it can be very difficult and time-consuming to qualify for these programs. The Aging and Disabilities Unit at CLS is working to help seniors navigate this sometimes difficult process.