texas long term care ombudsman

AUSTIN – A failure in oversight and enforcement is driving a rise in facility-initiated discharges in Texas long-term care facilities, but the extent remains unknown, experts say.

Improper discharges are when a facility, without due cause, evicts a resident often into unsafe environments and with little support. Since 2017, issues related to discharges have consistently ranked in the top five complaint types the state receives, according to Texas Office of the Long-Term Care Ombudsman annual reports.

“I think just about every ombudsman across the state has encountered a situation where [improper discharges] happened or been threatened to happen,” said Alexa Schoeman, Texas deputy state ombudsman. “So while it is extreme, it’s, unfortunately, somewhat common.”

Facilities are allowed to initiate discharges of residents who have had improved health, the resident’s needs cannot be met by the facility or the health and safety of other residents is endangered, according to federal law. They must also provide written notice 30 days in advance.

But Schoeman said residents often find themselves evicted if behavioral issues make them unmanageable, family members are too demanding or there is not enough funding to cover their cost of care. In these cases, some residents have found themselves dumped in hospitals, homeless shelters or, in one case, reportedly under a bridge.

Schoeman, who works at the state level, says she only sees the extreme cases when local ombudsmen across the state are in search of more resources. Schoeman said about 75% of the complaints to her office are related to improper discharges.

“The biggest problem or the most frequent problem that we see are residents being taken to a hospital and then the facility saying, ‘well, we’re just not going to take them back.’ So the resident is really stuck at the hospital,” Schoeman said.

There are approximately 1,215 nursing facilities and 2,000 assisted living facilities in Texas housing more than 88,000 residents, according to state data. Nearly half of the nursing homes are rated average or below – about 300 homes listed as providing care are “much below average”, according to federal databases. Over two dozen homes with one or two star rankings have been cited for abuse, it said.

This is a problem nationwide, but to what extent is hard to know.

A November report by the U.S. Department of Health and Human Services found that “the magnitude of facility-initiated discharges in nursing homes is unknown, and the safeguards to protect residents from inappropriate facility initiated discharges need improvement.”

The report said accurate data is hard to collect as discharge notices, which are required to be sent to the ombudsman office, are often sent late after a resident has already left and/or with missing required information. There is also no data-collection system for this information.

Additionally, it became increasingly difficult for ombudsmen to receive accurate information if any at all during the coronavirus pandemic as the Centers for Medicare & Medicaid Services waived notice requirements. Ombudsman were also prohibited from entering facilities which impeded their ability to ensure quality control and complete investigations.

While the role of an ombudsman is to advocate on behalf of nursing home residents by addressing complaints and helping resolve problems, they do not have regulatory power. The program’s primary role is to educate facilities on the laws and regulations, but many facilities state that they know the laws and would rather take the fine or citation than receive the patient back.

In a 2016 testimony before the Texas state legislature, Shirley Cromartie, a local ombudsman near Wichita Falls, said she receives several questions from residents and their families as to why the facility would not readmit the patient after a hospital or psychiatric evaluation stay.

“When I call the facility to explain that the state requirement requires them to accept back the resident or possibly be cited by HHS Regulatory Services, the facility says that they know this requirement to accept back the resident, but they are not going to comply,” she said.

In another testimony, Ombudsman Suzanna Sulfstede said improper discharges are frequently a form of retaliation against residents or family members who have made frequent complaints at the facility.

She said she has seen improper discharges where facilities leave individuals at unsafe or inappropriate locations, including multiple Dallas facilities that routinely make immediate discharges, sending medically- fragile residents to a local homeless shelter with no coordination for services.

She added that residents are typically left by themselves at the entrance to the shelter with their personal belongings and no one to help them.

“My program has witnessed multiple instances where a nursing facility has chosen to ignore that right and been willing to pay a small fine for violating the resident’s discharge rights,” Sulfstede said.

The Texas Ombudsman program has tried to set state-level standards to no avail. House Bill 2285, which sought to establish heavy fines and authorize suspended facility admissions until an issue is resolved, died in committee during the 2016 legislative session.

Melissa Whitaker, an ombudsman in the panhandle, said she deals with cases involving improper discharges on a monthly, if not weekly basis.

She said while the facility and the resident may both want to cut ties, it is up to the facility to ensure the discharge is safe and that the resident has the support and resources to succeed outside of the facility.

Terry Garrett, an elder care attorney, said she too has seen discharges made without proper care in place—at least once where the individual died soon after.

“The nursing home, not the family, is responsible for finding a safe place to discharge the patient but all too often requires this of the family or just tells a family member to pick the person up, often with little notice,” Garrett said.

Garrett added that long-term care facilities are for profit and the expense for care that some residents require is more than what Medicaid or Medicare will pay out.

Other industry experts point to a shrinking workforce citing low pay, burnout and competition with other health care providers as potential factors in increasing discharges. In the first quarter of 2021 Long Term Care Community Coalition staffing data, Texas ranked 49 out of 51 states – including the District of Columbia – on staff-to-patient ratios. Several reports have found that adequate staffing improves outcomes and quality of life and care of residents.

But with some residents costing more than what Medicare provides on top of an overworked staff, Schoeman said it all plays a factor into increasing unlawful discharges.

“Facilities are understaffed, undertrained and not set up to deal with some behaviors so they call the police to take the resident away,” she said.

Nonetheless, Schoeman said facilities are getting paid – often with taxpayer dollars – to care for some of the state’s most vulnerable residents and they should do their due diligence to ensure their safe care.

“I think it’s easy to forget that people living in nursing homes consider it just that – their home – and how traumatic it would be for any one of us if someone told us you have 30 days to pack up your stuff and leave,” Schoeman said. “The facility agreed to care for the resident, and asking a resident to be uprooted from their home should be an absolute last resort.”

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