Elaine Benz | Photo by Bill Lueders
The thing I want folks at the Wisconsin Department of Health Services to know is that I have been rooting for them. Still am.
In late October, my 97-year-old mother, Elaine Benz, was evicted from the senior care facility in New Berlin, Wisconsin, where she had lived for a decade. It happened from one day to the next, in an apparent violation of state law. The Regency, owned by ProHealth Care Inc. of Waukesha, had decided that she had become too much work.
I contacted various officials within DHS, in both the Division of Quality Assurance and the Wisconsin Board on Aging. All were helpful, professional and kind. They affirmed that state administrative code requires facilities in the Regency’s licensing category to give at least 30 days advance notice before proceeding with an involuntary discharge, and even then only under certain circumstances. Federal law sets similar rules for nursing homes, which fall into a different category.
But, as I learned from national experts in researching an article on the evictions of elderly people from nursing homes and other long-term care facilities that appears in the new issue of The Progressive, these laws are routinely ignored.
“It is rare for a resident to ever get 30 days’ notice,” Tony Chicotel, a staff attorney for California Advocates for Nursing Home Reform, told me. That’s because doing so involves informing residents of their right to appeal, which facilities don’t want because residents who do appeal usually win.
As Chicotel put it, “The benefits of breaking the law are greater than the cost of breaking the law. So, consequently, you get a lot of law-breaking.”
In our case, we were told on Oct. 28 that Elaine would not be allowed to return to the Regency after a stay at a physical rehabilitation center that was supposed to end the following day. She was stranded at the rehab center there for 19 days, during which time the facility was in a COVID-19 lockdown, until we managed to find her a new place to live.
I filed a grievance with the state, arguing that the stated reasons for this eviction were demonstrably false. The state investigated, and, in mid-November, a division supervisor assured me that there “absolutely” would be an enforcement action taken by the state.
“In this case, they’ll be put on notice that a violation occurred,” I was told . “They’ll be charged fines.” This was supposed to happen by mid-December.
As of this writing, no enforcement action has been announced. I have filed open records requests trying to obtain the report prepared by a division inspector who did an unannounced site visit, as well as any communications between the state and the Regency or ProHealth Care Inc. regarding this matter. I’d like to know if the Regency or its owner are trying to block action by the state.
No records have yet been provided; I’ve hired an attorney to help pry them loose.
It happens all the time
What happened to my mother, I’ve learned, happens to elderly people in this country all the time.
On Nov. 18, the day after we moved our mom into a new residence, the Office of Inspector General for the U.S. Department of Health and Human Services released a 40-page report on “facility-initiated discharges.” It noted that these have for years been the single most frequent complaint received by the federal Long-Term Care Ombudsman Program, which works to resolve problems for individuals living in these facilities.
According to the report, “police found one resident on the streets after a nursing home discharged him to an unlicensed boarding house without notifying his family.” A frontline attorney with the Michigan Elder Justice Initiative told me her group has seen cases in which elderly residents were approved for discharges to a homeless shelter and to a house that had burned down. Often, residents are barred from returning after being sent outside the facility for medical reasons, as happened with my mom.
But state and federal laws requiring advance notice and imposing certain rules on these discharges have been allowed to atrophy into irrelevance, because they are so seldom enforced. And even when they are, the penalties are so nominal that some providers are willing to accept them as a cost of doing business.
What I want most of all is for Wisconsin to buck this trend and deliver serious consequences to providers that break the law. That, I think, is also what the people who work for these agencies want — to take effective action to protect the most vulnerable among us.
What happened to my mom should not happen to anyone
My mother, who will turn 98 on Feb. 16, deserved better than to be booted from her home under false pretenses by a provider to whom she and her late husband paid $321,000 over the past ten years. (Her life savings are now nearly gone, which may be one reason she came to be seen as a less-desirable resident.)
As for the folks at DHS, my heart goes out to them. Yes, I do feel guilty about asking people there to do more during this terrible time, when they are dealing with a deadly pandemic. It may not be fair to expect more from these agencies — and yet I do. What happened to my mom should not happen to anyone.
Besides seeking records regarding my mom’s case, I have tried for months to get information from the DHS on how often its Division of Quality Assurance has taken enforcement actions against providers who violate the state’s rules on discharges. I was told this is information that gets tracked, but I have not been able to obtain it.
The Division of Quality Assurance runs a Provider Search database on actions involving nursing homes and other long-term care facilities, but its functionality is minimal. There is no way to do searches by category of offenses or to obtain other aggregate information. You have to enter the name of an individual provider for each search. In this case, the database has misspelled the name of the provider as Pro Health instead of ProHealth. If you don’t use this misspelling, nothing comes up. This is a system that could use some improvements — something I’m sure the people who work there would want.
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I believe the regulators within DHS are doing the best they can given the constraints under which they operate. The problem seems to be these constraints. Despite the clarity of the violation, they were not able to prevent my mom’s eviction, and are likely not serving as an effective deterrent in other cases.
That has to change. If funding or staffing is the issue, a state with a projected $3.8 billion surplus can afford to do better. It must do better.
And so I’m sorry if my decision to share my family’s less-than-satisfying experience with state regulators causes them any discomfort or embarrassment. But my hope is that this translates into a commitment to make necessary changes to protect people like my mom. I, for one, will be cheering them on.
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