Commentary

Breaking the law, paying a pittance for unfairly evicting the elderly

Violators of state rules regarding elderly residents are even offered discounts

February 4, 2022 6:45 am

Nursing home resident. Photo from https://www.pxfuel.com/

The Wisconsin Department of Health Services, charged with enforcing administrative code in nursing homes and other long-term care facilities, has issued just two enforcement actions in the past three years for discharge-related violations in the licensing category known as Residential Care Apartment Complexes, which includes more than 350 providers across Wisconsin.

These actions were brought against an assisted living facility in Onalaska in 2020 and a retirement residence in Beaver Dam in 2021. In each case, the DHS’s Division of Quality Assurance determined that the facility violated the state’s rules regarding residency terminations by failing to give at least 30 days advance notice. Both cases involved residents who were barred from returning home after a hospitalization.

The Onalaska provider, Springbrook Community Assisted Living, was ordered to pay a fine of $300. The Beaver Dam provider, Stone Terrace Retirement Living Center, was found to have committed three separate violations and was fined a total of $700. 

These penalties, the violators were told, could be reduced to $195 and $455, respectively, if the fines were paid within 10 days. It is not clear from the released records whether the facilities availed themselves of this option.

The providers in both cases were ordered by the state to develop plans to address the “deficiencies” that were identified. The provided records do not say whether this occurred, or whether the facilities availed themselves of their right to appeal.

Records regarding these two enforcement actions were released by the state Department of Health Services on February 1, more than two-and-a-half months after they were requested. The release came just days after The Progressive published “I Want to Go Home,” my 8,500-word article on elder evictions, and after attorney Tom Kamenick of the Wisconsin Transparency Project sent the department a sternly worded letter demanding that it “cease delaying your response and provide the records” requested on November 18.

The original request asked for records regarding “all enforcement actions brought against residential care providers by the Division of Quality Assurance from January 1, 2019, to the present.” It said the request extended to a range of state residential care providers, including Residential Care Apartment Complexes and nursing homes.  

The released records are only from the category called Residential Care Apartment Complex. I am continuing to seek records of enforcement action regarding residency terminations in other regulated categories.

A Residential Care Apartment Complex is described on the DHS website as “an independent apartment complex where five or more adults reside” and where each apartment has certain features, including “individual bathroom, sleeping and living areas.” The site says these complexes “range from 5-109 individual apartments, with the average complex size being 36 apartments.” A “Directory of Residential Care Apartment Complexes” on the DHS website lists 355 providers.

The state has not disclosed how often the Division of Quality Assurance has brought enforcement actions regarding other regulated categories of residential care providers, including nursing homes. Nor is it known how many discharge-related complaints were received that did not lead to enforcement actions.

Data compiled by another arm of DHS shows that the number of discharge-related complaints is large and growing. The Wisconsin Board on Aging and Long-Term Care, part of the federal Long-Term Care Ombudsman Program, has released records showing that the number of complaints regarding “discharge or eviction” has risen dramatically over the past three years, from forty in 2019, to 129 in 2020, to 137 in  2021. A majority of these complaints were said to have been at least “partially” resolved; more specific case information was not provided.

In November, 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 state-based ombudsmen, and identified the lack of enforcement as a recurring concern. 

“Problems with enforcement may affect nursing homes’ compliance with facility-initiated discharge regulations,” the report noted dryly. Indeed, half of state ombudsmen surveyed “raised questions about how well enforcement addressed inappropriate facility-initiated discharges.”

In both of the cases for which records were released, the resident was barred from returning to a facility after being hospitalized. This also happened in the case I write about in “I Want to Go Home,” which recounts the eviction of my mother, Elaine Benz, from the Regency of New Berlin, owned by ProHealth Care of Waukesha.

“There’s a lot of discharges that are done this way throughout the United States, where they send people to the hospital and then just refuse to take them back,” Tony Chicotel, a staff attorney for California Advocates for Nursing Home Reform, told me for the article. 

In both cases, the state found that the facilities did not follow the rules with regard to giving 30 days advance notice before evicting a resident. “In my experience,” Chicotel told me, “the requirement for written notice is almost universally disregarded.”

GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX

In the case involving Springbrook Community Assisted Living in Onalaska, “Tenant 1” was not allowed to return home after being sent to the hospital for gastro-intestinal problems, according to the state inspector’s report. It says the facility stated in its emergency termination notice that Tenant 1 “had three hospitalizations for GI bleeds in the last month,” while hospital records showed Tenant 1 “was only admitted to the hospital for a GI bleed one time.” 

Tenant 1 “never received the letter” terminating residency because it was sent to Springbrook while Tenant 1 was in the hospital.

The report concluded: “The facility did not demonstrate Tenant 1 met the criteria for emergency discharge and did not have an appropriate basis to serve Tenant 1 with a 30-day written notice of discharge.”

Springbrook Community Assisted Living was sent a “notice and order” on April 16, 2020, four months after the state investigator completed the report. It called on the facility to develop a “Plan of Correction” to address identified deficiencies. And Springbrook was ordered to pay a $300 fine, with the option of getting a 35 percent discount to $195 if promptly paid.

The released record does not say whether the wrongfully evicted resident was allowed to return. 

In the other case, involving Stone Terrace Retirement Living Center in Beaver Dam, a different “Tenant 1” was barred from returning to an apartment shared with a spouse after being briefly hospitalized. The spouse was perpetually present, except for three twelve-hour work shifts each week. When at work, the spouse remained in video contact with Tenant 1, checking in at least once an hour. The couple even offered to hire a private duty nurse to watch Tenant 1 when the spouse had to work. 

Stone Terrace said no, claiming that Tenant 1 required more than 28 hours of service care per week. The state inspector, in a report dated August 10, 2021, didn’t buy it, citing Stone Terrace for violating this “hours of service” standard. 

The inspector also cited Stone Terrace for violating the state’s “risk agreement” rules—essentially for ignoring the “tenant’s preference” regarding this situation, as required. And, in a third count, the inspector concluded that Stone Terrace had failed to give Tenant 1, who had lived there for four years, the required advance notice: “The provider did not ensure that the 30-day written notice of termination . . . was issued to Tenant 1 prior to or as of the date the facility stated that Tenant 1 could not return.” 

Stone Terrace was fined $200 each for the first two offenses and $300 for the third—with, of course, the option to get a 35 percent reduction by paying promptly. 

The released records do not say whether the couple was allowed to continue living together. 

The DHS administrative code for Residential Care Apartment Complexes, including these two facilities and the one involved in the eviction of my mother, whose case is still pending, allow the department to “directly assess a forfeiture of from $10 to $1,000 per violation per day for violations which it determines to be harmful to the health, safety, welfare, or rights of tenants.”

According to Chicotel, wrongful evictions are on the rise because of the lack of meaningful consequences for violators. Even the most egregious violators are spared serious fines. And that, in his view, is the heart of the problem. 

“Any time there’s an inappropriate transfer discharge that either the federal government or state government finds out about, there should be significant financial penalties for that,” Chicotel said. “There’s got to be real deterrence.”

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Bill Lueders
Bill Lueders

Bill Lueders is editor of The Progressive magazine. He also serves as the elected president of the Wisconsin Freedom of Information Council, a statewide group that works to protect public access to government meetings and records.

MORE FROM AUTHOR