Advocates are calling on New York state nursing homes to suspend involuntary discharges and transfers during the COVID-19 pandemic, saying it puts residents at increased risk of exposure and hurts their due process rights.
Mike, a diabetic in his early 50s, was having trouble staying upright last year.
“My knees would just give out,” he told WBFO. “I just kept falling down all the time, which got to be not only painful but dangerous at the same time.”
He was admitted to the Buffalo Center for Rehabilitation and Nursing, a one-star nursing home located on Delaware Avenue.
Last month, Buffalo Center told him his insurance would no longer cover his care and that he had two options: He could be dropped off at the Buffalo City Mission homeless shelter, or the Erie County Department of Social Services office downtown.
Neither option, as well as his plan to find a motel room, were ideal. Not only does he need the help of a walker or wheelchair to get around, but there’s also the threat of COVID-19.
“I could be in a motel where (the virus is) running around all over the place,” he said.
So he called the Center for Elder Law and Justice (CELJ), a Buffalo nonprofit legal agency. Attorneys there helped him file an appeal with the New York State Department of Health.
“We don't know what his exposure would be like or if he would be bringing exposure into that place,” said CELJ attorney Kelly Barrett-Sarama. “There's all kinds of risks and just things that we're uncertain about right now. It seems a bit reckless to move forward.”
Mike, whose name has been changed due to concerns over retaliation, can now stay at the nursing home while the appeal process plays out. He’s trying to find a handicap-accessible apartment in the meantime.
“It looked pretty bleak, so I was relieved — a lot,” he said.
CELJ and other advocacy groups are trying to ensure Mike and all nursing home residents aren’t evicted during the COVID-19 pandemic. A total of seven organizations sent a letter to state Commissioner of Health Dr. Howard Zucker March 20, asking him to suspend involuntary discharges and transfers until the crisis is over.
“This is necessary to protect the health and safety of nursing home residents and the wider community, and to protect their due process rights,” the letter reads.
A spokesperson for the state Department of Health, Jeffrey Hammond, said in an email, “We have the letter and it is being reviewed.”
Under state law, a nursing home can only involuntarily discharge or transfer a resident for a few reasons. Those reasons include the resident needing different care, the resident no longer needs care, the resident poses a risk to others, or the resident fails to pay for their stay at the facility.
When a resident is discharged or transferred, the nursing home must come up with a safe discharge plan for them. For residents without a permanent address like Mike, they’re often discharged to a homeless shelter or Social Services office.
“This is problematic even before the pandemic, but it’s especially problematic now,” said CELJ attorney Lindsay Heckler, who is also a legal liaison for the state’s Long Term Care Ombudsman Program. “Because many residents, especially those who are unfortunately homeless, are at really high risk of contracting the virus and spreading it.”
Homeless shelters are considered to be at greater risk for COVID-19 exposure. More than 270 homeless people in New York City have tested positive, according to the New York Post.
But advocates are also concerned about residents being transferred to other nursing homes.
Heckler said nursing homes could be unknowingly placing COVID-19-infected residents into other facilities, since carriers can be asymptomatic. After just two residents came down with a fever last week, Father Baker Manor in Orchard Park decided to test all of its 138 residents and discovered 41 of them had the virus.
“Without testing every single resident you don't know,” Heckler said.
Beyond health, advocates are also worried about due process. Under state law, residents have a right to appeal their discharge and get a hearing, but the state’s visitor ban enacted March 13 means those hearings have to be done remotely and attorneys can’t be physically present.
“Without the ability for legal advocates to be in the room with a resident during their hearing, the resident may face challenges understanding the proceeding and knowing when it is appropriate to speak up,” Barrett-Sarama said. “Residents who have hearing impairments may not understand the hearing at all. This may lead to feelings of intimidation and a hesitancy to participate fully and meaningfully in their hearing.”
Some residents may not even get a chance to ask for a hearing, she added.
“The unfortunate reality is that nursing homes often violate residents rights for proper notice and all of that to begin with,” Barrett-Sarama said. “During the pandemic they’re at even greater risk of these violations.”
In Mike’s case, he said Buffalo Center staff verbally told him March 18 he had to leave the facility in six days, despite the fact state law mandates residents be given 30 days’ written notice before they’re discharged.
“I said, ‘I'm not really ready,’ and they said in so many words, ‘That's too bad,’” Mike recalled.
He and Barrett- Sarama said it wasn’t until they filed a complaint with the state Department of Health that Buffalo Center issued a written discharge notice March 24 saying Mike had to leave by April 24.
Officials with Buffalo Center did not immediately return a request for comment.
The state received 293 complaints related to nursing home discharges in the 2019 reporting year, including 26 in Erie, Niagara, Chautauqua and Cattaraugus counties, according to the state Long Term Care Ombudsman Program.
Now with the COVID-19 pandemic, Barrett-Sarama and Heckler worry nursing homes will try to discharge even more residents without due process.
Facilities are under increased pressure to free up beds so the hospital system doesn’t become overwhelmed. The state issued an advisory March 25 that nursing homes must accept residents regardless of whether they have COVID-19.
Elderwood, the largest nursing home chain in Western New York, announced plans soon after to establish a 22-bed unit for COVID-19 patients at its Amherst location.
“Yes, nursing homes are under pressure to clear more beds for the potential influx of patients and residents from hospitals … however, they should not be violating residents’ rights and safety by instituting mass discharges to various areas of the community,” Heckler said. “Discharge planning takes time, and especially if the facility knows they're netting an individual who is at risk of losing their home or does not have a home, they need to be working on the resources available, quite frankly, at that time of admission. And that does not always happen.”
CELJ attorneys said that, as of Thursday, the state Department of Health has still not responded to their letter.