Lawsuit claims Camarillo nursing home evicts residents when Medicare coverage expires

A Camarillo nursing home faces a lawsuit alleging it evicts residents as soon as their Medicare coverage for short-term care expires, bypassing the notices, medical evaluations and other steps required by federal and state law.

The suit accuses Brookdale Camarillo and nine other Brookdale nursing homes across California of what a seniors’ advocate called the fast-rising practice of dumping residents in an attempt to keep beds available for rehab clients whose bills will still be paid by Medicare.

“What they say is, ‘It’s $3 grand a week now,’ ” said attorney Greg Johnson of the private-pay rate for care that residents would be charged if they stay and aren’t eligible for other insurance. “‘What do you want to do?’ ”

The lawsuit was filed Dec. 4 in Ventura County Superior Court on behalf of two residents allegedly evicted from Brookdale Camarillo. Johnson said lawyers will ask a judge to certify the case as a class-action lawsuit, predicting thousands of former Brookdale nursing residents who have been evicted could join.

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The lawsuit also asks for an injunction aimed at forcing the nursing homes to change their discharge practices.

Brookdale Camarillo is a 45-bed nursing home that has earned a five out of five-star rating from Medicare’s Nursing Home Compare program and is part of a complex that also offers assisted living, memory care and retirement community care. The facility is operated by Brookdale Senior Living, which operates nearly 1,000 senior living communities in 46 states. 

A corporate representative challenged the accusations in the lawsuit.

“We strongly disagree with the allegations and intend to defend ourselves vigorously,” said spokeswoman Heather Hunter. “As always, resident health, safety and well-being continue to be our top priorities, and we are committed to providing quality care for seniors.”

Hunter didn’t respond to a question about what Brookdale Camarillo charges for private-pay patients.

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Lawsuit: Brookdale ignores regulations

The lawsuit revolves around a Medicare provision that allows for some coverage for as much as 100 days of skilled nursing home care, often for people coming from hospitals and in need of rehabilitation.

Federal law compels nursing homes to provide a 30-day written notice if possible before a discharge, also providing residents with explanations of their right to try to stop or slow the discharge through an appeal. Copies of the notice must also be sent to the local long-term care ombudsman program.

Residents can be discharged only for specified reasons, including physical improvement that means the rehab services are no longer needed or a medical finding that the patient’s needs can’t be met by the nursing home.

Residents can be evicted for failure to pay if reasonable and appropriate notice has been provided.

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The lawsuit alleges Brookdale routinely ignores the regulations.

Francis Fleming was evicted from Brookdale Camarillo on Oct. 1, 2017, the day his Medicare payments expired, according to the lawsuit. He was given two days’ written notice, although his family was told earlier about the expiring coverage, lawyers said.

Fleming, now 80, was recovering from an infection that caused part of his toe to be amputated and also spread to his spine.

 A doctor did not examine Fleming before he returned to his home, the lawsuit alleged, and didn’t sign the discharge notice until nearly a month after Fleming left Brookdale.

He shouldn’t have been discharged, the complaint stated. Within 24 hours, Fleming was transported to an emergency room with severe back pain.

Paula Lange came to Brookdale Camarillo on Feb. 24 after fracturing her hip in a fall. Lange, also diagnosed with Alzheimer’s, was discharged from Brookdale Camarillo less than two months later, the lawsuit stated. She was also given two days’ written notice.

Johnson said Lange’s Medicare coverage at Brookdale was expiring.

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“The reason defendants illegally kicked out Mr. Fleming and Ms. Lange was purely monetary,” the complaint stated. “Defendants deliberately violate the statutory discharge procedures so they can get rid of residents such as Mr. Fleming and Ms. Lange as fast as possible and replace them with more lucrative short-term Medicare residents.”

Biggest issue may be lack of notice

The rushed evictions happen at many nursing homes and have reached crisis level, said Tony Chicotel, staff attorney for the California Advocates for Nursing Home Reform.

“The financial incentives are so huge,” he said. “It’s all about rehab and short-term Medicare dollars. As soon as one person’s rehab is over, you replace them with someone else.”

The biggest issue may be lack of notice, said Chicotel, conceding that 30 days’ notice may not be possible in an instance when the resident was admitted to a facility just days or weeks earlier. The law calls for as much notice as possible.

Many facilities give no written notice at all, reinforcing the feeling that residents and their families have no options when it comes to being discharged, Chicotel said. The laws are designed to help people understand their options, including appealing a discharge.

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“Facilities don’t want residents to know these things. There is a mechanism to slow this down,” he said. “People feel like they’re going downhill and there are no brakes.”

Winning an appeal allows a resident to stay in a nursing home but doesn’t extend Medicare’s coverage, Chicotel said. Residents could face the far higher private-pay rate.

Sometimes the higher cost is worth it for a few days if it means guaranteeing a resident is being transferred to a facility that can provide needed care, Chicotel said.

Discharge complaints low, but rising

Johnson said nursing homes often ignore or take shortcuts in discharge planning. The lawsuit is aimed at forcing them to provide more help so families have time to make transitions and avoid exorbitant pay rates.

Some residents covered temporarily by Medicare may qualify for long-term coverage at facilities that accept Medi-Cal, Johnson said. 

Chicotel contends nursing homes have shifted their business model, relying less on Medi-Cal payments and far more on the higher reimbursement rate from Medicare. Some facilities, including Brookdale Camarillo, don’t accept Medi-Cal payment, according to Nursing Home Compare.

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But nursing homes still rely more on Medi-Cal payment than Medicare, said Deborah Pacyna of the California Association of Health Facilities, which represents nursing homes. She cited 2017 records from the California Office of Statewide Health Planning Development showing Medicare covered nearly 15 percent of the patient days spent at more than 1,100 long-term care facilities, almost all of them nursing homes. Medi-Cal covered 56 percent of the patient days.

Medicare generated about $3.6 billion in net revenue for the facilities in 2017 compared to $4.4 billion from Medi-Cal.

Pacyna also claimed discharge complaints were made to state officials in less than 1 percent of the total discharges in the fiscal year ending in October 2017.

“While statistically insignificant, we remain concerned about any inappropriate discharges,” she said.

Discharge complaints have risen 63 percent over recent years and made up about 5 percent of the 27,455 complaints filed with the state Long Term Care Ombudsman program, said Connie Damant of the California Department of Aging.

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A reason more complaints aren’t made is that consumers don’t know about regulations that require written notice and set parameters for who can be discharged and who cannot, Chicotel said. They don’t know they can appeal.

“They have the ability to put the brakes on this thing and slow it down,” he said.

Class-action lawsuit possible

The facilities named in the lawsuit include Brookdale Camarillo, Brookdale Carlsbad, Brookdale Carmel Valley, Brookdale Rancho Mirage, Brookdale San Juan Capistrano, Brookdale Riverwalk, Brookdale San Dimas, Brookdale Yorba Linda, Brookdale Northridge and Brookdale Fountaingrove.

If the lawsuit is certified as a class-action lawsuit, participants would need to have been discharged from one of the 10 Brookdale nursing homes no later than December 2015. State code limits the liability of nursing homes, meaning the most each plaintiff could get in damages is $500.

Johnson said the ultimate goal is to gain a court order or a settlement that changes the way the nursing homes discharge patients.