Denial of Due Process:
A New Tactic in Nursing Home Eviction Cases
In the ever-unsavory world of nursing home evictions, a new industry tactic has been revealed. CANHR has observed an increased use in restraining orders as a method for effectuating nursing home evictions. The appropriate method for evicting a nursing home resident is well documented if not well followed: the facility must provide detailed advance (typically 30 days) written notice to the resident along with important preparation and orientation. Only six reasons for discharge are permitted under federal law. Hospitalized residents have, at a minimum, a seven-day bed-hold to insure their right to return to their homes. Finally, residents have the right to appeal a proposed eviction via an oral hearing.
For many reasons, facilities often fail to conform to the procedural or substantive requirements for resident transfers. The two predominant reasons are that illegal evictions are much less time-consuming and they rarely result in any punitive action against the offending facility. In recent years, residents and advocates have begun to fight unlawful evictions with great success.
Now comes word that nursing facilities are using restraining orders to prevent hospitalized residents from returning to their homes and exercising their legally guaranteed bed-hold rights. From a facility perspective, the use of restraining orders is shrewd. Facilities can simply allege that the resident has been combative or assaultive (not uncommon traits for nursing home residents) and receive a restraining order preventing the resident from living in the facility. The standard of proof for an Elder Abuse Restraining Order is not difficult to satisfy: demonstrating a reasonable probability that the restrained party has engaged in some act that causes an elder harm or mental suffering. Also, judges who issue restraining orders usually hear only one side of the story in unnoticed, ex parte proceedings before issuing a temporary restraining order. Finally, most judges are likely unfamiliar with the particular rights of nursing home residents, including bed-holds. Restraining orders are therefore an attractive legal option for a nursing home with a problematic resident.
The use of restraining orders to effectuate a nursing home eviction is clearly illegal, circumventing the carefully crafted due process rights of residents. The process is critical, not only for recognizing the basic dignity of residents, but also to protect a vulnerable and medically fragile population from serious harm or even death resulting from traumatic, unexpected transfers. The nursing home eviction process is intended to secure a well-planned safe discharge for each resident and includes expedited methods when other residents’ rights are at stake. The total disregard for these procedures is illegal, dangerous, and immoral.
For residents and their advocates, the answer to the restraining order tactic is a two-part strategy. First, the restraining order should be vehemently opposed. The judge should be educated regarding the well-defined proper procedures for nursing home discharges. Second, a concurrent Health and Safety Code Section 1430(b) complaint for violations of resident rights should be filed, requesting immediate injunctive relief to assert the resident’s right to live in the facility and due process rights related to eviction. The lawsuit can seek monetary relief on behalf of the resident (up to $500 for each day the facility refuses readmission) and an order requiring the facility be trained on issues of evictions, resident rights, and retaliation.
If you have any questions or concerns about nursing home eviction matters, please alert CANHR and we will assist.
Tony Chicotel, Esq., is a Staff Attorney with CANHR and is coordinating CANHR’s Resident Rights Litigation Project