Protecting the Nursing Home Industry and the Elderly Following the Deficit Reduction Act of 2005
Volume 82, No. 5, Spring-Summer 2010
By Renée Carlson

In 2008, ninety-nine-year-old Cordelia Robertson received an eviction notice from the assisted living facility where she had lived for the past decade: her savings had run out, and the facility had altered its policies, choosing to decline Medicaid as payment. Describing his mother as “happy” but “frail,” Cordelia’s son worried that a move would result in confusion and devastation for his eighty-pound elderly mother. Evictions such as these have brought the owner of Cordelia’s facility, Assisted Living Concepts, under careful scrutiny. But while elders and their families have been frustrated by eviction notices, Assisted Living Concepts has been concerned with its solvency, noting that certain states’ Medicaid reimbursement rates have not kept up with inflation.

As Cordelia’s son feared, researchers have indeed confirmed that such evictions can take their toll on the health of the elderly and that this is not an isolated problem. In 2006, more than seven million elders like Cordelia Robertson received long-term care in America —a figure that is expected to double by 2020. The increasing number of Americans dependent on long-term care warrants a closer look at the regulations and actual practices that define the long-term care industry, the industry’s solvency, and mechanisms in place to ensure that elders will be able to afford the care they need. Regulations should balance the interests of the consumer, the taxpayer, and the industry to ensure (1) that the costs of long-term care are subsidized in a way that makes care accessible and protects the elderly from dangerous evictions, (2) that taxpayers do not become responsible for long-term care costs that middle-class consumers would be able to cover themselves, and (3) that the long-term care industry remains financially solvent in spite of additional protections afforded to its consumers.

This Comment seeks to strike a balance between these three competing objectives in the arena of nursing home care. First, the Overview discusses recent and existing legislation. Part II.A describes the Deficit Reduction Act of 2005 (“DRA” or “the Act”), which may contribute to increased evictions and an increased financial burden on nursing homes. This first part focuses on the ways in which the Act has created both expansions and restrictions in access to Medicaid coverage for long-term care.

Part II.B focuses on the financial difficulties that individuals such as Cordelia face when attempting to plan for and pay for long-term care. This part also examines the effect of nonpayment evictions on elderly individuals by discussing the theory of transfer trauma and its triggers.

Next, Part II.C considers the same event—nonpayment—from the perspective of the nursing facility. Part II.C discusses three options available to the facility when a resident doesn’t pay: (1) retention, (2) obtaining a hardship waiver, and (3) eviction. This section also gives thorough treatment to federal and state regulations governing the circumstances under which residents may be evicted.

The Discussion section evaluates potential results of the DRA, and proposes a solution to benefit all parties. Part III.A predicts the effects of the DRA, positing that the individual may face increased incidence of eviction accompanied by heightened risk of transfer trauma, and the facility may encounter financial hardships resulting from the Act’s provisions.

Finally, Part III.B proposes a three-part solution aimed at protecting the individual from transfer trauma and inappropriate discharge or transfer, and protecting the nursing industry from financial devastation, while still exhibiting sensitivity to the DRA’s objectives.

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