|Elaine Benz with family. (Photo by Bill Lueders.)|
Last fall, my then-97-year-old mother, Elaine Benz, was evicted from the senior living facility known as the Regency, in New Berlin, Wisconsin, where she had lived for ten years. My sister, Diane, was told on Thursday, October 28, that our mom would not be allowed to return the following morning, as planned, from a physical rehabilitation center to which she had been sent following a fall. The Regency had decided her needs had gotten too great.
It was a staffer at the rehab center and not someone from the Regency—officially ProHealth Regency Care Communities New Berlin—who broke this news to Diane. As she recalls, the staffer told her that the Regency would turn Elaine “away at the doors” if the center tried sending her back. We needed to find her a new place to live.
I have written elsewhere about my family’s efforts to negotiate a different outcome, both by appeals to the Regency and contacts with the Wisconsin Department of Health Services, which regulates nursing homes and other residential care facilities, including the Regency. The details of my mother’s displacement, and subsequent events involving the state’s regulatory apparatus, have been documented in more than a dozen articles for various outlets, including an 8,500-word piece in the Progressive earlier this year. I have received hundreds of pages of documents in response to open records requests.
This is my attempt to share the story’s full arc, which culminated in a meeting this month with the state Department of Health Services officials. It is an extraordinary tale in its particulars, given the actions of the state.
But in general, I learned, there is nothing unusual about it. What happened to my mother happens to elderly people in America all the time. A facility will conclude that a patient has become too much work or is no longer a good deal financially and find a way to get rid of her. Often, as with Elaine, nursing homes and other senior care facilities evict residents while they are temporarily moved to another facility.
Nicole Shannon, a frontline attorney for the Michigan Elder Justice Initiative, told me how this sometimes works: “The nursing home will say, ‘Well, it sure seems like you need a psychiatric consult, we’re gonna send you to the hospital.’ The hospital turns around and says, ‘You know, this person does not require psychiatric care. You can go back to your nursing home now,’ and the nursing home says ‘Nope, no thanks, you’re no longer welcome here.’”
Shannon’s group has seen cases in which nursing home residents have had discharges approved for transfers to a homeless shelter, to the home of an unwilling relative, to a house that no longer existed because it had burned down, and to an apartment the person no longer rented.
On November 18, the day after we found a new place for Elaine to live, the Office of Inspector General for the U.S. Department of Health and Human Services released a forty-page report on problems regarding “facility-initiated discharges.” It noted that “discharge/eviction” was from 2013 to 2019 the single most frequent complaint recorded by the federal Long-Term Care Ombudsman Program, which operates in all fifty states and the District of Columbia.
The report says that several of the ombudsmen surveyed “volunteered that nursing homes have said that they would rather accept a deficiency or enforcement penalty than keep the resident.” Other ombudsmen “opined that stronger enforcement actions could help to reduce these discharges.”
The national experts I spoke with all agreed that improper discharges are, as Lori Smetanka, executive director of the National Consumer Voice for Quality Long-Term Care, put it, “a huge problem across the board” and that lax enforcement was largely to blame. “Anytime 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,” urged Tony Chicotel, a staff attorney for California Advocates for Nursing Home Reform. “There’s got to be real deterrence.”
There was a time when I thought my mother’s case provided an opportunity for the state of Wisconsin to deliver that deterrence and send a message that providers who break the law shall be held accountable. Instead, the message those providers received is that they can get away with it.
Elaine ended up staying at the rehabilitation center for another 19 days, until we were able to move her into a new residence. During this time, the facility was in COVID-19 lockdown, meaning Diane could no longer visit, as she has almost every day for years. There were times when Diane stood outside in the cold, waving at our mom through a window. The rehabilitation center charged Elaine $7,486 for these 19 days. She also paid the Regency her usual $5,685 for the month of November, during which time she was not allowed to return to her room.
Our mom, who turned 98 in February, has since come to like her new residence. But it was a traumatic transition. When I visited her there in November, a few days after she moved in, she was atypically despondent. She would not eat her breakfast and, for more than an hour, did not say a word as I put up shelves for family photos in her new apartment. Then, as I knelt before her wheelchair, she looked at me and said, “I want to go home.”
Like the federal law governing nursing homes nationwide, Wisconsin law requires providers including the Regency to give residents 30 days advance notice before an involuntary discharge. But the experts I spoke to said this seldom happens.
“It is rare for a resident to ever get 30 days’ notice,” Chicotel told me. That’s because doing so involves informing residents of their right to appeal, which facilities don’t want because residents who do appeal usually win. “The benefits of breaking the law are greater than the cost of breaking the law. So, consequently, you get a lot of law-breaking.”
Both the state and federal laws provide an exemption from the 30-day notice if there’s an emergency, meaning that the person poses “an immediate and documented threat to the health or safety of the tenant or of others,” as the Wisconsin law puts it. This is what the Regency claimed to be the case in a letter we received via email on November 4, a full week after our mom was evicted. It also argued that she required more than 28 hours of direct care per week, beyond what the facility was licensed to provide. She has never needed or received this level of care, even to this day.
Again, this is par for the course. Eric Carlson, director of long-term services and supports advocacy with Justice in Aging, a national legal advocacy group, told me that in most cases where a resident’s needs are said to have gotten too great, “the resident is still within” the level of care the facility is licensed to provide.
On November 5, I filed a grievance with the state, disputing the Regency’s representations. Three days later, on November 8, an inspector with the DHS’s Division of Quality Assurance paid an onsite visit to the Regency to review Elaine’s medical records. The inspector, Geralyn Spitzer, wrote a 12-page report concluding that the Regency had violated state administrative code in two particulars, including its false claim that our mother’s condition presented an “emergency” requiring her immediate discharge.
The inspection found: “The care needs the provider used as evidence of an emergency termination were the same care needs [Elaine] required prior to a temporary transfer for rehabilitation.” The Regency was also flagged for failing to “complete a comprehensive assessment . . . with the active participation of the tenant and the tenant’s legal representative,” as required.
We didn’t see the inspector’s report until early February, when it was posted on the state’s online portal for complaints against nursing homes and other senior care facilities. Also posted was the state’s Notice and Order,” dated Feb. 1, 2022, fining the Regency $1,200 for violating the rules regarding what constitutes an emergency and $300 for failing to properly consult. This was, I learned through a records request, only the third time over the past three years that a Wisconsin provider in the Regency’s licensing category, which includes over 350 facilities, was fined for violating the state’s rules regarding the discharge of residents.
I wrote a column for the Milwaukee Journal Sentinel on how $1,500 was a ridiculously low penalty, noting that it came with an offer of a 35 percent discount, to $975, if paid within ten days. But, as it turned out, the Regency would not have to pay any fines at all.
On February 18, the Regency appealed the citations, requesting a hearing on the matter with the state Division of Hearings and Appeals. But in April, before a hearing could be held, the state rescinded the citations. A stipulated settlement agreement said the dismissal was made based on unspecified “additional information.”
When I pressed for specific information that was provided to the state, I was sent a number of my mother’s health records from the Regency, marked as exhibits. But by the state’s own admission, none of these records articulate a defense of the Regency’s actions. Moreover, the documents that existed prior to Elaine’s eviction are marked as having been “received” by the DHS Division of Quality Assurance on Nov. 8, 2021, the date of the inspection conducted by Spitzer.
In other words, this information was made available and reviewed prior to Spitzer concluding that the Regency committed two violations, a determination that was upheld on review by division staff prior to the citations being issued. To this day, Diane and I, who have power of attorney over Elaine’s health care, still don’t know why the state decided it was perfectly OK for the Regency to evict her, one day to the next.
As I recently learned as the result of an open records request, Otis Woods, the administrator of the Division of Quality Assurance, was blindsided to hear that unknown others in state government had rescinded the citations his division had issued.
“This is news to me that we withdrew the citations and other enforcement action,” wrote Woods, in an April 27 email to other officials marked as “high” importance. “Was there some legal settlement that we agreed to in this case? We confirmed violations, issued enforcement action, they appealed (I think), and we withdrew everything? Please take a look and, if needed, I would like to meet about this matter.”
Woods was responding to his copy of a letter I emailed that day to his boss, Karen Timberlake, secretary-designee of the state Department of Health Services (DHS), which includes Woods’ division, protesting the decision to rescind the two citations. I wrote in the letter:
What has happened here is an egregious failure on the part of DHS to enforce state administrative code against an especially flagrant violator. You are making it clear that providers of care to the elderly can violate the state’s rules with impunity. As such, the decision of the Department of Health Services to dismiss this case puts all of the state’s most vulnerable residents at unnecessary risk.
Woods ultimately defended the decision he was initially troubled to learn about in a response letter to me, but he gave no explanation for the state’s decision to back down, other than that “the facility provided additional information.” The letter concluded by telling me that “The Division of Quality Assurance appreciates your advocacy for the rights of residents in Wisconsin’s residential facilities.” I thanked Woods for this in my reply, but added, “isn’t advocating for the rights of residents in these facilities supposed to be your job, not mine?”
Shortly thereafter, I discovered that the state removed Spitzer’s 12-page report from its online portal, replacing it with a newly created document claiming the Nov. 8 inspection identified “no deficiencies” and that “the complaint was not substantiated.” Woods said switching the documents was “consistent with standard practice” so that “the published [record] accurately reflect[s] the current results” of a complaint investigation.
The Regency is owned by ProHealth Care Inc., a Waukesha-based “not for profit” provider that in 2020 reported $103 million in “revenue less expenses” and over a recent six-year period paid its president and CEO, Susan Edwards, nearly $19 million. At one point in my exchanges with state officials, I mused that ProHealth “has a lot of money and presumably a lot of clout,” which may have led it to believe it could get away with how it treated Elaine.
Elaine’s eviction came as she is nearing the end of her life savings, after she and her late husband Don paid the Regency more than $321,000 in rent over a ten-year period. She soon will no longer be able to afford her current $7,365 monthly rent, which is far in excess of the roughly $2,100 a month she receives in Social Security and small pensions from my late father and her years working at Woolworth’s in Milwaukee. When her savings run dry, a government program will likely pick up some of the costs, but the amount would be far less than what the Regency had been receiving and what her new provider is receiving now.
Whether this was a factor in the Regency’s desire to get rid of her, we don’t know. On April 16, an attorney representing the Regency offered to pay my family a settlement of $7,865 “to resolve this matter.” But that offer was withdrawn after the state dismissed the citations.
On August 8, Diane and I met with two DHS officials, including Assistant Deputy Secretary T.R. Williams, to discuss our concerns regarding how this matter was handled. They were both very kind and professional. Williams defended DHS staff against the negative attention I have showered on this situation. She said that my “intuition” has always been that there is something “nefarious” regarding how Elaine’s case was handled, when in reality these were hard-working state employees doing what they thought was right.
That’s a fair point and, as I said in an article I wrote on the meeting, “I am sorry . . . that their already difficult jobs, which they do because they want to make a positive difference in people’s lives, have been made more difficult by my reporting on this topic, and my family’s demand for answers.”
Williams said there was no other information beyond the medical records we were given regarding the state’s decision to rescind the citations: “Information was given, you just thought it was insufficient.” She would not say whether the division’s frontline staff agreed that the citations had been issued in error. And there is apparently no way we can appeal this decision; only the regulated facilities have the ability to challenge the actions of the state.
But Williams did say that, beyond this particular case involving Elaine, which DHS considers closed, the state would be open to having a larger “conversation about policy or legislative advocacy,” if we have ideas for addressing the problem she admits does exist regarding the improper evictions of elderly people from their homes.
I appreciate that openness, and afterward made some suggestions:
The state should improve its online portal for complaints against residential care facilities by allowing aggregate searches, not just residence-specific ones, and by keeping all records regarding the complaint posted, even if the status of a case changes. The state should take the lead in educating residents and families on their rights; encourage them to ask providers upfront about when and under what circumstances (falls, incontinence, dementia) a resident may be evicted; and let them know that national experts recommend that residents refuse to leave when told to do so, and that they should instead insist on their their due process and appeal rights.
Finally, I said, the state should look for opportunities to enforce its existing rules and regulations in a public way, calling attention to those cases—however few and far between—when facilities are busted for improper discharges and other rule violations.
My family believes that we gave the Wisconsin DHS an opportunity to
do exactly this, but that did not happen. Maybe next time—and sadly,
there is no doubt there will be one—the state, or other regulators in
other states, will respond in a way that will make it less likely, not
more, that it will happen to others.