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The Honolulu Advertiser
Posted on: Tuesday, March 30, 2010

Eviction without notice not allowed

By Rob Perez
Advertiser Staff Writer

Hawaii news photo - The Honolulu Advertiser

Yolanda and Angelo Botelho at their Kona home last year with grandchildren Kyle, 7, and Ashley Botelho, 5, who live in Cali­fornia. Angelo Botelho says a nursing home evicted his wife without any warning.

Photo courtesy of Botelho family

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With sufficient advance notice, nursing home residents can be evicted for only six reasons:

• Failure to pay the tab

• No longer needs nursing home care

• Needs cannot be met at nursing home

• Presence endangers others' safety

• Presence endangers others' health

• Nursing home going out of business

Source: National Senior Citizens Law Center

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A day before Thanksgiving, the nursing home presented Big Island resident Angelo Botelho with what he considered an ultimatum.

Without any advance notice, Botelho said, he was told to immediately remove his wife of 44 years from Life Care Center of Kona or she would be admitted to the psychiatric ward of a nearby hospital.

"I was totally taken aback," the retired San Francisco paramedic said. "It was like a gun was put to my head. I really had no choice."

Botelho said a Life Care physician told him that his 63-year-old wife — she's 4 feet, 10 inches tall and 112 pounds — had become a threat to other residents and was capable of "breaking someone's bones."

A Life Care representative declined comment.

In the weeks leading up to that pre-Thanksgiving meeting, Botelho said, the nursing home had raised concerns about his wife's behavior, including an incident in which she pulled the arm of a woman visitor and another in which she was verbally abusive to a resident who wandered into her room.

But until that pre-Thanksgiving meeting, no one so much as hinted that Yolanda Botelho would have to leave the facility, her husband said.

Besides, Botelho maintains that his wife's usually mellow behavior changed because the nursing home dramatically increased her medications.

Yolanda, who suffers from dementia and Huntington's chorea, a degenerative disease of the central nervous system, was admitted to the Kona institution in late October to rehabilitate a fractured ankle.

At that time, Yolanda was on two daily medications, for dementia and high cholesterol, and occasionally took a Valium to help her sleep, Botelho said.

But by the time she was discharged nearly a month later, he added, she was on 10 daily medications, including Valium and a powerful antipsychotic that was prescribed for a use not approved by the Food and Drug Administration.

Yolanda was so heavily medicated at the time of discharge that the physician told Botelho his wife needed a 72-hour hospitalization to detoxify, he said. The treatment never was arranged.

Botelho, 67, brought his wife home after the meeting, but he still believes Life Care acted improperly. He recently filed a complaint with state regulators, who told Botelho the case is under investigation. Regulators would neither confirm nor deny an investigation is pending.

The Botelho case once again brings to the forefront the issue of involuntary discharges.

It also raises questions about whether nursing homes follow required procedures in evicting residents they no longer are willing or able to treat, usually because of especially difficult behavior or for nonpayment of bills.

The issue made headlines more than a year ago after a Nu'uanu nursing home abandoned an 81-year-old woman at a hospital emergency room as her unpaid tab climbed to more than $30,000.

A week before Christmas 2008, Nu'uanu Hale left Florence Ko at Straub Clinic & Hospital without making prior arrangements on where she would go after the hospital. Ko was wearing only a hospital gown at the time and had $3 in her purse.

When the hospital called Nu'uanu Hale a few hours later to say she didn't need hospitalization, the nursing home already had filled her bed and no longer had room for Ko. Her case was publicized in a front-page Advertiser story.

Federal regulators subsequently fined Nu'uanu Hale $3,000 for violating discharge regulations. The penalty later was reduced to $1,950, and the nursing home revised its discharge policy to address regulators' concerns.

Life Care Center likewise appears to have violated federal regulations in its treatment of Yolanda Botelho, according to Eric M. Carlson, an attorney with the National Senior Citizens Law Center in Los Angeles.

Told what Botelho alleged in his complaint, Carlson said: "The facility handled this completely wrong. You can't just go up to people and say, 'Get out now.' The law is pretty clear."

A nursing home is required to give written notice well before it discharges someone involuntarily, must detail the reasons — only six specific ones can trigger an eviction — and must inform the resident of the right to appeal, including who to contact, Carlson said.

A resident targeted for involuntary discharge and the person's representative generally must be given 30 days notice or be notified "as soon as possible if more immediate changes in health require more immediate transfer," state regulators say.

If a resident opts to appeal, the agency to which the appeal is made generally would investigate whether the planned eviction is warranted.

Keith Ridley, who heads the Office of Health Care Assurance, which oversees Hawai'i nursing homes, said his agency's process to investigate an appeal could take from two to 120 working days.

Although OHCA "may be successful in influencing a provider to rescind a transfer and consider other alternatives, we cannot actually prevent a provider from discharging a resident," Ridley said in response to Advertiser questions.

Botelho said Life Care did not provide advance notice, did not detail in writing why his wife had to be discharged and did not inform him of her appeal rights.

A few days after Yolanda's admission to Life Care, Botelho said he had to go to California to help his elderly mother move into a nursing home. He returned nine days later, and by then his wife's behavior clearly had changed, he said.

"She just wasn't herself. She was more agitated, more anxious."

Concerned about the change, Botelho requested a list of his wife's medications from the nursing home. Only then, he said, did he learn that she was on 10 different drugs.

Botelho said the Life Care physician specifically mentioned the level of Valium that Yolanda was on to explain the need for detoxification. At the pre-Thanksgiving meeting, the physician promised several times to arrange for Yolanda's hospitalization for the day after the holiday if Botelho immediately took her home, Botelho said. But he said he never heard back from the nursing home.

"I was lied to so they could kick her out of the facility," Botelho wrote in his statement to regulators.

Botelho said his wife had a rough couple of days after her discharge, but her behavior has since returned to normal.

He said he is pursuing his complaint to ensure Life Care has to answer for its actions. "I want the people responsible for this to be held accountable."