TOPEKA – Rachel Imthurn remains a champion more than a decade after her husband’s death for implementing a Kansas law that gives residents of assisted living facilities at least 30 days notice of involuntary discharge and the right to appeal the decision of the framework.
It was in October 2011 when Imthurn came face to face with the reality of her husband, Charlie, being forced to relocate despite advancing Alzheimer’s disease. She questioned the deportation order, but learned there was no way to fight the directive because assisted living facilities were controlled by simple state regulations and state officials didn’t have the stomach to investigate and challenge those orders.
Unlike nursing homes that are subject to stringent federal Medicaid and Medicare standards, there was little they could do when the assisted living facility kicked Charlie out. He died nine days after the move.
“No 30-day notice, no doctor approval, no cause for discharge,” Imthurn said. “There’s nothing the resident can do about it. They do whatever damn well please. You can put human life at risk, which they did in our case, and get away with it. This is as crooked as you can get. It’s pure greed. It’s hard to forget.
One of the major complaints filed with the state’s Long-Term Care Ombudsman centered on involuntary discharge from assisted living facilities. In some cases, people with dementia have been left behind in Kansas hospitals, hotels and homeless shelters.
In 2021, before the outbreak of the COVID-19 pandemic, a Kansas House committee adopted a bill creating the right to appeal involuntary discharges or transfers from assisted living facilities. Representatives from Kansas Advocates for Better Care, the Disability Rights Center of Kansas, AARP-Kansas, the Kansas Alzheimer’s Association, the Kansas State Nurses Association, and the Long-Term Care Ombudsman were supportive.
Opponents included the Kansas Center for Assisted Living, Kansas Adult Care Executives, LeadingAge Kansas and the Kansas Health Care Association. There was a feeling among critics that the appeals process would force operators in assisted living facilities to seek to provide levels of treatment they were not qualified to provide.
Linda MowBray, president and chief executive officer of the Kansas Health Care Association, said an appeals process that leads to a decision forcing a facility to detain or readmit a person would be wrong. She said it would be “irresponsible” to force an assisted living facility to attempt to provide services beyond what that facility could provide.
Embarrassed, the Kansas Legislature proposed that the Kansas Judicial Council conduct a study and make recommendations in December. Neither state regulations nor statutes have established a process by which a resident can appeal involuntary transfers or discharges.
In response, the board proposed a 30-day notice trial of the involuntary removal and a right to appeal under state law. The board urged the Kansas Department of Aging and Disability Services to implement a regulation requiring notices to include information about a person’s right to appeal.
The board also established a strategy to address emergency appeals from assisted living facilities, residential health care, home plus and pensions.
Board members indicated in a 29-page report that the goal was to balance a resident’s right to due process, health and safety with the facility’s licensing and liability obligations. This prompted the board to also suggest a limit of liability for negligence if the establishment failed to provide services outside the scope of the customer service agreement.
Imthurn said he welcomed the work of lawmakers to introduce a bill incorporating the ideas presented by the council. He said the force of the law was needed because state regulation fell short in terms of patients’ rights in assisted living facilities.
“This new law is very out of date and needs all the support it can get. Current unenforced regulations have caused untold damage. Residents living in assisted living have no legal rights or protections,” she said.
