Involuntary Discharge of Nursing Home Residents What Are Your Rights?

I. Prohibition Against Involuntary Discharge from Nursing Homes

In 1987, Congress passed the Nursing Home Reform Act to ensure that skilled nursing homes create an environment that promotes maintenance or enhancement of the quality of life of each resident. 42 U.S.C. § 1395i-3(b)(1)(A). The Nursing Home Reform Act requires the provision of certain services to each resident and establishes a Residents’ Bill of Rights. 42 U.S.C. §§1395i-3(b), (c); 1396r(c)(2).

Generally, federal regulations prohibit the involuntary discharge of nursing home residents in all but six situations. 42 U.S.C. § 1395i-3(c)(2)(A).

Often, the motivating reason for evicting nursing home residents is financial. A resident may be at risk for eviction because of an outstanding and unpaid balance on their account, or because the nursing home wishes to replace resident whose bills are being paid by Medicaid or Medicare with a resident who will pay from their personal funds so the nursing home will make more money.[1] “Those on Medicaid bring facilities as little as half what they can get from residents who pay out of pocket, with private health insurance or through Medicare, the federal-state health program for the elderly.”[2]

There are different types of unlawful involuntary discharge of a resident, for example:

Hospital dumping (a practice in which a nursing home takes a resident to a local hospital for treatment and then refuses to take the resident back after he or she is released); [3]
Improper eviction (establishes presumption that involuntary discharge is unlawful “if the resident is or becomes eligible for Medicaid benefits”);[4]
Wrongful discharge (If you have submitted paperwork for third party payment and payment status is pending, such as applying for Medicaid, the facility cannot discharge you for failure to pay. If a resident’s initial application to Medicaid is denied and the resident appeals, the resident cannot be discharged until the appeal is decided. The facility is responsible for notifying residents of their change in payment status and should ensure residents’ have the assistance they need in completing the paperwork.).[5]

II. Legal Exceptions to Involuntary Discharge from Nursing Homes

Federal regulations[6] provide six exceptions to the general rule prohibiting involuntary discharge of nursing home residents:

The transfer or discharge is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility;
The transfer or discharge is appropriate because the resident’s health has improved sufficiently so the resident no longer needs the services provided by the facility;
The safety of individuals in the facility is endangered;
The health of individuals in the facility would otherwise be endangered;
The resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare or Medicaid on the resident’s behalf) for a stay at the facility. Non-payment applies if the resident does not submit the necessary paperwork for third party payment or after the third party, including Medicare or Medicaid, denies the claim and the resident refuses to pay for his or her stay. For a resident who becomes eligible for Medicaid after admission to a facility, the facility may charge a resident only allowable charges under Medicaid; or
The facility ceases to operate.

III. What Are Your Rights? (42 USC § 1396r(c); 42 USC § 1395i-3(c))

A. Documentation Required

The nursing home facility must ensure:

In the situations described in Section II.A – D, above, the transfer or discharge is documented in the resident’s medical record;
In the situations described in Section II.A – B, above, the documentation must be made by the resident’s physician;
In the situation described in Section II.D, above, the documentation must be made by a physician;
the basis for the transfer.
when a discharge or transfer is because the facility says it cannot meet the needs of a resident, the facility must document:
1. specific resident need(s) that cannot be met,
2. facility attempts to meet the resident needs, and
3. the service available at the receiving facility to meet the need(s).
that the following minimum information is communicated to the receiving health care institution or provider:
1. Contact information of the practitioner responsible for the care of the resident
2. Resident representative information including contact information.
3. Advance Directive information.
4. All special instructions or precautions for ongoing care, as appropriate.
5. Comprehensive care plan goals,
6. All other necessary information, including a copy of the resident’s discharge summary, consistent with § 483.21(c)(2), as applicable, and any other documentation, as applicable, to ensure a safe and effective transition of care.
except for specialized needs such as acute psychiatric, bariatric, or ventilator care, nursing homes are certified to provide similar types of care and services.

B. Notice Before Transfer

Before a nursing home facility transfers a resident, it must provide written notice to the resident and his/her representative in a language and a manner that the resident, or his/her representative can understand, and to the receiving health care institution or provider.

The written notice must contain:

The reason for the discharge.
Document the reason for the discharge, as stated above.
The effective date of the discharge.
The location to which you will be discharged. The listed location must be specific, appropriate, available, and agreeable to admitting the resident.
A statement of the resident’s appeal rights, including the name, address (mailing and email), and telephone number of the entity which receives such requests; and information on how to obtain an appeal form and assistance in completing the form and submitting the appeal hearing request;
Notice must be given at least 30 days in advance. (With very limited exceptions, such as when a resident cannot be cared for safely or is a danger to others, in which case “notice shall be given as soon as practicable before transfer or discharge” and the facility must document the danger that failure to transfer/discharge would impose.)
Contact information for the Long-Term Care Ombudsman (LTCO) and, if applicable, the agencies responsible for advocacy on behalf of persons with mental illness and developmental disabilities. See local LTCO contact information below.
For nursing facility residents with a mental disorder or related disabilities, the mailing and email address and telephone number of the agency responsible for the protection and advocacy of individuals with a mental disorder established under the Protection and Advocacy for Mentally Ill Individuals Act.
The facility must send a copy of the notice to the State Long-Term Care Ombudsman. In Texas, you may reach the Long-Term Care Ombudsman at https://apps.hhs.texas.gov/news_info/ombudsman/ or by email at ombudsman@hhsc.state.tx.us, or by telephone at 1-800-252-2412 (toll free).
Further information and assistance is available at your local Aging & Disability Resource Center:

Dallas ADRC, 1345 River Bend Drive, Suite 200, Dallas, TX 75247, Phone: 888-743-1202; Toll Free: 1-855-937-2372; County served: Dallas
Tarrant ADRC, 1300 Circle Drive, Fort Worth, TX 76119, Phone: 888-730-2372; Toll Free: 1-855-937-2372; County served: Tarrant
North Central Texas ADRC, 616 Six Flags Drive, Arlington, TX 76011, Phone: 877-229-9084; Toll Free: 1-855-937-2372; Counties served: Collin, Denton, Ellis, Erath, Hood, Hunt, Johnson, Kaufman, Navarro, Palo Pinto, Parker, Rockwall, Somervell, and Wise

Check your written notice. If it does not include all the information listed above, it is not valid. The facility must start over and issue another notice.

Residents have the right to participate in their care planning and share concerns about their care. If you feel facility staff are pressuring you to move, contact the Long-Term Care Ombudsman Program.

C. Right to Appeal

You have the right to appeal and must do so before the date of discharge. The facility must help you complete and file a request for an appeal. You are entitled to a hearing. 42 CFR §§ 431.220(a)(2).

The facility may not transfer or discharge the resident while the appeal is pending, pursuant to 42 CFR § 431.230, unless the failure to discharge or transfer would endanger the health or safety of the resident or other individuals in the facility. The facility must document the danger that failure to transfer or discharge would pose. 42 CFR §§ 431.230, 483.15(c)(1)(ii).

You may contact the Long-Term Care Ombudsman Program for information, support, and advocacy in appealing the discharge and/or assistance finding legal assistance providers. See local LTCO contact information above.

D. Detailed Discharge Plan Required[7]

You have the right to participate in all aspects of discharge planning. The written discharge plan must include a location, services, care, and medications, if needed. The facility must prepare and orient you for a safe and orderly discharge in a language and manner that the resident understands.

You have the right to ask to visit your new home, and to visit it. This is considered part of orientation.

It is the facility’s responsibility to ensure that you arrive safely to your new location with your possessions, including transferring any personal funds to you or a new account.

E. Notice of Bed-Hold Policy[8] (42 USC 1396r(c)(1)(D); 42 CFR 483.15(d))

Before a nursing facility transfers a resident to a hospital or the resident goes on therapeutic leave, the nursing facility must provide written information to the resident or resident representative of its bed-hold policy that specifies:

The duration of the state’s bed-hold policy, if any, during which the resident is permitted to return and resume residence in the nursing facility;
The reserve bed payment policy in the state plan, if any;
The nursing facility’s policies regarding bed-hold periods permitting a resident to return; and
The information in the facility’s written policy on permitting residents to return to the facility after they are hospitalized or placed on therapeutic leave.

F. Return to Facility[9] (42 USC § 1396r(c)(1)(D)(iii); 42 CFR 483.15(e)(1))

You have the right to return to the facility following hospitalization or therapeutic leave, including the right to return to your bed or the first available bed. The facility must give you information about your right to return, as well as a copy of its bed-hold policy in advance of your leave. Sending you to the hospital does not relieve the facility of the responsibility of following the discharge requirements.

A facility must establish and follow a written policy on permitting residents to return to the facility after they are hospitalized or placed on therapeutic leave.

The policy must provide for the following:

● A resident, whose hospitalization or therapeutic leave exceeds the bed-hold period under the State plan, returns to the facility to their previous room if available or immediately upon the first availability of a bed in a semi-private room if the resident:

(A) Requires the services provided by the facility; and

(B) Is eligible for Medicare skilled nursing facility services or Medicaid nursing facility services.

● If the facility that determines that a resident who was transferred with an expectation of returning to the facility, cannot return to the facility, the facility must comply with the requirements of Section III.A-E, above, as they apply to discharges.

G. Texas’ Resident’s Bill of Rights

Texas provides a Resident’s Bill of Rights which must be given to each resident. Texas Resident’s Bill of Rights may be found at:

https://apps.hhs.texas.gov/news_info/ombudsman/docs/brochures/DADS141_ALResidents_Bill_of_Rights.pdf.

Texas Resident’s Bill of Rights provides in part:

A. that a patient not be transferred or discharged unless:

the transfer is for the resident’s welfare, and the resident’s needs cannot be met by the facility;
the resident’s health is improved sufficiently so that services are no longer needed;
the resident’s health and safety or the health and safety of another resident would be endangered if the transfer or discharge was not made;
the provider ceases to operate or to participate in the program that reimburses for the resident’s treatment or care; or
the resident fails, after a reasonable and appropriate notice, to pay for services;

B. that a patient not be transferred or discharged, except in an emergency, until the 30^th day after the date the facility provides written notice to the resident, the resident’s legal representative, or a member of the resident’s family, stating:

that the facility intends to transfer or discharge the resident;
the reason for the transfer or discharge;
the effective date of the transfer or discharge;
if the resident is to be transferred, the location to which the resident will be transferred; and
any appeal rights available to the resident;

C. that a patient may leave the facility temporarily or permanently, subject to contractual or financial obligations; and

D. that a patient have access to the services of a representative of the state Long-term Care Ombudsman Program.

Conclusion

Involuntary discharge of residents, or the threat of transfer or discharge can be stressful and frightening to a resident as well as the resident’s family members. If you or a loved one is facing a transfer or discharge from a nursing home, feel free to call me. I may be able to help you or your loved one.

[1] William Pipal, You Don’t Have To Go Home But You Can’t Stay Here: The Current State of Federal Nursing Home Involuntary Discharge Laws, Volume 20, The Elder Law Journal, 235-236, 242-243, July 2, 2012.

[2] Theo Francis, To Be Old, Frail And Evicted: Patients at Risk, WALL ST. J., Aug. 7, 2008, http://online.wsj.com/ article/SB121806702698918693.html.

[3] Rebecca S. Rivas, When a Nursing Home Won’t Take a Patient Back from the Hospital, ST. LOUIS AM., May 27, 2010, http://www.stlamerican.com/news/local_news/article_c60cc853-0960-5c1d-a2f5-82fdc1012bd1.html.

[4] Theo Francis, To Be Old, Frail And Evicted: Patients at Risk, WALL ST. J., Aug. 7, 2008, https://www.wsj.com/

articles/SB121806702698918693

[5] John Suayan, Malpractice Suit Claims Woman Should Not Have Been Discharged from Nursing Home, SE. TEX. REC., Oct. 7, 2010, http://www.setexasrecord.com/mobile/story.asp?c=230291.

[6] 42 CFR 483.15(c)

[7] http://theconsumervoice.org/uploads/files/general/T-D_Plenary_Slides_1019_FINAL.pptx

[8] https://nursinghome411.org/fact-sheet-nursing-home-transfer-discharge-rights/

[9]Id.