Nobody wants to go to a nursing home, but for many persons it is absolutely necessary. Once a person has become adjusted to life in a nursing home, a forced move to another nursing home can be further devastating. A change in surroundings for someone whose life is that closed-in can cause long-lasting trauma. This is reflected in federal regulations that require careful planning of these moves. However, I have been involved in many situations where facilities have not followed the law.
One client in a nursing home had problems with Medicaid. He was not getting his full Social Security because money for child-support was being withheld. This resulted in a balance owed to the nursing home and the administrator started leaning on the family to pay up. He threatened to put the resident in a taxi and have him dropped off at his former residence. Doing so would be a serous violation of state and federal regulations, as was making such a threat. The administrator’s flagrant violation of the law cost his employer the amount claimed to be owed, plus costs.
As undesirable as nursing-home placement is, there are important rights that protect the residents. Some of the most important pertain to evictions, or “involuntary discharge.”
Federal law offers many protections against involuntary eviction from a nursing home. These protections cover facilities that participate in either Medicare or Medicaid. If even a few of a nursing home’s residents participate in either program, the entire facility and all of its residents–including those not receiving direct benefits under either program–are subject to the transfer and discharge laws and regulations.
To lawfully transfer or discharge a resident, a nursing facility and the state Medicaid agency are required to follow numerous substantive and procedural guidelines. Any breach of these provisions may be sufficient to prevent or reverse an unwanted transfer or discharge.
The law limits a facility’s authority to transfer or discharge residents to six situations.
The facility must permit each resident to remain in the facility, and not transfer or discharge the resident from the facility, unless the transfer or discharge is necessary because:
✓ The resident’s needs cannot be met in the facility;
✓ The resident’s health has improved and the resident no longer needs the services;
✓ The safety of individuals in the facility is endangered;
✓ The health of individuals in the facility would otherwise be endangered;
✓ The resident has failed to pay OR to apply for Medicare or Medicaid; or
✓ The facility ceases to operate. 42 C.F.R. § 483.12(a)(2). 42 U.S.C.A. §§ 1395i-3(c)(2)(A) and 1396r(2)(A) contain virtually identical language.
One of the most common excuses of nursing homes for moving a resident is that “the resident’s needs cannot be met in the facility.” Transfers of this sort often stem from the facility’s desire to specialize in a particular type of patient or care–e.g., Alzheimer’s, respite or short-term rehabilitation–to maximize reimbursement or streamline care requirements. The law recognizes no such distinctions. There is no basis, therefore, for a discharge simply because the resident may now require long-term custodial care rather than rehabilitation, or no longer qualifies for Medicare-covered skilled care. The Reform Law states that every nursing facility “must provide services to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident” and must do so “in such a manner and in such an environment as will promote maintenance and enhancement of the quality of life of each resident.”
If you have a family member in a nursing home and that resident is being threatened with eviction, an Elder Law attorney can intercede to enforce the resident’s rights. However, the time to appeal an involuntary discharge is very short. If the nursing home staff is threatening to kick out a resident, talk to an attorney immediately.
Here are some points to remember:
If a staff member threatens to kick a resident out of a nursing home, that may be a violation of the Nursing Home Reform Act, by itself. However, a statement that is not in writing has no legal effect. An involuntary discharge notice must be in writing and must inform the resident and the resident’s representative of the resident’s rights.
Many times a notice of involuntary discharge is invalid because it does not include all of the required information or because the reasons given for the involuntary discharge are not sufficient grounds for discharge. Talk to an Elder Law attorney immediately if you or someone you love receives an eviction notice from a nursing home–even if the family wants to move the resident, anyway. Nursing home administrators talk to one another. A person who is evicted from one nursing home may have a very difficult time in future placements.
Do not appeal a notice of involuntary discharge immediately! A hearing takes place very soon after the appeal is received by the nursing home regulatory agency. The resident has 10 days to appeal. Your attorney will need as much time as possible to prepare for the hearing, so the appeal should not be mailed or delivered before the tenth day.
As stressful as life is for a nursing home resident–some might say “inmate”–a threatened involuntary discharge can make things much worse. There are important rights guaranteed by the federal Nursing Home Reform Act. An attorney can help to enforce those rights to protect the resident.
John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com ©2010 John B. Payne, Attorney
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