No one wants to live in a nursing home. But, for many people it may become necessary at some point in life. For those who do become residents of a nursing home, it is important to understand nursing home transfer and discharge rights to ensure the best care possible.
In general, nursing homes are prohibited from moving or discharging residents. When these situations do occur, specific processes and procedures must be followed. In order to lawfully discharge a resident, the nursing home must be able to prove that it complied with all the procedural requirements and the discharge is for one of the specific allowable reasons. If the discharge occurs and is not for one of the reasons described below, the resident must be allowed to return to the facility.
A resident can never be discharged if moving the resident would be “medically contraindicated,” meaning the discharge would be more medically harmful to the resident’s health than letting the resident continue to reside where they are.
There are six allowable reasons a person may be discharged from a nursing home:
The discharge is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility;
The 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 other individuals in the facility is endangered;
The health of other individuals in the facility is endangered;
The resident has not paid for (or paid under Medicare or Medicaid) a stay at the facility; or
The nursing home ceases to operate.
If a resident qualifies for an allowable discharge due to one of the above-referenced reasons, the facility is still required follow a specific process in order for the discharge to be lawful. First, the facility must give at least 30 days written notice prior to the transfer or discharge. If the resident is being discharged for a medical reason, there must be a document in the medical record by the physician or medical director of the facility stating the reason. Further, the stated reason for the discharge must be one of the six valid reasons for discharge. The written notice must be provided to the resident and his or her family. In addition to the discharge notice, the facility has a responsibility to develop a discharge plan. A discharge plan of “home,” meaning the resident is going to be discharged to his or her home or the home of a family member, is not adequate. The facility must provide an alternate facility for the discharge.
The resident always has the right to appeal a discharge. If notice of a proposed discharge is received, it is important to start the appeal process within 10 days of receipt of the notice. As long as the appeal is filed during this 10 day period, the resident cannot be moved until the hearing is held and a written decision is issued. Alternatively, an appeal may be filed within 90 days of receipt of the transfer or discharge. But if the appeal is filed after the initial 10 day window, the discharge could proceed as planned 30 days from the date the notice was given to the resident. However, if the appeal is ultimately successful, the resident must be readmitted to the facility.
If you have questions about your long-term care planning, or if you would like to join us for our next workshop, please contact the Law Offices of Hoyt & Bryan at (407) 977-8080 or visit HoytBryan.com.
About the Author: Peggy Hoyt Peggy R. Hoyt practices in the areas of family wealth and legacy counselling, including trust and estate planning and administration, elder law, small business creation, succession and exit planning, real estate transactions and animal law.