Author Paul Lorrah - When can a nursing home discharge a resident

Nursing Home Transfers and Discharges;

Nursing homes are governed by two sets of laws: laws that exist on the federal level, such as the 1987 Nursing Home Reform Act, and laws that exist on the state level. Pennsylvania nursing home residents’ rights are protected by 028 Pa. Code § 201.29, while N.J.S.A. § 30:13-5 – commonly referred to as the Nursing Home Residents’ Bill of Rights – establishes similar legal protections for seniors in New Jersey.


​The first portion of our article deals with transfer and discharge laws in Pennsylvania. For more information specific to New Jersey, scroll ahead to the section of this article covering NJ. 

028 Pa. Code § 201.29(f) provides three and only three reasons a resident can be lawfully discharged or transferred to another facility:

1. Different medical care is needed. In most cases, this involves a resident who must be moved because their current home is unequipped to handle a deterioration in the resident’s health. The original home might not have the right machine or type of specialist necessary to examine and treat the resident when a condition gets worse or a new condition develops.
2. It is for the resident’s own welfare/safety, or that of another resident. Sometimes, conditions like Alzheimer’s and dementia can cause sudden outbursts of violent behavior. In their state of mental disorientation, a person with severe dementia or Alzheimer’s might hallucinate or interpret a normal action as a threatening gesture. Certain medications can also cloud thinking and cause uncharacteristic aggression, particularly when they are administered in doses which are too large.
   • Under section (h), the same law says that transfers based on medical reasons are not necessary if the attending physician thinks the transfer will cause mental or physical harm. This phenomenon is called “transfer trauma.”
3. The resident has failed to pay the nursing home. The nursing home must have “demonstrated reasonable effort to collect the debt,” which means a resident cannot suddenly be evicted because they happen to be a few days late on a payment.                                                                                                                                  

Regardless of why the transfer or discharge is happening, the resident has a right to 30 days’ advance written notice “unless appropriate plans which are acceptable to the resident can be implemented sooner.” If the resident is being sent to the hospital or another type of care facility, that facility must be given a list of the resident’s medications and other needs.

A resident can never be discharged or transferred if moving the resident is "medically contraindicated," i.e., if the transfer would be more harmful than letting the resident stay. 

Section (g) states;
Unless the discharge is initiated by the resident or resident’s responsible person, the facility is responsible to assure that appropriate arrangements are made for a safe and orderly transfer and that the resident is transferred to an appropriate place that is capable of meeting the resident’s needs.”                                                                                                                                                                                                       
Before the transfer happens, the facility is responsible for telling the resident (or resident’s representative) whether the new facility is Medicare/medicaid-certified. (Many but not all nursing homes accept Medicare or Medicaid.) and provide a written notice. If the written notice is missing any of the following information, the discharge or transfer would be unlawful. The notice must include:

• The reason for transfer or discharge.
• The date of the proposed transfer or discharge.
• The location to which the nursing facility proposes to transfer or discharge you.
• Your right to a hearing to contest the transfer or discharge.
• The procedures you must follow to request a hearing.
• The date by which you must request a hearing in order to prevent the transfer or discharge from occurring before the hearing is held. The date given must be at least twenty days from your receipt of the notice from the facility.
• Your right to represent yourself or have legal counsel, a relative, friend or other person represent you at the hearing.
•  If you are being transferred to a hospital, information regarding holding your bed and readmission to the facility.
• The name, mailing address and telephone number of Long-term Care Ombudsman.

* If a resident is mentally ill or developmentally disabled, the notice must give the contact information for the Office of Protection and Advocacy.

In addition, the nursing home must also include a written discharge plan for you which must;

• Be developed by your doctor or, the nursing facility's medical director together with other medical staff.
• Consider the possibility of placement near your relatives, spouse, guardian or conservator.
• Include a written evaluation of the effects of the transfer or discharge on you and a statement of how the nursing facility will make the transfer or discharge less disturbing.
• Outline the care and kinds of services which you will receive upon transfer or discharge.

Except in an emergency, the nursing facility must give you, your doctor, guardian, conservator or legally liable relative, a copy of the discharge plan at least 30 days prior to the transfer or discharge.

The NJ Nursing Home Residents’ Bill of Rights
As we mentioned a little earlier, N.J.S.A. § 30:13-5 is also called the Nursing Home Residents’ Bill of Rights. So what rights do New Jersey nursing home residents have?

In a nursing home transfer or discharge, residents have the right:

• To receive 30 days’ advance written notice informing the resident of the upcoming transfer (unless the facility is shutting down, in which case notice might be shorter). This notice should also include information about appealing (challenging) the transfer.
• To have their normal bed reserved, if the transfer is only temporary. (This also applies in Pennsylvania. The Pennsylvania statute refers to it as “inform[ing] the resident of its bed-hold policy.”)
• To be physically assisted during the transfer.                                                                                                               

N.J.A.C. § 10:63-1.10 provides the same three reasons for a discharge or transfer as the laws in Pennsylvania: medical necessity, preserving the resident’s own safety or the safety of other residents, and nonpayment. It also provides a fourth reason, which is that the New Jersey State Department of Health is requiring a transfer. This might occur if there are issues with the status of the facility’s license, or if the facility is changing or terminating its Medicare policy.

In both New Jersey and Pennsylvania, transfers and discharges must be documented by signed and written agreements. Residents must be treated with dignity and respect, and must not be physically harmed, neglected, or deliberately overmedicated at any point in time – not only during a discharge or transfer, but throughout the entirety of his or her residence at the nursing home. In short, personnel must take care to avoid taking any actions that could foreseeably injure or kill a resident, or exploit the resident sexually or financially.

If you have a loved in or who will be entering a Nursing Home, Assisted Living facility or in need of At-Home Long Term Care contact us today to learn how Medicaid will pay those long term care costs even if you have assets.
​
Call us today   855.471.6771

***Disclaimer: This article is for informational purposes. It is not legal advice and should not be used as legal advice.***

---