Many people ask: “What should I do if my loved one is being told they must leave the nursing facility due to lack of payment?” Hopefully, this article will provide guidance during what can be a very stressful situation. This information is intended to help you understand your rights, what steps should occur during the discharge process, and where to seek assistance and support.

First, it helps to know when a nursing facility may legally discharge or evict a resident. Discharge is permitted if the resident has improved and no longer needs the facility’s services, or if another setting can better meet the resident’s care and well-being needs. A facility may also discharge a resident if the resident’s continued presence endangers the health or safety of others. Discharge for nonpayment is allowed when the facility has given reasonable notice. Finally, a discharge may occur if the facility closes.

Now let’s discuss what the discharge process should look like.  The residents and their representatives, if they have one — must receive written notice of the discharge or transfer in the language and manner they understand. The notice must include:

• The reason for the discharge, transfer, or eviction
• The effective date of the discharge or transfer
• The location where the resident will be transferred or discharged
• Information regarding the residents’ right to appeal
• Contact information for the Long-Term Care Ombudsman Program, including the program name, address, and phone number

In most cases, the facility must provide at least 30 days’ advance notice before the discharge or transfer occurs. In certain situations, the notice period may be shorter. However, it is important to know that a resident generally cannot be evicted while an appeal is pending.

Before a resident can be discharged or transferred, the facility must properly document the reason for the discharge or transfer. This documentation must be included in the resident’s medical record. If the discharge is based on the resident’s improvement or welfare, the decision should be supported by the resident’s physician. If the facility claims they are unable to meet the residents’ needs, they must clearly document why this is the case. The facility should also demonstrate the efforts they have made to try to meet the residents’ needs before pursuing discharge or transfer. In addition, the facility must document that the new location or facility can meet the resident’s care needs safely and appropriately.

The facility is also responsible for properly preparing the resident for discharge or transfer. This includes providing documentation of services previously provided, preparing and orienting the resident regarding the move, and ensuring that arrangements are made for a safe and appropriate discharge. The discharge planning process should also be included in the resident’s care plan.

If a resident disagrees with a discharge, transfer, or eviction, they have the right to appeal the decision. Appeals are generally heard informally at the facility before a hearing officer. During the hearing, the resident has the right to present evidence explaining why they oppose the discharge or transfer. The residents may also bring witnesses and have an advocate or representative assist them throughout the process.

Unfortunately, there are situations where facilities provide reasons for discharge that are misleading or unlawful. For example, a facility may state that Medicare coverage is ending and therefore the residents must leave. However, residents may remain in the facility under Medicaid coverage or private pay arrangements if eligible. Facilities cannot require discharge solely because Medicare coverage has ended. It is illegal to force a resident to leave for this reason alone.

A facility may also claim that a resident requires more care than the facility can provide. However, nursing facilities are required to provide services necessary to help residents achieve and maintain their highest level of well-being. Facilities also cannot discriminate against residents based on their payment source. A resident cannot be charged additional amounts simply because Medicaid is the payer source if Medicaid payment has already been accepted by the facility. Additionally, a facility generally cannot evict a resident while a Medicaid application is pending.

There are also situations where the discharge notice itself may be improper. Examples include:

• Failure to provide an effective discharge date
• Failure to provide adequate advance notice
• Failure to explain appeal rights
• Failure to include contact information for the Long-Term Care Ombudsman Program

Any of these omissions may make the discharge or eviction notice invalid.

Transfer-related problems may also arise when the facility fails to identify where the resident will be transferred or when the proposed location is unable to meet the resident’s medical, physical, or social needs appropriately.

If a facility claims that a resident is being discharged because they are endangering others, there should be comprehensive supporting documentation. This may include nursing notes, assessments, care plans, social service notes, and medication administration records. Residents may challenge whether the facility provided adequate care planning, behavioral interventions, or discharge planning before pursuing discharge. Residents may also question whether the new placement offers services that are different or more appropriate than the current facility.

It is also important to understand a resident’s rights regarding hospitalization. Under state law, residents generally have the right to return to their nursing facility following a hospital stay, regardless of how long they were hospitalized. In many cases, residents may also return to the facility even if an eviction or discharge appeal is currently pending.

One helpful resource for residents and families is the Long-Term Care Ombudsman Program. Ombudsmen advocate for residents of nursing facilities and assisted living communities and can help address concerns regarding discharge, transfer, resident rights, and quality of care.

Ombudsman Resource, Long-Term Care Ombudsman Program
8111 Rockside Rd., Suite 250, Valley View, OH 44125 Phone: 1-800-365-3112 Website: http://www.ltco.org/

If you have any questions, you can email us. nwall@sil-oh.org   tgabriel@sil-oh.org