Valid Reasons for an Involuntary Nursing Home Discharge

One thing that strikes fear in the hearts of families caring for loved ones in a nursing home is a notice of involuntary discharge. If the nursing home accepts Medicaid or Medicaid, or both, then there are only six legal reasons for an involuntary discharge. Since virtually all nursing homes accept Medicaid or Medicaid, or both, this list applies to 99.9% of nursing homes.

According to 42 C.F.R. § 483.15(c)(1),  the six reasons are:

1. The transfer or discharge is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility; 42 C.F.R. § 483.15(c)(1)(A)
2. 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; 42 C.F.R. § 483.15(c)(1)(B)
3. The safety of individuals in the facility is endangered due to the clinical or behavioral status of the resident; 42 C.F.R. § 483.15(c)(1)(C)
4. The health of individuals in the facility would otherwise be endangered;  42 C.F.R. § 483.15(c)(1)(D)
5. The resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare or Medicaid) 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; 42 C.F.R. § 483.15(c)(1)(E); or
6. The facility ceases to operate. 42 C.F.R. § 483.15(c)(1)(F).

Documentation

Documentation is required before a resident can be discharged pursuant to 42 C.F.R. § 483.15(c)(1). Documentation must include the basis for the discharge. See 42 C.F.R. § 483.15(c)(2)(i)(A). In the case of paragraph (c)(1)(i)(A), it must include the specific resident need(s) that cannot be met. 42 C.F.R. § 483.15(c)(2)(i)(B).

The documentation required for a discharge pursuant to paragraph (c)(1)(i)(A) or (B) must be made by the resident’s physician. 42 C.F.R. § 483.15(c)(2)(ii)(A).

Documentation for a transfer or discharge under paragraph (c)(1)(i)(C) or (D) must be made by a physician, but the regulations do not require that it be the resident’s physician. 42 C.F.R. § 483.15(c)(2)(ii)(B).

Prior Notice

42 C.F.R. § 483.15(c)(3) requires that before a facility transfers or discharges a resident, the facility must

1. Notify the resident and the resident’s representative(s) of the transfer or discharge and the reasons for the move in writing and in a language and manner they understand. The facility must send a copy of the notice to a representative of the Office of the State Long-Term Care Ombudsman.
2. Record the reasons for the transfer or discharge in the resident’s medical record in accordance with paragraph (c)(2) of this section; and
3. Include in the notice the items described in paragraph (c)(5) of this section.

42 C.F.R. § 483.15(c) provides that unless the safety of other individuals in the facility would be endangered, notice must be given at least 30 days prior to the intended transfer or discharge. 42 C.F.R. § 483.15(c)(4). Other exceptions to the 30 day discharge rule include:

1. The safety of individuals in the facility would be endangered under paragraph (c)(1)(i)(C) of this section;
2. The health of individuals in the facility would be endangered, under paragraph (c)(1)(i)(D) of this section;
3. The resident’s health improves sufficiently to allow a more immediate transfer or discharge, under paragraph (c)(1)(i)(B) of this section;
4. An immediate transfer or discharge is required by the resident’s urgent medical needs, under paragraph (c)(1)(i)(A) of this section; or
5. A resident has not resided in the facility for 30 days.

Contents of the Notice

42 C.F.R. § 483.15(c)(5) provides the written notice specified in paragraph (c)(3) of this section must include the following:

1. The reason for transfer or discharge;
2. The effective date of transfer or discharge;
3. The location to which the resident is transferred or discharged;
4. 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;
5. The name, address (mailing and email) and telephone number of the Office of the State Long-Term Care Ombudsman
6. For nursing facility residents with intellectual and developmental disabilities or related disabilities, the mailing and email address and telephone number of the agency responsible for the protection and advocacy of individuals with developmental disabilities established under Part C of the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (Pub. L. 106-402, codified at 42 U.S.C. 15001 et seq.); and
7. 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.

Appeal

O.C.G.A. § 31-8-116 provides that a resident who has been involuntarily discharged must be given notice of the right to a hearing pursuant to O.C.G.A. § 31-8-125. Section 31-8-125 provides “Any resident, guardian, or representative who believes his rights … have been violated or any complainant or facility dissatisfied with a decision of a referee shall have the right to request a hearing from the department pursuant to Chapter 13 of Title 50, the Georgia Administrative Procedure Act.” The hearing shall be conducted within 45 days. No transfer shall take place until all appeal rights are exhausted. See Section 31-8-125(c); Ga. Comp. R. & Regs. R. 111-8-50-.15 and 42 C.F.R. § 483.15(c)(1)(ii). You can email ltc.discharge@dch.ga.gov to request a hearing following a notice of discharge. The Georgia code and regulations do not require a particular form for appeals.

Discharge Planning

Discharge planning is addressed at 42 C.F.R. § 483.21(c). Nothing in the regulations indicates that a nursing home can skip the discharge planning process when the discharge is involuntary. The discharge planning process must ensure that the discharge needs of each resident are identified. It must consider caregiver/support person availability and the resident’s or caregiver/support person(s) capacity and capaibility to performed required care, as part of the identification of discharge needs. When the facility anticipates discharge, a resident must have a discharge summary that includes, but is not limited to, the following:

1. A recapitulation of the resident’s stay that includes, but is not limited to, diagnoses, course of illness/treatment or therapy, and pertinent lab, radiology, and consultation results.
2. A final summary of the resident’s status to include items in paragraph (b)(1) of § 483.20, at the time of the discharge that is available for release to authorized persons and agencies, with the consent of the resident or resident’s representative.
3. Reconciliation of all pre-discharge medications with the resident’s post-discharge medications (both prescribed and over-the-counter).
4. A post-discharge plan of care that is developed with the participation of the resident and, with the resident’s consent, the resident representative(s), which will assist the resident to adjust to his or her new living environment. The post-discharge plan of care must indicate where the individual plans to reside, any arrangements that have been made for the resident’s follow up care and any post-discharge medical and non-medical services.

Guidance

Guidance on these regulations begins at F622 in State Operations Manual Appendix PP, Guidance to Surveyors of Long Term Care Facilities. Among the more relevant statements in Appendix PP, F660, “The resident cannot be discharged for nonpayment while a determination on the resident’s Medicaid eligibility is pending. … For a resident who becomes eligible for Medicaid after admission to a facility, the facility may charge a resident only allowable charges under Medicaid. Additionally, conversion from a private pay rate to payment at the Medicaid rate does not constitute non-payment.” See page 188. See also O.C.G.A. § 31-8-116(a)(3).