Federal Law limits involuntary discharge of nursing home residents

The federal  Nursing Home Residents’ Rights Act protects residents against arbitrary, involuntary discharge by specifying only 6 grounds for discharge..And above all,  even when one of those 6 bases exists, a nursing home also has the duty to make a safe discharge.   A nursing home cannot involuntarily transfer a Medicaid resident unless there is another placement available which is acceptable to the Department of Health and Senior Services. NJAC 8:85-1.10(d), (e). This means that the facility cannot transfer the obligation of care to a family member of the resident who refuses to accept that obligation. The resident cannot be escorted to the door.

Discharge is limited to the following circumstances: 1.  The transfer is necessary to meet the resident’s welfare, and the resident’s welfare cannot be met in the facility. 2. The resident’s health has improved such that long term care in the institution is no longer necessary.  3. The safety of individuals in the facility is endangered.  4. The health of other individuals in the facility is endangered. 5. The resident has failed after reasonable and appropriate notice, to pay for a stay (including applying for Medicaid). 6.The facility closes.

On November 7, 2011, the Ombudsman for the Institutionalized Elderly in Trenton issued a Notice to all nursing home administrators reiterating the limited bases on which residents could lawfully be discharged, and reminding them that the notice must specifically cite one of these reasons. Here it is.Other justifications, such as behavioral problems or failure to follow facility policies, are not sufficient reasons under federal law.

The facility must provide the resident with at least 30 days written notice including the specific date of the intended discharge, unless the facility is closing, in which case, 60 days’ notice is required. Also the facility must specifically identify the exact place to which the resident will be transferred.

A Medicaid recipient or applicant would appeal the planned discharge through the Division of Medical Assistance and Health Services Fair Hearing Unit, P.O. Box 712, Trenton, NJ 08625, (609) 588-2655. A private pay resident would initiate an action for an injunction  in Superior Court, Chancery Division in the vicinage where the nursing home is located.

When it comes to senior care planning it’s vital that the family advocate become familiar with these resident’s rights. Forewarned is always forearmed.

If your loved one has received an involuntary discharge notice, spring into action. Sometimes a team meeting can resolve the problem.

Call us for representation on involuntary discharge emergencies and other nursing home issues … 732-382-6070


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