Techniques of Behavioral Analysis can be useful in avoiding threatened discharge from a nursing home

If you are the advocate for a loved one in a nursing home, whether that’s your spouse, parent or other person, you might encounter this problem. Your loved one suffers from dementia, confusion, and limited ability to express themselves in a coherent manner. You visit them frequently and you find that the staff are beginning to complain to you that they are developing “behavioral problems” and may have to be transferred to a facility that can handle the psychiatrically-disturbed dementia patient. You want them to remain where they are, in the environment they have adapted to, close to the people who need to visit them regularly. This situation calls for vigorous advocacy.

The federal Nursing Home Reform Law limits the grounds on which a nursing home can involuntarily discharge the patient. So does New jersey law at N.J.S.A. 30:13-6 and N.J.A.C. 10:63-1.10(g)(2).  njac833h   These grounds are:

  • The transfer or discharge is necessary to meet the resident’s welfare, and the resident’s welfare cannot be met in the facility;
  • The transfer or discharge is appropriate the resident’s health has improved sufficiently so that resident no longer needs the services provided by the facility;
  • The safety of individuals in the facility is endangered;
  • The health of individuals in the facility would otherwise be endangered;
  • The resident has failed, after reasonable and appropriate notice, to pay (or to have paid under Medicaid or Medicare on the resident’s behalf) for a stay at the facility
  • The facility ceases to operate.

42 U.S.C. §§1395i-3(c)(2)(A), 1396r(c)(2)(A); 42 C.F.R. §483.12(a)(2).

In this situation, you may be told that the resident’s aberrant behavior, outbursts, flailing, hostility or agitation are endangering the safety of others, or that their welfare cannot be met in the facility. First, go to the facility ahead of time and study the chart. See if there are entries that document the alleged behavioral problems. These might be recorded in nursing notes as well as in a physician’s progress notes. There are also “incident reports” for situations that rise to that level.

Contact the Social Worker and ask that a family meeting be scheduled which includes the representatives of social work, recreation, nursing, and dietary, and if required, the doctor. Remind the team that under federal law,  42 USC 1395i-(3)(A), ” A skilled nursing facility must conduct a comprehensive, accurate, standardized, reproducible assessment of each resident’s functional capacity, which assessment— (i) describes the resident’s capability to perform daily life functions and significant impairments in functional capacity. …”  , and I suggest that you raise the following questions.

First, you want to get detailed explanations of the alleged behavior and discuss possible causes that need to be addressed. What was your individualized assessment at time of admission? How did you intend to address each of those issues in the initial individualized plan of care? What is in the most recent assessment? Are there any documented incident reports? What  problems have you documented? If they are not documented, why not? Has the patient been evaluated by a psychologist? What medications are being prescribed, and can the change in behavior be attributed to adverse reactions to medication? Have you consulted with the attending physician about this? Has a pain assessment been done? Can the agitation be related to oral discomfort from dentures or infection, or other bodily pain?  Are you relying on a PRN prescription for pain relief with a patient who cannot communicate effectively that they are in pain?

Then there are opportunities to apply techniques of behavioral analysis to address the problem. While this field may be better known with respect to developmental disabilities such as autism than regards elder care, it seems to me that we have much to learn from behavioral analysis strategies. Ask the staff: have you identified specific triggers for the reaction/agitation/behavior? What can you do differently that will avoid triggering the reaction? How can you approach the patient differently? What activity can be avoided to prevent the adverse reaction? Should music be added to his program? Should tactile activity such as simple crafts, clay or crayoning be added? Creative advocacy is often the key to solution of problems in a nursing home setting. If all else fails, one may have to resort to the courts, but there are plenty of opportunities before you reach that point.

Learn more about Behavior Analysis at;; and Behavior Analysis and dementia  .


For legal advice, advocacy, and representation at care planning and elder care asset preservation planning, call us at … 732-382-6070

Share This

Leave a Reply

Your email address will not be published. Required fields are marked *