Appealing a Threatened Discharge

Introduction to the Law of Discharge From a NJ Nursing Home Assisted Living Residence or the MLTSS Program

Background to the Law on Discharge, Room Transfers and “Bed Hold” Policies

When a Medicaid application is denied by the state or there is a failure to pay the monthly charge of the nursing home or assisted living facility, threats of discharge are likely to soon start, often from the finance office or the administrator of the nursing home or assisted living residence. Of course, these are not the only grounds raised to force the involuntary removal of a resident a facility no longer wants to reside there.

Sometimes other reasons are given by management to justify the discharge of a resident to either 1) another facility or 2) the home of a spouse or child.  If faced with a threatened discharge or transfer, what can or should you do?

First and foremost, call me.  There are strict laws and procedures that must be followed before a person can be discharged or transferred from a NJ licensed nursing home or NJ licensed assisted living residence or termination from the New Jersey MLTSS Program.  To be successful, you must appeal right away.

What Do You Mean When You Say, “Transfer or Discharge”?

Transfer and discharge include the involuntary movement of a resident to a bed outside of the facility (in the same physical address).  However, a transfer and discharge does not include the movement of a resident to a bed within the same certified facility.

Appealing a Threatened Transfer and Discharge By a Facility

A nursing home or assisted living residence or other residential health care facility licensed by the state of New Jersey must allow a resident to remain in their facility, and not transfer or discharge the resident from the facility unless:

  1. The transfer or discharge is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility;
  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;
  3. The safety of individuals in the facility is endangered;
  4. The health of individuals in the facility would otherwise be endangered;
  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.  For a resident who becomes eligible for Medicaid after admission to a facility, the facility may charge a resident only allowable charges under Medicaid; or
  6. The facility ceases to operate.

If a facility proposes to transfer or discharge a resident under any of the circumstances specified in paragraphs (i) through (vi) above, the resident’s clinical medical records must be documented.  The documentation must be made by

  1. The resident’s physician when transfer or discharge is claimed necessary because of the resident’s welfare, risk to others or the inability of the facility to care for the resident.  If the claimed reason for transfer or transfer is deemed appropriate because of the improvement in health by the resident, a physician must recommend and support the proposed action.

For more information about appealing a discharge, threatened discharge or patient rights, please contact me personally toll-free at (855) 376-5291 or email me at  I’m happy to meet with you or your family member.

Actual Client Testimonial – Mike Price – Plainfield, IN

My wife and I wanted to express our gratitude for the guidance and patience from you and your staff along this journey.  Life is strange at times and the things that bring us together can be just as strange, if not more.

I not only got to put a few bucks in the bank, but got to reconnect with my cousin Sarah, which was a great surprise for me. That alone was worth the journey for me. Getting to know her and the family has been nice.

I know it was a long day for all of us in mediation, but I really am blessed to have gotten to know you and talk with you. I admire your skills, work ethic and attitude regarding time and Patience. When the opposing attorney was running her big mouth and doing her thing, you never lost your composure, nor your position.  I’m hoping it’s one of the nuggets I’m able to take and implement in my personal/professional life.

The short version of this story is that you have a lot to offer people, you’re a true, trusted advisor. Your words and actions seem to align with your values, which is like common sense, very hard to come by now a days. Your staff does a great job as well. Please let them know that as often as you can. Keep up the good work Fred and thanks again!

Before a facility transfers or discharges a resident, the facility must

  1. Notify the resident and, if known, a family member or legal representative of the resident of the transfer or discharge and the reasons for the move in writing and in a language and manner they recently understand.
    a.    Record the medical reasons in the resident’s clinical record; and
    b.    Include in the notice the specific reasons for the transfer.

Unless it is an emergency described in New Jersey’s regulations, the notice of transfer or discharge must be made by the facility at least 30 days before the resident is transferred or discharged.  The exceptions to the 30-day notice requirement is when:

  1. The safety of individuals in the facility would be endangered;
  2. The health of individuals in the facility would be endangered;
  3. The resident’s health improves sufficiently to allow a more immediate transfer or discharge;
  4. An immediate transfer or discharge is required by the resident’s urgent medical needs;
  5. A resident has not resided in the facility for more than 30 days.

The Administrative code governing discharge in New Jersey requires in the situations I have outlined above that notice be made as “soon as practical” before the transfer or discharge.  Obviously, this is a highly fact sensitive standard that can be legitimately argued by the family or a resident subject to transfer or discharge.

The written notice to the resident and family must include the following information:

  • The reason for transfer or discharge;
  • The effective date of transfer or discharge;
  • The location to which the resident is transferred or discharged;
  • A statement that the resident has the right to appeal the action to the State;
  • The name, address and telephone number of the State long term care ombudsman;
  • For nursing facility residents with developmental disabilities, the mailing address and telephone number of the agency responsible for the protection and advocacy of developmentally disabled individuals established under the Development Disabilities assistance and Bill of Rights Act.
  • For nursing facility residents who are mentally ill, the mailing address and telephone number of the agency responsible for the protection and advocacy of mentally ill individuals established under the Protection and Advocacy for Mentally Ill Individuals Act.

If a transfer and discharge is contemplated, there must be enough preparation and consideration made available to the resident to ensure the safe and orderly transfer or discharge from the facility.  By that, the law means that the facility must devote the necessary resources, time and support services needed to manage the physical and mental impact and disruption to the resident pending and following the transfer or discharge.

Resident Room Changes Within a Facility

Room changes within in a facility that is a “composite distinct part” (composite distinct part means a residential room within the rehabilitation section or residential section of a nursing home, assisted living residence or skilled nursing section) within the particular building in which the resident resides, unless the resident voluntarily agrees to move to another of the composite distinct part’s locations.

Before a nursing facility transfers a resident to a hospital or allows a resident to go on therapeutic leave, the nursing facility must provide written information to the resident and a family member or legal representative that specifies.

  • The duration of the bed-hold policy under the State plan, if any, during which the resident is permitted to return and resume residence in the nursing facility, and
  • The nursing facility’s policies regarding bed-hold periods, which must be consistent with its written bed-hold policy under the state plan governing its licensing.

A nursing facility must establish and follow a written policy under which a resident, whose hospitalization or therapeutic leave exceeds the bed-hold period under the State plan, is readmitted to the facility immediately upon the first availability of a bed in a semi-private room if the resident

  • Requires the services provided by the facility; and
  • Is eligible for Medicaid nursing facility services.

Readmission to the Facility After Return From the Hospital or Other Medical Leave

When the nursing facility to which a resident is readmitted contains a composite distinct part (as previously defined on this page of this article) the resident must be permitted to return to an available bed in that location in which he or she resided before.  If a bed is not available in that location at the time of readmission, the resident must be given the option to return to that location upon the first availability of a bed there.

Equal Access to Quality Care

A facility must establish and maintain identical policies and practices regarding transfer, discharge, and the provision of services under the State plan for all individuals regardless of source of payment. This means all residents are to be treated the same regardless of whether they are private pay or Medicaid eligible.

A facility must

  • Not require residents or potential residents to waive their rights to Medicare or Medicaid; and
  • Not require oral or written assurance by a resident or potential resident that he/she is not eligible for, nor will they not apply for, Medicare or Medicaid benefits;
  • The facility must not require a third-party guarantee of payment to the facility as a condition of admission or expedited admission or continued stay in the facility.  However, the facility may require an individual who has legal access to a resident’s income or resources available to pay for facility care to sign a contract, without incurring personal financial liability, to provide facility payment from the resident’s income or resources.

In the case of a person eligible for Medicaid, a nursing facility must not charge, solicit, accept, or receive, in addition to any amount otherwise required to be paid under the State plan, any gift, money, donation, or other consideration as a precondition of admission, expedited admission or continued stay in the facility.

Fredrick P. Niemann Esq.

A consultation with Hanlon Niemann & Wright may save you a significant amount of financial resources and time when faced with a threatened discharge from long term care either now or soon.

To speak to a caring, sensitive attorney, ask for Fredrick P. Niemann, toll-free at (855) 376-5291 or e-mail him at to set up an office consultation at your convenience.




Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright,  A New Jersey Appeal of Medicaid Denial Attorney

Medicaid Appeals Lawyer serving these New Jersey Counties:

Monmouth County, Ocean County, Essex County, Cape May County, Mercer County, Middlesex County, Bergen County, Morris County, Burlington County, Union County, Somerset County, Hudson County, Passaic County