Appealing a Threatened Discharge from a Nursing Home or Assisted Living Residence

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

Discharge from nursing homeWhen there is a failure to pay the monthly bill to the nursing home or assisted living facility because the resident is out of money or when a Medicaid application has been denied by a County Board of Social Services, threats of discharge are likely to begin, often from the finance office or admissions directors.

Sometimes management threatens to discharge a resident to either 1) another facility or 2) the home of a spouse, child or family member. If faced with a threatened discharge or transfer, what can or should you do?

First and foremost, call me. There are strict laws and regulations that must be followed before a person can be discharged or transferred from a licensed nursing home, assisted living residence or terminated from the New Jersey MLTSS program for home care.

Learn Your Rights Against Discharge From a New Jersey Nursing Home

TESTIMONIAL

The Hanlon Niemann & Wright law firm took my case when others wouldn’t. They worked hard to get my Mom the Medicaid Insurance that she deserved. My mom is handicapped and at only 75 years of age too young to be placed in a nursing home. Now, thanks to the hard work done by Fred and Diane, she can remain at the place she has called home for the past 4 years.  If it wasn’t for them, her time at The assisted living facility would have been limited. Both mom and I can sleep better these days and I feel like a huge weight has been lifted off my shoulders. Thanks again, Fred and Diane!

Cindy Rygiel – Sayreville, NJ

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

The term(s) “transfer” and “discharge” mean the involuntary movement or relocation of a resident to a bed outside the four walls of the facility even if that bed is found in a building located on the same grounds, i.e., two buildings on the same property.  An example of this would be both a nursing home and an assisted living located at the same street address.  However, a transfer or discharge does not mean relocating a resident to a different bed within the same certified facility.

Appealing a Threatened Transfer and Discharge 

A nursing home or assisted living residence or other facility licensed by the State of New Jersey cannot just release and discharge you.  A resident has the right to remain in the facility and not be transferred or discharged unless:

Permissible Grounds for Discharge

  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 facility ceases to operate;
  6. The resident has failed, after reasonable and appropriate notice, to pay for his or her stay at the facility, or to have paid under Medicare or Medicaid. For a resident who becomes eligible for Medicaid after admission to a facility, the facility may bill a resident for only those allowable charges under Medicaid.If a resident is unable to pay the monthly costs of a facility (nursing home or assisted living), there are complex regulations that must be followed by the corporate owners.  Don’t assume that your inability to pay for care means you will be thrown out to the street.  We deal with this issue all the time.  We can guide you through the process.  We are just a phone call or email away.

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

  • 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. A medical doctor must recommend and support the proposed action.

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

  1. Notify in writing the resident and, if known, a family member or legal representative of the resident about the proposed transfer or discharge and the reasons for the move in writing and in a language and manner the resident understands.
    • Record the reasons in the resident’s clinical record; and
    • Include in the notice the specific reasons for the transfer.

Unless it is an emergency situation 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 to be transferred or discharged.  There are only a few exceptions to the 30 day notice requirement.  The exceptions to the 30 day notice requirement are when:

  1. The safety of individuals in the facility would be endangered (generally not the case in reality);
  2. The health of individuals in the facility would be endangered (generally not the case in reality);
  3. The residents’ health improves sufficiently to allow an 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 30 days.

In addition to statute(s) the administrative code governing a discharge requires that notice be made as “soon as practical” before the transfer or discharge can be started. Obviously, each case involves a fact sensitive analysis to argue strongly against discharge by the family or a resident.

The written notice 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 being transferred or discharged;
  4. A statement that the resident has the right to appeal the action to the State;
  5. The name, address and telephone number of the State long term care ombudsman;
  6. 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.
  7. 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 proposed, the facility must undertake sufficient preparation and/or to ensure a safe and orderly transfer or discharge. By that, the law means the facility must devote the necessary resources, time and support services needed to manage the potential physical and emotional harm and disruption to the resident pending the transfer or discharge.  Here again is where Hanlon Niemann & Wright can be of great assistance to you to ensure the resident’s rights are respected.

Transfers to a Hospital

Before a nursing facility transfers a resident to a hospital or allows a resident to take therapeutic leave, the nursing facility must provide written information to the resident, family member or legal representative that includes the following information.

  • The duration of the bed-hold policy as specified under its state charter, 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 also establish a written policy under which a resident, whose hospitalization or therapeutic leave exceeds the bed-hold period is entitled to be readmitted to the facility upon the first available bed in a semi-private room if the resident:

  • Medically 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 resident is capable of readmittance from the hospital, he or she must be permitted to return to an available bed in the location of the building where he or she resided before. If a bed is not available at that location at the time of readmission, the resident must be given the option to return to that location upon the first bed becoming available.  Many facilities try to avoid this legal requirement.

Equal Access to Quality Care When it Comes to a Proposed Discharge

A facility must establish and maintain identical policies and practices regarding the transfer, discharge, and provision of services to all residents regardless of source of payment. Let’s discuss this point further and what it means (i.e., private pay vs. Medicaid).

To Ensure Quality Care and Reduce Discharges and Transfers, a Facility Must:

  1. Not require residents or potential residents to waive their rights to Medicare or Medicaid and prevention of unlawful discharge and/or transfers; and
  2. Not require oral or written assurance that residents or potential residents will not apply for Medicare or Medicaid benefits or waive their rights against transfer or discharge;
  3. A 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 under threat of transfer or discharge. 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 any gift, money, donation, or other consideration as a precondition of admission, expedited admission or continued stay in the facility, in addition to those payments made under their State plan.

Have questions about a discharge from a NJ Nursing Home?

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 facility either now or soon after.

For more information about discharge, threatened discharge or patient resident rights, please contact me personally toll-free at (855) 376-5291 or email me at fniemann@hnlawfirm.com. It’s our ethical obligation, and my pleasure to meet with you or your family member.  He will sit and discuss your particular case and help you evaluate whether an actionable case of elder abuse exists.

Speaking Events

On August 20th, Fredrick P. Niemann, Esq. moderated a seminar practice series sponsored by the NJ Chapter of National Association of Elder Law Attorneys (NAELA) with attorneys throughout NJ addressing complicated Medicaid applications and unique legal issues involving nursing home and assited living residents. The program entitled, “Medicaid Landmines and Complicated Medicaid Applications” attracted a large crowd of highly experienced elder law attorneys in NJ and allowed a spirited and valuable audience to brainstorm ideas and strategies to successfully qualify NJ’s aging population for Medicaid benefits in a hostile regulatory environment. Another practice series is being planned for late 2019 or early 2020.

Mercer County Chapter of the New Jersey Society of CPAs

Fredrick P. Niemann spoke before the State Society of CPAs Mercer County Chapter about Estate Planning and Asset Protection Planning for individuals and families.  Topics addressed during the 4 hour seminar included hospice planning and asset protection, Veterans Aid & Attendance, planning with a Power of Attorney, Living Will and Healthcare Directive.  Attendees at the seminar were eligible to receive 4 hours of professional CEU credits from the State Society.

Recent Speaking Events by Fredrick P. Niemann, Esq.
You Can View Fred’s Current Schedule by Clicking Here