Introduction to the Law of Discharge From
a NJ Nursing Home/Assisted Living Residence
or the NJ Global Options Program
Written by New Jersey Nursing Home Lawyer Fredrick P. Niemann, Esq. (Read more about Mr. Niemann here)
When a Medicaid application is denied or there is a failure to pay the monthly charge, threats of discharge are likely to soon start, often from the finance office of the nursing home or assisted living residence.
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 Global Options Program.
For more information on appealing a denial of Medicaid in NJ, go to our Appealing Medicaid Denial page.
What Do You Mean When You Say “Transfer or Discharge”?
Transfer and discharge includes the involuntary movement of a resident to a bed outside of the facility even if that bed is in the same physical location. However, a transfer and discharge does not refer to the movement of a resident to a bed within the same certified facility.
Transfer and Discharge Requirements
A nursing home or assisted living residence or other facility licensed by the state of New Jersey has to allow a resident to remain in their facility, and not transfer or discharge the resident from the facility unless
- The transfer or discharge is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility;
- 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;
- 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 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
- 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
- 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.
Before a facility transfers or discharges a resident, the facility must
- 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 understand.
- 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 transferred or discharged. The exceptions to the 30 day notice requirement are when
- The safety of individuals in the facility would be endangered
- The health of individuals in the facility would be endangered
- The residents’ health improves sufficiently to allow a more immediate transfer or discharge
- An immediate transfer or discharge is required by the resident’s urgent medical needs
- A resident has not resided in the facility for 30 days.
The Administrative code governing discharge in New Jersey requires in these situations 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 must include the following:
- 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 sufficient 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 harm and disruption to the resident lifestyle pending the transfer or discharge.
Resident Room Changes Within a Facility
Room changes in a facility that is a “composite distinct part” (composite distinct part means within the rehabilitation section, living section of a nursing home, assisted living residence or skilled nursing section) must be limited to moves 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.
At the time of transfer of a resident for hospitalization or therapeutic leave, a nursing facility must provide to the resident and a family member or legal representative written notice which specifies the duration of the bed-hold policy.
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 particular 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.
A facility must
- Not require residents or potential residents to waive their rights to Medicare or Medicaid; and
- Not require oral or written assurance that residents or potential residents are not eligible for, or will 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.
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 email@example.com/. He is happy to meet with you or your family member.
Have questions about a discharge
from a NJ Nursing Home?
Contact Fredrick P. Niemann, a NJ Discharge from NJ Nursing
Home Lawyer Toll-Free at (855) 376-5291 or email him at firstname.lastname@example.org
He will sit and discuss your particular case and help you evaluate whether an actionable case of elder abuse exists.
OFFICE OF CONTINUING EDUCATION WORKSHOPS
Rutgers State University is pleased to invite Mr. Fred Niemann of Hanlon Niemann to be the guest speaker at their workshops for the Office of Continuing Education.
Mr. Niemann will offer continuing Education courses on “Elder Abuse and Financial Exploitation”, “Hidden Secrets of Veterans Benefits”, “Veterans Aid and Attendance Benefits 2013″, “Medicaid Changes: The Approaching Storm”, and the “New NJ Comprehensive Waiver Demonstration”.
Fredrick P. Niemann, Esq. was recently asked to speak at the NJ State Bar Association Institute of Continuing Legal Education in New Brunswick, NJ on the essentials of estate planning.
Mr. Niemann addressed attorneys from throughout the state of NJ interested in learning key concepts and principals of NJ estate planning, including such topics as wills, trusts, estate taxations, asset protection, powers of attorney, health care directives, special needs and supplemental needs trusts for disabled and incapacitated individuals, avoiding probate through creative use of beneficiary planning, inheritance taxes, gifting and changes coming to federal estate taxation.
Fredrick P. Niemann, Esq. attended the 46th annual Heckerling Institute on Estate Planning Conference from January 9th to January 13th at the Orlando World Center sponsored by the Community of Miami School of Law. This week long session assembled the nation’s leading authorities to lecture and discuss the latest in estate planning techniques and strategies. Topics analyzed and discussed included 1) elder law; 2) asset protection; 3) statutory case law developments; 4) planning with financial assets including annuities, Roth IRA’s, and life insurance policies; 5) litigation and tax controversies; 6) networking and practice development.