By Jack Halpern
Nursing home evictions are very common. My Elder shares what you need to know and how you can protect your rights.
Nursing homes are generally prohibited from moving residents. They can transfer or discharge residents from the home only for certain reasons and, even then, only when they follow specified procedures.
My Elder has a 100% success rate in preventing these evictions. Call 212-945-7550.
In order to lawfully transfer or discharge a resident, the home must be able to prove that it has complied with all the procedural requirements and that the transfer or discharge is for one of the few allowable reasons. Absent such proof, the transfer or discharge must be disallowed or, if the resident has already been moved, the resident must be allowed to return to the bed, room and facility from which the resident was transferred.
There are several reasons why a nursing home may try to evict a resident. From a nursing home’s perspective, the ideal resident does not require expensive care, places few demands on staff, and pays the home at the “private pay” rate. Because Medicaid and Medicare typically pay much lower rates than homes receive from their private pay clients, facilities may try to limit the size of their Medicaid-covered populations. Residents judged by the home to be “difficult” may become a target for eviction or transfer–often to a less appealing nursing home or to a psychiatric hospital. The home may claim that, regardless of the patient’s medical needs or desire to stay in the facility, Medicare-covered or “respite” admissions are time-limited (cutoff points of 20 or 90 days are often cited).
For a nursing home resident, few events are as traumatic as an involuntary transfer or discharge. At best, such occurrences are stressful and disruptive. At worst, “transfer trauma” will leave a frail elderly person frightened, disoriented, and isolated from friends and families, causing irreparable psychological and physical harm. Medical studies indicate that the rate of death will 5 to 9 times higher for residents who are transferred.
The transfers and discharges discussed here include any time the home moves a resident outside of that facility, including transfers to a hospital. There are separate rules and procedures for transfers from one room to another room within the same nursing home.
When can a nursing home resident be transferred or discharged?
A resident can never be discharged or transferred if moving the resident is “medically contraindicated,” i.e., if the transfer would be more harmful than letting the resident stay.
If the transfer or discharge will not be harmful, a nursing home can only require a resident to leave in five situations:
- Medical care the resident requires can not be provided in a nursing home setting.
- The resident no longer needs nursing home care because the resident’s condition has improved.
- The health or safety of other individuals in the home is endangered.
- In the case of a self-pay patient, the resident has not paid for care at least fifteen days.
- The home plans to cease operations.
The need for particular types of medical care or for extensive care should seldom be the basis for a transfer. Staffing levels should never be a factor. Nursing home law requires that appropriate, individualized care be provided to every resident of every nursing home. Nursing homes are always required to adjust the staffing levels of nurses, therapists and aides as needed to provide the best care possible for all residents.
A nursing home can not evict residents covered by Medicaid when the home decides to drop out of the Medicaid program. In this situation, the home must continue to provide care and accept payment from Medicaid for all those in residence when the home decided to withdraw from the Medicaid program.
What is the procedure for proposed transfers or discharges?
Usually, a nursing facility must give you, your guardian, conservator or legally liable relative a written notice, at least 30 days, and no more than 60 days, before a transfer or discharge from one facility to another. A shorter notice is allowed in emergency situations or for residents recently admitted. The nursing home must comply with all of the following notice requirements even if the home claims that the resident “consented” to the transfer or discharge. This is necessary to ensure that residents are made aware of their rights and afforded the opportunity to appeal.
If the written notice does not contain any of the following information, the discharge or transfer would be unlawful. The notice must include:
- The reason for transfer or discharge.
- The date of the proposed transfer or discharge.
- The location to which the nursing facility proposes to transfer or discharge you.
- Your right to a hearing to contest the transfer or discharge.
- The procedures you must follow to request a hearing.
- The date by which you must request a hearing in order to prevent the transfer or discharge from occurring before the hearing is held. The date given must be at least ten days from your receipt of the notice from the facility.
- Your right to represent yourself or have legal counsel, a relative, friend or other person represent you at the hearing.
- If you are being transferred to a hospital, information regarding holding your bed and readmission to the facility. The name, mailing address and telephone number of Long-term Care Ombudsman.
Should the facility prepare a discharge plan for me?
A resident may not be discharged unless the nursing home have developed a written discharge plan. The discharge plan must:
- Be developed by your doctor or, the nursing facility’s medical director together with other medical staff.
- Consider the possibility of placement near your relatives, spouse, guardian or conservator.
- Include a written evaluation of the effects of the transfer or discharge on you and a statement of how the nursing facility will make the transfer or discharge less disturbing.
- Outline the care and kinds of services which you will receive upon transfer or discharge.
- Except in an emergency, the nursing facility must give you, your doctor, guardian, conservator or legally liable relative, a copy of the discharge plan at least 30 days prior to the transfer or discharge.
Can a transfer or discharge be appealed?
The resident always has the right to appeal a discharge or transfer. If you receive notice of a proposed transfer or discharge, it is important to start the appeal within 10 days of your receipt of a transfer or discharge notice. If you file an appeal during this 10 day period, you can not be moved until a hearing is held and a written decision is issued.
An appeal, however, can be filed within 30 days of receipt of the transfer or discharge notice. An appeal can be filed even if you have already been moved. Legal services organizations and the long-term care ombudsman can provide assistance with transfers and discharges.
Facilities that attempt to transfer residents in violation of the law or without providing them with the required advance written notice can be sued. The courts are authorized to issue injunctions to prevent transfers, to order facilities to reverse transfer, and to make nursing homes pay residents compensatory and punitive damages.
My Elder provides elder advocacy services to families. Talk to us about long-term planning, finding the right home for your loved ones, preventing crisis and abuse, and ensuring they receive the best care possible.