Involuntary Transfers Or Evictions To Another Care Facility

“Difficult” residents are often subjected to involuntary eviction on the basis of the resident’s welfare, and that the resident’s needs cannot be met at the current nursing facility. As one commentator notes, “This type of argument is misplaced, however, because it only applies if the resident’s needs cannot be met in any nursing home facility.” Although the resident’s facility commonly proposes that a “needs cannot be met” resident should be transferred to another nursing facility, this plan can be good evidence that the involuntary transfer is improper. It is difficult to argue that a resident’s needs cannot be met in one nursing facility, while also claiming that the resident can be treated in a similar nursing facility.

In addition, because a facility is now required to “disclose and provide to a resident or potential resident prior to time of admission, notice of special characteristics or service limitations of the facility,” its failure to do so should prevent a subsequent claim that it is unable to provide the necessary services to meet a resident’s needs.

The Individualized Care Plan

The revised federal nursing facility regulations’ provisions regarding the rights of residents in the development of personalized care planning can be an important element to an eviction challenge. Before the nursing facility proposes an eviction, it must first attempt to meet the resident’s individual needs (medical, nursing and psychosocial) by developing, implementing, and modifying, as necessary, an individual care plan to meet the resident’s unique needs.

Inadequate Staffing

A nursing facility is required to assess what staffing resources are necessary, on a day-by-day and in emergency situations, to care for its residents. This should take into account the number of residents and the care required by the resident population, including types of conditions, disabilities, and other factors presented by the resident population. Moreover, the facility is required by federal regulation to have sufficient staffing, and that staffing must take into account the resident care plans:

The facility must have sufficient nursing staff with the appropriate competencies and skills sets to provide nursing and related services to assure resident safety and attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care and considering the number, acuity and diagnoses of the facility’s resident population in accordance with the facility assessment required at § 483.70(e).

Documentation of Unmet Needs; The Transfer / Discharge Notice

In cases in which a nursing home or other care facility attempts to evict or transfer a resident based upon the purported inability to meet the resident’s needs, the revised Code of Federal Regulations provides that the resident’s physician must document (1) the specific resident need(s) that cannot be met at the current facility; (2) the current facility’s attempts to meet those needs; and (3) the service available at the proposed receiving facility that would meet those needs.

If the facility has failed to comply with this documentation, this failure would support a successful challenge the transfer.

If the facility does have that documentation, the documentation itself can be used to challenge the basis for the attempted eviction. Since most care facilities provide similar levels of care, it will be difficult for a facility to maintain that the particular needs cannot be met at the current facility, but that a different facility would have the ability to do so.

Before the facility transfers or discharges a resident, except in emergency situations (such as the health/safety of the resident or others at the facility would be endangered) the facility must also provide the resident, the resident’s representative, and the New Jersey Long-Term Care Ombudsman with thirty (30) days’ notice. The following are the required contents of the notice:

  • (i)      The reason for transfer or discharge;
  • (ii)     The effective date of transfer or discharge;
  • (iii)     The location to which the resident is transferred or discharged;
  • (iv)     A statement of the resident’s appeal rights, including the name, address (mailing and email), and telephone number of the entity which receives such requests; and information on how to obtain an appeal form and assistance in completing the form and submitting the appeal hearing request;
  • (v)     The name, address (mailing and email) and telephone number of the Office of the State Long-Term Care Ombudsman;
  • (vi)     For nursing facility residents with intellectual and developmental disabilities or related disabilities, the mailing and email address and telephone number of the agency responsible for the protection and advocacy of individuals with developmental disabilities…;
  • (vii)    For nursing facility residents with a mental disorder or related disabilities, the mailing and email address and telephone number of the agency responsible for the protection and advocacy of individuals with a  mental disorder….

Because of these federal requirements, the resident should not take action based upon a verbal statement from the facility; instead, the resident should insist on his/her right to receive written notice, and ensure that all of the legal requirements of that notice have been met. Again, inadequate notice is a defense to the proposed discharge.

Transfer Planning

The federal regulations require that the facility provide “orientation for transfer or discharge” sufficient to “ensure safe and orderly transfer or discharge” from the facility. The notice must include the reason for the transfer, the effective date of the transfer, the location to which the resident is to be transferred, and information regarding the resident’s appeal rights. The proposed location of transfer must be “specific, appropriate, available, and agreeable to taking the resident.”

The discharge plan must “consider caregiver/support person availability and the resident’s or caregiver’s/support person’s capacity and capability to perform required care.” Even a legitimate eviction can be challenged if it would put the resident in an inappropriate or unsafe situation.

Return to Facility Following Hospitalization

Despite the guarantees regarding Medicaid recipients’ bed holds during short-term hospital stays, hospitalizations are often seen as an “easy way out” to evict a resident, and are thus a common time when a facility will attempt to “purge” a resident.

However, the Code of Federal Regulation provides that, if a resident has been transferred from the facility for hospitalization or therapeutic leave, and the facility determines that the resident cannot return to the facility, “the facility must comply with the requirements of paragraph (c) as they apply to discharges.” Therefore, even if the facility believes that there are grounds not to readmit the resident, it must nevertheless readmit the resident until all of the discharge requirements have been satisfied. If the hospitalization/leave exceeds the bed-hold period, the resident has a right to return to the facility, “to their previous room if available or immediately upon the first availability of a bed in a semi-private room” if the resident requires the facility’s services and is eligible for Medicare or Medicaid.

For additional information concerning nursing home law and litigation, visit:

Nursing Home Law and Litigation

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Will Contests, Probate Litigation and Elder Abuse Actions