Recent article discusses federal and state legal safeguards against involuntary transfers or discharges of nursing home residents who receive or have applied for Medicaid benefits

A recent article in the NJ Lawyer newspaper examined the safeguards in federal and state law designed to protect elderly, infirm and disabled nursing home residents from involuntary transfers or discharges from their care facilities. According to federal law, a nursing home can discharge a resident only for the following reasons:

  • The resident’s health has improved
  • The resident’s needs cannot be met by the facility
  • The health and safety of other residents is endangered
  • The resident has not paid after receiving notice
  • The facility stops operating

With regard to discharges for non-payment, Medicaid beneficiares, and those who have applied for, and are awaiting resolution of, Medicaid eligibility, are required only to pay toward the cost of care by reimbursing the nursing facility from his or her available monthly income as reported to Medicaid. They cannot be discharged even if their income is insufficient to pay for the entire monthly cost of care.

In addition, before a resident may be involuntarily transferred or discharged, the long-term care facility must consider a number of factors before effectuating the discharge, including the effect of relocation trauma on the beneficiary, the proximity of the proposed placement to family and friends, and the availability of necessary medical and social services. The facility is also expected to set forth a discharge plan, designate a location to which it intends to discharge the beneficiary and state how the beneficiary’s health and social needs are to be met at the new location. Prior notice of the discharge must be submitted to the Department of Health and Senior Services (DHSS) with documentation of reasons for discharge. Only after the DHSS determines a transfer is appropriate can the facility then give 30 days’ written notice to the beneficiary. That notice must advise the nursing home resident of his or her right to a hearing.

If the nursing home transfers a resident to a hospital, state law requires that the nursing home hold the resident’s bed for 10 days. If the resident is a Medicaid recipient, the nursing home has to readmit the resident to the first available bed if the bed-hold period has passed. If the nursing home refuses to readmit a patient or insists on discharging a resident, residents can appeal or file a complaint with the state. The resident should appeal as soon as possible after receiving a discharge notice or after being refused readmittance to the nursing home.

The article concluded by discussing the “significant rights” which nursing home resident have against involuntary transfer or discharge:

Medicaid beneficiaries, including those who have applied for benefits and are awaiting resolution of their Medicaid eligibility, have significant rights. Nursing facilities do not have a right to evict such individuals. Rather. they must carefully follow procedures detailed in [the Department of Health and Senior Services] regulations to seek approval for discharge in appropriate cases.

The NJ Lawyer article may be found here: “From Medicaid beneficiary to nursing home evictee?”.

I examined the same state and federal nursing home regulations several years ago when I wrote this article for my ElderLaw News newsletter about the safeguards in federal and state law which can be used to defend against an attempt to discharge a nursing home resident based upon a claim that the resident is a danger to himself or others: elder-law-newsletter-0302.pdf .