The Nursing Home Reform Act of 1987 (“NHRA”) was enacted by Congress to provide “sweeping reform” in response to widespread issues of abuse, neglect, inadequate care, and general denial of residents’ basic rights in nursing facilities. Revised regulations for nursing facilities were released by the Centers for Medicare & Medicaid Services (“CMS”) in 2016. These revised federal nursing facility regulations, which were the first major revisions in twenty-five years, apply to all nursing facilities that participate in Medicare and/or Medicaid. The revised federal regulations provide that a facility may involuntarily discharge/transfer a resident for only six (6) reasons:

• (c)  Transfer and discharge —
• (1)     Facility requirements —
• (i)      The facility must permit each resident to remain in the facility, and not transfer or discharge the resident from the facility unless–
• (A)     The transfer or discharge is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility;
• (B)     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;
• (C)     The safety of individuals in the facility is endangered due to the clinical or behavioral status of the resident;
• (D)     The health of individuals in the facility would otherwise be endangered;
• (E)     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. Non-payment applies if the resident does not submit the necessary paperwork for third party payment or after the third party, including Medicare or Medicaid, denies the claim and the resident refuses to pay for his or her stay. 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
• (F)  The facility ceases to operate.

The Code of Federal Regulations imposes additional requirements when a facility attempts an eviction because it purportedly cannot meet the resident’s needs. The federal regulations provide:

• (2)     Documentation. When the facility transfers or discharges a resident under any of the circumstances specified in paragraphs (c)(1)(i)(A) through (F) of this section, the facility must ensure that the transfer or discharge is documented in the resident’s medical record and appropriate information is communicated to the receiving health care institution or provider.
• (i)      Documentation in the resident’s medical record must include: 
• (A)     The basis for the transfer per paragraph (c)(1)(i) of this section.
• (B)     In the case of paragraph (c)(1)(i)(A) of this section, the specific resident need(s) that cannot be met, facility attempts to meet the resident needs, and the service available at the receiving facility to meet the need(s). 
• (ii)  The documentation required by paragraph (c)(2)(i) of this section must be made by–
• (A)     The resident’s physician when transfer or discharge is necessary under paragraph (c)(1)(A) or (B) of this section; and
• (B)     A physician when transfer or discharge is necessary under paragraph (c)(1)(i)(C) or (D) of this section.

This federally mandated documentation requires the resident’s physician to identify (1) the specific needs of the resident that the facility claims it cannot meet; (2) the facility’s attempts to meet those needs; and (3) the services that are available at the proposed new facility that will meet those needs. This new documentation requirement is expected to reduce the number of baseless “needs cannot be met” evictions:

Too many facilities state broadly that a resident’s care needs are too great, but these same facilities likely are less quick to take action if forced to specify their supposed inability to provide required care and the ability of another facility to provide the care.

The facility must also provide “orientation for transfer or discharge” sufficient to “ensure safe and orderly transfer or discharge” from the facility.

Unfortunately, consumers (usually the resident and family members) are generally unfamiliar with these laws and regulations, and with their rights. They tend to be unwilling to complain, or afraid that complaints will lead to nursing home retaliation. They may simply be too ill to pursue their rights. Consequently, many evictions are accomplished without objection. However, consumers should take care planning seriously, and should  participate actively in the development of the care plan. Once the care plan has been established, the consumer can use that care plan to ensure that the facility provides all necessary care, and to defend against improper eviction practices. Consumers should reject a nursing home’s complaint that it has insufficient staff to meet the resident’s needs and preferences, or that the resident is too difficult to care for.

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Nursing Home Law and Litigation