Nursing Home Laws Protect Residents

Legal Protections
Permitted Grounds for Involuntary Discharges
Protection against Discharges for Non-Payment
Thirty Days Advance Notice Required
Adequate Discharge Plan and Alternative Placement Mandatory

New Jersey''s Legal Protections Against the Involuntary Discharge of Nursing Home Residents for Non-Payment

There are certain circumstances when a nursing home resident may face attempted involuntary discharge from the facility. One common situation involves the non-payment of nursing home bills. Attempted discharges based upon non-payment usually arise either when a nursing home resident is awaiting an initial determination of eligibility for Medicaid benefits, or when a resident''s Medicaid application has been initially denied and the resident has appealed and is awaiting a final agency determination.

When a nursing home attempts to discharge a resident for non-payment, it can cause trauma both for the resident and his or her family. Luckily, there are laws protecting residents against involuntary discharges based upon non-payment, and certain measures can be taken to prevent attempted involuntary discharges by nursing facilities.

Permitted Grounds for Involuntary Discharges

Pursuant to N.J.A.C. 10:63-1.10(e), there are only four reasons under New Jersey law which can justify the involuntary discharge of a resident: (1) if the discharge is required by medical necessity; (2) if the discharge is necessary to protect the physical welfare or safety of the resident, or of other residents; (3) if the resident has failed, after notice, to pay the nursing home from his or her available income; (4) if the nursing home is required to do so by the New Jersey State Department of Health due to licensure action or if the nursing home has been suspended or terminated as a Medicaid provider.

Protection against Discharges for Non-Payment

Nursing homes attempt to justify discharges for non-payment based upon the third reason above, i.e., failure to pay the nursing home bill after notice. However, discharges for non- payment are rarely legally justified under that rationale.

That''s because, under state law, once a Medicaid applicant has provided all of his or her income to the nursing home, the proposed involuntary discharge is barred under state law, even if the nursing home fees are not paid in full. N.J.A.C. 10:63- 1.10(e)

For example, if a nursing home resident who receives only Social Security retirement benefits and is awaiting a Medicaid eligibility determination pays all of his or her income to the nursing home, the resident cannot be discharged even if the majority of the monthly nursing home bill remains unpaid. N.J.A.C. 10:63-1.10(e).

Courts and hearing officials in many jurisdictions have so held. In In re R.S., California Transfer/Discharge Appeal No. 97-0348 (Mar. 4, 1996), a hearing officer denied an involuntary transfer even though the resident owed more than $23,000 and had filed her appeal of a Medicaid denial just one day prior to the transfer/discharge hearing.

The hearing officer noted that the issue of non-payment could not be determined until the Medicaid program had made its ultimate decision. Similarly, in In re G.A., Indiana Transfer/Discharge Appeal No. IVT 92-22 (June 18, 1992), an Indiana hearing officer denied a proposed transfer upon a finding that "[a]ll appeals to obtain Medicaid for the period of non-payment have not been completed."

Thirty Days Advance Notice Required

Further, a nursing home must give a resident at least 30 days advance notice of any proposed involuntary discharge. 42 C.F.R. §483.12(a)(4) and (5), N.J.S.A. 30:13-6 and N.J.A.C. 10:63-1.10(g)(2). The required notice must provide the right to a hearing. 42 C.F.R. §483.12(a)(6)(iv); N.J.A.C. 10:63-1.10 (g)(2). If the nursing home resident requests a hearing, then the proposed discharge cannot take place until state Medicaid officials have made a final decision. N.J.A.C. 10:63-1.10 (g)(2)

Adequate Discharge Plan and Alternative Placement Mandatory

The involuntary transfer of a Medicaid recipient, including "an individual who had entered the facility as non- Medicaid and is awaiting resolution of Medicaid eligibility," N.J.A.C. 10:63-1.10(d), is permitted only "when adequate alternative placement . . . is available." N.J.A.C. 10:63-1.10(e). In order to determine whether "adequate alternative placement" is available, a facility must prepare a discharge plan before involuntarily discharging a resident, as required in 42 C.F.R. §483.12(a)(7) and N.J.A.C. 10:63-1.10(h). The discharge plan must take the resident''s medical needs into account.

Further, any discharge plan must include "involvement of the recipient, family or authorized representative in the placement process with recognition of their choices", as required by N.J.A.C. 10:63-1.10(h)(2)(iii). In addition, the Nursing Home Reform Act requires that a nursing facility "must provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility." 42 U.S.C. §§1395I-3(c)(2)(C), 1396r(c)(2)(C); 42 C.F.R. §483.12(a)(7).

Courts and hearing officers have denied proposed involuntary discharges when the facility failed to prepare an adequate care plan. In re C.L., California Transfer/Discharge Appeal No. 95-0096 (Apr. 12, 1994)). This is particularly true when the facility''s "discharge plan" involves leaving the resident at the home of a family member, regardless of the resident''s clear need for nursing facility care. In re B.P., California Transfer/Discharge Appeal No. 91-0286 (Oct. 17, 1995); In re G.H., California Transfer/Discharge Appeal No. 91-0144 (Sept. 14, 1994); In re R.R., California Transfer/Discharge Appeal No. 95-0092 (Mar. 29, 1994); Florida Transfer/Discharge Appeal No. 97N-0193 (Feb. 26, 1998).

Of course, nursing homes sometimes ignore their responsibilities under state law. In that event, the nursing home resident or his or her family members must seek relief in the New Jersey Superior Court to restrain the nursing home from initiating an illegal discharge.