Ask the Legal Expert about ... involuntary discharge

John Durso, Esq. Nixon Peabody LLP
John Durso, Esq. Nixon Peabody LLP

Our administrator went to talk to an upset family member and got sucker-punched by another family member, knocking out one of the administrator's teeth. Employees can testify to the fact, but they seem neutralized by family members lying. How do we move the resident out? 

A facility may involuntarily discharge a resident only for certain reasons — for example, for the health or safety of individuals in the facility or for the facility's inability to meet the resident's welfare and needs. In a situation like this, the arguments go both ways on whether there are grounds for discharge. 

Irrespective of whether the facility initiates involuntary discharge proceedings, it must take immediate action to protect individuals, including staff, from the sucker-puncher and others who pose a safety threat. 

Though a resident has an almost unlimited right to have visitors, that right is subject to “reasonable restrictions.” The facility may reasonably restrict a person from visiting a resident in order to protect the security of the facility's residents or other individuals. Such restrictions include denying, or providing limited and supervised, access to the facility. 

Though it appears more than reasonable to deny or limit the sucker-puncher's access to the facility, the Centers for Medicare & Medicaid Services might think differently. But the risk of doing nothing exceeds the risk of CMS's future disagreement. The facility's priority must be the protection of its residents, staff and other visitors.

The facility should document the circumstances leading to the restriction and discuss with the resident's physician. If the restriction is necessary for the resident's safety, the physician should note that in the resident's chart.