January 15, 2008
Ask The Legal Expert
Attorney John Durso, Ungaretti & Harris LLP
Under what circumstances can I discharge a resident we no longer
want to serve?
When assessing the issue of moving a resident against his or her choice, it is important to follow federal regulations very carefully. First, a nursing home facility cannot discharge or transfer a resident if moving the resident is “medically contraindicated,” that is, if the transfer or discharge would be more harmful than letting the resident stay. A facility can, however, involuntarily discharge or transfer a resident for certain reasons when the facility follows specific procedures.
If the transfer or discharge is not contraindicated, a facility can require a resident to leave in six situations:
• The resident's health has improved sufficiently so the resident no longer needs the services provided by the facility;
• It is necessary for the resident's welfare and the resident's needs cannot be met in the facility;
• The health of individuals would otherwise be endangered;
• The safety of individuals is endangered;
• The resident is unable to pay for care (although the facility cannot evict a resident who is waiting for Medicaid);
• The facility ceases to operate.
Before moving the resident, the facility must provide written notice to the resident, and if known, to a family member or legal representative. Generally, at least 30 and no more than 60 days written notice and an appropriate discharge plan are required. A facility must provide the reason for the transfer or discharge, the location the resident will be moved to, the date of transfer or discharge, and information regarding the appeal process. State regulators may also demand specific procedural requirements not covered in this article.