Combative residents, non-paying residents, disruptive residents, residents needing a higher level of care. We have seen them all the time, but it appears after COVID-19 that more and more facilities are dealing with these “problem” residents and are properly invoking involuntary transfer and discharge proceedings to remove residents from their facility. 

But facilities should take heed of some tips we have learned to better enable them to successfully remove these relatively few residents from their facility to improve operations and avert future liability.

We know that facilities have been anxious to increase census after COVID-19. What that can often lead to, however, is facilities taking on residents more freely without properly utilizing pre-admission screening techniques. Proper pre-admission screening can often help facilities avoid taking on disruptive residents or residents who will become a problem down the road.

Nonetheless, we are seeing more facilities shortcut the pre-admission processes, leading to the housing of more problematic residents, and, inevitably, leading to more involuntary transfer and discharge proceedings.

Depending on the state, involuntary discharge proceedings may seem easy and straightforward to unsuspecting facilities that may not have recently engaged in them lately. However, it is important to note that state departments of public health require more than just your word or assertion that the resident is causing problems, or that the resident is disruptive, or that the resident needs a higher level of care.  

State Administrative Law Judges (ALJs) are usually very pro-resident when it comes to these discharge proceedings. After all, why would they not be when a facility is actively trying to remove a resident from their “home.” That can lead to ALJs being skeptical of facilities during the hearing process. We often find that ALJs will try anything in their power to allow the resident to stay in their home.

One of those tactics is pointing out procedural flaws in the notice of involuntary discharge;  notices that must meticulously follow state laws and regulations. If there is a problem with the service of the notice, or timeframe, or even minor blanks in the notice, judges will utilize those procedural flaws to dismiss the hearing and allow the resident to stay in the home, often resulting in a new notice having to be provided and starting the cycle all over again.

Another tactic is that the judges will carefully scrutinize and require robust evidence leading to the discharge. Often, detailed written exhibits are necessary to file with the tribunal. Also, it is often important, for example, to elicit physician testimony in involuntary transfers addressing a need for a higher level of care, or inability to meet the resident’s needs. That testimony may point out dire problems, supported by detailed medical records, showing staff problems in treating the resident or behavioral problems causing disruption in the facility with other residents or staff, all provided through a meaningful physician’s perspective.  

Common provider pitfalls

Whatever the case, we find that clients who try to “go it alone” and just show up with administrator testimony at a hearing will lose the hearing. Remember: the ALJ involved will use any avenue they can to place roadblocks against the discharge of the resident. For example, an ALJ may ask whether the facility has tried various interventions first, or whether better care planning would help, or whether a second opinion would help. In essence they try to argue that the discharge is premature.  

Furthermore, just being disruptive in a facility is often not the legal standard in each state for involuntary transfers and discharges. A resident could exhibit a pattern of egregious behaviors or even abuse against staff or other residents but that may not be enough reason to transfer. Why?  Because there are an inordinate amount of interventions that an ALJ or opposing counsel for the resident, or even the ombudsman, could easily point to for the facility to “try” before discharging, and those proposed interventions could be enough at a hearing to have the involuntary transfer and discharge denied or delayed.

What facilities need to do is develop a coordinated case with counsel. Treat it like a real trial, with adequate numbers of witnesses, and even, as mentioned, medical director or attending physician testimony. After all, we find that ALJs feel more comfortable challenging administrator or nursing opinions and testimony, but they seldom question a physician’s testimony regarding a particular problem resident. If physicians are not available to testify at a hearing, facilities should consider utilizing detailed affidavits from the physician to help their case.

In all, providers need to be aware that more of these cases are coming to fruition these days, and it is better to be prepared than end up in an endless cycle of multiple notices of discharge that keep getting delayed or defeated by the ALJs.

Failure to follow these tips will have the effect of allowing the problem resident to stay in the facility and cause more problems, and increased liability for facilities. Taking the time to prepare exhibits, affidavits, medical records and multiple witnesses may seem like overkill to unsuspecting facilities, but they are necessary to properly complete an involuntary transfer and discharge of residents through the hearing process.

Neville M. Bilimoria is a partner in the Chicago office of the Health Law Practice Group and member of the Post-Acute Care And Senior Services Subgroup at Duane Morris LLP, as well as the Cannabis Law Practice at Duane Morris LLP; [email protected].

The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.

Have a column idea? See our submission guidelines here.