Residents Have the Right to Appeal a Nursing Home Discharge Decision
When a resident is transferred or discharged from a nursing home, the change can create monumental impacts on the emotional, physical and financial well-being of an already vulnerable individual and those who remain dependent on others for their daily care.
Common reasons for a facility to discharge, according to The National Consumer Voice for Quality Long-Term Care, may include:
- the nursing home cannot provide adequate care for the resident;
- the resident’s health has improved to the point that he or she no longer needs nursing home care;
- safety of individuals in the facility is endangered;
- the health of others in the facility would otherwise be endangered;
- the resident has failed, after reasonable and appropriate notice, to pay for care (although the facility cannot evict a resident who is waiting for Medicaid eligibility and should work with other state agencies to obtain payment if the resident’s money is being held by a family member or other individual); or
- the facility ceases to operate.
But unfortunately, nursing homes have been known to transfer by falsely disguising dementia or hard-to-care for residents, as well as those waiting to receive Medicaid coverage, with these reasons. The Nursing Home Reform Law of 1987 protects these types of residents from involuntary transfer and quick evictions.
Improper discharge, also referred to as ‘patient dumping’ is a top complaint filed against Illinois nursing homes. Each year, there is nearly 1,000 such reports received, according to patient advocates with the state’s long-term care ombudsman program.
Understanding Resident Rights During Transfers and Discharges
Residents have the right to participate in planning care and treatment or changes in care and treatment. But when a proper eviction or transfer notice is not given, or residents and their relatives are not educated about their rights, nursing home residents can be left jeopardized and stranded in hospitals or motels.
Be sure you and your loved one understand these rights in the case of this happening to them. They have the right to remain in the nursing facility unless a transfer or discharge:
- is necessary to meet the resident’s welfare;
- is appropriate because the resident’s health has improved and s/he no longer requires nursing home care;
- is needed to protect the health and safety of other residents or staff;
- is required because the resident has failed, after reasonable notice, to pay the facility charge for an item or service provided at the resident’s request.
Nursing home patients have additional rights, benefits, or privileges guaranteed by law because of their residence in a care facility. A resident must receive a thirty-day notice of transfer or discharge, which includes the reason, effective date, and location to which the resident is transferred or discharged.
All residents at risk of discharge should receive the name, address, and telephone number of the state long-term care ombudsman to be used as a resource to them. Involuntary transfer or discharge is discussed in section 483.15(c) of Title 42 of the Code of Federal Regulations.
The Right to Appeal a Discharge Notice
All residents have the right to appeal a transfer by filing a request for a hearing with the Illinois Department of Public Health within ten days after receiving the discharge notice. If you submit a request, the facility cannot discharge or transfer you while the appeal is pending.
Although not always formal, filing an appeal and attending a hearing can still be a confusing, stressful and difficult time for those who are not familiar with their rights or current regulations. At this time, an attorney experienced in representing residents who have been unlawfully evicted or discharged may provide guided solutions to help put your loved one at ease.
Current Review of CMS Transfer Policies and 2019 OIG Work Plan
The Centers for Medicare & Medicaid Services (CMS) estimates, “as many as one-third of all residents in long-term care facilities are involuntarily discharged.” In November 2017, CMS made revisions to resident transfer policies in hopes to deter facilities from transferring and discharging residents because they do not want to be responsible for their care. With the new rule:
- facility administrators can only move a resident based on their inability to meet care needs;
- the judgment must be accompanied by detailed paperwork from the resident’s physician discussing those missed needs:
- noted attempts the current facility has made to meet those needs; and
- the programs in place at the receiving facility that will adequately address these needs.
In June 2019, The Office of Inspector General (OIG) announced a new “Involuntary Transfer and Discharge in Nursing Homes” Work Plan, which will review the current issue with involuntary transfers and discharges and focus on whether State agencies have effectively investigated and enforced proper transfer and discharge procedures. In the report notice, OIG officials indicated that involuntary discharges and transfers were worth investigating because of the drastic increase in quantity of discharged resident complaints from 2011 through 2016.
The plan is expected to be released in 2020 and will conclude:
- the extent to which State long-term care ombudsmen address involuntary transfers and discharges from nursing homes; and
- the extent to which State survey agencies investigated and took enforcement actions against nursing homes for inappropriate involuntary transfers and discharges.
OIG inspectors will also examine the extent to which nursing homes meet CMS requirements for involuntary transfers and discharges.
As we await greater action by CMS, OIG and local ombudsman programs, the rising number of involuntary discharges are sure to continue, allowing Illinois nursing homes to get away with evicting innocent and vulnerable residents and facing little, if any, consequences.
Fight A Nursing Home Discharge or Involuntary Transfer
If you or a loved one suffered serious injury or death as a result of an improperly handled eviction, please let the Illinois nursing home abuse and neglect attorneys of Levin and Perconti review the facts of your situation and advise you of any legal remedies you may have.
Our consultations are always free, confidential, and handled by one of our skilled attorneys. Click here to fill out an online request form or call us toll-free at 1-877-374-1417 or 312-332-2872.