Nursing Home Discharges – Understanding Your Rights
by Jeffrey J. Downey, Esq
Under limited circumstances, skilled nursing facilities can seek to involuntarily discharge a resident from its facility, even where the resident is still in need of skilled care. This issue occurs more frequently than one would expect, especially where Medicaid-based SNFs seek to get rid of a high-acuity resident, who is demanding a lot of staff attention, but the facility is receiving what they perceive as a low monthly reimbursements from Medicaid.
Under applicable federal regulations, a nursing home can discharge a resident under the following circumstances:
1) the discharge is necessary to meet the resident’s needs,
2) the resident has improved to the point that services are no longer necessary,
3) the safety of others in the facility is endangered,
4) the resident has failed to pay after required notice, or
5) the facility ceases to operate.
To comply with discharge requirements, the basis for the discharge must be documented in the resident’s chart. When a discharge is based on items 1 or 2, the documentation must be made by the resident’s physician.
Before a discharge can be pursued, the facility must also notify the resident, and if known, a family member or legal representative, in writing, at least 30 days before discharge, with some limited exceptions.
When a resident disputes the basis for a discharge, this issue is typically resolved in the context of an administrative hearing, explains Virginia nursing home attorney Jeffrey J. Downey. Attached hereto is an example of a typical administrative decision challenging the discharge of a resident on the grounds that the resident presented a danger to staff and residents at the facility.
After reviewing the evidence, the hearing examiner overturned the discharge decision for a variety of reasons. The facility had failed to have the resident evaluated by her attending physician before issuing the discharge notice and did not issue a proper discharge notice in compliance with federal law. The facility also failed to conduct the required discharge planning meeting before issuing the discharge notice.
This case was handled by Anne See, an experienced elder law Paralegal with the Blue Ridge Legal Services. (https://brls.org//) “The resident was lucky to have the benefit of such skilled legal experience” explains Downey, “as many residents never even exercise their rights to challenge a discharge. Blue Ridge Legal Services has been providing valuable and free legal services to low-income residents of Shenandoah and Roanoke Valley for decades.”
A Call to Action
If you have questions about an improper discharge, or if you or a loved one has been injured in a nursing home or assisted living facility, contact the law office of Jeffrey J. Downey, P.C. for a free consultation.
We handle cases in Virginia, Maryland and Washington DC. No attorney’s fees are charged unless there is a recovery. If you can’t come to us, we will come to you.
The Law Office of Jeffrey Downey, P.C.
McLean, Virginia Office Location
8270 Greensboro Drive, Suite 810
McLean, VA 22102