Involuntary nursing home discharges are among the most problematic issues nursing home residents experience. For the last seven years, discharges have been the top complaint received by long-term care ombudsman programs. Frequently, residents are unaware of their rights, resulting in premature or unsafe discharge to the community. It is important that APS workers who may be involved in discharge cases know the allowable reasons for client discharges, client rights, and the unique impact of the pandemic on nursing home residents. A resident subject to involuntary discharge is often on the precipice of crisis. However, with the knowledge of a resident’s rights and how certain interventions can facilitate the exercise of these rights, APS workers will often be able to prevent a vulnerable adult from being harmed.
There are six reasons a facility may involuntarily discharge residents. If none of these reasons are present, a resident has the right to remain in the facility. However, some reasons for discharge are more common than others, which we discuss below. Often, the stated reason for a discharge may obscure other issues such as financial exploitation or a facility’s reluctance to pay for necessary care.
This blog will discuss resident rights regarding discharge, two common scenarios, and how COVID-19 has impacted residents' discharge rights.
Residents enjoy significant rights regarding discharge, including the rights to timely notice and appeal. Often, the exercise of these rights prevents involuntary discharges and avoids a resident being discharged unsafely.
Every resident has a right to notice before discharge. Notices must contain certain information, including the reason for discharge, appeal rights, the contact information for the local long-term care ombudsman, and the specific discharge location. When a resident files an appeal of a notice, the discharge must stop pending its outcome. Often, because facilities fail to provide proper notice, the appeal is successful, requiring the facility to restart the process. Residents are often unaware what information must be in the notice, and absent assistance, will not be able to take advantage of their rights.
Residents must be discharged to a safe place and in an orderly manner. Frequently, residents are discharged to settings with unsafe conditions or insufficient support. Examples have included homeless shelters, motels (with the room paid for 3-5 nights), and even a truck in a parking lot. These dangerous discharges will often result in residents ending up in crises that can lead to harm and rehospitalization. Facilities are required to begin discharge planning at the beginning of a resident's stay and consider the resident’s wishes and goals. Without a safe discharge plan, the resident has the right to stay in the facility regardless of the reason for discharge.
Common Reasons for Discharge
Failure to Pay
One of the most common reasons for discharge is failure to pay. Unfortunately, some residents become victims of financial exploitation or misappropriation of their funds, which results in the resident having their savings or income, money that should have been going to pay for their stay at the facility, stolen. Too often, past due bills pile up, and a discharge notice is issued with little effort by the facility to demand payment from the resident or the person managing their funds or reporting suspected financial abuse to APS and/or other appropriate entities.
It is not uncommon for a discharge notice for nonpayment to be issued, even though the resident may be eligible for Medicaid to cover their care costs. If a resident has applied for Medicaid but has yet to receive a decision, the facility may not discharge the resident for failure to pay. However, if the Medicaid application has not been filed, the facility is required to help the resident pursue payment for their stay. It is quite common for facilities to fail to notify residents that they can apply for Medicaid. Facilities adopt this policy, often called “churning”, because they want the higher payment rate from Medicare. However, if the facility accepts Medicaid, and most do, the regulations prohibit discrimination based on source of payment.
When a facility attempts to discharge a resident for failing to pay, a closer look often reveals a resident who needs help applying for Medicaid or has been a victim of exploitation. Often, with assistance from the long-term care ombudsman or an APS worker, the underlying issue can be addressed, and a discharge avoided.
Unable to Meet Resident Needs
Another common scenario is when a facility alleges it cannot meet a resident’s needs. In many instances, these allegations by a facility are related more to what the facility considers to be challenging residents or their “behaviors.” For example, residents with dementia may wander and exhibit aggression and require additional monitoring and interventions. Facilities often seek to discharge these residents to forgo providing appropriate care, characterizing the issue as behavioral rather than symptomatic of dementia.
However, facilities have a responsibility to assess the needs of each resident and develop a plan of care for how it will meet those needs. The challenging or undesirable behaviors are most often efforts by the resident to communicate that a basic need is not being met. Instead of identifying resident needs – such as medical attention, pain medicine, comfort, food - facilities too frequently issue a discharge notice. Facilities are required to provide quality care to all residents. Further, the facility must document its efforts to meet the resident’s needs and how the receiving location will meet them before discharging the resident. With intervention from family members or advocates, many of these discharges can be stopped by showing that the resident’s needs are not extraordinary and must be met under the law and regulations.
COVID and Discharge
COVID-19 has impacted nursing home residents probably more than any other group of Americans. At the beginning of the pandemic, the Centers for Medicare & Medicaid Services waived several requirements that nursing homes must follow. One of those waivers was the requirement of notice before transfer or discharge if it is for “cohorting”. Cohorting is the practice of grouping residents together based on their COVID-19 status. This waiver has caused significant confusion, as residents have been transferred to other facilities without their loved ones being made aware. This waiver is still in place, despite persistent calls by advocates for its rescission. All other rights of nursing home residents related to transfer and discharge remain intact.
Involuntary and inappropriate discharges can harm individuals and place additional burdens on the healthcare system and other agencies. There are significant protections in place for residents to prevent these discharges. Often, it takes simple intervention on behalf of a resident to forgo an unwanted discharge and help ensure the resident's safety. To learn more about involuntary discharges you can go to our website which gives an overview of resident’s rights and how they can be exercised. Additionally, The Consumer Voice maintains a list of all the long-term care ombudsmen for each state and also a list of each state’s regulatory agency and their contact information.
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