Involuntary Transfers and Discharges
The threat of a “wrongful” involuntary transfer or discharge is frightening and stressful, which makes it all the more important to know your loved one’s rights. Nursing homes sometimes initiate an involuntary transfer/discharge with claims of increased resident care needs, repeated questions/complaints from family members, or other inappropriate reasons. However, there are protections in place to ensure an involuntary transfer/discharge is legitimate, and there is an appeal process. It is important that you understand the rules governing such situations.
Two Important Terms
Transfer is a move from one facility to another that assumes legal responsibility for the resident’s care.
Discharge is a move from a facility to a non-facility setting and terminates the legal responsibility of the originating facility.
There are protections in place to make sure your loved one does not have to lose his/her bed at the nursing home. A nursing home is allowed to involuntarily transfer or discharge your loved one only under the following six specific conditions.
- The facility cannot meet the resident’s needs, therefore the move is necessary for his/her welfare.
- The resident no longer needs nursing facility services due to improved health.
- The resident’s presence endangers the safety of residents and others in the facility.
- The resident’s presence endangers the health of residents and others in the facility.
- After reasonable and appropriate notice, the resident has failed to pay for living in the facility.
- The facility is closing.
Protections exist to make sure your loved one is not unjustly removed from a nursing home without legitimate reason.
A nursing home typically must provide notice of transfer or discharge in writing at least 30 days before the proposed transfer/discharge. However, notice can be given “as soon as practicable” in the following situations:
- The resident has lived in the facility for less than 30 days.
- The resident’s improved condition allows for a more immediate transfer or discharge.
- The resident’s urgent medical needs cannot be met in the facility (for example, an emergency transfer to the hospital).
- The health or safety of others in the facility is endangered.
The transfer/discharge notice must be given to the resident, resident representative, and the Long-Term Care Ombudsman Program. The notice must include:
- Reason for the transfer/discharge.
- Proposed effective date.
- Location to which the resident will be transferred or discharged.
- Information on appeal rights.
- Contact information for the Long-Term Care Ombudsman Program and (if applicable) agencies responsible for advocacy on behalf of persons with intellectual and developmental disabilities, or persons with mental disorders.
Documentation needs to be provided from a physician if the transfer/discharge is related to either the resident’s health, or the health/safety of other residents.
To help prevent a nursing home’s inclination to transfer residents perceived as being difficult or “heavy care”, but whose care needs fall within the level of services required by Federal law, the resident’s physician must document:
- Specific need(s) that the facility allegedly cannot meet.
- Attempts by the facility to meet the need(s).
- Services available at the receiving facility that supposedly will meet the need(s).
Additional Protections and Ideas
Here are some suggestions if your loved one is faced with a notice of involuntary transfer or discharge:
1.) Know that a resident cannot be transferred or discharged during the following efforts to resolve a wrongful involuntary transfer/discharge, unless the delay will endanger the health or safety of the resident or others in the facility:
- Resident cannot be transferred/discharged during the Fair Hearing Appeal process (see 2. below). Immediately file an appeal with the MassHealth (Medicaid) Board of Hearings, even if your loved one is nervous or unsure about appealing. Please note: Even though the hearing and application state that the process is for “MassHealth” purposes, any resident can use it for an appeal.
- Resident cannot be transferred/discharged during payment application processing, 1) for nonpayment, if the resident has submitted the necessary paperwork to MassHealth (Medicaid) or another third party payer, 2) while MassHealth is considering a resident’s application for coverage.
- Per Massachusetts law (M.G.L.111 Section 70E), lack of a safe and appropriate new location will delay an involuntary transfer/discharge.
- Another protection provided by the appeals process: Even if the Hearing Officer determines that the resident should be transferred/discharged, the resident would remain in the nursing home until a safe and appropriate new location is approved by the officer. For example, appropriate home care must be in place, discharges to homeless shelters are not allowed, etc.
- Per Federal and Massachusetts law, the nursing home must provide sufficient preparation and orientation to residents to ensure a safe and orderly transfer or discharge.
2.) Fair Hearing Appeal Filing Instructions: File the following documents — given short time frames, it’s best to file by fax. Also provide a copy of this submission to the nursing home at the same time. Please note: Even though the hearing and application state that the process is for “MassHealth” purposes, any resident can use it for an appeal.
- Notice of Transfer/Discharge given by the nursing home.
- Consider obtaining legal representation for the hearing. For residents on MassHealth, free legal services are available through Massachusetts Legal Services.
- If the issues are resolved before the date of the hearing, there’s no problem cancelling a hearing.
- The transfer/discharge notice provided by the nursing home will include additional information on how to file an appeal, and the nursing home also must assist the resident in completing and filing the appeal.
3. ) Contact the local Long-Term Care Ombudsman for help with the appeal and other transfer/discharge information.
- Sometimes the Ombudsman can work with the resident and facility to resolve problems without a hearing.
4.) Don’t accept dementia as a justification for transfer/discharge. The nursing home may claim that it can’t meet the resident’s needs, which typically happens when the facility considers the resident to be “difficult” due to dementia symptoms or other reasons. However, this is not legitimate support for transfer/discharge for many reasons including:
- Comprehensive care plan goals and methods should first be revised to better care for the resident. Please note the care planning section has excellent guidance.
- The majority of nursing home residents have a dementia, and there is additional dementia care training mandated for care giving staff in Massachusetts nursing homes.