Involuntary Transfers from Nursing Homes

Moving into a nursing home can be a traumatic event for many people. Surroundings are not familiar. The person loses a great deal of his or her independence. An involuntary transfer or discharge from the facility can cause the same amount of trauma. Again, the future becomes uncertain. To reduce this trauma, both federal and state law limit involuntary transfers and involuntary discharges. Most transfers mean moving from one nursing home to another or into a hospital. Discharges mean moving from the nursing home to a new place, even back to their own home or the home of a family member. The rules are the same for involuntary transfers and discharges.

Involuntary transfers can only take place in six specific situations. The first is where the resident's welfare and needs cannot be met in the facility. Most of the time, this would be where their condition has so declined that they no longer need nursing facility care. Instead, the person needs to go into a hospital.

A second situation arises where the resident's health improves enough so he or she no longer needs nursing home care. If the person is private pay, they could probably stay at the facility as long as they continue to pay for their care. If Medicaid pays for the care, a person could get notice that Medicaid payment will stop because the person no longer requires nursing facility level of care. The resident does have a right to appeal the decision that nursing home care is no longer required. The resident would be entitled to a hearing with the Department of Human Services as part of that appeal.

A third reason for involuntary transfers occurs when the resident endangers the safety of others in the facility. This could be the case if a resident assaults or threatens someone. The facility should have to take steps to try to deal with the dangerous behavior before they look to a discharge.

The fourth reason for discharge is when the resident endangers the health of others in the facility. Again, there would need to be evidence that due to a certain health concern other residents are put in danger. The facility must show it could not do anything to prevent this danger short of a transfer.

The fifth reason for transfer is not paying for care at the nursing home. In such cases, the resident has until the date of transfer to pay in full and stay in the facility. Changing from private pay to Medicaid is different from a failure to pay for care. It cannot be the basis for an involuntary discharge.

The final reason for involuntary transfer is when a nursing facility ceases to operate. This may be due to the facility going out of business. It could happen if the state closes the facility due to rules violations.

Nursing home regulations have strict rules a facility must follow when they seek to discharge someone. The resident is entitled to thirty days advance notice of the transfer. The notice must go not only to the resident. It must go to the resident's responsible party as well as the Department of Inspections and Appeals. The notice must also go to the resident's doctor plus the state ombudsman's office. Specific grounds for the transfer must be given. The notice must say that the resident has certain appeal rights and tell the resident how to appeal the transfer. The rules even specify the size of type the notice must use. If the facility believes there is an emergency, regulations do allow for less than thirty days notice. However, notice must be given as many days before the date of transfer as is practical. It must always be at least 48 hours prior to the transfer. The notice must also say a successful appeal will mean the resident can go back to the facility.

As part of the appeal process, the resident has seven days from the date he or she gets the notice of discharge to ask for a hearing. If the resident is not competent, the appeal may be filed on their behalf by their guardian, responsible party or other interested family member. The hearing takes place before an administrative law judge. If the person asks for a hearing, it will be held within fourteen days. No transfer can take place prior to a final decision which is made after the hearing. All of the procedures involved in administrative hearings apply in these cases. The resident may be represented by a lawyer. He or she may call witnesses and introduce evidence at the hearing. The hearings are to be held at the facility. The facility has to prove they have good reason for the transfer. The losing party at the hearing can appeal to the Director of Inspections and Appeals within ten days of the decision. After that, review of the decision by the Iowa District Court can be requested through a petition for judicial review.

The facility must provide counseling for the resident about the transfer before it takes place. The facility where they are going must provide counseling when the new resident arrives. As part of the discharge process, the facility must develop a plan to provide for the safe and orderly discharge of the resident. This means that the facility must ensure that the resident will be discharged to a placement where his or her welfare and needs will be met. This would include ensuring that the new placement can provide the level of care required by the resident, can meet specific healthcare needs of the resident and will provide a safe environment for the resident. It is not enough to just say the resident will be discharged to their home or their family's home if the resident clearly needs more care than can be provided there.

A resident who gets an involuntary transfer notice should talk to a lawyer to decide what to do next. Individual rights of low-income Iowans are a priority for Iowa Legal Aid. Contact any regional office or the Legal Hotline for Older Iowans for details.