Transfers and Discharges from Nursing Homes
Authored By: Legal Hotline for Older Iowans
An involuntary transfer or discharge from a nursing home can be upsetting and frightening for both the resident and their family. Fortunately, both federal and state law limit involuntary transfers and discharges. A "transfer" usually involves moving from one nursing home to another or into a hospital because a nursing home says it cannot properly care for a resident. A "discharge" usually means a move from the nursing home to a new place because the facility says the resident didn't pay the bill, the resident is difficult to care for or creates risks for other residents or the staff. A resident cannot be transferred or discharged against the resident's wishes unless:
- The resident's welfare and needs cannot be met in the facility. For example, when the resident's condition has worsened and they need to go to a hospital;
- The resident's health improves enough so he or she no longer needs nursing home care. If the resident 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, the state will send a notice saying payment will stop because the resident no longer needs nursing home care. The resident has the right to appeal this decision. The resident can get a hearing with the Department of Human Services as part of that appeal;
- The resident endangers the safety of others in the facility. This could be the case if a resident assaults or threatens someone. The facility must try to deal with the dangerous behavior before they try to discharge;
- The resident endangers the health of others in the facility. The nursing home would need to show that the resident's health puts other residents in danger and that only a transfer would prevent this danger;
- The resident doesn't pay the nursing home bill. The resident has until the date of transfer to pay in full and stay in the facility. Changing from private pay to Medicaid cannot be the basis for an involuntary discharge; or
- The nursing home stops operating. This happens when the nursing home goes out of business or is closed by the state for rules violations.
A nursing home must comply with the following rules to transfer or discharge someone:
Advance Notice. Except in an emergency, the nursing home must give 30 days advance notice to the resident, the resident's responsible party and the Department of Inspections and Appeals. The notice must also go to the resident's doctor and the state Long Term Care Ombudsman's office. The notice must state: (1) the date and specific reason for the transfer, (2) the location of the transfer, (3) the right to appeal, (4) how to appeal, and (5) the telephone number of the state Long Term Care Ombudsman. If the facility believes there is an emergency, it must give notice as early as practicable but at least 48 hours before the transfer.
The Appeal Process. As part of the appeal process, the resident has seven days to ask for a hearing. If the resident is not competent, their guardian, responsible party or other interested family member may file the appeal. An administrative law judge hears the case. If appealed, the hearing will be held within fourteen days. The resident can be represented by a lawyer. The resident may call witnesses and introduce evidence. Hearings are held at the nursing home. The nursing home 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. (The resident cannot be transferred before the final decision by the Director of Inspections and Appeals.) After that, either party can petition the Iowa District Court to review the decision.
Counseling. The facility must counsel the resident about the transfer before it takes place. The new facility must also provide counseling when the new resident arrives.
Transfer or Discharge Plan. As part of the discharge process, the facility must develop a plan to provide for the safe and orderly transfer or discharge of the resident. This means that the nursing home must ensure that the resident will be transferred or discharged to a place where the resident's welfare and needs will be met. This includes ensuring the new place can provide the needed level of care, meet specific healthcare needs and provide a safe environment. A nursing home cannot just discharge the resident 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 or discharge notice should contact a lawyer. The Iowa Long Term Care Ombudsman's office at 1-800-532-3213 and the Legal Hotline for Older Iowans at 1-800-992-8161 may be able to help.