The decision to place a loved one in a nursing facility is incredibly difficult. If the loved one or family members have sufficient funds, then the choice may be somewhat easier because the choice and quality of facilities is far greater than for one who may be relying on Medicaid or Medicare for their nursing care. Being discharged because of funding can become an issue for some Medicaid or Medicare recipients. One that they should not have to be concerned with. Yet, it is a real problem in the state of Missouri and throughout the nation. It is one in which nursing homes discharge residents in order to save money. The residents don’t know where to turn to for help and many are abandoned on the streets.
Nursing homes usually cannot discharge their residents. However, a Wall Street Journal article dated August 7, 2008, found that one in five nursing home admissions agreements in Missouri granted the nursing homes the right to discharge residents without cause, and almost half allowed discharges for reasons not allowed under federal law such as being noisy or uncooperative. There have to be specific reasons and certain procedure must be followed according to Missouri statutory and regulatory law. From a nursing home’s view, the nursing home is a business. Their job is to save and make money. Medicaid and Medicare pay much lower than private pay residents. If there is a resident the administrators deem to be difficult to handle, she will receive a notice of discharge, especially if the resident is not private pay.
Reasons for a Nursing Home Discharge
If the discharge will not be harmful to the health of the resident, then the nursing home can send a notice of discharge to the resident for five specific reasons:
- The resident requires medical care that the nursing home does not provide. (However, this should be a rare reason for transfer. The law requires that appropriate, individualized care is provided to every nursing home resident and nursing homes must staff their facilities to provide the needed care.)
- The resident’s condition has improved or the resident no longer needs nursing home care.
- The health and safety of other people in the facility is at risk.
- A self-pay resident has not paid her bill for at least fifteen days.
- The facility will close.
Steps to Take When a Resident Receives a Discharge Notice
So what happens if a loved one receives a notice of discharge? First, in Missouri there is a person in the St. Louis region called an Ombudsman. They take complaints and concerns from nursing home residents in this area. The nursing home resident should have this number in the event that the resident would like to appeal. On the notice of discharge, there is a note stating the resident has thirty days to appeal and a number to call to appeal. The resident may appeal or their guardian my appeal.
It is extremely important that the resident make a timely appeal or the resident’s case will be dismissed. However, it is equally important that the nursing home’s notice of discharge contain certain pieces of information, or their discharge will be dismissed without prejudice. The notice must have:
- The reason for the discharge.
- The date of the proposed discharge.
- The location to which the nursing home proposes to transfer the resident.
- The resident’s right to a hearing
- The procedures the resident must follow to request a hearing
- The name, mailing address and telephone number of the Long-term Care Ombudsman.
- If a resident is mentally ill or developmentally disabled, the notice must give the contact information for the Office of Protection and Advocacy.
- The notice must indicate the resident must not be moved from the facility while the discharge is being appealed. These notice rules may be seen at 42 C. F.R Section 483.12.
The Hearing Process
So, if the nursing home’s discharge notice is legal and the resident’s appeal is timely, then the case will be set for hearing. In nursing home discharge cases, the appeal goes to the Administrative Hearing Unit, which is part of Legal Services for the Department of Social Services for the State of Missouri. The Hearings Unit must send the notice of the hearing ten days before the hearing with the date and time of the hearing and it must be sent to the resident, nursing home and any representatives of the resident. This office (in the St. Louis region) is located in Jennings, Missouri. One of five hearing officers (all attorneys) will hear the case. In Missouri, the nursing home must be represented by an attorney or the discharge is dismissed without prejudice. The resident may have a friend, relative, or attorney represent them. They may also represent themselves. The date and time of the hearing will be set by the Administrative Hearing Unit. All parties may come to the Hearing Unit for the hearing or the hearing may be done by teleconference.
The hearing is somewhat informal and the resident will receive a chance to explain why they should not be discharged. If the reason was that their health has improved, they may show medical records to the contrary. If the nursing home states the resident’s needs cannot be met, the resident may argue that their needs are being met. If they are not met, the resident may point to federal law that states a facility must provide individualized care to every resident. Additionally, if it is a question of payment, the resident may be able to pay for her care even before the hearing and a hearing may not be necessary.
After the hearing, the hearing officer reviews the law, testimony, and evidence and writes a recommended decision. This decision is reviewed by Social Services officials in Jefferson City, Missouri. Then the resident receives the decision. The decision can be appealed. If the discharge is upheld, the resident has ten days to leave the nursing home. The nursing home must assist in making arrangements. If the resident was already discharged and the decision was reversed, the resident must be called and allowed to return to the facility.
Nursing Home “Dumping” of Residents
Nursing home discharge notices can be incredibly traumatic for residents and their families. The resident has already lost her independence and home and may only be somewhat getting used to life in a nursing home. Nursing home discharges would be more palpable if some nursing homes would follow the law and not use illegal practices to push out residents that are not creating profits for the home. First, a discharge notice must only be sent for the reasons delineated in the law. Residents must not sign illegal admission agreements that allow for discharges for no cause or for being noisy. This violates federal law. Second is the abhorrent practice of “dumping” nursing home residents. The notice may state the resident has a place to go after discharge, but the address may not have been verified or that person may not want to take the resident into her home. So, if the resident is discharged, an employee from the nursing home drives the resident to a hospital and drops her off at the emergency room door and drives off. Even worse, many times, nursing home employees drop discharged residents off in empty parking lots at night. This practice is not prosecuted, yet it is elder abuse and neglect at its worst.
Where to Go from Here
Education of prospective nursing home residents, current residents, their families, and attorneys is necessary for improper discharges and illegal dumping of residents to occur. Local ombudsman can also help educate families and the legal community of these grievances. The abuse of our nation’s elderly and vulnerable citizenry has gone unnoticed and it must cease.