Nursing Home Reform Act
“HELP! The Nursing Home is Discharging my Loved One.”
Understanding the Legal Issues Associated with Transfer/Discharge From a Nursing Home
by Shannon Laymon-Pecoraro, Esq.
Many clients call us in regard to problems associated with nursing home discharge plans. Quite often, a family member is concerned because a nursing home is trying to send their loved one home or to a different facility. The good news is that the Nursing Home Reform Act of 1987 (the “Act”) was enacted to ensure nursing home residents received quality care by establishing rights for resident, and part of the Act specifically addresses movement from a nursing home.
In general, the law provides that nursing homes are prohibited from moving residents unless a transfer or discharge will not harm the resident and such transfer or discharge falls within a specific category provided in the Act. Specifically, a nursing home resident may only be discharged or transferred when:
- the transfer or discharge is necessary to meet the resident’s welfare and the resident’s welfare cannot be met in the facility;
- the transfer or discharge is appropriate because the resident’s health has improved sufficiently so the resident no longer needs the services provided by the facility;
- the safety of individuals in the facility is endangered;
- the health of individuals in the facility would otherwise be endangered;
- the resident has failed, after reasonable and appropriate notice, to pay for a stay at the facility; or
- the facility ceases to operate.
There are may other reasons why nursing homes may try to discharge a resident. As advocates, we are particularly cautious about how payment factors into a potential discharge and when the nursing home has labels a resident as “difficult” or “combative.” Because a nursing homes receive more money from a resident that is privately paying than through Medicaid or Medicare, the nursing home may try to limit the number of Medicaid recipients in their facility or otherwise determine that a Medicare-covered stay is time-limited. It is also important that we reiterate to the facility that just because Medicare days are over that does not necessarily mean that transfer or discharge is appropriate – the loss of Medicare coverage is not an event of transfer or discharge under the Act. Furthermore, while the nursing home may prefer a less demanding resident for obvious reasons, that does not necessarily mean the resident is so “difficult” or so ” combative” that transfer or discharge is appropriate.
The nursing home, in most cases, must provide notice to a resident at least 30 days, and no more than 60 days, before a transfer or discharge. Deviation from this rule is only permitted in cases of emergency, or if the resident has not been admitted for 30 days. The written notice of transfer or discharge must include:
- The reason for transfer or discharge;
- The effective date of transfer or discharge;
- The location to which the resident is transferred or discharged;
- A statement that the resident has the right to appeal the action to the State;
- The name, address and telephone number of the State long-term care ombudsman;
- For nursing facility residents with developmental disabilities, the mailing address and telephone number of the agency responsible for the protection and advocacy of developmentally disabled individuals established under Part C of the Developmental Disabilities Assistance and Bill of Rights Act; and
- For nursing facility residents who are mentally ill, the mailing address and telephone number of the agency responsible for the protection and advocacy of mentally ill individuals established under the Protection and Advocacy for Mentally Ill Individuals Act.
If you receive notice of a proposed transfer or discharge, it is important to promptly initiate any appeal. If you file an appeal, you cannot be moved until a hearing is held and a written decision is issued.
Ask Kit Kat – ASPCA and the NYPD
Hook Law Center: Kit Kat, what can you tell us about the partnership between the ASPCA and the NYPD (New York City Police Department)?
Kit Kat: Well, this is actually quite a wonderful partnership which began in January 2014. Before the program began, a 4-month pilot program was instituted in the Bronx, one of the 5 boroughs which comprise New York City. The NYPD made the decision to respond to all animal cruelty reports within its jurisdiction. The ASPCA, for their part, would receive the animals, provide forensic evaluations, medical treatment if needed, and on-the-spot shelter. The program was a resounding success, and soon was instituted city-wide in January 2014. Here are some of the numbers recorded during the first year of the program. The NYPD made 134 animal cruelty arrests and over 420 animals received treatment and care via the ASPCA. This represented a 219% increase for the NYPD and a 217% increase for the ASPCA.
The program just keeps getting better and better with time. In July 2015, the NYPD incorporated a hotline in which any resident of the city can call in and report animal cruelty. Once in care, the seized animal(s) is/are processed by the ASPCA and cared for until the ownership of the animal is resolved. This can take years until the original owner either voluntarily gives up custody of the animal or has the animal removed from custody as the result of a criminal sentence. The ASPCA not only provides medical and placement services, but it has a team of attorneys who oversee the custody hearings. The attorneys also bring petitions to collect money from the owners to pay for the animal’s care while legal proceedings take place.
One such rescue is King, a beautiful grey and white cat. His owner kicked him so brutally that it took 4 weeks for him to recover. The abuse was first picked up via social media and then reported to the NYPD. Now King is in a nice home where he is appreciated and loved. This is only one of many happy endings which have been made possible through the collaboration of these 2 great organizations! (” The ASPC and the NYPD—Working Together to Save Lives,” ASPCA Action, Fall 2015, pp.11-14)
- December 3rd, 2015 – Shannon Laymon-Pecoraro will be presenting on Veteran’s Aid & Attendance Benefits at the Crowne Plaza in Virginia Beach located on 4453 Bonney Road.
- January – Our January seminars are being planned and will be up shortly.
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