When can nursing home evict a resident?

Description of Federal Requirements

The federal regulation (483.12) articulates rights that the resident has related to admission, transfer, or discharge, some of the procedures facilities must follow, and records they must keep. The definition of transfer and discharge here applies to movement to a bed outside the certified facility (including differently licensed beds in the same physical plant), but does not apply to movement to a different bed in the certified facility. (Those Intra-facility transfers are discussed under 483.10, Resident Rights.)

The rules regarding transfer or discharge (a) establish the conditions under which a resident may be transferred involuntarily, including that the facility is closing, the resident has improved so that he/she no longer needs the care, the facility is unable to provide the resident with the necessary care, the resident is a danger to self or others, and the resident has failed to pay for care or (if supported by third parties, including Medicaid) has failed to have the care paid for.

The federal rule establishes expectations for documentation regarding transfers (including the reason), and written notice to the residents of at least 30 days, unless the reason for transfer is related to urgent medical needs of the resident or health and safety of others.

The written notice must include the reasons for the transfer/discharge, the effective date, the location of discharge or transfer, the right of appeal, and notification of how to reach the long-term care ombudsman and/or the appropriate Protection and Advocacy agency in the case of individuals with developmental disabilities or persons who are mentally ill. Further, the facility “must provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility.”

Another section (b) of this regulation refers to bed holds and the resident’s right to return to the nursing home after being discharged for hospitals or therapeutic leaves. These policies are determined in part by the State’s policy about how long payment will be made to hold a bed for a resident after discharge. In any case, the facility needs to clearly disclose to the resident and family in writing the amount of time the bed will be held, and its policies for readmission after that time expires.

Under a provision for “equal access to quality care (c) , the policies that the facility develops for transfer, discharge, and provision of all the services covered in the State Medicaid Plan must be identical for all residents regardless of the resident’s source of payment. The regulation also States that facilities are not obliged to provide any services that are not under the State plan. The facility may charge privately paying residents any amount they chose for the services included in the State plan and other services, but are subject to requirements for disclosure in the Resident Rights regulation (483.10).

The final section (d) on Admission Rights articulates prohibits any facility that accepts Medicaid or Medicare from requiring residents to waive their rights to this coverage, prohibits facilities to require guarantees of payment from a third party as a condition of income, and prohibits the facility from soliciting any gift or donation as a consideration of admission or continued stay. The section also specifically states that States “may apply stricter admissions standards under State or local law to prohibit discrimination against individuals entitled to Medicaid.
Under 483.10 (Resident Rights) some general rights are enunciate that overlap with this regulation on admission, discharge, and transfer rights, especially as regards written notice about Medicaid and Medicare coverage.

The majority of States (29–including South Carolina) do not appear to have enunciated any rights or procedures governing admission, transfer, or discharge over and above those that are established in the rather detailed Federal provisions. States may have repeated some of the Federal requirements or inserted the names of their own agencies for notification without substantially changing the Federal requirements.

The most usual State requirements entail slight additions to the timing of notice of involuntary transfers for any or for a particular reason (such as notification of intent to go out of business) or state-mandated precise wording for notice forms. Colorado provides numerous specific forms. Three States (Illinois, Indiana, and Nebraska) specify at least 12-point fonts for the notices, and Indiana also indicated that bold type face be used. Indiana rules for Inter-Facility and Intra-Facility Transfers are treated together in one section of the law, though each is well-defined. For that reason, the rights for appeal of Intra-facility transfer (described under Resident Rights in general) are unusually well-developed.

The most extensive requirements are found in Illinois and in Oregon. Among their many provisions are requirements that relate to facilitating adjustment in the community or the transfer placement, and allowing for return. Illinois has sections on pre-transfer or pre-discharge counseling, trial placements in the community, and the requirement that the facility accept State relocation teams in the facility, including in those giving notice of closing and those not intending to close. Oregon regulations contain particularly elaborate discussion of how to help prepare the resident for transfer, and give the resident the ultimate right to stay if transfer would be deemed harmful. In Oregon, the facility shall not involuntarily transfer a resident for medical or welfare reasons under the various reasons outlined in its regulations if the risk of physical or emotional trauma significantly outweighs the risk to the resident and/or to other residents if no transfer were to occur, and the the facility shall not involuntarily transfer a resident for any other reasons if the transfer presents a substantial risk of morbidity or mortality to the resident.

A section called “Considerations for Involuntary Transfer” included many resident-centered components, and safeguards. In Oregon, prior to issuing a notice for an involuntary transfer, in order to determine the appropriateness of transfer, the facility shall consider the following: (1) the availability of alternatives to transfer; (2) the resident’s ties to family and community; (3) the relationships the resident has developed with other residents and facility staff; (4) the duration of the resident’s stay at the facility; (5) the medical needs of the resident and the availability of medical services; (6) the age of the resident and degree of physical and cognitive impairment; (7) the availability of a receiving facility that would accept the resident and provide service consistent with the resident’s need for care. (8) the consistency of the receiving facility’s services with the activities and routine with which the resident is familiar, and the receiving facility’s ability to provide the resident with similar access to personal items significant to the resident and enjoyed by the resident at the transferring facility; (9) the probability that the transfer would result in improved or worsened mental, physical, or social functioning, or in reduced dependency of the resident. (10) the type and amount of preparation for the move, including but not limited to: (a) solicitation of the resident’s friends and/or family in preparing the resident for the move; (b) Visitation by the resident to (prior to actual transfer) or familiarity of the resident with the place to which the resident is to be transferred; and (11)on-site consultation by an individual with specific expertise in mental health services if the basis for considering transfer is behavioral, e.g., gero-psychiatric consultation. [NHPlusComments: These considerations are material seems particularly resident-centered and also contain practical ideas about how to consider whether a move would be difficult for a resident and assist him/her to make transfers positive.]

Although much of the Federal and State attention regarding discharges and transfers is directed at ensuring that residents not be inappropriately discharged, Illinois, Michigan, New Jersey, and Oregon address the right to voluntary discharge or for the patients to discharge themselves or their guardians to discharge them. Illinois specifies that such discharges must occur even if the facility has reservations about the person’s ability to manage in the community, but in those cases a referral must be made to Adult Protective Services. In Maryland, a signed consent to voluntary transfer or discharge from a resident or family member is ordinarily required. Maine specifies that residents who are candidates for home health care should receive a list of certified agencies in their area, but that the facility must disclose if it has a financial interest in any of these home health agencies.

Among the 21 States with some requirements in this area, the remaining stipulations include a wide variety of matters. Several States (Arizona, Minnesota, and New Hampshire) require that medical information be transferred to the receiving organization. California requires that the facilities develop transfer agreements with other facilities. Arkansas requires consultation with families on involuntary transfers. Wisconsin states that except in an emergency, a receiving facility, agency, or program must receive advance notice of the arrival of a resident being transferred to it. Alabama re-iterates federal policy with the addition of a requirement for resident transport during transfers or discharges. The provision states that if a resident is unable to ride in an upright position or if such resident’s condition is such that he or she needs observation or treatment by Emergency Medical Services personnel, or if the resident requires transportation on a stretcher, gurney or cot, the facility shall arrange or request transportation services only from providers who are ambulance service operators licensed by the Alabama State Board of Health. If such resident is being transported to or from a health care facility in another state, transportation services may be arranged with a transport provider licensed as an ambulance service operator in that state. For the purposes of this rule, an upright position means no more than 20 degrees from vertical. The Table below provides links to the actual provisions in the States that have State-specific requirements in this area.