A nursing home resident facing discharge for cause still requires he or she be given a notice of discharge under both state and federal law.
A nursing home in southwest N.J. served a resident with a discharge notice with a proposed discharge date of less than 30 days later. The facility planned to send the resident to another facility where he was already accepted for transfer and admission. The reasons for discharge as stated in the notice included: endangering the health and safety of other residents with aggressive behavior; failure to sign and comply with the smoking policy; and possession of drug and smoking paraphernalia in his room. Additionally, an empty bottle of liquor was found under his mattress. Resident appealed the intent to discharge.
Citing 45 C.F.R. § 205.10(a)(4)(i)(B) and federal case law the administrative law judge (ALJ) found the notice inadequate to effectuate discharge because it did not provide a thirty (30) day notice of intent to discharge as it was dated August 14th and the discharge date was September 11th. Furthermore, the Notice failed to cite, with specificity, to the federal regulation(s) governing skilled nursing facility discharges.
The ALJ’s decision was upheld but modified by the Assistant Commissioner to cite the correct federal regulations. The rules governing involuntary discharge from a nursing facility are found in 42 CFR § §483.15 (admission, transfer, and discharge rights); 431.220 (when a hearing is required); and 431.230 (no discharge while appeal is pending).
The Commissioner also found that Notice of intent to discharge was not properly provided. Federal regulations require a 30-day, written notice of discharge. The notice dated August 14, 2020, with a September 11, 2020, intended discharge date failed on its face pursuant to 42 CFR § 483.15 (c)(4)(i). Section (c)(4)(ii) of the same regulations delineates several exceptions to the thirty (30) day requirement, including “safety of individuals in the facility”, however, the notice provided did not invoke these exceptions.
Nothing in the record supported shortening the notice period. The only incident the facility listed was failure to comply with and sign the smoking policy, a violation ongoing since March 2019. There was no documentation of aggressive or otherwise dangerous behavior. Also noted was the facility’s failure to provide documentation from a physician supporting the need to transfer. The discharge was denied.
To discuss appealing discharge from a NJ nursing home, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing or telephone consultations if you are unable to come to our office.
By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Appealing Nursing Home Discharge Attorney