Appealing a Threatened Discharge from a Nursing Home or Assisted Living Residence

Background to the NJ Law on Discharge, Room Transfers and “Bed Hold” Policies

When there is a failure to pay the monthly bill to the nursing home or assisted living facility because the resident is out of money or when a Medicaid application has been denied by a County Board of Social Services, threats of discharge are likely to begin, often from the finance office or admissions director(s). If this is happening to you, it may be time to consider consulting with a NJ nursing home attorney.

When Can a Nursing Home Discharge a Resident Under NJ Law?

Pursuant to N.J.A.C. 8:39-4.1(a) 31-32, only four reasons can be offered when a nursing home proposes the involuntary discharge of a resident. The first reason is if the discharge is required by medical necessity. The second is if the discharge is necessary to protect the physical welfare or safety of the resident, or of other residents. The third reason is if the resident has failed, after notice, to pay the nursing home from his or her available income. The fourth is if the nursing home is required to relocate its residents by the New Jersey Department of Health due to a licensing issue or if the nursing home has been suspended or terminated as a Medicaid provider.

Nursing homes sometimes attempt to justify a discharge because of non-payment, i.e., failure to pay the nursing home bill after notice. However, discharges for non-payment are rarely legally justified because, under state law, once a Medicaid applicant has provided all of his or her income to the nursing home, the proposed involuntary discharge is prohibited even if the nursing home charges are not paid in full. N.J.A.C. 8:39-4.1(a) 31-32. For example, if a nursing home resident receives only Social Security retirement benefits and is waiting for Medicaid approval and pays all of his or her social security income to the nursing home, the resident cannot be discharged even if the majority of the monthly nursing home bill remains unpaid. N.J.A.C. 8:39-4.1(a) 31-32. Further, under federal law and NJ law, a nursing home must give a resident at least 30 days advance written notice of any proposed involuntary discharge. (see 42 C.F.R. § 483.12(a)(4) and (5), N.J.S.A. 30:13-6 and N.J.A.C. 10:63-1.10(g)(2). If the nursing home resident requests a hearing, then the proposed discharge is stayed pending the final agency decision. N.J.A.C. 10:63-1.10 (g)(2).

You Have the Right to Stop a Threatened Discharge

Sometimes management threatens to discharge a resident to either 1) another facility or 2) the home of a spouse, child, or family member. If faced with a threatened discharge or transfer to another nursing home/assisted living location, what can or should you do? The answer is you have many legal options and rights to stop the threats mentioned above.

First and foremost, call me. There are strict laws and regulations that must be followed before a person can be discharged or transferred from a licensed nursing home, assisted living residence, or terminated from the New Jersey MLTSS program for home care.

Every so often I get a call from a prospective client claiming that a facility requires a resident or his or her family to waive the resident’s right to apply for Medicaid assistance as a condition of admission or to avoid a discharge. The facility either requires a private pay contract financially guaranteed by a family member, or an agreement that the resident will not apply for Medicaid assistance for a minimum number of months to ensure private pay for at least a specified period. The question presented is whether such private pay contracts are legal. The answer is a clear no as to a nursing home.  For an assisted living residence (ALF), the answer is less certain.

A variation of the above is the practice of admitting a resident who makes an application for New Jersey Medicaid during the month of his or her first admission. The facility demands private pay while the resident is “Medicaid pending”. The facility states that if Medicaid is approved two or three months after filing retroactive to the month of application, the facility will refund the money. Some facilities may not believe this practice to be a violation of Federal Law, but it is. In its instructions to facilities, Medicaid states “a resident cannot be transferred or discharged for non-payment if he or she has submitted to a third-party payor all paperwork necessary for the bill to be paid. Discharge for non-payment can be lawful (it is very hard as a practical matter to legally do so) in NJ.  A threatened discharge for non-payment is permitted if a third party payor (example, Medicare or Medicaid) denies the claim and the resident refuses to pay for his or her stay.” If this is the case, then absolutely the facility has the right to begin the discharge process. But again, the discharge process is slow and quite demanding upon the facility.

Learn Your Rights Against Discharge From a New Jersey Nursing Home

What Do You Mean When You Say, “Transfer or Discharge”?

The term(s) “transfer” and “discharge” mean the involuntary movement or relocation of a resident to a bed outside the four walls of the facility even if that bed is found in a building located on the same grounds, i.e., two buildings on the same property.  An example of this would be when a nursing home and an assisted living are both located at the same street address.  However, a transfer or discharge does not mean relocating a resident to a different bed within the same certified facility.

Appealing a Threatened Transfer and Discharge 

A nursing home or assisted living residence or other facility licensed by the State of New Jersey cannot just release and discharge a resident to the outside world.  A resident has the right to remain in the facility and not be transferred or discharged except for the reasons listed below:

Permissible Grounds for Discharge

1. The transfer or discharge is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility;
2. 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;
3. The safety of individuals in the facility is endangered;
4. The health of individuals in the facility would otherwise be endangered;
5. The facility ceases to operate;
6. The resident has failed, after reasonable and appropriate notice, to pay for his or her stay at the facility, or to have paid under Medicare or Medicaid. For a resident who becomes eligible for Medicaid after admission to a facility, the facility may bill a resident for only those allowable charges under Medicaid. If a resident is unable to pay the monthly costs of a facility (nursing home or assisted living), there are complex regulations that must be followed by the corporate owners.  Don’t assume that your inability to pay for care means you will be thrown out to the street.  We deal with this issue all the time.  We can guide you through the process.  We are just a phone call or email away.

If a facility proposes to transfer or discharge a resident under any of the circumstances specified in paragraphs (1) through (6) above, the resident’s clinical medical records must be documented. The documentation must be written by the resident’s physician when transfer or discharge is claimed necessary because of the resident’s welfare, risk to others or the inability of the facility to care for the resident. This medical doctor must recommend and support the proposed action.

Before a facility transfers or discharges a resident, the facility must:

1. Notify in writing the resident and, if known, a family member or legal representative of the resident about the proposed transfer or discharge and the reasons for the move in writing and in a language and manner the resident understands.

• • Record the reasons in the resident’s clinical record; and
  • Include in the notice the specific reasons for the transfer.

Unless it is an emergency situation described in New Jersey’s regulations, the notice of transfer or discharge must be made by the facility at least 30 days before the resident is to be transferred or discharged.  There are only a few exceptions to the 30-day notice requirement.  The exceptions to the 30-day notice requirement are when:

1. The safety of individuals in the facility would be endangered (generally not the case in reality);
2. The health of individuals in the facility would be endangered (generally not the case in reality);
3. The residents’ health improves sufficiently to allow an immediate transfer or discharge;
4. An immediate transfer or discharge is required by the resident’s urgent medical needs;
5. A resident has not resided in the facility for 30 days.

In addition to state statute(s) and the N.J. administrative code governing a discharge, the law requires that notice be made as “soon as practical” before the transfer or discharge can be started. Obviously, each case involves a fact sensitive analysis to argue strongly against discharge by the family or a resident.

The written notice of proposed discharge must include the following:

1. The reason for transfer or discharge;
2. The effective date of transfer or discharge;
3. The location to which the resident is being transferred or discharged;
4. A statement that the resident has the right to appeal the action to the State;
5. The name, address, and telephone number of the State long term care ombudsman;
6. 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 the Development Disabilities assistance and Bill of Rights Act.
7. 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 a transfer and discharge is proposed, the facility must undertake sufficient preparation to ensure a safe and orderly transfer or discharge. By that, the law means the facility must devote the necessary resources, time and support services needed to manage the potential physical and emotional harm and disruption to the resident pending the transfer or discharge.  Here again is where Hanlon Niemann & Wright can be of great assistance to you to ensure the resident’s rights are respected.

Transfers to a Hospital

Before a nursing facility transfers a resident to a hospital or allows a resident to take therapeutic leave, the nursing facility must provide written information to the resident, family member or legal representative that includes the following information.

• The duration of the bed-hold policy as specified under its state charter, if any, during which the resident is permitted to return and resume residence in the nursing facility, and
• The nursing facility’s policies regarding bed-hold periods, which must be consistent with its written bed-hold policy under the state plan governing its licensing.

A nursing facility must also establish a written policy under which a resident, whose hospitalization or therapeutic leave exceeds the bed-hold period is entitled to be readmitted to the facility upon the first available bed in a semi-private room if the resident:

• Medically requires the services provided by the facility; and
• Is eligible for Medicaid nursing facility services.

Readmission to the Facility After Return From the Hospital or Other Medical Leave

When the resident is capable of readmittance from the hospital or Medicare approved rehabilitation, he or she must be permitted to return to an available bed in the location of the building where he or she resided before. If a bed is not available at that location at the time of readmission, the resident must be given the option to return to that location upon the first bed becoming available.  Many facilities try to avoid this legal requirement.

Equal Access to Quality Care When it Comes to a Proposed Discharge

A facility must establish and maintain identical policies and practices regarding the transfer, discharge, and provision of services to all residents regardless of source of payment. Let’s discuss this point further and what it means (i.e., private pay vs. Medicaid).

To Ensure Quality Care and Reduce Discharges and Transfers, a Facility Must:

1. Not require residents or potential residents to waive their rights to Medicare or Medicaid or waive their rights against an unlawful discharge and/or transfers; and
2. Not require oral or written assurance that a resident or potential resident will not apply for Medicare or Medicaid benefits or waive their rights against transfer or discharge;
3. A facility must not require a third-party guarantee of payment to the facility as a condition of admission or expedited admission or continued stay in the facility under threat of transfer or discharge. However, the facility may require an individual who has legal access to a resident’s income or resources available to pay for facility care to sign a contract, without incurring personal financial liability, to provide facility payment from the resident’s income or resources.

In the case of a person eligible for Medicaid, a nursing facility must not charge, solicit, accept, or receive any gift, money, donation, or other consideration as a precondition of admission, expedited admission or continued stay in the facility, in addition to those payments made under their State plan.

Have questions about a discharge from a NJ Nursing Home?

A consultation with Hanlon Niemann & Wright may save you a significant amount of financial resources and time when faced with a threatened discharge from a long-term care facility either now or soon after.

For more information about discharge, threatened discharge or patient resident rights, please contact Fredrick P. Niemann, Esq., a NJ nursing home attorney, personally toll-free at (855) 376-5291 or email me at fniemann@hnlawfirm.com. It’s our ethical obligation, and my pleasure to meet with you or your family member.  Mr. Niemann will sit and discuss your particular case and help you evaluate whether an actionable case against an involuntary discharge is available.

Speaking Events

Fredrick P. Niemann of Hanlon Niemann & Wright was selected to Chair the 2023 New Jersey NAELA Elder Law Program on April 19, 2023 at the Wind Creek Hotel and Convention Center in Bethlehem PA. NAELA represents the National Association of Elder Law Attorneys. It has an active New Jersey Chapter wherein the elite of NJ Elder Law Attorneys meet, interact and discuss a wide range of topics impacting the lives of NJ elderly residents and the attorneys who represent them.

On August 20th, Fredrick P. Niemann, Esq. moderated a seminar practice series sponsored by the NJ Chapter of National Association of Elder Law Attorneys (NAELA) with attorneys throughout NJ addressing complicated Medicaid applications and unique legal issues involving nursing home and assisted living residents. The program entitled, “Medicaid Landmines and Complicated Medicaid Applications” attracted a large crowd of highly experienced elder law attorneys in NJ and allowed a spirited and valuable audience to brainstorm ideas and strategies to successfully qualify NJ’s aging population for Medicaid benefits in a hostile regulatory environment. Another practice series is being planned for late 2019 or early 2020.

Mercer County Chapter of the New Jersey Society of CPAs

Fredrick P. Niemann spoke before the State Society of CPAs Mercer County Chapter about Estate Planning and Asset Protection Planning for individuals and families.  Topics addressed during the 4-hour seminar included hospice planning and asset protection, Veterans Aid & Attendance, planning with a Power of Attorney, Living Will and Healthcare Directive.  Attendees at the seminar were eligible to receive 4 hours of professional CEU credits from the State Society.

Recent Speaking Events by Fredrick P. Niemann, Esq.
You Can View Fred’s Current Schedule by Clicking Here.