By Fredrick P. Niemann, Esq. a NJ Discharge from a Nursing Home Lawyer
Nursing facilities often attempt to rely upon a resident’s alleged failure to follow the facility’s rules and regulations as justification for an involuntary discharge. However, it is settled law that the violation of a facility’s rules and regulations, alone, does not warrant the involuntary discharge of the resident. Rather, a resident may be discharged only for the reasons set forth in governing regulations as set forth in N.J.A.C. 8:39-4.1(a)(31):
A facility is not permitted under law to ignore a resident’s psychological or other needs resulting behavioral problems by simply discharging the resident. Instead, the facility “must provide the services necessary for a resident to attain or maintain the highest practicable level of functioning… If …a resident’s assessment reveals difficulty with mental or psychosocial adjustment, the facility must ensure that he receives the treatment necessary to correct the assessed problem. Simply stated, it is clear that “[a] nursing facility has an obligation to treat or ameliorate any behavioral problems presented by residents.” Id..
It is equally clear that even the most disruptive or volatile behavior generally does not justify an involuntary discharge. It is only when the behavior is a danger to the welfare or safety of others that such behavior may warrant involuntary discharge. The two principles combine to render many threatened involuntary discharges of nursing home residents unjustified. When considering an involuntary discharge on the basis that the resident has injured others, “[t]he severity of the injuries generally is the determinative factor.”
It is not uncommon for the elderly to act out feelings of depression and isolation in a nursing facility setting. However, a nursing facility must address a resident’s behavioral problems through medication, counseling and/or behavior modification, and exhaust those options first, before seeking to discharge the resident.
Thus, if the resident’s behavior does not rise to the level of a genuine threat to the welfare or safety of others, and the facility has failed to exhaust available avenues to treat his or her behavioral problems, the facility cannot prove that the threatened discharge of the resident is warranted.
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