By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold, NJ Appealing the Discharge From a Nursing Home and Assisted Living Residence Attorney

There are many circumstances under which a nursing home, assisted living residence or continuing care community may wish for a resident to leave. This is called an involuntary discharge, commonly referred to as a nursing home eviction.

Protections Against Involuntary Discharge From a Nursing Home

With respect to involuntary discharge of a resident, under New Jersey law, a facility may not discharge a resident except under the following circumstances:

• The transfer or discharge is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility;

• The transfer or discharge is appropriate because the resident’s health has improved sufficiently so that 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 (or to have paid under Medicare or Medicaid) a stay at the facility…; or

• The facility ceases to operate.

These are the only permissible grounds for a legal discharge. If the nursing facility is determined to discharge a resident, it must give the resident and/or representative of the resident at least 30 days’ advance written notice (except when a health or safety issue justifies otherwise). The notice must include the reason(s) for the action, and must provide “sufficient preparation and orientation to residents to ensure the safe and orderly transfer or discharge of the person from the facility.”

It is often during the Medicaid application process that threats of discharge are made. Here again the informed consumer can respond.

New Jersey law prohibits a Medicaid beneficiary (or an individual who “is awaiting resolution of Medicaid eligibility”) from being involuntarily transferred for non-payment, as long as the applicant’s income is paid as set forth in N.J.A.C. 8:85-1.10. Involuntary transfers are prohibited unless “adequate alternative placement” is available.” What qualifies as adequate alternative placement will be the subject of another blog.

To sum, nursing home residents are provided with substantial federal and state protections against involuntary discharge. Unfortunately, these protections are often difficult to enforce, and proving federal or state violations can be difficult and costly. Formal complaints regarding nursing home evictions have doubled over the years, and “although facilities ‘rarely evicted residents out to the curb,’ they often ‘transfer [residents] to another nursing home or send them to a hospital or psychiatric facility for observation and then refuse to take them back.’”

Protections Against Involuntary Discharge From an Assisted Living Residence

The issue of discharge is more complicated when the place of residence is assisted living. The Federal Nursing Home Act does not apply to assisted Living. That said, I take the position that comparable state laws make discharge equally difficult.

Prior to involuntary discharge, residents are entitled to 30 days’ advance written notice, except in the case of emergency, or if the resident is being discharged because the resident requires a level of care greater than that which the facility can provide. Transfers may only be in accordance with the terms of the facility’s admission agreement, and only as permitted under N.J.A.C. 8:36-5.1(d).

N.J.A.C. 8:36-5.1(d) provides that an involuntary discharge “shall only be upon grounds contained in the facility’s or program’s policies and procedures.” As I previously noted, the protections afforded to nursing home residents with respect to involuntary discharges are lacking in the area of assisted living facilities. Thus, it is critically important to carefully review the prospective facility’s policies and procedures in order to remain fully informed of the conditions under which involuntary discharge can occur.

In order to assist consumers, the use of an Assisted Living Disclosure form is being proposed in New Jersey, in which the facility must identify its policies in a uniform format, including its discharge policies and what “higher level of care” criteria, in particular, the facility will consider a basis for involuntary discharge.

All residents in assisted living facilities are entitled to a long list of rights which are enumerated in NJAC 8:36-4.1(a)(1-4c) and must be posted in a public place and provided in writing to every resident.

III. CCRC RESIDENTS

The primary source of regulation of continuing care retirement communities (“CCRCs”) is state law. However, for example, a nursing facility within a CCRC must comply with federal nursing home laws and regulations governing issues such as quality of care, admission and discharge. Likewise, state licensing requirements for assisted living facilities apply to assisted living facilities within a CCRC.

New Jersey enacted the Continuing Care Retirement Community Regulation and Financial Disclosure Act, with a corresponding regulatory framework, the primary emphasis of which focuses on the CCRC’s financial stability. However, that Act has been interpreted as protecting residents from involuntary discharges at the whim of a CCRC, and guarantees residents the right to a “plenary hearing” in the event of a threatened discharge.

A CCRC resident’s rights were discussed in the New Jersey Supreme Court case of Seabrook Village v. Murphy. The Seabrook Village case held that a CCRC resident can be discharged involuntarily only if the facility establishes “just cause,” as defined in N.J.S.A. 52:27D-344d and N.J.A.C. 5:19-6.5(c). If you have questions regarding the appeal of a discharge from a nursing home, assisted living residence or CCRC, please contact Fredrick P. Niemann, Esq. toll-free at 855-376-5291 or email him at fniemann@hnlawfirm.com.