By Fredrick P. Niemann, Esq., of Hanlon Niemann, a New Jersey Nursing Home Discharge Attorney
Federal law and regulations and New Jersey state law, which is more restrictive than Federal law, establish strict requirements for a nursing home to legally discharge a resident. A preliminary notice of discharge is required to be served upon the resident and his/her personal representative(s). Since most people are not familiar with all of the legal requirements addressing nursing home discharge, this notice will disclose citations to research sections of applicable Federal laws and regulations to determine if the facility has complied with the laws prior to lawfully trying to discharge the resident. As an example, the notice of discharge is required to include the reason for discharge and the proposed location that the resident will be discharged to. This is important because under Federal law and regulation, there are only six valid reasons a resident can be discharged, and the facility must assist the resident in discharge planning for the proposed new location. If medical discharge is the reason for the move, the clinical record of the resident must be documented by the resident’s physician. The reason for this is that the new location must be medically appropriate for the resident. The following discusses a brief analysis of the issues involved in a discharge.
From a procedural standpoint, the notice of discharge notice must contain all the requirements mandated under Federal law. If not, the notice is defective and a legal proceeding by motion to dismiss the discharge is appropriate and will likely be successful. The hearing officer will likely dismiss the facilities case without the necessity of a court hearing.
Keep in mind that although new issues cannot be raised at a hearing, if you are involved in a discharge hearing, you should be prepared to address new issues. As an example, if the notice states that the facility can no longer meet the resident’s needs, at the hearing on the discharge, the facility may attempt to argue that the resident’s health has improved and the resident no longer requires skilled care. After the notice of discharge was served, the medical director conveniently changed the primary diagnose from COPD to a psychiatric mental condition in order to establish a basis for a new reason for discharge. This is not procedurally allowable and can be successfully challenged.
Other important requirements are that the notice contain the right to appeal, the name and address of the New Jersey Ombudsman for the Institutional Elderly, and for disabled and mentally ill residents, the name and address of the agency responsible for their advocacy.
One of the substantive requirements is that notice has to be in writing and has to actually be sent to the resident or the resident’s family, in most cases within 30 days of the transfer or discharge.
To discuss a discharge from a NJ nursing home, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at firstname.lastname@example.org. Please ask us about our video conferencing consultations if you are unable to come to our office.