A transfer or discharge is considered involuntary when it is initiated by the skilled nursing facility (SNF), even if the resident agrees with the facility's decision. The Nursing Home Reform Act limits a facility’s ability conduct an involuntary discharge to ensure that facilities do not coerce or influence residents to consent to a move. Under the Reform Law, SNFs may conduct an involuntary transfer or discharge only under the following circumstances:
- The resident's health has improved sufficiently such that the resident no longer needs the services provided by the facility.
- It is necessary for the resident's welfare and the resident's needs cannot be met at the facility.
- The health of individuals would otherwise by endangered.
- The safety of individuals is endangered.
- The resident has failed, after responsible and appropriate notice, to pay.
- The facility ceases to operate.
If the facility intends to conduct an involuntary transfer or discharge, the facility must notify the resident and the resident's legal representative or immediate family member, if available. A written notice must be provided, which includes all of the following elements:
- The reason for the transfer or discharge.
- The date of the proposed transfer or discharge and the location to which the resident is to be moved.
- The resident's right to appeal the proposed transfer or discharge and the appropriate state agency.
- The name, address, and phone number of the State Long-Term Care Ombudsman.
In general, a facility must provide notice at least thirty days before the proposed transfer or discharge, though under certain specified situations the notice may be given as soon as practicable before the move. The federal government has not indicated what length of notice is considered practicable in the instances when a thirty-day notice is not mandatory. In the following cases, the notice does not have to be given thirty days prior, but must be provided as soon as practical for the discharge:
- The resident's presence endangers the health or safety of others in the facility.
- The resident's health has improved enough to allow a more immediate discharge.
- The resident's urgent need for more complex medical care requires immediate discharge to another level of care.
- The resident has not lived in the facility for thirty days.
Improper Justifications for Transfer or Discharge
- Resident is Disruptive. Facilities often claim that a resident must leave because he or she is too disruptive to the facility's operations. However, disruptiveness alone is not a justification recognized by federal law. Behavioral problems are common among SF residents: it is not unusual for a resident to make bothersome noises, to repeat strange motions, or to act out in other disturbing ways. In any case, there is no benefit in transferring a "disturbing" resident from one nursing facility to another.
- Resident is Argumentative and/or Obnoxious. A nursing facility is a prime setting for arguments and disputes. Unrelated individuals, all with physical and/or mental limitations, live communally, where virtually everyone shares a room with a stranger. It is no wonder that tempers flare. Nevertheless, even the most volatile of temper tantrums generally does not justify an involuntary transfer or discharge; arguments and disputes are not mentioned in the six legitimate justifications set forth by federal law.
- Resident Refuses Treatment. Residents have the right to refuse medical treatment. Accordingly, an involuntary transfer or discharge cannot be based on a resident's refusal of treatment. The Centers for Medicare and Medicaid (CMS) has stated that SNFs may not transfer or discharge a resident for refusing treatment unless the criteria for transfer or discharge are met. Though a resident may refuse treatment the facility is obligated to develop a comprehensive care plan with input from mental health professionals as needed.
- Resident Does Not Follow Facility Policies. Facilities sometimes cite the violation of facility policy as justification for involuntary transfer or discharge. However, under the Nursing Home Reform Act, violations of facility policies to not warrant transfer or discharge, unless the resident's behavior endangers their own or others' safety or health.
- Facility Exposure to Legal Liability for Potential Injuries Caused by the Resident. Fear of legal liability is not recognized by federal law as a justification for an involuntary transfer or discharge. The facility faces liability for actions of any resident and assumes risks based on the nature of its business. It is, therefore, advised that facility staff members be extra prudent while caring for high risk residents.
- Resident's Pending Third-Party Payer Status. Non-payment due to the Medi-Cal program's delay does not constitute grounds for involuntary transfer or discharge. CMS has indicated that a resident is not to be held responsible for non-payment if the resident is waiting for payment by a third-party payer, such as Medi-Cal.
Arguments Against Involuntary Transfer or Discharge
- The Facility is Able to Meet Residents' Needs. Under the Nursing Home Reform Law, an involuntary transfer or discharge is warranted if "the transfer or discharge is necessary to meet the resident's welfare and the resident's welfare cannot be met at the facility." However, the facility cannot rely on its own inadequate care provision to justify an involuntary transfer or discharge: the facility's inability to meet the resident's needs is due to a substandard level of care provided at the facility is not an appropriate justification.
- Resident Poses No Danger to Safety or Health of Others. SNFs have an expansive obligation to treat or ameliorate behavioral problems presented by residents. The facility has an obligation to ensure that: A resident who displays mental or psychosocial adjustment difficulty receives appropriate treatment and services to correct the assessed problems, and a resident whose assessment did not reveal a mental or psychosocial adjustment difficulty does not display a pattern of decreased social interaction and/or increased withdrawn, angry, or depressive behaviors, unless the resident's clinical condition demonstrates that such a pattern was unavoidable. Therefore, transfer or discharge should not be the facility's initial response to a difficult resident with behavioral problems. In all but the most extreme instances, a facility must try to ameliorate or moderate residents' behavioral problems before serving transfer or discharge notices. If a facility has failed to address a resident's behavioral problems, the facility bears some responsibility for the resident's actions.
- Physician Has Not Documented Need for Transfer. When the transfer or discharge is initiated because the resident needs additional care or the resident does not require SNF care, the appropriateness of an involuntary transfer must be documented by the resident's physician.
- A More Appropriate Facility Has Not Been Identified. A transfer can be justified if a more appropriate facility to meet the resident's needs has been identified. However, CMS has recognized that transfer to a similar facility may be an indication that the transfer is improper. CMS advises that surveyors evaluate the extent to which the discharge summary and the resident's physician justify why the facility could not meet the needs of the resident. Resident transfers to a facility that is essentially identical may indicate inappropriate action.
- Facility Failed to Prepare Resident for Transfer or Discharge. The Nursing Home Reform Act states that nursing facilities must provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility. Thus, upon anticipation of a resident transfer or discharge, the facility must develop a post-discharge care plan, with the participation of the resident/legal representative, and his or her family, which addresses the resident's adjustment to the new living environment. SNFs frequently fail to provide sufficient discharge planning as mandated by law, and the failure to do so is cited regularly as justification for denying a proposed transfer or discharge.
- Failure to Provide Adequate Notice of Nonpayment. Federal law requires that facilities provide "reasonable and appropriate notice" of nonpayment prior to initiating a transfer or discharge based on the alleged nonpayment. Thus, failure to give such notice may lead to the denial of a facility's transfer or discharge request.
The facility must maintain adequate documentation in the resident's record to substantiate a transfer or discharge. Records must document accurate assessments, attempts to address resident needs through care planning, attention to the resident's customary routines, and accommodation of individual needs.
The Director of Nurses is responsible for monitoring compliance and ensuring that sufficient documentation exists to support an involuntary discharge or transfer. The Director of Nurses should, therefore, consider the following questions when monitoring compliance:
- Do records adequately document accurate assessments and care planning to address residents' needs?
- Have there been multi-disciplinary interventions, accommodation of individual needs, and attention to the resident's customary routines?
- Did the resident's physician document whether the resident was transferred or discharged for the sake of the resident's welfare and the resident's needs could not be met at the facility?
- Did the resident's health improve to the extent that the transferred/discharged resident no longer needed the services of the facility?
- Has the resident been involved in a multi-disciplinary discharge planning process?
- Did a physician document whether the resident was transferred because the health of other individuals in the facility was endangered?
- Do the records of the residents transferred or discharged due to safety reasons reflect the process by which the facility concluded that, in each instance, transfer or discharge was necessary?
- Were there any changes in source of payment that coincided with the transfer?
All involuntary transfers and discharges should be reviewed at the facility's monthly Quality Assurance and Performance Improvement meeting.