Q: I am an attending physician at a nursing home. Can the facility pursue the involuntary transfer or discharge of a resident who is a safety risk to others, or seek to discharge a resident who has failed to pay for their stay at the home?
A: Yes, as outlined by the New York State Department of Health[1] (“NYS Dept. of Health”), a nursing home can transfer or discharge a resident against their or their health care proxy’s wishes for several reasons, including safety concerns to others due to a resident’s behavioral issues or a resident’s failure to pay for services.
Nursing homes in New York State can seek the involuntary transfer or discharge of a resident for the following reasons: it is necessary for the resident’s welfare and/or the facility cannot meet the resident’s needs; the resident’s health has improved to the point that they no longer require services from the facility; the resident’s behavioral or clinical status endangers the safety or health of other residents or staff; the resident fails, after “reasonable and appropriate” notice from the home, to pay for, “or to have paid under Medicare or Medicaid”, their stay at the facility; or the facility will no longer be operational.
Upon admission to the nursing home, the interdisciplinary team, consisting of medical, nursing, social work, dietary, and therapy providers, must make ongoing assessments as to the resident’s care needs, which can change over time. This may include the development of a discharge plan for the resident to return safely home, if appropriate. However, as indicated above, there are circumstances that may develop which require the involuntary transfer or discharge of the resident prior to reaching a medical baseline to be discharged home or moved into long-term, skilled nursing care.
If the interdisciplinary team, in consultation with the resident and/or their representative, determines, for example, that the resident’s safety or the safety of other individuals in the facility would be at risk if the resident remains in the nursing home, the facility must provide at least a 30-day notice, orally and in writing, to the resident regarding the planned transfer or discharge. The resident, in turn, has the right to appeal the involuntary transfer or discharge and must submit the appeal within sixty (60) days of receipt of the notice from the nursing home. The appeal must be filed with the NYS Dept. of Health[2] and the resident, if they have not already been transferred or discharged, has the right to remain at the facility pending the decision on their appeal. If the resident has already been transferred or discharged, they may return to the nursing home to the “first available semi-private bed” if they win their appeal.
It is important for the nursing home’s interdisciplinary team to timely assess, reassess, and document its analysis in determining if a resident should be involuntarily transferred or discharged. As outlined by the NYS Dept. of Health, a nursing home must meet the responsibilities required to ensure that the resident’s rights are considered and adhered to while it pursues an involuntary transfer or discharge. In most circumstances, legal counsel can assist in navigating these situations.
Reprinted with permission from the November/December 2024 issue of The Bulletin from the Monroe County Medical Society and available as a PDF file here.
David H. Fitch is a Partner in Underberg & Kessler LLP’s Health Care, Litigation, and Municipal Law practice groups. He represents health care providers and facilities, municipalities, individuals, and businesses in complex litigation in state and federal courts. David can be reached at dfitch@underbergkessler.com or 585.258.2840.
[1] NYS Dept. of Health: https://www.health.ny.gov/facilities/nursing/rights/transfer_discharge.htm
[2] NYS Dept. of Health: https://www.health.ny.gov/facilities/nursing/rights/transfer_discharge_appeal.htm