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Transfer and Discharge Rights of Nursing Home Residents

The transfer or discharge of a nursing home resident can be a traumatic experience. However, residents have rights regarding when and how a nursing home may transfer them. For a lawful transfer, the nursing home must follow certain procedures as outlined by federal law. This overview provides information regarding nursing home residents' rights in relation to transfers and discharges. If you or a loved one has recently been transferred without your consent you may wish to contact an experienced elder law lawyer in your area to review your legal rights.

The law

Nursing home residents are some of the most vulnerable members of our society, and unfortunately, nursing home abuse is far too common. For these reasons, both state and federal laws play a part in nursing home regulation. Below is an outline of the main federal transfer and discharge laws that all nursing homes receiving federal funding must follow.

Federal law purpose

If a nursing home receives federal funding, it must comply with federal regulations set forth in the Nursing Home Reform Act. Under the federal standards, a nursing home must provide each resident with the "necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being." 42 C.F.R. § 483.25. In order to maintain this standard, nursing homes must avoid arbitrary and unfair transfers and discharges.

Transfer and discharge defined

The federal Center for Medicare and Medicaid, a division of the Department of Health and Human Services, defines a transfer or discharge as "the movement of a resident to a bed outside of the certified facility whether that bed is in the same physical plant or not." This does not include the movement of a resident to a bed within the same facility. 42 C.F.R. § 483.12(a)(1).

Transfer and discharge standards

Because a transfer and discharge can be very traumatic, the federal standards state that the resident cannot be transferred unless certain criteria are met.

Among the reasons that a resident may be discharged or transferred are:

The resident's welfare and the resident's needs cannot be met in the nursing facility. 42 C.F.R. § 483.12(a)(2)(i).
The resident's health has improved to the point that the resident no longer needs the services that the facility provides. 42 C.F.R. § 483.12(a)(2)(ii).
The resident endangers the safety of other individuals at the facility. 42 C.F.R. § 483.12(a)(2)(iii).
Without the move, the health of other individuals would be at risk. 42 C.F.R. § 483.12(a)(2)(iv).
Following reasonable and appropriate notice, the resident failed to pay. 42 C.F.R. § 483.12(a)(2)(v).
The facility ceases to operate. 42 C.F.R. § 483.12(a)(2)(vi).

Notice prior to transfer

A facility must provide a clearly written notice prior to a transfer or discharge. The facility must provide notice to the resident, a family member, or legal representative at least 30 days before the resident is transferred or discharged, barring certain legal exceptions. 42 C.F.R. § 483.12(a)(4)(i), 42 C.F.R. § 483.12(a)(5)(i). Among other requirements, the notice should give reasons for the discharge, and state that the resident has the right to appeal the decision. 42 C.F.R. § 483.12(a)(6)(i) and (iv).

Conclusion

As stated, a resident may appeal a facility's decision of discharge or transfer. Therefore, if you feel that you, or a family member, have been the victim of a wrongful transfer or discharge, contact an elder law attorney in you area. A lawyer with experience in nursing home law can assess your situation and advise you of your legal options.

Form: Transfer and Discharge Rights

To read and print out a copy of the form please link below.

Transfer and Discharge Rights

You can download a free copy of Adobe Acrobat Reader here.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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