Nursing Home Eviction And The Defensible Medical Record

Nursing Home Eviction Excelas Medical Legal Solutions

A recent Associated Press (AP) article discusses the growing issue of complaints regarding involuntary discharges and evictions from nursing homes and other long-term care facilities. According to the article, complaints about evictions have increased 57% since 2000, and were the most frequently reported grievance received by the Long-Term Care Ombudsman Program in 2014, with 11,331 complaints filed. The Center for Medicare and Medicaid Services (CMS) reports that, among complaints filed with the Ombudsman Program, the discharge/eviction category has consistently ranked first or second in frequency since 2006.

Many of these evictions are due to economic factors, the AP article suggests, specifically a facility preference for removing inconvenient or unprofitable residents in favor of those whose care would provide a boost to the facility’s bottom line. While this may be the unfortunate (and illegal) reality in a percentage of involuntary discharge cases, here are five situations in which a facility is within its legal rights to evict a resident:

  1. The resident’s condition has improved such that the level of service is no longer necessary
  2. The facility can no longer meet the resident’s needs such that a continued stay may place the resident’s health or safety at risk
  3. The resident’s clinical or behavioral status puts the health or safety of other residents at risk
  4. The resident’s failure to pay for services
  5. Permanent closure of the facility

While federal law provides these bases for eviction, facilities must carefully document in the clinical record the rationale and decision-making process in situations one through three above. Proper documentation helps to manage the risks associated with involuntary discharge, as well as ensure that discharges are legally appropriate and defensible.

Based on CMS’s interpretive guidelines, as well as proposed changes to the conditions of participation published in July 2015, below are the documentation requirements long-term care facilities are expected to abide by when initiating an involuntary discharge.

Provide Proper Notice of Discharge and Orientation

Regardless of the reason, if a facility plans to involuntarily discharge a resident, it must provide the resident and resident’s representative with written notice at least 30 days prior to discharge (or as soon as possible, depending on the reason for discharge. See the interpretive guidelines for exceptions). This notice must include:

  • The reason for the discharge, date of discharge, and location to which the resident will be transferred
  • The name, address, and telephone number of the state agency that handles discharge appeals
  • An explanation of the right to appeal, and information on how to file an appeal
  • Contact information for advocacy agencies for residents with mental illness or intellectual disabilities (if appropriate).

The facility must also obtain resident consent to send a copy of the notice to the Ombudsman’s office. If the resident does not consent to have the notice sent to the Ombudsman, CMS advises facilities to document the refusal in the clinical record.

Beyond the written notice, facilities are required to provide the resident with an orientation regarding the discharge in a manner and language the resident can understand. The orientation must be documented in the clinical record, noting methodologies used and providing evidence of the resident’s understanding.

Include Medical Reasoning in the Clinical Record

Improvement in condition: If the resident is being discharged due to improvement in their condition, the resident’s physician must document the reason for the discharge in the record, along with an explanation of why the discharge is appropriate.

Facility can no longer meet the resident’s needs: To support a discharge due to the facility’s inability to meet the resident’s needs, the following must be clearly documented in the clinical record by the resident’s physician:

  • The basis for the transfer
  • The resident’s specific needs that cannot be met
  • The facility’s efforts to meet the resident’s needs, including accurate assessments, care plans, interdisciplinary interventions, and their outcomes
  • The services available at the receiving facility that will better meet the resident’s needs

Facilities should be aware that, under the Americans with Disabilities Act, providers are prohibited from discriminating against residents based on the severity of their disabilities. Essentially, the facility has an obligation to do everything within its power to accommodate the resident’s needs. Outside of medical emergencies requiring hospitalization, it is rare that a facility cannot accommodate a resident’s needs.

Risk to health or safety of others: To support a discharge in cases where the health or safety of others is at risk, a physician—not necessarily the resident’s own physician—must document in the clinical record the basis for the discharge and an explanation of why the discharge is appropriate, including a description of the process used to determine that discharge was necessary.

What to Document Upon Transfer and Post-Discharge

CMS’s proposed changes to the conditions of participation would require that, regardless of the reason for the discharge—whether voluntary or involuntary—all long-term care facilities must provide the receiving facility with the following information, as close as possible to the time of transfer:

  • Demographic information, consisting of name, sex, date of birth, race, ethnicity, and preferred language
  • Resident representative name and contact information
  • Advance directives
  • History of present illness
  • Past medical/surgical history, including procedures
  • Active diagnoses
  • Labs and diagnostic test results
  • Functional status
  • Psychosocial assessment, including cognitive status
  • Social supports
  • Behavioral health issues
  • Medications
  • Allergies
  • Immunizations
  • Smoking status
  • Vital Signs
  • Unique identifiers for resident’s implantable devices
  • Comprehensive care plan, including health concerns, assessment and plan, goals, resident preferences, other interventions and efforts to meet resident needs, and resident status

The discharging facility is responsible for documenting that the communication related to the above-listed information occurred. With complaints about involuntary discharges increasing, residents and their advocates, as well as federal agencies, will likely monitor this issue. Complying with CMS guidelines will help facilities to ensure discharges are legally appropriate, minimize risk or trauma to the resident, and minimize legal and financial risk for the facility. Like so many other issues in long-term care, thorough documentation is the key to managing risk.

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