• New Rules Govern Discharge of a Nursing Home Resident for Nonpayment
  • June 27, 2003 | Author: Matthew J. Lapointe
  • Law Firm: Sheehan Phinney Bass + Green, Professional Association - Manchester Office
  • New Hampshire law (RSA 151:26, I) provides that a nursing home cannot transfer or discharge a resident except for certain enumerated reasons, including nonpayment. In cases of discharge for nonpayment, state law requires the facility to develop a discharge plan (RSA 151:21, V) and to provide written notice at least thirty days prior to the discharge date (RSA 151:26, II). The notice must contain (1) the reason for the discharge; (2) the effective date of the discharge; (3) the location to which the patient is to be discharged; (4) the name, address and telephone number of the long-term care ombudsman; (5) the following statement: "You have a right to appeal the facility's decision to transfer or discharge you. If you think you should not have to leave this facility, you may file an appeal in superior or probate court" and (6) if the patient is in a skilled nursing facility or nursing facility certified under Medicare of Medicaid (which includes the vast majority of facilities), a statement informing the patient of his or her right to request an administrative hearing before the NH department of health and human services.

    Newly revised rules issued by the New Hampshire Department of Health and Human Services on August 17, 2002 contain many requirements pertaining to both the discharge plan and the notice. The rules in question are He-E 802.15 through He-E 802.18 and may be found on the web at http://www.gencourt.state.nh.us/rules/he-e800.html. The newly-revised state rules go beyond the requirements contained in the federal rules or in the state law. He-E 802.17(b) requires that the written discharge notice contain, in addition to the items specified under RSA 151:26 and in the federal rules (42 CFR §483.12), the following information: (1) in addition to the reason for the discharge, the specific circumstances leading up to the discharge and a reference to the applicable section(s) of He-E 802.15(b); (2) a statement that shall read: "You have a right to appeal the facility's decision to transfer or discharge you. If you think you should not have to leave this facility, you may file an appeal in superior or probate court pursuant to RSA 151:26 IV, or request an administrative hearing"; (3) a statement outlining the procedure for requesting an administrative hearing pursuant to He-C 200, including a statement indicating "that if a request for a hearing is filed within 20 days of receipt of the notice the resident shall be allowed to remain in the facility until a final decision is made by the administrative appeals unit and if the resident receives Medicaid, payments to the facility shall continue while the appeal is pending"; and (4) for residents who are 60 years of age or older, the name, address and telephone number of the provider(s) of legal services under Title VII of the Older Americans Act (that is, the NH Legal Assistance Senior Citizens Law Project).

    Of course, the problem with discharging a resident for non-payment is that no other facility will voluntarily accept a resident who cannot or will not pay and who is not eligible for Medicaid. The rules seem to imply that it is acceptable to discharge a patient to his or her home or the home of a relative (see He-E 802.16(b)(3) which requires the discharge plan to include "the location of the new setting and, if a facility, confirmation that the facility has accepted the resident"). Obviously, the discharge plan would have to detail the various community supports that would be necessary to maintain the resident's health and safety in the home environment. However, depending on the resident, it may be impossible to arrange for sufficient supports to allow the resident to live in a private home.

    Cases of nonpayment in which the resident is not qualified for Medicaid often come about as a result of malfeasance by the person responsible for the resident's financial affairs, either under a power of attorney or through informal family arrangements. Such matters should be referred to the Ombudsman and the Division of Elderly and Adult Services for investigation as early as possible. Otherwise, the nursing facility may be required to support a non-paying resident while an investigation is pending. Worse yet, even if the responsible party is prosecuted for Medicaid fraud the likelihood of the facility obtaining restitution may be slim. Under certain circumstances discharge may be the facility's only option and the facility must follow the applicable rules regarding notice and discharge planning. Prompt and efficient billing practices are the best way to assure facilities that they have minimized the risk of non-payment.