Between a rock and a hard place: navigate the legal constraints of involuntary. (Legal Briefs).

Long term care facilities seeking to discharge a resident against his or her wishes often find themselves caught between the Scylla of a resident's legal right not to be discharged and the Charybdis of the rights of other residents and staff. The reasons why the involuntary discharge of a resident might be considered necessary are numerous.

An obvious case is where a resident fails to pay for services provided. While the law does not begrudge providers their due in such circumstances, a facility still must comply with strict procedural requirements. Perhaps more difficult are the gray areas where a facility finds itself caring for a resident who either poses a danger to himself or herself or presents a potential physical or emotional threat to others. Whatever the reasons, if a facility accepts Medicare and Medicaid reimbursement, federal and state laws limit the situations in which the facility may discharge any resident against his or her will.

Two scenarios

These two examples illustrate how situations that would cause a facility to consider the involuntary discharge of a resident may not be clear-cut.

Resident A, who shows signs of having Alzheimer's disease, has made repeated attempts at elopement. Because of the resident's progressive deterioration, the nursing home finds it more and more difficult to contain him. Resident A has become adept at thwarting the electronic signaling device he wears, and even with coded entry and exit passageways, staff are unable to keep him from wandering. Typically, he is apprehended near the front door of the facility, but on more than one occasion he has been discovered nearly a mile away, having traversed the intersection of two dangerous roadways. As Resident A has become increasingly persistent and combative in his elopement attempts, the nursing home now seeks to discharge him.

With regard to his wandering, Resident A's discharge is arguably 'necessary to meet the resident's welfare and the resident's welfare cannot be met in the facility." And while federal law provides for discharge where "the safety of individuals in the facility would otherwise be endangered," state regulations commonly clarify that discharge or transfer is appropriate where the resident is a danger to himself or herself as well.

Resident B has become sexually aggressive to other residents and to female staff members. He continually harasses his nurses with obscene commentary, and he has repeatedly exposed himself--not only to staff, but also to other residents and their visitors. On one occasion, he reportedly fondled a mentally disabled female resident who was not cognizant of his actions. Resident B is not otherwise violent, but is an endless source of harassment, not to mention embarrassment, to the nursing home. Accordingly, the nursing home would like to see him removed from the facility.

In this case, the resident's sexually aggressive behavior impinges the rights of the other residents and of the staff. Nonetheless, a case that Resident B meets the criteria for discharge may require greater development and documentation.

Navigate the procedural passageway

Before a facility can discharge a resident, federal law generally requires the resident and a known family member or legal representative be given 30 days notice of the discharge and the reasons on which it is based. A shorter time period is permissible in cases where more immediate action is necessary for the resident's welfare or where other residents are threatened. In almost all cases, federal law requires that the bases of the discharge be documented in the resident's clinical record. Grounds related to a resident's own health or the facility's ability to care for the resident must be documented by the resident's physician, while a discharge based on the health and safety of other residents may be documented by another physician. The state documentation requirements must be reviewed carefully prior to taking action to ensure compliance with their more stringent provisions.

Any evidence of behavior harmful to the resident or to others must be documented in the resident's record on an up-to-date basis. This necessitates that facility staff members at every level be educated on what constitutes effective documentation. Ultimately, the documentation must be sufficient to prove in court or before an administrative tribunal that a discharge is necessary for the resident's own welfare and that the facility is no longer capable of meeting the resident's needs. To this end, the facility should be able to show that it has created an appropriate assessment or comprehensive care plan that identifies options for the resident's particular needs and the protection of other individuals in the facility. The facility should be able to show that it has exhausted all courses of action before resorting to an involuntary discharge.

Once the facility is confident a discharge is justified and the bases are well documented, it may issue written notice to the resident. The notice must meet the content requirements of both federal and state laws, including the reason for the discharge, the effective date of the discharge, and the location to which the resident will be discharged, as well as the resident's right to appeal under the state appeals process. The notice also must set forth the name, address, and telephone number of the state long term care ombudsman. For residents with developmental disabilities or mental illnesses, the contact information for the relevant state protective agency must also be included. State laws and regulations which may have more detailed content requirements or provisions regarding who is to receive a copy of the discharge notice need to be consulted.

Departing thoughts

The facility must also provide sufficient preparation and orientation to facilitate orderly transfer or discharge. "Sufficient preparation" includes informing the resident about where he or she is going and the facility taking the steps under its control to ensure safe transportation. The facility should actively involve, to the extent possible, the resident and the resident's family in selecting the new residence. State laws may mandate proactive discharge planning on the part of the facility.

As noted above, a resident generally has the right to appeal the decision under the state administrative appeals process. The right to a pre-discharge hearing applies to all residents of nursing homes that receive government reimbursement, regardless of the resident's source of payment. The state administrative process generally consists of a single hearing before the agency, or an evidentiary hearing at the local level with a right to appeal to a state agency.

Courts generally have not interpreted the federal regulations to afford residents the right to sue a facility for a violation of a resident's discharge rights, though it is riot uncommon for state laws to provide such recourse.

Don't undertake the odyssey alone

Involuntary discharge of a resident is an extreme measure, and one no facility should take lightly. In making the initial determination on how to proceed, it is best to have an independent nursing consultant advise on the resident's condition, and the likelihood that the resident might engage in self-inflicted harm or harm to others. It is also recommended that one individual in the facility be designated to make the initial decision to act and monitor the procedure. While this individual must be thoroughly familiar with the federal and state regulatory requirements, outside counsel should be relied upon throughout the entire process.

In addition, the facility should always involve the state or local long term care ombudsman prior to taking any action. The ombudsman would be an invaluable ally to the facility in the event the discharge is later challenged. Again, the facility should be certain that the basis for the involuntary discharge is well documented, preferably by the consultant and two physicians--the facility's medical director and the attending physician--before executing the discharge notice.

By following these precautions, a facility will follow the sailing directions of Circe to "hug the cliff of Scylla," and thereby avoid exposure to legal liability.

RELATED ARTICLE: When discharge is allowed

Federal law only permits the non-consensual transfer or discharge of a resident in the following situations:

* where discharge is necessary to meet the resident's welfare and the resident's welfare cannot be met in the facility;

* discharge is appropriate because the resident's health has improved sufficiently so he or she no longer services provided by the facility;

* the safety of individuals in the facility is endangered;

* the health of individuals in the facility would otherwise be endangered

* the resident has failed, after reasonable and appropriate notice to pay (or to have paid under Medicare or Medicaid) for a stay in the facility,

* the facility ceases to operate.

Marc L. Peterzell is a partner, and Richard E. Gardner III is an associate in the law firm of Arnall Golden Gregory LIP in Atlanta, Ga. Both practice in the firm's Healthcare Practice Group, which represents the Georgia Nursing Home Association. They can be reached at <[e-mail]> or 404-873-8662 and <Richard.Gardnerllagg.com> or 404-873-8148, respectively.