Throughout the country, assisted living communities increasingly are facing a circumstance where for one reason or another, a resident must be discharged from the community. Although the reasons may vary, often it is a result of the community’s inability to meet the level of care required for the resident, the resident poses a danger to himself or herself or others in the community, or the resident no longer can afford to live at the community.
Most states require a safe discharge, following adequate written notice to the resident or the responsible party (absent emergent circumstances). When there is no one capable of making the decision (either by incapacitation or when there is no guardian or agent for the resident) or the family is unwilling to transfer the resident (frequently the attorney-in-fact), then the assisted living community is left in a quandary. In that circumstance, the community must take the proper steps to bring about a safe discharge.
Why should I seek an involuntary transfer?
Although it likely is obvious, if you find yourself in this situation, try to initiate communication with the resident or, if applicable, his or her family member, about a voluntary discharge before escalating the matter. If you fail to involuntarily discharge a resident, when appropriate, it creates a risk or harm to that resident as well as to other residents of the facility, its staff and visitors. These risks, (for instance, the resident is bedridden, has pressure sores or severe cognitive decline or is a danger to himself or herself and others) may result in liability to the community.
In most states, applicable statutes or regulations dictate the circumstances upon which a community may discharge a resident. Often, the legislation is aimed at discharge when the community cannot meet the level of care. Often a community must rely on carefully crafted provisions in the resident agreement, however, particularly when the reason for discharge relates to conduct by the resident or family member or failure to pay for services provided.
What criteria must be met to involuntarily discharge a resident?
As stated above, assisted living residents may be involuntarily discharged for the following reasons:
1. The community cannot provide the level of care required for resident.
2. The resident poses a danger to himself or herself or others in the community.
3. The resident or family member has not paid for the services.
Before taking any action, check your local statutes, regulations and policies. In most states, regulations guide the involuntary discharge of residents.
Generally speaking, if your community cannot provide the level of care required for the resident, then discharge will be permitted. Often, this fact becomes evident over time, and you should be communicating with the resident or family member as to the possible need to transfer. In circumstances where the decline is rapid, you may not be required to give notice, and discharge must be undertaken to provide proper care. Frequently, such action is necessary when the resident requires hospitalization or a skilled nursing level of care.
It is imperative that your community’s resident agreement specifically outline the criteria for discharge, particularly those criteria not provided for in your state’s statutes and regulations. Often, in circumstances of a contested discharge, the state agency or court will look to the resident agreement for guidance. The regulations in many states set forth certain criteria permitting or requiring discharge (for instance, the resident is bedridden, is dependent in all activities of daily living, requires constant nursing care, etc.).
Am I required to discharge when certain criteria are met?
Many assisted living communities, in an effort to allow residents to age in place, now offer a wider array of services, allowing residents to remain in the assisted living setting even though their physical or psychological health deteriorates. In certain circumstances, the community offers a campus atmosphere with separate buildings or wings that provide varying levels of care.
Many long-term care providers have begun to cater to the increasing needs of residents who have dementia, providing secure housing that permits residents to remain in the community throughout the unfortunate decline in their mental health. In these circumstances, operators may be prepared for and equipped to provide services that may exceed the traditional assisted living concept. Discharge often is not required, but you must be able to provide for the level of care required. Communities must be mindful of setting a precedent, however, when agreeing to continue to provide housing for certain residents but not others.
Is notice required?
To lawfully effectuate the involuntary discharge, most states require that the community give at least 30 days of written notice, along with information about the resident’s right to appeal. In certain states, however, no legislation exists directing when it is or is not appropriate to discharge a resident. Some states handle an assisted living discharge the same as an eviction, invoking landlord–tenant law.
A copy of the notice should be provided to the state ombudsman or appropriate person from the state Department of Health (or equivalent).
In some states, residents may be transferred involuntarily without notice. Generally, danger to the resident or others is required, and the appropriate agency should be notified. Such a move often is characterized as a last resort.
What happens when the resident is incapacitated or the responsible party refuses a transfer?
In a circumstance in which the resident is incapacitated or the responsible party (attorney-in-fact) refuses to transfer the resident to an appropriate care setting, the community often can communicate with the ombudsman / Department of Health. In certain circumstances, a court order may be required.
Often, a petition seeking the appointment of a guardian is necessary, particularly when the resident lacks competency. If the resident faces the risk of substantial harm, then the court may appoint a temporary guardian to make medical decisions on behalf of the resident. If there are no suitable family members, then the Office of the Public Guardian or similar state agency may be appointed by the court to act as the guardian.
Who mandates the involuntary discharge?
If a family member continues to refuse the discharge to an appropriate care setting, then the court can order the discharge. Frequently, this order will be made on the recommendation of the guardian and following examinations by physicians.
If your assisted living community has a resident who either exceeds the level of care that the community can provide or poses a danger to himself or herself or others, then it is imperative that you seek to involuntarily discharge the resident, provided the regulations in your state permit you to do so. In appropriate circumstances, the involuntary discharge is in the best interests of the resident and is vital for the health, safety and well-being of the resident himself or herself, other residents, staff, visitors and the facility.
Consult with an experienced healthcare attorney when faced with deciding on the need for any involuntary discharge.