Involuntary Discharge from a Care Facility for Nonpayment

  • Tuesday, May 9, 2017

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Discharging a patient or resident from a facility for nonpayment is difficult. It is difficult from a philosophical perspective in that care providers are in the business of caring for people and discharging someone, other than for medical reasons (i.e., they no longer need the care the facility provides), is against their nature. However, facilities are often caught between “a rock and a hard place.” Because of the high costs of care, nonpayment by just one individual can strain the financial viability of a facility. Accordingly, a facility must sometimes discharge a nonpaying patient to ensure that the facility can continue in its mission.
 
Yet, discharging a patient or resident is easier said than done. In New Hampshire, discharge planning is governed by N.H. RSA 151:21 and 26 and He-E §802.16. Although a facility must first issue a properly completed “Notice of Discharge” (the requirements of which are beyond this article), a facility must also have an appropriate discharge plan. In crafting such a plan, applicable regulations require that a facility take certain steps and provide specific information to various parties including the resident, the family, and the state long term care ombudsman.
 
He-E §802.16(b)(1)-(6) contains the most pertinent provisions for discharge planning. He-E §802.16 does not expressly state that a facility must issue the discharge plan with the Notice of Discharge nor does any other applicable law. In fact, there is authority in the regulations that suggests the contrary. However, by not planning at the earliest stages when it becomes apparent that discharge for nonpayment will be necessary, a facility risks maximizing the difficulty in enforcing the discharge. Indeed, unless the requirements of He-E §802.16(b)(1)-(6) are satisfied, a facility’s efforts to discharge a nonpaying individual may (and probably will) be for naught. He-E §802.16(j)(1)-(6) provides the specific requirements as follows:
 
(j) No resident shall be transferred or discharged unless there is a written transfer or discharge plan, which includes the following:
  1. The circumstances surrounding the discharge or transfer, including alternative interventions initiated by the nursing facility before the facility proposed the discharge or transfer;
  2. All efforts that were made to locate the resident to the setting of his or her choice, and if the resident’s wishes could not be accommodated, the reasons why;
  3. The location of the new setting and, if a facility, confirmation that the facility has accepted the resident;
  4. A comprehensive description of the medical, social, and rehabilitative needs of the resident and how the resident’s needs will be met in the new setting;
  5. Documentation of consultation with the resident, family or other interested parties, if and to the extent that this has been reasonably possible; and
  6. Documentation of consultation with the resident’s personal physician or APRN regarding the transfer or discharge.

The difficulty of satisfying the above requirements should be apparent and should not be ignored. Facilities should train their staff to address each and every requirement in detail and to thoroughly memorialize interactions with the resident and family, as well as participating nurses and physicians, with regard to discharge planning. 
 
Although a complete discharge plan is probably not absolutely necessary upon the issuance of the Notice of Discharge in every circumstance, if the discharge is appealed, there can be a presumption of pretext on the part of the facility in those instances where the plan is developed later (after the facility has issued the Notice of Discharge). The likely argument by a patient or resident is that if the facility issued the notice without a discharge plan, how could the facility have known at that time that discharge was appropriate under the circumstances as required by applicable law? In other words, if a facility issues the Notice of Discharge and then drafts and delivers the discharge plan later, a hearings officer may be inclined to assume on appeal that the facility is making the “square peg fit the round hole” after the fact. Certainly, such a presumption is not appropriate under the regulations, but why not eliminate the possibility of this issue altogether since doing so will save time and money in the long run? It also is worth noting that the timing of the discharge plan is a common issue raised by attorneys for patients and residents. Indeed, it is specifically referenced as an appealable issue in educational materials for counsel practicing in this area.
 
In short, the “best practice” is to document the discharge plan contemporaneously with the Notice of Discharge. It already is difficult enough to discharge an individual from both a practical and philosophical perspective—a facility should not make it harder.
 
Irrespective of when a facility prepares the discharge plan, it is important to consider and memorialize the circumstances of the individual at the time that the facility issues the Notice of Discharge. In the first instance, the facility should draft the plan based upon those circumstances. The final or amended discharge plan, issued at the time of discharge, should also reflect the individual’s status and any relevant changes to the plan as of the discharge date. The key is for the facility to show that the plan was appropriate when initially proposed and at or about the time that the discharge occurs. To be clear, the procedure that is described in this article is above and beyond anything expressly required under applicable law but, by following this advice, a facility should be in the best possible position to enforce its Notice of Discharge.
 
Finally, a facility must be sure to provide a copy of the discharge plan to the patient or resident and his/her representative, as well as to the office of the state long term care ombudsman. The “devil is in the details,” and if a facility does not pay attention to and satisfy those details, the only sure thing is that the discharge will be overturned on appeal.

Judith Feinberg Albright

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Mark D. Attorri

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Robert E. Dunn, Jr.

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Bradley D. Holt

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Jonathan A. Lax

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Patricia M. McGrath

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Elaine M. Michaud

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Charles R. Powell III

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Thomas Quarles, Jr.

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Teresa R. Rosenberger

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Anne G. Scheer

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