Nursing Home Transfers: Who Gets to Decide?

Trusting a nursing home facility to provide proper and competent care to its patients is the most important issue that residents and their families must endeavor to verify and monitor to the largest extent possible. The most effective method families can use to maintain awareness of the resident’s condition is to talk and visit this person on a regular basis, and keep an open line of communication with regular caregivers and doctors. Unfortunately, this diligence does not guarantee abuse and/or negligent care by the nursing home will not happen. A recent article in the Miami Herald reports on the nursing homes in South Florida identified by the U.S. Department of Health and Human Services with the most troublesome track record on patient care and facility safety. The article specifically looked at the 10 facilities in the area with the highest number of deficiencies and highlighted some of the most egregious behaviors. Included was the transfer of patients out of these facilities in violation of state law. Since no one wants to see someone stay in a nursing home with abusive practices, it is important to make sure the administrators follow the proper procedure, keeping in mind that such transfers could be made to cover up improper medical care or abuse.

Grounds for Transfer

Florida law allows nursing home facilities to transfer patients out in certain circumstances. The least likely circumstance is a claim by the nursing home that changes in the physical structure of the buildings make it unsafe to keep the resident housed in its facility. This type of claim must be directly reported to the state regulatory agency and automatically subjects the facility to an inspection by state regulators. The more likely grounds a nursing home will use to justify moving the resident to another facility include:

• the facility is unable to provide the patient the necessary medical care. Given that nursing homes are required to adjust and maintain adequate staff to service their residents, this claim should seldom be made;
• the patient has improved and no longer requires nursing home care;
• the health or safety of other residents or staff is endangered by the patient;
• the patient has not paid his/her bill and has not applied for Medicare; or
• the facility ceases operation.

It should be noted that nursing homes can bypass the advance notice requirement for transfer if the patient’s welfare is endangered and the facility cannot meet his/her needs, or the health and safety of other residents and facility employees are at risk. In either circumstance, notice must be provided as soon as practical, and the basis for the transfer must be notated in the patient’s medical record and acknowledged by the doctor.

Notice and Challenge

Typically, the facility must provide 30 days advance notice of a transfer to the resident and the resident’s family or legal representative, if known. The notice must be written and include a section to appeal the transfer to the local long-term care ombudsman council. Once the resident or his/her agent acknowledges the transfer notice, the facility has five days to send a copy to the resident’s legal guardian and the local ombudsman council.

Each resident is entitled a hearing on the decision and may request one within 90 days of the receipt of the notice. If a hearing is requested within 10 days of the notice delivery, the facility must stop all steps to transfer the patient until outcome of the hearing is known, which must be completed within 90 days of the request. If the request for the hearing occurs outside that 10-day period, the nursing home may move forward with the transfer at the end of the 30 days from the time the notice was received.

Get Legal Help

If you have any suspicions that your family member is being abused or receiving negligent care in a nursing home facility, it is crucial to retain the services of an lawyer who can fight for the victim’s rights and curtail additional suffering. The Miami law firm of Pita Weber Del Prado is here to help you and your family hold the nursing home accountable. Contact us to schedule your free consultation.