Here is a common problem. A nursing home finds that a resident is a lot of bother. He might be aggressive, she might require too much care and attention. The nursing home sends the resident to the hospital, then claims when s/he is ready to return, “no bed is available.” The hospital discharge planner finds another nursing home that is not acceptable because of the distance or the overall quality of the facility.
What can you do? Very few people know the answer to this problem.
Transfer to a hospital for treatment is not a discharge from the nursing home. A nursing home resident has a right to return to his “home.” If the nursing home claims it cannot meet the resident’s need, they most go through a formal discharge, and hearing if the resident appeals, and prove it cannot do the job. That is a tall order for a nursing home that is a medical facility licensed to handle a broad range of conditions.
Who says they must take their resident back? The folks who enforce the Medicare and Medicaid programs. Facilities that participate in Medicare and Medicaid must follow the regulations that go with the programs. Regulation 42 CFR 483.15(e)(1)(i) says
(i) A resident, whose hospitalization or therapeutic leave exceeds the bed-hold period under the State plan, returns to the facility to their previous room if available or immediately upon the first availability of a bed in a semi-private room if the
(A) Requires the services provided by the facility; and
(B) Is eligible for Medicare skilled nursing facility services or Medicaid nursing facility services.
If the facility contends it cannot meet the resident’s needs they must readmit him/her and then start formal discharge proceedings. 42 CFR 483.15(e)(1)(ii) states:
(ii) If the facility that determines that a resident who was transferred with an expectation of returning to the facility cannot return to the facility, the facility must comply with the requirements of paragraph (c) as they apply to discharges.
This last provision means that a nursing must readmit the resident and then give the 30 day discharge notice if they contend they cannot provide care for the resident. You can then appeal the discharge order and then at a hearing the facility would have to prove why they cannot take care of its resident.
You should also contact the Long Term Care Ombudsman 866-485-9393 who will help the facility remember their duties under the federal programs. And, of course, you may hire an elder law attorney to help you. You should find that the facility changes its mind and decides it can take care of the resident.
All the best,
Jim
