INVOLUNTARY TRANSFER OR DISCHARGE OF A NURSING HOME RESIDENT IN ILLINOIS FOR EITHER LATE PAYMENT OR NONPAYMENT

By: Carter A. Korey

It is a common misconception in the nursing home industry that the service of a “Twenty-One (21) Day Notice of Involuntary Transfer or Discharge” on a resident and the resident’s responsible party is all that is needed to legally transfer or discharge a resident for either late payment or nonpayment for the resident’s stay. What mostly happens under these circumstances? The resident who was served contests the transfer or discharge and requests a hearing with the Illinois Department of Public Health (“IDPH”). No later than ten (10) days thereafter, a hearing is held at the nursing home and the Administrative Law Judge renders a decision that the transfer or discharge is not authorized based on the fact that the nursing home failed to comply with the strict requirements of the Nursing Home Care Act, 210 ILCS 45/1-101, et seq. (“State Law”) and/or the regulations of the Health Care Financing Administration for States and long-term care facilities, 42 CFR 483.12 (“Federal Regulations”). The nursing home now has to start all over with its transfer or discharge and by the time that the IDPH authorizes the transfer or discharge, if ever, twenty-one (21) days has become around six (6) months and the resident owes the nursing home thousands of dollars.

The purpose of this article is to lay out the proper steps that need to be taken in order to comply with the requirements of State Law and Federal Regulations when involuntarily transferring or discharging a nursing home resident for either late payment or nonpayment. Please note that this article deals only with the involuntary transfer or discharge of private-pay residents of nursing homes located in the State of Illinois.

If the requirements of State Law and Federal Regulations are complied with, it will not take twenty-one (21) days or even thirty (30) days to properly transfer or discharge a resident for either late payment or nonpayment. It will take, at a minimum, one hundred nine (109) days to properly transfer or discharge a resident from a nursing home for either late payment or nonpayment.

As such, let’s get to the substance of this article as time is definitely of the essence. The following is a step-by-step procedure in order to transfer or discharge a resident for either late payment or nonpayment which complies with the strict requirements of State Law and Federal Regulations:

	1.	Submission of a bill to the resident, responsible party, and if known, a family member or legal representative (hand delivered to resident and regular first class mail to the others);
	2.	Payment not received within forty-five (45) days after submission of a bill (if the admission contract calls for monthly billing in advance, immediately upon admission make sure that a bill is submitted per paragraph 1 above so that the forty-five (45) day period starts running and submit monthly bills thereafter);
	3.	Notice, by regular first class mail, to resident, responsible party, and if known, a family member or legal representative, requesting payment within thirty (30) days (“30 Day Demand Letter”);
	4.	Payment not received within thirty (30) days after receipt/delivery of 30 Day Demand Letter;
	5.	Have a meeting at the nursing home attended, in person, by the resident, resident’s representative and person or agency responsible for the resident’s placement, maintenance, and care in the nursing home, and the nursing home administrator or other appropriate nursing home representative as the administrator’s designee and at this meeting explain and discuss the following: the reason(s) for the involuntary transfer or discharge of the resident, the resident’s relocation plan, including the name of the relocation facility or person, address and telephone number, why the chosen relocation facility or person is appropriate for the resident and will not jeopardize the health or safety of the resident, ensure that the resident will be transferred or discharged from the nursing home in a safe and orderly fashion, and offer the resident counseling services prior to transfer or discharge. The entire content of this meeting shall be summarized in writing and shall include the names of the individuals involved and who attended this meeting. This written summary shall be made part of the resident’s clinical record; and
	6.	Institute transfer or discharge proceedings by sending a notice of transfer or discharge to the resident, responsible party, and if known, a family member or legal representative by registered or certified mail (“Notice of Transfer or Discharge”), with a copy being mailed or faxed to the IDPH and the Nursing Home Ombudsman. The Notice of Transfer or Discharge shall consist of two (2) completed IDPH prescribed forms entitled “Notice of Involuntary Transfer or Discharge and Opportunity for Hearing” and “Involuntary Transfer or Discharge Request for Hearing” (both can be obtained by contacting the IDPH) and a postage-paid, preaddressed envelope to the IDPH. A copy of the Notice of Transfer or Discharge shall be placed in the resident’s clinical record (make sure to copy everything, this includes both IDPH prescribed forms as completed and a copy of the postage-paid, preaddressed envelope to the IDPH). The IDPH prescribed forms comply with State Law and Federal Regulations as to required contents of notice of transfer or discharge. Please note that the IDPH prescribed forms for Cook County, Illinois were revised by the IDPH on April 1, 2005. Please also note that even though State Law only requires that the Notice of Transfer or Discharge be made by the nursing home at least twenty-one (21) days before the resident is transferred or discharged, Federal Regulations call for Notice of Transfer or Discharge to be made by the nursing home at least thirty (30) days before the resident is transferred or discharged. As such, for all federal transfer or discharge proceedings, that being when a nursing home admits private-pay and Medicare or Medicaid residents and is federally-certified and state licensed or the nursing home admits only Medicare or Medicaid residents and is federally funded only, when completing the IDPH prescribed form entitled “Notice of Involuntary Transfer or Discharge and Opportunity for Hearing”, make sure that the effective date of the proposed transfer or discharge is more than thirty (30) days after the date that the Notice of Transfer or Discharge will be received by the resident, responsible party, and if known, a family member or legal representative. In addition, pursuant to State Law, if the basis for an involuntary transfer or discharge is late payment or nonpayment and the Illinois Department of Public Aid previously denied the resident’s application for public aid benefits, if a hearing request was filed to contest the denial of public aid benefits, the Notice of Transfer or Discharge shall not be served on the resident until a final decision is rendered by the Illinois Department of Public Aid or a court of competent jurisdiction and notice of that final decision is received by the resident and the nursing home.

Following the above stated steps in no way guaranties a finding by the IDPH of an authorized transfer or discharge. These are merely suggestions and if followed, nursing homes will highly increase the chance that they will comply with the complex, detailed State Law and Federal Regulations as to involuntarily transferring or discharging a resident for either late payment or nonpayment. Therefore increasing the likelihood of a finding of authorized transfer or discharge by the Administrative Law Judge at the IDPH hearing and consequently saving the nursing home thousands of dollars.

Please contact a health care regulatory attorney prior to relying on or acting on any information stated in this article.