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My office phone rings and it’s one of my favorite clients. We just finished working on an appeal of a resident discharge and were expecting the Division of Medical Assistance hearing officer decision any day. I felt pretty good about it.

“Hey, Ken,” he said, “I’ve got some good news and some bad news.” “Well,” I said, “give me the good news first.” “We just got the decision on the discharge appeal from DMA and we won.” “That’s super,” I said, “so what’s the bad news?” I knew what was coming. My client said, “Well, the resident and his family say he’s not leaving and there’s nothing we can do about it.”

This situation is occurring more and more in both adult care homes and nursing facilities in NC. Recall that while adult care homes are governed only by state licensure laws for purposes of transfer/discharge criteria and nursing homes are governed by federal regulations, the substance of the state law and federal law governing discharges from both settings is virtually identical and the same hearing officers at DMA hear both types of discharge appeals.

So how is it that residents can be properly discharged, file an appeal, lose that appeal and still stay in your facility? The answer is this. Both the state law governing adult care homes and the federal law governing nursing facilities define the bases for a proper discharge, the documentation that must be in place to support the discharge, the orientation and discharge planning requirements, and the appeal rights of residents and families who disagree with a decision to discharge the resident. However, both state and federal law seem to presume that having been properly issued a discharge notice and having appealed and lost, residents will simply cooperate and relocate home or to another facility or setting. Neither applicable state law for adult care homes nor federal law for nursing homes includes a mechanism to actually make the resident leave the facility once they have been properly discharged and all appeals have been lost or no appeal is filed by the resident.

We are increasingly seeing certain “elder lawyers” and even local ombudsmen tell residents that they don’t have to leave the facility even if they’ve lost their discharge appeal and that the facility cannot force them out. That’s wrong.

There are tools available under NC law to deal with these situations. The most obvious one is a complaint for summary eviction from the facility, filed normally in small claims court or district court, just like any landlord would do with a tenant who breached the lease. Some magistrates and district court judges are initially unsure whether NC’s landlord-tenant law applies in such situations, but the federal regulations governing SNFs and state law governing adult care homes (as well as the reimbursement for both settings) make it clear that payments to these facilities include a room-and-board component, which makes them at least in part residential agreements.

The other tool available, which is far less appealing to either side, is a criminal warrant for trespass. Surprisingly, some judges are more willing to issue these types of warrants than to issue a summary eviction order. The problem with both tools, however, is that when an order is issued by a magistrate or judge in favor of the facility, the sheriff has to execute the order. That means, at a minimum, that law enforcement has to escort the resident out of the facility and, in criminal trespass cases, may arrest the resident for criminal trespass.

No one – provider, resident, family or government – wants this sort of outcome. That said, attorneys, ombudsmen or anyone else who tells a resident the person can stay at a facility after having been properly discharged under state or federal law does a real disservice to the resident and family. The discharge processes and related appeals that apply to long term care are set up to ensure that residents are discharged only when the law permits it and that they are discharged in a safe and orderly manner. However, once that process is navigated, and the facility has prevailed, the resident has no legal right to remain on the premises and telling residents that they do puts the facility in the uncomfortable, but necessary, position of having to force the resident to leave.

It’s also important to realize that the requirement that a discharging facility take steps to ensure a “safe and orderly” discharge does not make the discharging facility a guarantor of payment by or on behalf of the resident to the receiving facility. We routinely encounter family members, ombudsmen and attorneys for residents who try to argue that until the discharging facility finds a new facility the resident can afford, it’s not a safe and orderly discharge. This is also incorrect. Ultimately, it is the resident’s or family’s obligation to work out payment arrangements, and the discharging facility’s obligation is to get the resident safely to the new location, whether it’s home or another facility, once the resident or the resident’s surrogate work out those arrangements.

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