Nursing homes care for a growing number of adults with mental health disorders. In fact, mental health is sometimes a decisive factor that contributes to placement in a nursing home, causing nursing homes to become the de facto institution for persons with mental illness. Thus, there is increasing concern when nursing homes admit a resident with mental health disorders but then discharges that resident, often for allowable reasons, as that may impact the resident’s health and safety.
As part of its responsibilities, the US Department of Health and Human Services Office of the Inspector General (“HHS OIG”) identifies risks to the people they serve, evaluates issues, and provides reports of recommended necessary improvements. On March 29, 2024, HHS OIG issued two reports examining nursing home facility-initiated discharges of nursing home residents.1,2
HHS OIG issued these reports, recognizing that discharges that do not follow federal regulations can be unsafe and traumatic and lead to resident harm. Of particular note, HHS OIG reviewed 126 facility-initiated discharges and found that 72 of the discharges were due to a resident’s endangering behavior, and 93% of these residents were discharged due to behavior resulting from mental health disorders. Ultimately, “[i]nsights from this data brief raise some concerns and questions about nursing homes’ admission of and capacity to care for residents with mental health disorders.”1
Background
Compliance with facility-initiated discharge requirements has been part of HHS OIG’s work plan. As HHS OIG described:
Data from the National Ombudsman Reporting System show that from 2011 through 2016, the Long-Term Care Ombudsman Program, established to advocate for older Americans by the Older Americans Act of 1965, cited complaints related to “discharge/eviction” more frequently than any other concern. In addition, the media has highlighted the rise in nursing home evictions.3
CMS defines a facility-initiated discharge as a discharge that “the resident objects to, or did not originate through a resident’s verbal or written request, and/or is not in alignment with the resident’s stated goals for care and preferences.”4
Federal regulations allow nursing homes to initiate discharges of residents for six specific reasons:
- The resident’s welfare and the resident’s needs cannot be met in the facility.
- The resident’s health has improved sufficiently, so the resident no longer needs the services provided by the facility.
- The safety of individuals in the facility is endangered due to the clinical or behavioral status of the resident.
- The health of individuals in the facility would otherwise be endangered.
- The resident has failed, after reasonable and appropriate notice, to pay.
- The facility ceases to operate.5
Nursing homes must provide residents and their representatives with written notice if discharged for one of the aforementioned reasons. In addition, CMS requires nursing homes to document the basis and justification for such discharges.5
HHS OIG’s Findings
In HHS OIG’s review, nursing homes most frequently initiated discharge because the resident’s behavior endangered the resident or others in the facility. “Endangering behavior” includes the safety of individuals in the facility being endangered due to the clinical or behavioral status of the resident, the health of the individuals in the facility being endangered, and the inability of the facility to meet the resident’s welfare and needs (e.g., the facility could not keep a resident safe from wandering, elopement, suicide or self-harm).1 Physical and/or verbal aggression was the most common endangering behavior observed.
After endangering behavior, failure to pay was the second most frequent reason for discharge. In 16 discharges, no reason was documented, though 6 had indications in the medication records that these discharges were due to endangering behaviors. Finally, improved health was the least frequent reason for discharge.1
Nursing homes tried interventions prior to discharging the residents due to endangering behavior, including medication changes, counseling, one-on-one staff monitoring, room changes, and using wearable bracelets to alert nursing staff if the resident was wandering near a monitored door.
A discharge may resolve a nursing home’s issues, but it may have a significant impact on the health and safety of the improperly discharged resident. Most residents were discharged to an acute care residence. The next most frequent destinations were private residences, followed by another nursing home. Five residents were discharged to unknown locations, two to nonspecific locations, and three to a hotel. For these patients, discharge summaries were not provided for or reflected in medical records. HHS OIG concluded that in these cases, it was impossible to know whether the nursing home ensured a safe transition for the residents. Some cases raised safety concerns. In one example cited, a nursing home discharged a resident to a hotel for failure to pay when the patient was on dialysis.
The report indicates that “[m]ore research is needed into how to provide safe and effective long-term care for residents with mental health disorders and behaviors,” – particularly in light of the increasing demand for such care.1 HHS OIG indicates that the new Center for Excellence for Behavioral Health in Nursing Facilities, established by the Substance Abuse and Mental Health Services Administration in partnership with CMS, may offer promising contributions in this space. According to HHS OIG, “[t]he center aims to provide technical support, resources, and training to nursing homes to care for residents with mental health needs and substance use disorders.”1
Takeaways
From both a quality of care and financial perspective, the Government is focused on the care provided by nursing homes.
With regard to care, OIG concluded that there were concerns about “nursing homes’ understanding of and compliance with notice and documentation requirements for facility-initiated changes.”3 Specifically, OIG noted that (1) there were instances where nursing homes failed to provide required documentation, such as documentation that the receiving facility could provide the services that meet residents’ needs; (2) nursing homes often failed to notify residents of their discharges and frequently omitted required information in notices, potentially compromising residents’ rights and abilities to plan for safe transitions; and (3) even when nursing homes provided the resident with a facility-initiated discharge notice, they often failed to provide a copy of the notice to the Ombudsman, as required, potentially impeding on the Ombudsman’s ability to effectively advocate for residents.3
These reports follow the US Department of Justice’s 2020 launch of a national nursing home initiative to coordinate and enhance civil and criminal efforts to pursue nursing homes that provide grossly substandard care to their residents and a 2022 White House announcement of CMS initiatives to ensure residents receive quality care.6,7
From a financial perspective, in light of the gross reimbursements by federal payors, as well as the Provider Relief Funds distributed to nursing homes during the COVID-19 pandemic, nursing homes remain in an era of heightened government scrutiny. DOJ has demonstrated an appetite for enforcing the False Claims Act, 31 USC §§ 3729-3733, imposing steep civil penalties against nursing homes based on various issues such as substandard quality of care, inadequate staffing, false certifications, and misuse of Paycheck Protection Program funds. Thus, in the wake of HHS OIG’s reports, nursing homes must stay vigilant in ensuring compliance with facility-initiated discharge and other requirements.
Kirti Reddy is a partner at Quarles & Brady and a former Assistant United States Attorney in the Southern District of New York, Civil Division. She leads the blog Nothing but Substance, which reports on news and legal issues affecting leaders and providers in the behavioral health and addiction treatment industry. She is also co-chair of the Health Litigation Group and the Government Enforcement Defense and Investigations Group. She can be reached at kirti.reddy@quarles.com.
Theresa DeAngelis is an associate in the Health & Life Sciences Group at Quarles & Brady. She can be reached at theresa.deangelis@quarles.com.
References
- “Nursing Home Residents With Endangering Behaviors and Mental Health Disorders May be Vulnerable to Facility-Initiated Discharges,” HHS OIG (March 29, 204), oig.hhs.gov/documents/evaluation/9849/OEI-01-18-00252.pdf
- “Concerns Remain About Safeguards to Protect Residents During Facility-Initiated Discharges From Nursing Homes,” HHS OIG (March 29, 2024), oig.hhs.gov/documents/evaluation/9847/OEI-01-18-00251.pdf.
- “Nursing Homes’ Compliance With Facility-Initiated Discharge Requirements,” HHS OIG, oig.hhs.gov/reports-and-publications/workplan/summary/wp-summary-0000541.asp.
- “State Operations Manual, Appendix PP–Guidance to Surveyors for Long-Term Care Facilities,” CMS (Rev. 211; 02-03-23), cms.gov/files/document/r211soma.pdf
- 42 C.F.R. § 483.15
- “Department of Justice Launches a National Nursing Home Initiative,” DOJ (March 3, 2020), justice.gov/opa/pr/department-justice-launches-national-nursing-home-initiative
- “FACT SHEET: Protecting Seniors by Improving Safety and Quality of Care in the Nation’s Nursing Homes,” White House (Feb. 28, 2022), whitehouse.gov/briefing-room/statements-releases/2022/02/28/fact-sheet-protecting-seniors-and-people-with-disabilities-by-improving-safety-and-quality-of-care-in-the-nations-nursing-homes/
