Florida Nursing Home Evictions

There are many Floridians who do not understand their rights when it comes to when and how Nursing Homes / Skilled Nursing Facilities can evict them or their loved ones.  

Legal authorities for evicting an individual can be found at 42 USC 1395 – 3(c)(2)(A)– (c). Per Federal Law (see CMS’s State Operations Manual for Long-Term Care Facilities) Nursing Homes in Florida can only kick out a resident for one of five reasons: 

1. The Facility Cannot Meet the Needs of the Resident
2. The Resident’s Health Has Sufficiently Improved So as to No Longer Need the Level of Care Provided by the Nursing Home
3. The Resident Fails to Pay for Their Stay at the Facility, After the Nursing Home Has Provided Reasonable and Timely Notice
4. The Resident’s Behavior or Illness Status is Endangering the Safety or Health of other Residents or Facility Staff
5. The Nursing Home Goes Out of Business/Shuts Down

Note, that the laws that apply to Nursing Facilities, do not apply to Assisted Living Facility evictions. However, Federal law - 42 CFR 441.301(c)(4)(vi)(A)- provides that ALF residents must, at a minimum, have the same protections from eviction that tenants have in the same state/county/municipality in which they live.

About the Florida Nursing Home Notice of Discharge

Except in emergencies, "Notices of Discharge" must be presented, in writing, within 30 days of the resident’s proposed transfer or discharge (occasionally, less than 30 days notices is allowed in certain circumstances). The notice of discharge must provide: (i) the reason for the discharge; (ii) date of proposed transfer/discharge, and where the resident is being moved; (iii) that the resident has a right to appeal the discharge; and (iv) the contact information for the Florida LTC Ombudsman who can assist with the appeal.

Florida law requires residents to appeal and eviction within 10 days of receiving the eviction notice.  If the resident appeals within the 10-day timeframe the eviction is stayed until the appeal is ruled upon.  If the resident appeals after 10 days of receiving the eviction notice, then the eviction is not “stayed” pending appeal.

Improved Condition | Resident's Needs Cannot Be Met

If the notice of discharge is based on the resident’s improved condition or no longer requiring a high level of care, the basis for the transfer/discharge must be documented in the resident’s clinical record by their treating physician, PA, NP or the medical director. The resident’s assigned doctor must document: which needs cannot be met, what efforts the facility has taken to meet those needs, and the services that can be met in a different facility or at home to meet the resident’s needs.

The nursing facility, claiming that a resident’s needs cannot be met in the existing nursing home must provide a discharge plan, signed by the nursing-home administrator, that documents “sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility.” 

If the discharge is based on the resident being a danger to other’s health or safety, then any doctor (not necessarily the one assigned to the resident) can document the basis for the transfer.

Note that the resident being merely "difficult" or "not sticking to the care plan" is not a valid reason for nursing home discharge in Florida.

Nursing Home Sends Person to Hospital

When a Florida nursing home sends a person to a hospital, per Federal law, 42 CFR Section 483.15(d), a facility must give the resident two notices of their bed-hold and return policy to facility after hospitalization. Please note the notice the first notice of bed-hold and transfer policy is often in the resident’s initial admissions paperwork provided to the resident when they first get to the facility.  

The second required facility bed-hold policy notice is given to the resident at the time they are transferred to the hospital.  Notice must also be given to the Long-Term Care Ombudsman. After, the bed hold time limit has elapsed, Medicaid residents now may pay out of pocket to hold their bed until their return per 42 CFR Section 483.15(c).

Appealing Florida Nursing Home Evictions | Notice of Discharge

The appeal can take place at the Florida nursing home. It will be conducted by the DCF Office of Appeal Hearings. There the resident, or their designated representative, will have the right to introduce evidence and bring their own witnesses. They also have the right to cross-examine witnesses brought by the facility. While this all sounds like a trial, it is generally amore informal process.  

The Notice of Discharge will also include a DCF Fair Hearing Request, that the resident (or their representative) can complete and file with the Department of Children and Family’s (DCF’s) Office of Appeal Hearings and emailed to: appeal.hearings@myflfamilies.com.

Having a designated representative may require a well drafted Medicaid-Compliant Florida Durable Power of Attorney (this is where our estate planning and Medicaid planning departments can be of huge help).

The main reasons a facility loses at a Fair Hearing:

1. Facility did not provide supporting documents;
2. Medical records were not well documented;
3. Facility got to the Fair Hearing and argued a new reason for the discharge not listed on the eviction/discharge notice.

Medicaid Pending

Medicaid Pending applies when someone is in a rehab, nursing home, and long-term skilled nursing care facility and has submitted a Medicaid ICP application, but DCF has not yet made a decision (when a client hires our firm, we submit the application and regularly follow up with the government to try to shorten the approval process).

With nursing homes in Florida costing between $8,000 and $13,000 per month, waiting for a confirmation of Medicaid ICP eligibility is understandably stressful.

Nursing homes may NOT discharge for failure to pay while the resident is “Medicaid Pending” (i.e. Florida ICP Medicaid eligibility is in the process of being determined) even though their 100 "Medicare Days" have passed. We have found it helpful when you can inform the facility administrator that you are working with an experienced elder care attorney or law firm that is handling the application.

The actual Federal law that prohibits nursing home evictions or nursing home discharge, while a Medicaid application is pending, is:

42 CFR 483.15(c)(1)(i)(E):

(i)The facility must permit each resident to remain in the facility, and not transfer or discharge the resident from the facility unless -

(E) The resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare or Medicaid) a stay at the facility. Non-payment applies if the resident does not submit the necessary paperwork for third party payment or after the third party, including Medicare or Medicaid, denies the claim and the resident refuses to pay for his or her stay. For a resident who becomes eligible for Medicaid after admission to a facility, the facility may charge a resident only allowable charges under Medicaid

Also, see page 171 in CMS Appendix PP - Guidance to Surveyors for Long Term Care Facilities from the State Operations Manual, which states:

• "a resident cannot be discharged for nonpayment while their Medicaid eligibility is pending (See F622, Transfer and Discharge Requirements)."

However, if there is going to be a "patient responsibility" we always tell our clients to pay that amount (our firm calculates this for our clients)./

To speak with an experienced Florida Medicaid Planning, Estate Planning or Elder Care Attorney, please schedule a consultation with our office today.

_____________________________________

^{Thank you to the Florida Health Justice Project for their advocacy and education on this and many other important issues.}

‍