Fleming & Curti, P.L.C. - Nursing Home’s Transfer of Patient Requires Prior Notice

JULY 18, 2005 VOLUME 13, NUMBER 3

Nursing Home’s Transfer of Patient Requires Prior Notice

Village Square Nursing and Rehabilitation Center in San Marcos, California, like many nursing homes across the country, had one resident who was a management problem. In the preceding two months Mr. K, 76, had exhibited 55 instances of misbehavior. He had pinched, grabbed and bruised female staff members’ breasts and buttocks, and had tried to kiss and fondle female residents. When he attempted to wrap his call button cord around a caregiver’s neck the facility took action; Mr. K was transferred to the emergency room of a local psychiatric hospital, and when the hospital staff attempted to readmit him to Village Square the nursing home refused to accept him back.

While it might seem that the nursing home was reasonably out of patience, it simply did not follow the proper procedure. Both federal and California law require that residents receive notice in advance of any involuntary discharge or transfer, and that the facility’s "bed hold" policies be explained to residents in advance. Village Square violated both of those requirements, the California Court of Appeals ultimately ruled.

Even as Mr. K was being transported to the hospital emergency room, nursing home administrators were mailing a "Notice of Proposed Transfer/Discharge" to his son and calling him by telephone to tell him it was coming. The Notice recited that Mr. K’s transfer was being made for his own welfare because his "needs could not be met in the facility" and "the safety of individuals in the facility is endangered by his presence."

When Mr. K arrived at the hospital he was calm and cooperative. Hospital staff members had a hard time evaluating him, however, since no paperwork arrived with him and Mr. K spoke only Farsi.

An administrative hearing determined that the nursing home had failed to give proper notice of the transfer, or to provide Mr. K with information about its policies regarding holding beds for patients while hospitalized. The hearing officer ordered Village Square to take Mr. K back, but the facility continued to refuse. The state imposed a fine of $50 per day from the entry of the administrative order until, a month later, when Mr. K’s family announced that they no longer wanted Village Square to take him back.

The California Court of Appeals agreed that Village Square’s actions violated federal and state law. The facility argued that it was responding to an emergency, but the court noted that there had been 55 opportunities and two months for the nursing home to give proper notice of its intent. There was also no evidence that Mr. K had ever been told his bed might not be available after a hospitalization. Kindred Nursing Centers West, LLC v. California Health and Human Services Agency, June 22, 2005

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