Nursing home discharge appeals in Florida: the notice, the 10-day window and what happens at the hearing

Florida law uses two terms. A discharge is a move to a noninstitutional setting, such as home or an assisted living facility, where the nursing home stops being responsible for care. A transfer is a move to another institution, such as a different nursing home (Fla. Stat. 400.0255(1)). The same rights apply to both.

These rules cover moves the facility starts. They don't apply when the resident, the resident's doctor or a guardian or representative chooses the move (400.0255(17)). Be careful before signing anything that describes a move as "voluntary" if it wasn't.

One situation families often miss: a resident goes to the hospital, and the nursing home then says it won't take them back. Federal rules treat that refusal as a discharge, so the facility must follow the same notice and appeal rules (42 CFR 483.15(e)(1)(ii)).

A Medicare- or Medicaid-certified nursing home must let a resident stay unless one of these applies (42 CFR 483.15(c)(1)(i)):

The resident's needs can't be met in the facility, and the move is necessary for their welfare. The resident's health has improved, so they no longer need the facility's services. The resident's clinical or behavioral status endangers the safety of others. The health of others would otherwise be endangered. Nonpayment after reasonable and appropriate notice. The facility is closing.

For reasons 1 and 2, the resident's physician must document the basis in the medical record. For reason 1, the record must also show the specific needs the facility can't meet, what it tried, and what the receiving setting offers (483.15(c)(2)). On AHCA's notice form, the four medical and safety reasons need a physician's signature or attached order (AHCA Form 3120-0002).

Nonpayment is the reason most tied to elder law. Under the federal rule, it applies if the resident doesn't submit the paperwork needed for third-party payment, or if Medicare or Medicaid denies the claim and the resident refuses to pay (42 CFR 483.15(c)(1)(i)(E)). So a Medicaid application that is filed and being worked on in good faith is generally a strong answer to a nonpayment notice. An application stalled because no one sent DCF the requested papers is a weak one.

Florida adds that a Medicaid-certified facility may not discharge a resident solely because the payment source changes, for example from private pay to Medicaid. Any admission document waiving that right is void (Fla. Stat. 400.022(1)(p)).

If the notice cites nonpayment, gather proof right away: the application date, DCF's pending notice, each document sent and the patient responsibility paid so far. After you apply for Medicaid explains those deadlines.

Florida requires AHCA's standard form. It must be signed by the administrator or a designee and state the reason, the effective date and the place the resident is going (Fla. Stat. 400.0255(3), (8)). Federal rules add appeal rights and contact details for the appeals office and the Ombudsman, and the facility must send the Ombudsman a copy (42 CFR 483.15(c)(3), (5)).

The 30 days can be shortened to "as soon as practicable" only in limited cases. These include urgent medical needs or danger to others, documented by a physician, and residents who haven't lived there 30 days (400.0255(7); 483.15(c)(4)). A notice missing a destination, a physician's documentation or appeal information may itself be a defect worth raising.

The resident, or their legal representative or designee, asks DCF's Office of Appeal Hearings for a fair hearing. Under Fla. Stat. 400.0255(10):

Within 10 days of receiving the notice: the request stays the discharge. The resident may remain until the initial hearing decision. After 10 days but within 90: the hearing still happens, but the stay isn't automatic, and the facility may try to discharge after the 30-day period. If day 10 has passed, get advice right away and ask for the hearing and a stay anyway. If the resident wins, they must be readmitted to the first available bed (400.0255(15)(c)).

Federal rules also bar a move while an appeal is pending, unless staying would endanger the resident or others and the facility documents that danger (42 CFR 483.15(c)(1)(ii)).

How to ask: call or write the DCF Office of Appeal Hearings, 2415 North Monroe Street, Suite 400-I, Tallahassee, FL 32303-4190, (850) 488-1429 (DCF), or email appeal.hearings@myflfamilies.com, the address on AHCA's form. Facility staff must help with the request if asked (AHCA Form 3120-0002). Ask in writing too, and keep proof of the date.

The State Long-Term Care Ombudsman Program is a free, confidential advocate for residents. A resident can ask it to review any discharge notice, and the local council must do so within 7 days of the request. If the request is made through the facility, the administrator must forward it within 24 hours. If it doesn't, the 30-day notice period stops running until it does (Fla. Stat. 400.0255(9)). The Ombudsman can also help file the appeal and may attend the hearing (400.0255(12)–(13)).

Call 1-888-831-0404 (Ombudsman). Calling the Ombudsman doesn't replace the hearing request. Do both inside the 10 days.

Most DCF hearings are by phone, though a resident may ask for one in person (DCF). The resident or representative and the facility administrator or its representative must attend (400.0255(13)).

The facility carries the burden, and the standard is clear and convincing evidence, a demanding standard. A decision must issue within 90 days of the request. It is final at the agency level, and either side may appeal to the district court of appeal (400.0255(15)). Useful evidence often includes care plans, physician notes, therapy records, payment records and proof of the Medicaid application.