Judicial Council wants 30-day notice of involuntary discharge from Kansas elder care facilities
Council says appeal system must balance due process rights, liability interests
Rachel Imthurn, left, and Barb Conant support the Kansas Judicial Council’s recommendation for a state law requiring 30-day notice and appeals process for involuntary discharge from an assisted living facility in Kansas. (Tim Carpenter/Kansas Reflector)
TOPEKA — Rachel Imthurn remains a champion more than a decade after her husband’s death for implementation of a Kansas law giving residents of assisted living facilities at least 30 days notice of an involuntary discharge and the right to appeal the facility’s decision.
It was in October 2011 when Imthurn came face-to-face with reality of her husband, Charlie, being forced to relocate despite advancing Alzheimer’s disease. She questioned the ouster order, but learned there was no way to fight the directive because assisted living facilities were under control of mere state regulations, and state officials had no stomach for investigating and challenging those orders.
Unlike nursing homes subject to rigorous federal Medicaid and Medicare standards, there was little that could be done when the assisted living facility cast Charlie out. He died nine days after the transfer.
“No 30-day notice, no doctor’s approval, no cause for discharge,” Imthurn said. “There’s not one thing the resident can do about it. They do whatever they darn well please. You can put human life at risk, which they did in our case, and get by with it. This is as crooked as yo can get. It’s pure greed. That’s hard to forget.”
One of the primary complaints made to the state’s Long-Term Care Ombudsman centered on involuntary discharge from assisted living facilities. In some instances, individuals with dementia have been left at Kansas hospitals, hotels and homeless shelters.
In 2021, before the COVID-19 pandemic outbreak, a Kansas House committee took up a bill creating a right to appeal involuntary discharges or transfers from assisted living facilities. Representatives of Kansas Advocates for Better Care, the Disability Rights Center of Kansas, AARP-Kansas, Kansas Alzheimer’s Association, Kansas State Nurses Association and the Long-Term Care Ombudsman were supportive.
Opponents included Kansas Center for Assisted Living, Kansas Adult Care Executives, LeadingAge Kansas and Kansas Health Care Association. There was a sense among critics the appeal process would force operators of assisted living facilities to try to deliver levels of treatment they were unqualified to provide.
Linda MowBray, president and chief executive officer of the Kansas Health Care Association, has argued an appeals process leading to a decision forcing a facility to retain or readmit a person would be wrong. She said it would be “irresponsible” to mandate an assisted living facility attempt to deliver services beyond what that facility could provide.
In a quandary, the Kansas Legislature proposed the Kansas Judicial Council conduct a study and issue recommendations in December. The council determined neither state regulations nor statutes outlined a process by which a resident may appeal the involuntary transfers or discharges.
In response, the council proposed a process with a 30-day notice of involuntary removal and the right of appeal under state law. The council urged the Kansas Department for Aging and Disability Services to implement a regulation requiring the notices to include information about a person’s right to appeal.
The council also set forth a strategy for dealing with emergency appeals from assisted living, residential health care, home plus and boarding care home facilities.
Council members indicated in a 29-page report the goal was to balance a resident’s right to due process, health and safety with the facility’s licensing and liability obligations. That prompted the council to also suggested a liability cap for negligence if the facility didn’t provide services outside the scope of the service agreement with clients.
Imthurn said she welcomed work by legislators to introduce a bill incorporating ideas presented by the council. She said the force of law was required because state regulation fell short in terms of patient rights in assisted living facilities.
“This new law is way past due and needs all the support possible. Current unenforced regulations have caused untold harm. Assisted living residents have no legal rights or protection,” she said.
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