How to handle a resident who wants to leave.
Colorado regulations governing a resident’s rights to self-discharge from an assisted living facility (or residence) (“ALR”) are few, and leave room for considerable confusion among ALR administrators, law enforcement, and Adult Protective Services (“APS”) staff. Results of this confusion can include stressful interactions with law enforcement, who are often unfamiliar with assisted living regulations. As APS is increasingly asking assisted living facilities to house the elderly unhoused (homeless), there are more residents coming into assisted living that may arguably be considered independent. Thus, there are a few important things for assisted living operators and administrators to know and understand if a resident wants to discharge themself. This article also addresses how to document the situation help protect the ALR and its staff and to explain the situation to law enforcement, if they become involved.
Self-discharge is simply when a resident exercises their right to discharge themself from an assisted living residence.
There are no statutory or regulatory requirements for voluntary or self-discharge beyond 6 CCR 1011-1, Chapter 7, Section 11.14.
11.14 The assisted living residence shall coordinate a voluntary or involuntary discharge with the resident, the resident’s legal representative and/or the appropriate agency. Prior to discharging a resident because of increased care needs, the assisted living residence shall make documented efforts to meet those needs through other means.
Unless a resident is legally in a secured unit, or there is a legally permissible restriction on the resident’s rights such as a guardianship, residents are free to discharge themselves. Further, a facility may be cited for unlawful “restraint” should it attempt to prohibit a resident from self-discharge who has no other legal restrictions on their freedom of movement.
2.42 “Restraint” means any method or device used to involuntarily limit freedom of movement including, but not limited to, bodily physical force, mechanical devices, chemicals, or confinement.
12.13 An assisted living residence shall not use restraints of any kind or deprive a resident of his or her liberty for purposes of care or safety except as allowed by Part 11.2(I), Part 25, or as set forth below.
6 CCR 1011-1, Chapter 7, Sections 2.42 and 12.13
There are even limits on the use of egress alerts (exit alarms). An egress alert device
shall only be used to assist staff in redirecting residents back into the facility when staff are alerted to a resident’s departure from the facility as opposed to restricting the free movement of residents.
6 CCR 1011-1, Chapter 7, Section 12.13
Many ALRs have discharge forms to use when a resident is being transferred to another facility, or even when the resident is being transferred home with family. However, there should also be a discharge form for use when a resident wants to self-discharge. The form should be signed by the resident acknowledging that they desire to self-discharge and advising the resident of their rights to stay or leave. The form should also document any expressed needs or desires of the resident associated with their self-discharge or self-transfer as well as any other information that may be considered necessary to “coordinate” the discharge, as required by Chapter 7, Section 11.14 (see above).
It would be helpful to have a checklist for staff that takes them through the requirements of Chapter 7, Section 11.14, confirming the ALR’s efforts to coordinate the discharge with the resident, the resident’s legal representative(s), and any appropriate agencies.
An ALR may also want to add self-discharge rights and requirements to its resident admission forms.
Consult your attorney for help in drafting these forms and checklists, or with any questions you may have when a resident wants to self-discharge.
Look for more weekly blog posts on topics of interest to Colorado Assisted Living operators and the Colorado Assisted Living Association. The information herein is intended to be educational and an introduction to the subject matter presented. It is NOT specific legal advice to be relied upon for specific individual circumstances. Contact brian@pinkowskilaw.com or your own legal professional if you would like specific advice on this topic. We welcome topic suggestions!
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