Nursing Home Discharges: Residents Have Rights

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It is often a difficult process to get a senior to accept the fact that they need a higher level of care and convince them to move to a nursing home (NH). For those very reasons, it is a real shock when the facility notifies you that it is evicting your loved one or otherwise discharging them.

A number of frantic questions are likely to go through your mind.

  • For what reasons can a nursing home legally discharge a resident?
  • Why would a NH want to get rid of a resident?
  • How can family members fight this decision?

Assessing a Nursing Home’s Decision

There are countless reasons for why a NH may legitimately need to (or unfairly want to) discharge a senior. Sometimes residents require more care than the facility feels it can provide, or the resident is causing problems with the staff or other residents (the so-called “difficult” patient). Sometimes the facility wants to get rid of a resident whose family is making high demands, threats and complaints about their care. Unfortunately, sometimes it is simply a financial matter, where the resident has fallen behind in paying the facility.

While it is against the law for a nursing home to evict a resident because they run out of money and must transition from private pay to Medicaid coverage, there is an exception to this rule if the nursing home does not accept Medicaid as payment. Remember that not every facility accepts Medicaid residents.

In any of the above scenarios, it may be perfectly legal and within the rights of the nursing home to discharge or evict a resident. However, the nursing home cannot rightly do so unless certain criteria are met first.

Legitimate Reasons for Discharge from a Nursing Home

  • The transfer or discharge is necessary to meet the resident’s welfare and the resident’s welfare cannot be met in the facility;
  • The transfer or discharge is appropriate because the resident’s health has improved sufficiently, making the facility’s services unnecessary;
  • The safety of other individuals in the facility is endangered;
  • The health of other individuals in the facility would otherwise be endangered;
  • The resident has failed, after reasonable and appropriate notice, to pay (or to apply for Medicaid or Medicare coverage) for a stay at the facility; or
  • The facility ceases to operate.

Discharge Planning and Notification

Even if one of the above circumstances legitimizes the facility’s decision, there is a protocol that must be followed in order to ensure the patient’s safety and that proper arrangements can be made for their ensuing care.

Discharge Planning Requirements

  1. The facility must prepare a summary of the resident’s mental and physical health status;
  2. A post-discharge plan of care for the resident must be provided, which will assist the resident in making alternative arrangements for care and housing; and
  3. The resident and their family member or legal representative must be notified of the pending discharge (and the reasoning behind it) in writing at least 30 days in advance of the discharge date. Emergency situations are the only exception.

The Appeals Process

Residents have the right to appeal a transfer or discharge that they feel is unfair. In order to contest a pending discharge, a family member or other representative of the resident must contact the state long-term care ombudsman or other relevant state office (typically the department of health) immediately. Even if the facility only threatens to kick out a resident, their family should take the same action and also consult with an elder law attorney to ensure that their rights are honored. These measures will help to preemptively quash any threat of an unwarranted eviction.

Hospital “Dumping”

One tactic that facilities use to achieve an involuntary discharge in a roundabout way is “dumping.” This occurs when a nursing home transfers a patient to a hospital and then refuses to readmit them. In some states, there is a policy in place that requires a facility to hold the resident’s bed for a certain number of days while they are hospitalized. Medicaid will pay for all or part of this bed-hold period, depending on the state, but if a resident is paying privately, they may be responsible for these fees. Regardless of the strategy used to discharge a resident, the facility must still provide a comprehensive care plan for the patient and ensure that they have a safe place to go.

Next Steps Following a Discharge

A word of warning: seeking out placement in a new nursing home facility following any of these incidents, whether voluntary or involuntary, can be difficult. Administrators and staff in the same area often communicate with one another. Because of the complex rules involved (including Medicare, Medicaid and nursing home licensing rules and regulations), the need to resolve the issue of a loved one’s placement as quickly as possible, and the practical aspects of the facility’s wish to avoid adverse publicity, a local elder law attorney may be necessary to assist in achieving the best possible result.

K. Gabriel Heiser is an attorney with over 25 years of experience in elder law and estate planning. He is the author of "How to Protect Your Family's Assets from Devastating Nursing Home Costs: Medicaid Secrets," an annually updated practical guide for the layperson.

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5 Comments

Good to know!
Thank you for the information. I hope that I will never need to use it...
Can a nursing home legally discharge a patient of insurance won't pay and if the patient has no where to go and is medically unable due to oxygen, need did a hospital bed and medical supplies????