Nursing Home Discharges: Residents Have Rights

2 Comments

Facing up to the fact that a loved one can no longer take care of themselves and needs to move to a nursing home is a sobering experience. So is convincing them that such a move is the best option. Then there is the trauma of actually moving them from their home of many years to a small, possibly shared, room in an institutional setting.

Because of the foregoing, it is a real shock when the nursing home calls you in to let you know that they are 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?

Assessing a Nursing Home's Decision

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 is falling behind in paying the facility.

(Note that, 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 from anyone. Remember that not every facility accepts Medicaid residents.)

In all such cases, it may be perfectly legal and within the rights of the nursing home to discharge or evict a resident. However, in order to do so, the nursing home cannot rightly evict the resident unless certain criteria are met.

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 care after the fact.

Discharge Planning Requirements

  • The facility must prepare a summary of the resident’s mental and physical health status;
  • A post-discharge plan of care for the resident must be provided, which will assist the resident in adjusting to his or her new living environment; and
  • The resident and their family member or legal representative must be notified of the pending discharge (and reasoning behind it) in writing at least 30 days in advance of the discharge. (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 immediately. Even if the facility only threatens to kick out a resident, their family should consult with an elder law attorney to ensure that their rights are honored and preemptively quash any threat of an unwarranted eviction.

One tactic that facilities use to achieve an involuntary discharge in a roundabout way is “dumping.” The nursing home may transfer a patient to a hospital and then refuse to readmit them. However, in some states there is a policy in place that dictates a facility must hold the resident’s bed for a certain number of days. Medicaid will pay for this bed-hold period, 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.

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 since administrators in the same area often communicate with one another. Because of the complex laws involved (both 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.

Visit Medicaid Secrets

View full profile

You May Also Like

Free AgingCare Guides

Get the latest care advice and articles delivered to your inbox!

2 Comments

Good to know!
Thank you for the information. I hope that I will never need to use it...