Understanding Nursing Home Discharge Regulations and Resident Rights

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It is often difficult to get a senior to accept the fact that they need a higher level of care and convince them to move into a nursing home (NH), whether it is a short-term rehab stay or a permanent move. For those very reasons, it can be a real shock when a care facility notifies a family that it is evicting their aging loved one or otherwise discharging them.

When a family receives a written notice of discharge, several frantic questions are likely to arise:

  • Can a patient be kicked out of a nursing home?
  • For what reasons can a nursing home legally discharge or transfer a resident?
  • Why would a nursing home want to get rid of a resident?
  • How can family members appeal or fight this decision?

Being well-versed in nursing home resident rights as well as federal and state regulations for nursing home discharge planning will help you recognize unfair/unsafe discharges and transfers and know how to handle them.

Assessing Nursing Home Discharge and Transfer Decisions

There are countless reasons 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 a resident may be 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 services. However, there are only a few reasons that allow a nursing home to discharge or transfer a patient.

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 by a resident’s presence.
  • The health of other individuals in the facility would otherwise be endangered by a resident’s presence.
  • 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.
  • The facility ceases to operate.

Discharges or Transfers for Financial Reasons

Unfortunately, nursing homes will want to discharge residents for non-payment. While it is against the law for a facility 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. Not every facility is certified by Medicaid; those that are not certified do not accept Medicaid residents. Some facilities that do accept Medicaid do not accept residents that are Medicaid pending (i.e., they require skilled nursing care now, have applied for Medicaid but have not yet been approved or denied).

Keep in mind that Medicare is only used to pay for short-term rehabilitative stays in Medicare-certified skilled nursing facilities following a qualifying hospital stay. Medicare coverage of senior rehab maxes out at 100 days. If a senior still needs skilled nursing care after the 100 days have elapsed, then they will need to switch to another form of payment, such as private pay or Medicaid. Some facilities are certified by both Medicare and Medicaid, making the transition between these two payment methods smoother and reducing the likelihood of a transfer to a different nursing home.

Read: Senior Rehab: Medicare Coverage of Skilled Nursing Facility Stays

Nursing Home Discharge Planning and Notification

As explained in some 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 until certain criteria are met first. There is a protocol that must be followed to ensure the patient’s safety and that proper arrangements can be made for their ensuing care. This process is called discharge planning.

Care transitions are notoriously difficult on patients and families, so clear communication of a resident’s needs, services and health care goals is crucial before, during and after a nursing home transfer or discharge.

Discharge Planning Requirements

  1. The resident and their authorized family member/legal representative must be notified of the pending discharge or transfer in writing at least 30 days in advance of the discharge date. This notice must also include the reason(s) for the discharge and the steps the facility has taken to resolve or address these reasons. Emergency situations are the only exception to this 30-day notice rule. According to the National Long-Term Care Ombudsman Resource Center, “Verbal notice is not an official discharge. All discharges must be in writing.”
  2. The facility must prepare a summary of the resident’s mental and physical health status.
  3. A comprehensive post-discharge plan of care for the resident must be provided, which will assist the resident in making alternative arrangements for care and/or housing. It will also guide their care team (family caregivers, future care providers, doctors, etc.) in providing follow-up care. This written discharge plan must include the location to which the resident will be discharged (which must agree to admission) and information about required medications, therapies, services, care and durable medical equipment.
  4. A resident and their representative have the right to participate in all aspects of discharge planning.
  5. The nursing home is required to arrange a safe and orderly discharge of all residents along with their belongings and any personal funds.

Appealing a Nursing Home Discharge

Residents have the right to appeal a transfer or discharge that they feel is unfair. Information on how to file an appeal as well as contact information for resources that can assist with appeals (such as a long-term care ombudsman program or advocacy organization) should be included in the written discharge notice.

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. An appeal must be filed before the discharge date, and the resident has the right to remain in the facility until a determination is made.

You can search for a long-term care ombudsman program or a citizen advocacy group using a tool on the National Consumer Voice for Quality Long-Term Care website.

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 the resident’s rights are honored. These measures will help to preemptively quash any threat of an unwarranted eviction.


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Beware of Nursing Home “Dumping”

One tactic that facilities use to achieve an involuntary discharge in a roundabout way is “patient 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 for their care privately, they may be responsible for these fees. Regardless of the strategy used to discharge a resident, the facility must still provide a comprehensive discharge plan for the patient and ensure that they have a safe place to go.

Next Steps Following Nursing Home Discharge

A word of warning: seeking out placement in a new nursing 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 about current and prospective residents and their families. 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 achieve the best possible results and ensure a resident’s rights are respected.

Sources: Nursing Home Discharges Fact Sheet (https://ltcombudsman.org/uploads/files/support/nursing-home-discharges-final.pdf); Your Rights and Protections as a Nursing Home Resident (https://downloads.cms.gov/medicare/Your_Resident_Rights_and_Protections_section.pdf); Medicare Nursing Home Coverage (https://www.medicare.gov/coverage/nursing-home-care)

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