The Nursing Home Reform Act and Resident Protections
Federal law, specifically the Nursing Home Reform Act of 1987, offers robust protections for residents. This legislation ensures that a resident can only be involuntarily discharged or transferred for specific, lawful reasons. This includes individuals with dementia, who have the same rights as any other resident. The core principle is to protect residents from arbitrary or wrongful eviction, especially as their health condition, including dementia, progresses. This legal framework requires facilities to provide written notice of discharge and includes the right to appeal the decision.
Legitimate Reasons for Discharge
While the law protects residents, it also outlines specific, legally permissible reasons for involuntary discharge. These include:
- Medical Needs: If the facility documents that it can no longer meet the resident's medical needs, or if the resident no longer requires the facility's care. For a dementia patient, this might occur if their condition requires a more specialized level of care than the facility can provide.
- Health and Safety: A resident's behavior that endangers the health or safety of themselves or other individuals at the facility. This is one of the most contentious areas concerning dementia patients, as behavioral changes are often a symptom of the disease.
- Financial Issues: The resident fails to pay for their stay after a reasonable and appropriate period. Facilities must still follow a specific process, and this is more complex if the resident's care is covered by Medicaid.
- Facility Closure: The nursing home ceases to operate.
Unlawful Evictions and 'Patient Dumping'
Unfortunately, unlawful evictions, sometimes referred to as 'patient dumping,' still occur. This is when a facility attempts to discharge a resident without following the proper legal procedure or for an invalid reason. A common tactic is sending a resident to the hospital for a medical issue and then refusing to readmit them, claiming they can no longer meet their needs. Another form is pressuring family members to move their loved one out, often citing behavior problems related to dementia without making sufficient attempts to manage them. These tactics are illegal and can be challenged.
Challenging an Eviction Notice
If you receive a discharge notice for a dementia patient, it is crucial to act quickly and follow these steps:
- Review the Notice Carefully: Ensure the notice is in writing and states the reason for discharge. Federal law mandates that the resident must be given at least 30 days' advance written notice.
- Request a Care Plan Meeting: Ask for a meeting with facility staff, including a doctor or social worker, to discuss the discharge and explore alternatives. The facility should have a documented care plan addressing the resident's needs.
- Contact an Ombudsman: Long-term care ombudsmen are state-certified advocates for residents. They can investigate complaints, mediate with the facility, and help challenge an improper discharge. Their services are free.
- Appeal the Decision: The notice should provide instructions on how to appeal the decision through a state hearing. The resident has the right to remain in the facility while the appeal is pending.
- Consult an Elder Law Attorney: An attorney specializing in elder law can provide legal guidance and representation, especially in complex cases or if the ombudsman's efforts are unsuccessful.
Understanding the Role of Genetics
When discussing dementia, it is important to understand its biological and genetic underpinnings. While certain genetic markers, like the APOE4 gene, increase the risk for some forms of dementia, a genetic diagnosis is not a lawful reason for eviction. Furthermore, the genetic aspects of dementia are a biological factor influencing a patient's medical needs, and the facility's responsibility is to accommodate those needs, not use them as an excuse for removal.
For more information on genetic factors in dementia, see the detailed resources available at the National Institute on Aging: https://www.nia.nih.gov/health/alzheimers-and-dementia-genetics/alzheimers-disease-genetics-fact-sheet
Comparing Lawful vs. Unlawful Discharge
| Feature | Lawful Discharge | Unlawful (Improper) Discharge |
|---|---|---|
| Reason | Medically documented needs exceed facility's capabilities; nonpayment; resident danger. | Pretextual reasons; unmanaged behavioral symptoms; 'dumping' after hospital stay. |
| Notice | Minimum 30 days written notice with specific reasons and appeal rights. | Verbal pressure; short notice; refusal to readmit from hospital. |
| Process | Following state and federal regulations; documented attempts to manage needs. | Ignoring appeal rights; failing to offer a care meeting; lack of proper documentation. |
| Resident's Rights | Residents have the right to appeal and remain during appeal. | Resident's rights are ignored or violated. |
Conclusion
The question of whether a dementia patient can be kicked out of a nursing home is a serious and complex one. While facilities have the right to discharge residents under specific circumstances, strict federal and state laws protect against wrongful eviction. Families and advocates must be vigilant, understand the resident's rights, and know the proper channels for challenging an improper discharge. By staying informed and leveraging available resources, it is possible to fight for the rights and proper care of a loved one with dementia.
