A nursing facility cannot arbitrarily kick you out. Federal law, specifically the Nursing Home Reform Act of 1987, provides strong protections for residents against involuntary transfer or discharge. This means that a facility must follow a strict legal process and can only evict a resident for one of six allowable reasons. Knowing these reasons and the correct procedures is essential for advocating for your or a loved one's rights.
The six legal reasons a nursing facility can discharge a resident
Under federal law, nursing facilities are prohibited from involuntarily discharging or transferring a resident unless one of the following six conditions is met:
- Non-payment: The resident has failed to pay for their stay after receiving reasonable notice. However, a facility cannot evict a resident simply because their payment source changes from Medicare to the lower-paying Medicaid. The facility must wait for the Medicaid eligibility decision to be processed.
- Health improvement: The resident's health has improved to the point where they no longer require the services provided by the nursing facility. This discharge is only permissible if the resident no longer needs skilled nursing care.
- Needs cannot be met: The resident's medical or care needs have become so complex that the nursing facility can no longer provide the required level of care. This is a highly scrutinized reason, and facilities cannot use their own understaffing or inadequate care as justification for eviction.
- Safety of others is endangered: The resident's presence endangers the health or safety of other individuals in the facility. The threat must be documented and cannot be a pretext for removing a "difficult" resident.
- Health of others is endangered: Similar to the safety reason, if a resident's condition poses a health risk to others (e.g., a contagious disease that cannot be contained), they may be discharged. A resident cannot be discharged for refusing medical treatment unless it poses a risk to others.
- Facility closure: The nursing facility is ceasing its operations and going out of business. In this event, residents must still be given proper notice and a safe discharge plan.
What constitutes an illegal eviction?
Many common nursing home practices can lead to illegal evictions, which residents should be aware of and challenge.
Common examples of improper discharges
- Hospital dumping: This occurs when a resident is sent to a hospital, and the nursing home refuses to readmit them upon discharge. Most states require facilities to hold a bed for a certain period, and residents have readmission rights.
- Medicaid discrimination: It is illegal for a facility to evict a resident because they transitioned from higher-paying Medicare or private insurance to Medicaid. A facility may not evict current residents just because they stop accepting new Medicaid patients.
- Complaining about care: Facilities cannot retaliate against a resident or their family for complaining about the quality of care by threatening eviction. Residents have a legal right to file grievances without fear of retribution.
- Behavioral challenges: Nursing homes sometimes try to evict residents with dementia or other conditions that cause challenging behaviors. The facility must make reasonable accommodations for residents with disabilities before considering an involuntary discharge.
The required discharge process
For any discharge to be lawful, the nursing home must follow a specific set of procedures. Failure to adhere to these steps invalidates the eviction notice.
Discharge procedure checklist
- Written notice: The facility must provide a written notice of discharge or transfer to the resident and their legal representative. This notice must be in a language the resident understands.
- Advance notice: The notice must generally be provided at least 30 days in advance of the proposed discharge date, except in emergency situations.
- Detailed information: The notice must include the specific reason for the discharge, the effective date, the location of the proposed transfer, the resident's right to appeal, instructions on how to appeal, and the contact information for the state's Long-Term Care Ombudsman.
- Discharge plan: A written discharge plan must be developed by the resident's physician and other medical staff. This plan must ensure the transfer is safe and orderly and that the new location can meet the resident's needs. It must also consider the possibility of placement near family.
Comparison of legal vs. illegal nursing home evictions
| Feature | Legal Eviction (involuntary discharge) | Illegal Eviction (wrongful discharge) |
|---|---|---|
| Basis for discharge | Limited to one of six specific legal reasons (e.g., non-payment, danger to others, health improvement). | Based on improper motives, such as financial gain (swapping Medicaid for private pay), retaliation for complaints, or a change in payment source. |
| Documentation | Must be supported by specific, verifiable documentation in the resident's medical records. | Lacks proper documentation or uses unsubstantiated claims (e.g., "cannot meet needs" without proof). |
| Notice requirements | Must provide a written notice with specific information at least 30 days in advance (unless an emergency). | Notice is improperly delivered, lacks required information, or is given with insufficient time. |
| Discharge planning | Includes a formal, medically reviewed discharge plan to ensure a safe and appropriate transfer. | Results in an unsafe transfer, such as "dumping" a resident at a hospital, homeless shelter, or family home unprepared. |
| Right to appeal | The notice clearly outlines the resident's right to appeal the decision. | The facility may fail to inform the resident of their appeal rights or actively discourage them from appealing. |
What to do if you receive a discharge notice
If you or a family member receives an involuntary discharge notice, do not panic or move out immediately. You have the right to challenge the decision.
Steps to fight a wrongful eviction
- Request an appeal hearing: This is the most important step. Upon receiving a notice of transfer or discharge, immediately request an appeal hearing with the appropriate state agency, which should be listed on the notice. Filing an appeal typically prevents the facility from moving the resident until a decision is reached.
- Contact the Long-Term Care Ombudsman: This is a government-funded advocate for nursing home residents. An ombudsman can provide advice, mediate with the facility, and help with the appeal process.
- Gather documentation: Collect any records related to the discharge, including the notice itself, your admission agreement, and any communications with staff or administration. This documentation is crucial for your appeal.
- Consider legal assistance: If the situation is complex or the facility is particularly uncooperative, seeking legal counsel specializing in elder law may be necessary. An attorney can help enforce the resident's rights and challenge the eviction in court.
Conclusion
While a nursing facility can legally discharge a resident under specific circumstances, the process is strictly regulated by federal and state laws. Residents are protected from arbitrary or discriminatory evictions through mandated procedures and appeal rights. By understanding the six legal reasons for discharge, recognizing signs of an illegal eviction, and knowing how to appeal, residents and their advocates can effectively challenge improper transfers and ensure continuity of care. The key is to act quickly, utilize the appeals process, and engage outside resources like the Long-Term Care Ombudsman to protect a resident's rights. Remember, you have a right to fight for your place in the facility.
