Receiving a notice that a nursing home intends to discharge a loved one with dementia is a deeply distressing experience. Families often feel powerless, confused, and scared. The core question—can a nursing home kick out a dementia patient?—is complex. While the answer is yes, it is only permissible under a very narrow set of circumstances governed by federal law.
This article provides a comprehensive overview of resident rights, the legal reasons for discharge, the facility's obligations, and the steps you can take to protect a vulnerable senior.
Federal Protections for Nursing Home Residents
The cornerstone of resident protection is the federal Nursing Home Reform Act of 1987. This landmark legislation established a set of standards that all Medicare and Medicaid-certified nursing homes must follow. A key component of this law is the protection against unlawful eviction, legally referred to as an "involuntary discharge."
Under this act, a resident has the right to remain in a facility unless the nursing home can prove one of six specific, permissible reasons for the transfer or discharge. A facility cannot simply decide a resident is "too difficult" or that their care is inconvenient. They are legally obligated to provide the necessary care and services to help residents attain their "highest practicable physical, mental, and psychosocial well-being."
The Six Permissible Reasons for Discharge
Federal regulations are explicit. A nursing home can only initiate a discharge for one of the following six reasons:
- The resident’s welfare and needs cannot be met in the facility. This is a high bar for the facility to prove. They must demonstrate that they have exhausted all attempts to meet the resident's needs and that another facility is better equipped to do so.
- The resident's health has improved sufficiently so they no longer need the facility's services.
- The safety of individuals in the facility is endangered due to the clinical or behavioral status of the resident.
- The health of individuals in the facility would otherwise be endangered. This is similar to the safety reason but can include health risks, not just physical safety.
- The resident has failed to pay for their stay after reasonable and appropriate notice.
- The facility ceases to operate.
For residents with dementia, reasons #1 and #3 are most frequently cited by facilities seeking a discharge. However, it is crucial to understand that a diagnosis of dementia, or the exhibition of dementia-related behaviors like agitation or wandering, is not in itself a valid reason. The facility must first demonstrate that they have assessed the resident and implemented a care plan with specific interventions to manage these behaviors. Only if those interventions fail and the resident continues to pose a direct threat can a discharge be considered.
The Required Discharge Process and Notice
A nursing home cannot simply tell a resident they have to leave. They must follow a strict procedural protocol.
- Written Notice: The facility must provide a written notice of discharge to the resident and their legal representative. This notice must be delivered at least 30 days before the proposed discharge date. The 30-day window can be shortened only in extreme cases where the safety of others is at immediate risk.
- Content of the Notice: The notice is not just a letter. It must include specific information:
- The reason for the discharge (citing one of the six legal reasons).
- The effective date of the proposed discharge.
- The location to which the resident will be discharged.
- A statement of the resident's right to appeal the decision to the state agency.
- Information on how to file an appeal, including the contact information for the state Long-Term Care Ombudsman program.
- Discharge Plan: The facility is also responsible for creating a safe and orderly discharge plan. This plan must be developed with the participation of the resident and their family and must ensure a smooth transition to another appropriate setting.
Valid vs. Invalid Reasons for Discharge: A Comparison
Families often face reasons for discharge that sound legitimate but are legally insufficient. Understanding the difference is key to a successful appeal.
| Valid Reason (If Proven) | Potentially Invalid Reason (Often Used) |
|---|---|
| The resident’s documented medical needs have become so complex that the facility is not licensed or equipped to handle them. | The resident has become "more difficult to care for" due to progressing dementia. |
| The resident, after interventions, physically harms another resident or staff member, posing an ongoing, direct threat. | The resident experiences verbal outbursts or is occasionally agitated. |
| The resident has failed to pay their bill after receiving a formal notice and a reasonable opportunity to arrange payment. | The resident is transitioning from Medicare to Medicaid, and the facility prefers a private-pay resident. |
| A doctor has certified that the resident's health has improved and they can safely return home. | The family has asked too many questions or complained about the quality of care. |
What to Do If You Receive a Discharge Notice
Receiving an eviction notice is a call to action, not a final decision. Here are the steps to take:
- Read the Notice Carefully: Check for the six required pieces of information. If any are missing, the notice is defective.
- File an Appeal Immediately: The notice will specify a deadline to appeal, often 10 to 30 days. Filing an appeal halts the discharge process until a hearing is held and a decision is made. This is the single most important step you can take.
- Contact the Long-Term Care Ombudsman: This is a free, government-supported service in every state. Ombudsmen are advocates for nursing home residents. They can explain your rights, help you file the appeal, and mediate with the facility.
- Request a Care Plan Meeting: Demand an immediate meeting with the facility’s administrator, director of nursing, and social worker. Ask them to provide the specific documentation that supports their reason for discharge. What interventions did they try? How did they fail?
- Gather Evidence: Document everything. Keep a journal of behaviors, interactions with staff, and the facility’s responses. Take photos or videos if appropriate (and legally permissible). Collect statements from family, friends, or even other residents.
- Consult an Elder Law Attorney: If the situation is complex, an attorney who specializes in elder law can be an invaluable asset, especially during the appeal hearing.
For more information on resident rights and to find your local ombudsman, you can visit the The National Consumer Voice for Quality Long-Term Care.
Conclusion: You Have Rights
Can a nursing home kick out a dementia patient? Yes, but not without just cause and due process. Federal law provides a powerful shield for residents. Dementia is a challenging disease, but nursing homes are specifically designed and compensated to manage these challenges. By understanding the rules, acting quickly, and leveraging the advocacy resources available, families can effectively challenge improper discharge attempts and ensure their loved ones receive the care and stability they deserve.
