Federal Protections Against Nursing Home Eviction
For residents in Medicare- or Medicaid-certified facilities, federal law provides strong protections against involuntary transfer or discharge. The Nursing Home Reform Law of 1987 established clear rules that limit a facility's ability to evict a resident without cause. These rules apply to all residents, regardless of whether they are privately paying or receiving government benefits. An involuntary discharge, often called an eviction, can only happen under one of six specific circumstances, and the facility must follow a precise legal process to make the transfer legitimate.
The Six Legal Reasons for Eviction
- Non-payment: A resident can be evicted for failure to pay, but only after receiving reasonable and appropriate written notice. A nursing home cannot discharge a resident simply because their payment source is changing, such as from Medicare to Medicaid, while an appeal is pending or eligibility is being determined.
- Health improvement: If a resident's health has improved to the point that they no longer require the services provided by a nursing home, a transfer or discharge is permissible. This must be documented by a physician.
- Resident endangers others' safety: The facility may discharge a resident if their clinical or behavioral status endangers the safety of others. However, the facility must first attempt to make reasonable accommodations to address the issue.
- Resident endangers others' health: A discharge is possible if a resident's presence endangers the health of other individuals in the facility. This must be documented by a physician.
- Cannot meet resident's needs: A facility can discharge a resident if it can no longer meet their medical needs, but this is a high burden to prove. The facility cannot use its own inadequate care as a justification.
- Facility ceases operations: All residents may be discharged if the nursing home is closing down and ceasing its operations. The facility must provide sufficient advance written notice.
The Legal Process of Involuntary Discharge
Even when one of the six reasons exists, a nursing home must follow a strict legal procedure to carry out a discharge. Ignoring these steps makes the eviction illegal.
- Written Notice: The facility must provide the resident and their representative with a written notice at least 30 days before the discharge date in most cases.
- Specific Information: The notice must clearly state the reason for the discharge, the effective date, the location to which the resident is being transferred, and information about the resident's right to appeal.
- Discharge Planning: A nursing home must create a written discharge plan to ensure a safe and orderly transfer. This plan should outline the resident's medical needs and services required after the move.
- Assistance with Appeal: The facility must help the resident with the process of filing an appeal if requested.
Comparison of Legitimate vs. Illegal Eviction Reasons
| Legitimate Reasons | Illegal or Gray-Area Reasons |
|---|---|
| Documented Non-Payment: After proper notice and opportunity to pay. | Pending Medicaid Approval: Evicting a resident while their Medicaid application is in process is illegal. |
| Medically Documented Health Risk: Physician documents resident poses a direct threat to others' safety or health. | "Hospital Dumping": Refusing to readmit a resident after a hospital stay, a practice known as "hospital dumping". |
| Facility Closure: The nursing home is officially going out of business. | Retaliation for Complaints: Evicting a resident after their family complains about care or treatment. |
| Inability to Meet Needs: The facility proves it cannot provide the necessary level of care. | Inadequate Staffing: Claiming the facility cannot meet the resident's needs, but the real issue is low staffing levels. |
| Resident's Needs Improve: A physician determines the resident no longer needs skilled nursing care. | Financial Preference: Discharging a Medicaid resident to free up a bed for a higher-paying private or Medicare resident. |
How to Fight an Illegal Eviction
If you or a loved one receives an involuntary discharge notice, do not panic or move out immediately. You have rights and can take action to appeal the decision.
- File an Appeal: File a request for a hearing with the state's designated agency. If you do so before the discharge date, the facility cannot move the resident until a decision is made, except in immediate danger situations.
- Contact the Long-Term Care Ombudsman: The ombudsman program is a free service that advocates for the rights of nursing home residents. They can provide advice and intervene on your behalf.
- Seek Legal Counsel: Elder law attorneys specialize in protecting the rights of seniors and can provide representation in an appeal hearing.
Conclusion
An elderly person cannot be kicked out of a nursing home for arbitrary or retaliatory reasons. Federal and state laws strictly regulate involuntary transfers, allowing them only for specific causes like documented non-payment, medical necessity, or a clear threat to others. Residents facing eviction must be given proper written notice and have the right to appeal the decision, during which time they can typically remain in the facility. By understanding their rights and seeking help from resources like the Long-Term Care Ombudsman or legal counsel, residents and their families can effectively challenge illegal evictions and protect the stability of their home and care. Protecting these rights is crucial to ensuring the well-being and dignity of our elderly population.
