Understanding Involuntary Discharge from a Nursing Home
An involuntary discharge, often called an eviction, from a nursing home can be a devastating and frightening experience for a resident and their family. Federal regulations, particularly for facilities that accept Medicare or Medicaid, are in place to prevent arbitrary removals and ensure residents receive proper care. These rules define the specific, limited circumstances under which a facility can legally remove a resident, and mandate that a strict process be followed.
Legitimate Reasons for a Nursing Home Eviction
For a nursing home to legally evict a resident, the reason must fall into one of a few federally-recognized categories. These protections were established to prevent facilities from prioritizing higher-paying patients over others, particularly those on Medicaid.
- Non-payment: If a resident fails to pay for their stay, the facility can initiate an eviction. However, this must occur only after the resident has been given reasonable and appropriate written notice. Crucially, a facility cannot evict a resident for non-payment while their Medicaid application is still pending.
- Health and Safety: A resident can be discharged if their presence endangers the health or safety of other residents or staff. The facility must provide substantial documentation and evidence to support this claim, rather than simply labeling a resident as "disruptive".
- Medical Needs: The facility may transfer or discharge a resident if their medical needs can no longer be met within the facility's scope of care. This often occurs when a resident's condition progresses beyond what the facility is equipped to handle. However, the facility must have appropriate documentation from a physician detailing why the care is no longer adequate.
- Improved Health: If a resident's health improves to the point where they no longer require the level of care provided by the nursing home, they can be discharged. This frequently happens after a short-term rehabilitation stay.
- Facility Closure: If a nursing home closes, all residents must be discharged. The facility is required to provide proper notice and a discharge plan to ensure a safe and orderly transfer.
What Constitutes an Illegal Eviction?
Involuntary discharges motivated by financial gain or convenience are illegal. Common forms of wrongful eviction include:
- Medicare to Medicaid Transition: Pressuring a resident to leave once their higher-paying Medicare coverage ends and they must transition to Medicaid.
- Perceived Difficult Residents: Attempting to remove residents with behavioral challenges, such as those with dementia, under the false pretense that their needs cannot be met.
- Refusing Readmission: Failing to hold a bed for a resident who is temporarily hospitalized, a practice often called "hospital dumping".
- Retaliation: Evicting a resident or family member for making a complaint or raising concerns about care.
The Involuntary Discharge Process and Resident Rights
Nursing homes must adhere to a strict protocol when discharging a resident. This process is designed to protect the resident's rights and ensure a safe transition.
- Written Notice: The facility must provide a written notice of transfer or discharge at least 30 days in advance, except in emergencies. This notice must specify the reason for the move, the effective date, and the resident's right to appeal.
- Discharge Plan: The nursing home must create a written discharge plan to ensure a safe and orderly transfer. The plan should outline the resident's care needs and post-discharge services.
- Right to Appeal: A resident has the right to appeal the discharge decision. Filing an appeal within a specific timeframe (often 10 days, though this can vary) can pause the eviction until a hearing is held and a decision is rendered.
- Legal Representation and Advocacy: Residents can represent themselves or seek legal counsel during the appeal process. They can also get help from the Long-Term Care Ombudsman program, which advocates for residents' rights.
Nursing Home vs. Assisted Living Eviction Protections
It is critical to understand that the protections governing nursing home evictions, which are largely federal, may differ significantly from those for assisted living facilities (ALFs). ALFs are generally regulated at the state level, and the rules can vary considerably.
| Feature | Nursing Home | Assisted Living Facility (ALF) |
|---|---|---|
| Primary Regulation | Heavily regulated by federal laws (Medicare/Medicaid). | Primarily regulated by state laws, which vary widely. |
| Care Needs as a Factor | Can evict if needs exceed what the facility can legally provide. | May evict if care needs increase beyond what the license or contract allows. This is a common and often easier route for ALFs to take. |
| Payment Issues | Strictly regulated. Cannot evict during a pending Medicaid application and must provide ample notice for non-payment. | Often treated more like a landlord-tenant issue. Eviction for non-payment can be simpler, although notice is still required. |
| Appeal Process | Formal appeal process established by federal law, with the right to stay during the appeal. | State laws govern the appeal process, which may offer less protection than the federal nursing home regulations. |
| Advocacy Support | The federal Long-Term Care Ombudsman program is available to all residents. | Ombudsman programs and other advocacy groups assist, but protections may be less uniform across states. |
How to Respond to a Nursing Home Eviction Notice
Receiving an eviction notice does not mean the resident must leave immediately. Knowledge of resident rights and a clear plan of action are crucial to a successful appeal.
- Do Not Panic, Do Not Move: The most important first step is to stay calm and not move out. Many facilities hope residents will leave without a fight. Moving out can significantly weaken your case.
- Review the Notice Carefully: Ensure the notice is in writing and contains all required information, including the specific reason for discharge and the appeal process.
- Request an Appeal Hearing: File the appeal within the specified timeframe to prevent the discharge from happening while the appeal is pending. The notice should contain contact information for the state agency handling appeals.
- Contact the Long-Term Care Ombudsman: The ombudsman is an advocate for residents' rights and can provide invaluable assistance and guidance throughout the process. Find your local ombudsman through your state's Department of Aging.
- Gather Evidence: Collect any documentation that supports your case, such as medical records, financial statements, or a written timeline of events.
- Seek Legal Counsel: Consult with an elder law attorney who specializes in nursing home evictions. They can help navigate the complex legal landscape and represent you during a hearing.
Conclusion
While it is possible for an elderly person to be kicked out of a nursing home, federal law establishes a clear and strict set of rules that facilities must follow. Evictions are only legal under limited circumstances, and a resident is entitled to receive a proper written notice and the right to appeal the decision. Understanding these protections is essential for residents and their families to ensure fair treatment and prevent illegal or wrongful discharges. By knowing your rights and leveraging available advocacy resources like the Long-Term Care Ombudsman, you can effectively challenge an unfair eviction and ensure continuity of care.
