Federal protections prevent illegal nursing home evictions
The Nursing Home Reform Law of 1987 established federal protections that govern involuntary transfers and discharges from nursing homes certified by Medicare or Medicaid. These protections apply even if the resident is not currently using their Medicare or Medicaid benefits. However, a nursing home may still lawfully evict a resident under certain specific conditions, provided they follow the correct legal procedures.
Six legal reasons for nursing home eviction
Under federal law, there are only six legitimate reasons a certified nursing home can involuntarily discharge a resident. If a facility attempts to evict a resident for any other reason, it is considered an illegal discharge.
- Nonpayment: A facility can evict a resident for nonpayment after providing reasonable and appropriate notice. However, a facility cannot evict a resident for nonpayment while a Medicaid application is pending or if the resident's payment source changes, such as when Medicare ends.
- Health and safety of others: An eviction may be justified if the resident's presence endangers the health or safety of other individuals in the facility. This requires proper documentation and may involve attempts at reasonable accommodation before discharge.
- Health improvement: If the resident's health has improved and they no longer require the level of care provided by the facility, they may be discharged. This reason must be documented by a physician.
- Facility closure: If a nursing home ceases to operate, all residents must be transferred or discharged. The facility is responsible for ensuring a safe and orderly transition.
- Beyond facility's care capabilities: If the resident's needs cannot be met by the facility, they can be discharged. This requires a physician's documentation and confirmation that the facility has attempted to meet those needs.
- Urgent medical needs: An immediate transfer or discharge may be required due to a resident's urgent medical needs, though proper documentation and procedure are still required.
Nursing home eviction vs. assisted living eviction
It is important to distinguish between evictions from a certified nursing home and those from an assisted living facility (ALF) or memory care unit. The federal protections afforded by the Nursing Home Reform Law of 1987 only apply to nursing homes.
| Feature | Nursing Home | Assisted Living Facility (ALF) / Memory Care |
|---|---|---|
| Governing Law | Primarily regulated by federal law (Nursing Home Reform Law). | Primarily regulated by state law, which varies significantly. |
| Reasons for Eviction | Limited to six specific, federally-defined reasons. | Reasons for eviction are determined by state law and the facility's contract, which can be more permissive. |
| Medicaid Protections | Strict federal protections against eviction for Medicaid-pending residents. | Fewer federal protections, and some ALFs may evict or refuse to admit residents who are on or planning to use Medicaid. |
| Discharge Process | Must provide a written notice (typically 30 days), a discharge plan, and the right to an appeal hearing. | Eviction procedures are dependent on state-specific regulations and the facility's contract. May be subject to landlord-tenant laws. |
| Appeal Process | Includes a resident's right to an administrative hearing with a state hearing officer, during which the resident can often remain in the facility. | Dependent on state law; may include an administrative hearing process or recourse through the court system. |
How to challenge an improper discharge
If you or a loved one receives an eviction notice and believe it is improper, you have legal rights and recourse. The most important step is to remain in the facility while you appeal the decision.
- Do not move out. Do not give in to pressure to leave before your appeal is complete. As long as your appeal is pending, you have the right to stay in the facility, unless your continued presence poses an imminent threat to health or safety.
- Request an appeal hearing. The notice of discharge must include information about your right to an administrative hearing and how to request one. Contact the designated state agency to begin the appeal process.
- Contact a Long-Term Care Ombudsman. This is an official advocate for residents of long-term care facilities. They can provide advice, investigate your complaint, and help you navigate the appeals process.
- Enlist the help of an elder law attorney. An attorney specializing in elder law can review your case, communicate with the facility on your behalf, and represent you in an appeal hearing.
- File a complaint with the state agency. The state agency that licenses nursing homes can also investigate and potentially impose fines on a facility for violating a resident's rights.
Conclusion
While a nursing home cannot kick an elderly resident out for just any reason, there are legally defined circumstances under which a discharge can occur. Understanding these six reasons, the required notice and discharge planning procedures, and your right to appeal is crucial for protecting the resident's rights and well-being. Whether facing nonpayment issues, concerns over resident safety, or a change in care needs, federal law and advocacy resources like the Long-Term Care Ombudsman program provide significant protections against improper evictions. The key is to know your rights and act swiftly by requesting an appeal and seeking guidance from an ombudsman or elder law attorney. For more information, the National Consumer Voice for Quality Long-Term Care offers resources on involuntary transfers and discharges.
