Understanding Involuntary Discharge: The Six Legal Reasons
Under the federal Nursing Home Reform Act of 1987, nursing homes are forbidden from evicting residents without a valid, documented reason. An involuntary discharge, or transfer, can only occur for one of six specific reasons outlined by federal law.
The Legally Permissible Reasons for Eviction
For a nursing home's discharge to be legal, it must fall under one of these specific, tightly regulated categories [1, 2, 3, 4]:
- The resident's welfare: The facility determines that the discharge is necessary for the resident's welfare and their needs cannot be met within the facility, even after reasonable accommodations [1, 3].
- Health improvement: The resident's health has improved and they no longer require nursing home care [1, 3].
- Safety of others: The resident's behavior endangers the safety of others [1, 3, 4].
- Health of others: The resident's presence endangers the health of other residents, such as having a contagious illness [1, 3].
- Non-payment: The resident failed to pay after receiving notice [1, 3]. A facility cannot discharge a resident awaiting a Medicaid decision or appealing a denial [1, 2, 3].
- Facility closure: The facility is closing and has an approved closure plan [1, 3].
Illegal Reasons for Discharge: What to Watch For
Many facilities attempt to evict residents for illegitimate and illegal reasons, often financial or due to a resident being perceived as “difficult” [1, 2, 3]. Illegal reasons include:
- Retaliation: Evicting a resident for filing a complaint [1, 2].
- “Problem” residents: Removing residents with complex needs [1, 2].
- Running out of private funds: Discharging a resident who switches to Medicaid [1, 2, 3].
- Lack of documentation: Evicting without medical justification [1].
The Rights and Procedures for Nursing Home Discharges
A nursing home must follow a strict process for involuntary discharge. Failing to do so makes the discharge illegal [1, 2, 3].
- Written Notice: A detailed written notice must be given to the resident and their representative, usually 30 days in advance (with some exceptions) [1, 2, 3]. The notice must state the reason, effective date, transfer location, and how to appeal [1, 2, 3].
- Discharge Planning: The facility must create a plan for a safe transfer, including the new location and care [1, 2, 3]. They cannot discharge a resident to an unsafe place [1].
- Appeals Process: Residents have the right to appeal to the state [1, 2, 3, 4]. The notice must include appeal instructions and Ombudsman contact information [1, 2, 3]. Residents can usually stay in the facility during the appeal [1, 2, 3, 4].
- Hospitalization Rights: Residents have the right to return after a hospital stay or therapeutic leave [1, 2]. Facilities cannot illegally deny readmission (“patient dumping”) [1]. Bed-hold policy must be provided [1].
How an Ombudsman Can Help
The Long-Term Care Ombudsman Program advocates for resident rights. They can help residents and families understand rights, mediate disputes, and assist with discharge appeals. Contacting the local Ombudsman is crucial if facing a discharge notice [1, 2, 4].
| Aspect | Legal Discharge | Illegal Discharge |
|---|---|---|
| Reason | Based on one of six valid reasons (e.g., non-payment, endangerment) [1, 3]. | Based on illegitimate reasons (e.g., retaliation, resident's switch to Medicaid) [1, 2, 3]. |
| Notice | Requires a detailed written notice, typically 30 days in advance [1, 2, 3]. | May occur suddenly, without proper notice, or with vague reasoning [1, 2]. |
| Planning | Must have a safe and orderly discharge plan [1, 2, 3]. | Transfers resident without proper planning or to an inappropriate location [1]. |
| Documentation | Must be documented and justified by physicians [1]. | Lacks proper medical justification or is poorly documented [1]. |
| Appeal | Resident's right to appeal is clearly communicated [1, 2, 3, 4]. | Facility may discourage or intimidate the resident from appealing [1]. |
| Action | Follows strict federal and state regulations [1, 2]. | Violates federal and state resident protection laws [1, 2, 3]. |
Conclusion
While an elderly person can get kicked out of a nursing home under specific legal circumstances, the process is not arbitrary [1, 2, 3]. Federal laws provide protections against wrongful evictions, and residents have the right to challenge a discharge [1, 2, 3, 4]. Understanding the legal reasons, procedures, and resources like the Long-Term Care Ombudsman can help protect a resident's rights. For more information, consult organizations like Justice in Aging [1].
