The Federal Regulations Protecting Your Mom
Navigating the long-term care system can be challenging, especially when facing the possibility of an involuntary discharge. The good news is that residents in nursing homes that accept Medicare or Medicaid are protected by federal law, specifically the Nursing Home Reform Law of 1987. This legislation ensures residents have the right to remain in a facility and cannot be transferred or discharged unless one of six specific conditions is met.
The Six Permissible Reasons for Involuntary Discharge
A nursing home must have a legally valid reason to involuntarily discharge a resident. These reasons are defined by federal regulations and are the only grounds for a forced move.
- The facility cannot meet the resident's needs. This applies only if the resident requires a level of care that any nursing home, by definition, cannot provide. It cannot be used to justify eviction if the facility is simply understaffed or not providing adequate care, as that is a violation of their duty.
- The resident's health has improved. If the resident's health has sufficiently improved to the point that they no longer require the services provided by a skilled nursing facility, discharge may be appropriate.
- The resident's behavior endangers the safety of others. This must be documented and cannot be based on general disruptive behavior that the facility should be equipped to handle professionally. A reasonable accommodation must first be considered to mitigate any risk.
- The resident's presence endangers the health of others. This is typically related to infectious disease or other conditions that pose a direct health risk to other residents. As with safety concerns, it must be carefully documented by a physician.
- The resident fails to pay for care. This is a common reason for discharge. However, the facility must follow strict procedures, including giving appropriate notice. A resident cannot be evicted if they are appealing a denial of benefits from Medicaid or if they are in the process of applying.
- The facility ceases to operate. If the nursing home is closing down, all residents must be transferred to other facilities. The nursing home must submit an approved closure plan to the state and provide proper notice to all residents and their families.
What Constitutes an Improper Eviction?
Not every reason a nursing home gives for discharge is legitimate. Some facilities attempt to force residents out using improper or illegal tactics, a practice sometimes referred to as “patient dumping”. This can happen for various reasons, such as a resident becoming more medically complex, requiring more staff time, or if the family is an outspoken advocate.
Understanding "Patient Dumping"
"Patient dumping" is a serious issue where a nursing home resident is transferred to a hospital and, upon a doctor’s discharge order, is denied readmission to their original nursing home. This is often illegal, and residents who are paying with Medicare or Medicaid may have specific rights to return to their facility if their bed or an equivalent one is available.
The Official Discharge Process: What to Expect
If a nursing home plans to discharge a resident, they must follow a specific process that includes providing a written notice and developing a discharge plan. Failing to follow these procedures can make the eviction illegal.
Your Rights: The Written Notice
The nursing home must provide a detailed written notice to the resident and their representative at least 30 days in advance of the discharge, unless there is an immediate safety or health risk. This notice must include:
- The specific reason for the transfer or discharge.
- The effective date of the transfer or discharge.
- The specific location where the resident will be transferred.
- A statement of the resident's right to appeal and instructions on how to do so.
- Contact information for the State Long-Term Care Ombudsman.
The Discharge Plan
A comprehensive discharge plan must also be created by the facility's medical staff and, where possible, in consultation with the resident or their family. The plan must outline how the resident's medical and care needs will be met after they leave the facility, ensuring a safe and orderly transition.
How to Appeal a Nursing Home Eviction
If you receive a discharge notice and disagree with the facility's decision, you have the right to appeal. The appeal process generally involves requesting a hearing with a designated state agency, a process that should be outlined in the written notice. Crucially, if you file the appeal within the specified timeframe (often 10-20 days), your loved one cannot be moved until a hearing is held and a decision is rendered.
The Role of the Long-Term Care Ombudsman
The Long-Term Care Ombudsman is a vital resource for residents and families. They are trained advocates who can investigate complaints, help navigate the appeal process, and protect resident rights. The contact information for your local ombudsman should be included in the discharge notice, or you can find it by visiting the National Long-Term Care Ombudsman Resource Center: https://theconsumervoice.org/get_help.
Comparison Table: Justified vs. Unjustified Discharge Reasons
| Justified Discharge Reason | Potential Unjustified Discharge Circumstances |
|---|---|
| A physician and interdisciplinary team document the facility cannot meet complex medical needs. | A resident is deemed "difficult" or has a family that complains frequently. |
| A physician documents the resident's health has improved, and nursing-level care is no longer required. | A facility transfers a resident to a hospital to deny them readmission once they are ready to return. |
| A physician documents the resident poses a clear and immediate health or safety risk to others. | A resident refuses a specific medical treatment, which is their right, unless it poses a risk to others. |
| The resident fails to pay after proper notice, and an appeal is not pending. | A facility attempts to evict a resident whose payment source changes from Medicare to Medicaid. |
| The nursing home is officially closing and has followed all state-mandated procedures. | A facility transfers a resident because their level of care requires more resources, and the facility doesn't want to provide it. |
The Importance of an Advocate
Having an advocate, whether a family member, a friend, or an elder law attorney, is one of the best protections against improper discharge. An advocate can monitor the situation, understand the legal rights, and ensure that the facility follows all proper procedures. They can also represent the resident's best interests during the appeal process, should it be necessary.
Conclusion: Know Your Rights to Ensure Proper Care
The question, can they kick my mom out of the nursing home, has a complex but manageable answer rooted in resident rights. While certain circumstances do permit an involuntary discharge, strict federal protections and procedures exist to prevent arbitrary evictions. By understanding these rules, knowing the valid reasons for discharge, and using available resources like the Long-Term Care Ombudsman, families can effectively advocate for their loved ones and ensure they receive the proper care they deserve.
