Understanding the Roles in Nursing Home Discharge
The question of who holds the authority to remove a resident from a nursing home is central to resident rights and family advocacy. The power to discharge a resident depends heavily on the individual's mental capacity and whether legal documentation, such as a Power of Attorney (POA) or guardianship, is in place.
The Competent Resident's Rights
A mentally competent nursing home resident has the fundamental right to choose to leave the facility at any time. This is known as a voluntary discharge. While the nursing home's staff must respect this decision, they are also responsible for the resident's safety. If a physician believes leaving poses a significant health risk, the resident may be asked to sign an Against Medical Advice (AMA) waiver. In such cases, the facility must document the conversation and inform the resident of potential risks, but they cannot legally block the discharge.
The Incapacitated Resident: Power of Attorney and Guardianship
When a resident lacks the mental capacity to make their own decisions, this authority transfers to a legal representative. The most common forms are:
- Healthcare Power of Attorney (POA): An agent named in a healthcare POA can make medical decisions, including arranging a transfer or discharge, if the principal becomes incapacitated. This person acts on behalf of the resident, often after the resident previously appointed them while still competent.
- Legal Guardian: A court-appointed guardian may be granted authority over an incapacitated person's medical and personal decisions, including their residence. Unlike a POA, which is designated by the individual, guardianship is ordered by a court and overseen by it.
The Nursing Home's Legal Grounds for Discharge
Under the Nursing Home Reform Law of 1987, a facility cannot involuntarily discharge a resident without a valid, legally permissible reason. These reasons must be thoroughly documented and often require a 30-day written notice.
Legally permissible reasons for involuntary discharge include:
- The resident's health has improved, and nursing home care is no longer necessary.
- The resident's presence endangers the health or safety of other residents.
- The resident has failed to pay for their care after reasonable and appropriate notice.
- The facility cannot meet the resident's medical needs, and the transfer is necessary to a more appropriate care setting.
- The facility ceases to operate or closes.
Navigating the Discharge Process
Whether initiated by a family member or the facility, the process involves careful planning to ensure the resident's well-being. This typically includes a multidisciplinary team to create a safe discharge plan, which may involve coordinating with home health services or finding an alternative facility.
In cases of suspected abuse or neglect, a family member can remove the resident immediately to ensure their safety, but should also contact local authorities and a nursing home abuse attorney to document the incident and protect their legal standing.
Comparison of Removal Authority and Process
| Party | Basis of Authority | Trigger for Removal | Process & Considerations |
|---|---|---|---|
| Resident | Personal autonomy & legal right | Desire to leave, dissatisfaction | Needs to be mentally competent; may involve AMA discharge with documentation |
| Power of Attorney (POA) | Designated by the resident before incapacitation | Medical necessity, abuse concerns, facility issues | Must act within the scope of the POA document; involves working with the facility's discharge team |
| Legal Guardian | Court order due to resident's incapacitation | Best interest of the ward, abuse, financial issues | Decisions are court-monitored; requires court approval for certain actions |
| Nursing Home | Federal & state regulations (Nursing Home Reform Law) | Failure to pay, safety risks, medical needs exceed facility capacity | Requires 30-day written notice, appeal rights, and documented reasons |
Challenging an Involuntary Discharge
Residents have strong protections against illegal or inappropriate discharges. If a family or resident receives a discharge notice, they have the right to appeal the decision. During the appeal process, the resident typically has the right to remain in the facility until a decision is reached, unless their continued presence poses a direct threat. The notice must include information on how to file an appeal and the contact information for the state's Long-Term Care Ombudsman Program.
For assistance with complex legal issues surrounding guardianship and elder rights, resources are available. For example, the U.S. Department of Justice provides guidance on guardianship that can be a starting point for understanding legal roles in elder care: Guardianship: Key Concepts and Resources.
Conclusion: Your Role as an Advocate
Understanding who can remove someone from a nursing home is the first step toward effective advocacy. Whether you are the resident, a family member with a POA, or a concerned loved one, your primary goal is to ensure the resident's well-being. By knowing the legal framework, the permissible grounds for discharge, and the appeal process, you can navigate these challenging situations with greater clarity and protect the rights of those in long-term care.
