Can Mom Be Discharged From a Nursing Home Against Her Wishes?

Q. My mother, Bunny, was told she is being discharged from the nursing home in which she resides. She and I are completely against this. For what reasons may a nursing home discharge a resident and what recourse do we have?

A. Nursing homes are required to follow certain procedures before discharging a resident, but a facility may occasionally attempt to discharge an undesirable resident by transferring the resident to a hospital and then refusing to let him or her back in. This practice is called “patient dumping” and, in most cases, is illegal.

The Nursing Home Reform Act of 1987, however, prohibits transfer or discharge of a resident by a skilled nursing facility, except for the following reasons:

  • Resident has improved:  Sometimes a resident’s health has improved enough so that he or she no longer needs the services provided by the facility.
  • Needs cannot be met by the facility:  Sometimes, a patient’s transfer or discharge is necessary to meet the resident’s welfare when the resident’s needs cannot be met in the facility. This reason is very rarely legitimate, but in some cases is legitimate, for instance if a resident needs ventilator care but the facility does not offer such care.
  • Failure to pay after given notice: A nursing home can discharge a resident if the bill isn’t paid after reasonable and appropriate notice. However, if the resident is eligible for benefits – such as Medicaid – that would pay for the resident’s stay, and the resident has filed all necessary paperwork to apply for benefits, the nursing home must wait until the application process has been completed.
  • Endangers the health or safety of others: If the resident’s stay endangers the health or safety of other individuals in the facility, then he or she may be discharged. A physician must document the endangerment in the resident’s clinical record.
  • Closing its doors: If the facility ceases to operate, it will obviously need to transfer or discharge its residents.

Prior to transfer or discharge, the facility must notify the resident and, if known, a family member or legal representative of the resident. If the nursing home transfers a resident to a hospital, state law may require that the nursing home hold the resident’s bed for a certain number of days (usually about a week).

Before transferring a resident, the facility must inform the resident about its bed-hold policy, and the resident (or someone on behalf of the resident) must typically pay privately to hold the bed. If the resident is a Medicaid recipient, the nursing home must readmit the resident to the first available bed if the bed-hold period has passed.

Residents or their families or the attorney for the resident (such as our firm) can appeal or file a complaint with the state if a nursing home refuses to readmit them.  

Also, please read 20 Common Nursing Home Problems—and How to Resolve, a helpful publication from the National Senior Citizen’s Law Center.

 

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About Evan H Farr, CELA, CAP

Evan H. Farr is a 4-time Best-Selling author in the field of Elder Law and Estate Planning. In addition to being one of approximately 500 Certified Elder Law Attorneys in the Country, Evan is one of approximately 100 members of the Council of Advanced Practitioners of the National Academy of Elder Law Attorneys and is a Charter Member of the Academy of Special Needs Planners.

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