Is Nursing Home Eviction Ever Legal?

Q. My Aunt Betsy, who has dementia, was in a nursing home. She sometimes has issues with aggression and had a bad episode recently. She was admitted to a local hospital and when she was discharged, her children tried to get her back to the nursing home, but her children were told she couldn’t come back because of the aggression issues. Is this legal?

A. Gloria Single, 82, was a resident of Pioneer House, a nursing home in California, and had an experience that sounds similar to your aunt’s. She also had dementia, and one day, she grew upset and allegedly threw utensils at residents in the dining room. She was sent to the hospital that day, and within hours, the hospital evaluated her and cleared her to leave. The nursing facility, however, barred her from returning — a move often referred to as resident “dumping.”

“I remember going in there, and we cried together,” her son Aubrey Jones, 63, said of his early visits with her in the hospital, in 2017. She was disoriented, desperate to go home, and asked for Bill (her husband). That period of time when she was in the hospital was just awful.”

Jones challenged his mother’s discharge from Pioneer House at an administrative hearing before the California Department of Health Care Services and prevailed, prompting an order that Pioneer House readmit his mother. But the facility and its parent organization, Retirement Housing Foundation, refused to budge.

The Readmission Order Was Ignored

The readmission order was ignored by the facility, say lawyers who later picked up her case, and the state did nothing to enforce it. AARP Foundation, which helps defend vulnerable people over 50 through legal advocacy, filed suit against Pioneer House and Retirement Housing Foundation on Single’s behalf. A California court ruled that her rights had been violated, providing possible ammunition in the fight against dumping in California and beyond.

Single declined drastically in the hospital for more than four months after she was evicted, until her son finally found a place that would take her in. Lacking adequate stimulation, she lost her ability to walk, her verbal and cognitive skills slipped, and she stopped asking about her husband — whom she never saw again.

How Often Does Resident Dumping Happen?

The issue of dumping got national attention when The New York Times investigated a surge of cases amid the COVID-19 pandemic. Included in the paper’s reporting were stories of vulnerable nursing facility residents being left at homeless shelters and motels.

Hospital dumping, where nursing home residents are sent to a hospital via a call to 911 (either for legitimate medical reasons or sometimes for questionable reasons) and refused readmission, is an illegal practice. Federal and state laws require that nursing homes hold beds open for hospitalized residents for one to two weeks. This also applies to nursing home residents receiving Medicaid, who are also entitled to return to the nursing home’s first available bed, and nursing homes are also required to notify the family that they are entitled to pay a “bed hold fee” to ensure that the resident’s existing bed remains available for their return.

When Nursing Homes Can Legally Discharge Residents

Nursing home evictions, or involuntary discharges or transfers, are often in violation of the law, and they disrupt the lives of residents and their families, leading to loss of appropriate care, separation from support systems, and even homelessness. Federal law applies to all federally-supported nursing homes, meaning all nursing homes that accept Medicare and/or Medicaid, which is approximately 99% of all nursing homes in the country. Nursing home evictions are legal only under five very specific instances, and generally require at least 30 days advance notice in writing, and a chance to appeal the eviction:

  • The resident no longer needs the nursing home level of care;
  • The resident does not pay for care after reasonable and appropriate notice;
  • The resident jeopardizes the health or safety of other residents;
  • The nursing home can no longer provide for a resident’s needs; or
  • The nursing home closes.

When a nursing home gives a 30-day notice of discharge, they must also provide an appropriate discharge care plan, which includes an appropriate place to which the resident will be discharged.

Common Reasons for Illegal Nursing Home Discharges

When residents can no longer pay for nursing home care, some nursing homes evict residents. In some cases, the nursing home doesn’t provide sufficient notice and time to apply for Medicaid.

These are some other common reasons for illegal nursing home discharges:

  • The nursing home suspects the resident will not pay for their stays after Medicare rehabilitation coverage runs out. If an individual is hospitalized for more than three midnights and then transferred to a nursing home for short-term rehabilitation, Medicare covers the first 20 days of rehab in full and partially covers up to another 80 days assuming that rehabilitation or skilled nursing care is still needed. After 20 days, residents are responsible for copayments, which are usually at least $150 a day, but vary depending upon the type of Medicare supplement coverage the resident has. A 2019 Research Letter in the Journal of the American Medical Association Internal Medicine found that “nursing homes more often discharged Medicare recipients on the final day of full coverage than before or after, suggesting that some nursing homes prioritize financial considerations over resident care.”
  • A private-pay resident no longer has the funds. In this situation, the nursing home resident needs to be given a reasonable amount of time to come up with another payment source. If a senior no longer has the funds to pay, it is likely they will need to apply for Medicaid. If a Medicaid application is pending, a nursing home resident cannot be evicted.
  • The nursing home perceives the resident as disruptive or challenging, which is sometimes the case with individuals with dementia. These facilities claim that they cannot meet the resident’s needs as a pretense for evicting them. Yet once nursing homes open their doors to residents, they have already determined they can meet the residents’ needs.

According to the Centers for Medicaid and Medicare Services, “discharging residents because nursing homes cannot provide for their needs should not be a common practice.”

The only time this is a legitimate excuse is in a situation where a resident needs a medical service or device that the nursing home simply does not offer, such as a ventilator. Most nursing homes do not have ventilators and cannot care for residents who need a ventilator.

  • The nursing home falsely tells the family that their loved one is being discharged from the facility. Nursing homes are notorious for falsely telling patients and family members that their loved one is being discharged from the facility when in fact the patient is simply receiving a Notice of Medicare Non-Coverage (NOMNC), which is an official notice required by the Federal Government to tell the patient that Medicare is going to stop paying for rehabilitation on a certain date in the future. The NOMNC must generally be delivered at least two calendar days before Medicare covered services end. Nursing homes routinely call this NOMNC a “discharge notice,” both verbally before it is given to the resident, and even after it is given to the resident, intentionally and inaccurately leading the family to believe that they must find alternate living arrangements for the nursing home resident.
  • The nursing home falsely claims it doesn’t accept Medicaid or falsely claims it doesn’t have any open Medicaid beds. When short-term rehabilitation paid for by Medicare is coming to an end, many nursing homes inaccurately tell residents and their families that they don’t take Medicaid, or that they don’t have any available Medicaid beds. This inaccurate information is typically driven by financial motive, because nursing homes get paid significantly more money by Medicare for short-term rehabilitation patients than they do for long-term care residents, so nursing homes always financially prefer to make room for more rehabilitation patients than keep people as long-term care residents. This is almost always untrue, as explained in greater depth in our recent article, Almost All Nursing Home Beds Are Medicaid Beds.

If you or your loved one is facing a nursing home eviction, keep the following in mind:

  • Nursing homes must almost always provide a 30-day notice of discharge. Residents do not need to depart immediately.
  • Residents have the right to appeal a release. They may remain in the nursing home during the appeal process unless doing so would endanger the health and safety of themselves or others.
  • Nursing homes claiming to be unable to provide for a resident’s needs must document why they can no longer assist the resident.
  • Nursing homes must tell residents their reasons for discharging residents and provide these reasons in writing. Residents may request explanations of their discharges.
  • Nursing homes must provide an adequate discharge plan, including where the patient will be discharged to and who will voluntarily take care of the patient in the new location.

If a nursing home resident is being pressured to leave, has been threatened with being evicted, or has received a written notice of discharge and does not feel they are ready to be discharged, there are steps that can be taken. Please see today’s Critter Corner article for more details.

Start Planning for Long-term Care As Soon as Possible

When it comes to planning for long-term care, Medicaid Asset Protection Planning can be started while your loved one is still able to make legal and financial decisions, or can be initiated by a spouse or an adult child acting as agent under a properly-drafted Power of Attorney, even if your loved one is already in a nursing home or receiving other long-term care.

To afford the catastrophic costs of long-term care without depleting all of your assets, you should begin Long-Term Care Planning as soon as possible. Contact us anytime to set up a no-cost initial consultation:

Elder Care Fairfax: 703-691-1888
Elder Care Fredericksburg: 540-479-1435
Elder Care Rockville: 301-519-8041
Elder Care DC: 202-587-2797

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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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