What to Do if a Nursing Home is Pushing for Discharge But You Don’t Agree

Last updated: January 08, 2020

Involuntary nursing home discharges and transfers are a legitimate problem in the United States. According to the States’ Long-Term Care Ombudsman Programs (LTCOP), one of their top 5 complaints is inadequate discharge planning or improper evictions from nursing home facilities. In fact, annually there are approximately 14,000 complaints of this sort that the LTCOP attempts to resolve. The reasons for involuntary nursing home discharges and transfers vary, but may be a result of residents requiring a higher level of care than the nursing home feels equipped to handle, and more commonly, may be due to the end of Medicare coverage.

To be clear, there are only six legal reasons a nursing home resident may be forced to leave a nursing home. (These reasons are discussed below in this article). Outside of these reasons, a resident cannot be evicted. Unfortunately, many nursing home residents, nor their families, are aware of the rights of a nursing home resident. Through an awareness of these rights, and an awareness of how to respond if one’s rights are violated, illegal discharges and transfers can be minimized and / or prevented.

Please note that in this article we mainly focus on involuntary nursing home discharges, but the following information is also relevant to involuntary nursing home transfers.

 

Understanding the Definition of Discharge and Eviction

To fully understand the topic of nursing home discharges and evictions, it is important to discuss exactly what these terms mean. When it comes to nursing home discharges, there are two types; voluntary and involuntary. If the nursing home resident agrees that he / she should leave the nursing home, this is a voluntary discharge. On the other hand, if the nursing home resident does not agree he / she should be discharged, and instead thinks he / she should continue to receive nursing home care, this is an involuntary discharge. An involuntary discharge is also called an eviction. Other terminology one might hear in place of an involuntary discharge is inappropriate discharge, illegal discharge, and improper discharge.

  Some nursing homes attempt to involuntarily discharge a resident who runs out of Medicare coverage.

 

Medicare & Medicaid Coverage of Nursing Home Care

It is also important to have a good grasp on Medicare and Medicaid’s coverage of nursing home care to better understand illegal nursing home discharges. This is because, unfortunately, nursing homes may attempt to involuntarily discharge a resident who runs out of Medicare coverage or evict a resident on Medicaid to free up a bed for a higher paying resident. (Nursing homes receive higher pay from private pay residents, as well as those on Medicare).

Medicare

Medicare, federal health insurance for persons 65+ years old, will cover short-term skilled nursing care in Medicare approved nursing homes. Coverage is limited to 100 days following an illness / injury that required hospitalization. Medicare will pay 100% of the cost for the first 20 days and will continue to pay a portion of the cost from day 21 through day 100. Nursing home residents have a copayment of $176 / day in 2020. For seniors who have Medicare Supplemental Insurance (MediGap), this copayment is generally covered by their insurance. For more information about Medicare’s coverage of nursing home care, click here.

 As long as a resident has a pending application for Medicaid, he / she cannot be forced to leave the nursing home.

Please note that a Notice of Medicare Non-Coverage (NOMNC) is not the same thing as a discharge notice. A NOMNC is simply a notice from a nursing home that states one’s Medicare coverage is ending. Upon receipt of this notice, a resident who still requires nursing home care, but cannot afford to pay out of pocket, can apply for Medicaid. As long as a resident has a pending application for Medicaid, he / she cannot be forced to leave the nursing home. Read about qualifying and applying for Medicaid.

 

Medicaid

Medicaid, a state and federal program that provides health insurance for low-income persons, will cover long-term nursing home care. Nursing home Medicaid, also called institutional Medicaid, is an entitlement program in all 50 states and the District of Columbia. This means that anyone who meets the eligibility requirements will receive nursing home coverage. Unlike with Medicare, coverage is not limited to a specific timeframe. Rather, Medicaid will pay for nursing home care indefinitely. To see state specific eligibility criteria for nursing home Medicaid, click here.

 Did You Know? Medicaid pays nursing homes less than Medicare does per day. Unfortunately, some facilities do not want to accept the lower payment from Medicaid, which leads to illegal evictions.

 

For What Reasons Can a Nursing Home Legally Evict?

The Nursing Home Reform Act (NHRA) of 1987 set federal guidelines to protect the rights and safety of nursing home residents, which includes protecting against illegal evictions and transfers. (For nursing homes to receive payment from Medicare and / or Medicaid, they must comply to these guidelines). Based on the NHRA, there are only six reasons that a nursing home can legally evict / transfer a nursing home resident. They are as follows:

1. The needs of the nursing home resident are greater than the facility is able to provide, and a transfer / discharge is necessary for the resident’s well-being. Please note that as part of a nursing home admission, an assessment of the individual’s needs are done. Therefore, it should be unusual for a nursing home to turn around and say they are unable to meet one’s needs after admission. Furthermore, nursing homes are required by law to adjust their staffing as needed to ensure the best individualized care as possible.

2. The nursing home resident is not paying for nursing home care after “reasonable and appropriate notice” and has not applied for Medicare or Medicaid. There is no national standard as to what is considered “reasonable and appropriate notice”. Instead, this is state specific. For example, in Connecticut, a resident who pays out of pocket and has not paid for a minimum of 15 days can legally be evicted. A side note; As long as a resident has a pending application for Medicaid, he / she cannot be forced to leave. The one exception is if the nursing home residence does not accept Medicaid as payment.

3. The resident has regained his / her health to the point where nursing home services are no longer necessary. This commonly means a resident will be discharged to his / her home, the home of loved one, or an assisted living residence.

4. The resident’s presence in the nursing home jeopardizes the health of other residents.

5. The resident’s presence in the nursing home jeopardizes the safety of other residents.

6. The nursing home facility closes.

 

When a facility is discharging a resident, there are certain procedures that must be followed.

  • The nursing home facility must provide a written notice of discharge to the resident and his / her family or legal guardian / representative. To be very clear, this notice cannot be given verbally. The written notice must include the following information, and if it is not included, the eviction notice is not valid.
    -The reason for discharge. Remember, under federal law, there are only 6 reasons that a nursing home resident can be legally discharged.
    -To where (the location) the resident will be discharged.
    -The right and instructions to appeal and contact information of the long-term care ombudsman in one’s area.
  • The written notice must be received a minimum of 30 days (but may be as many as 60 days) prior to the discharge date. The only exception is in the case of an emergency.
  • A summarization of the nursing home resident’s physical and mental status must be prepared.
  • A discharge plan must be written up by the nursing home. Via this plan, the nursing home must make certain the nursing home resident has a place in which to move (near family and loved ones, if possible), and summarize the care and / or services the individual will receive following discharge.

 

Common Reasons for Illegal Nursing Home Discharges

Medicare Coverage is Ending

The end of Medicare coverage is not sufficient cause for involuntary nursing home discharge. Legally, the resident must be given a reasonable amount of time to come up with another source of payment, such as private pay or Medicaid. For example, it is common for nursing home residents who are not ready to leave the nursing home when Medicare coverage ends to apply for nursing home Medicaid. As long as a Medicaid application is pending, the resident cannot be legally discharged from the nursing home for non-payment. Even if a Medicaid application is denied, if an appeal is in process, the resident cannot be forced to move. One exception exists, and this is if the nursing home residence does not accept Medicaid as a form of payment, but this is only the case in approximately 10% of nursing homes.

What to do in this situation: First, determine if the eligibility requirements for Medicaid are met. If they are met, apply for nursing home Medicaid immediately, and if not, consult with a professional Medicaid planner for assistance in meeting Medicaid’s criteria.

 

Private Pay Resident No Longer Has the Funds

As with the above example, 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 he / she would need to apply for nursing home Medicaid. Again, as long as a Medicaid application is pending, a nursing home resident cannot be evicted.

What to do in this situation: First, determine if the eligibility criteria for nursing home Medicaid are met. If the nursing home residents meets the criteria, apply for Medicaid immediately. If the requirements are not met, seek the counsel of a professional Medicaid planner for assistance to determine how to meet the criteria.

 

Nursing Home Claims it “Cannot Meet the Needs of the Resident”

A nursing home resident can be involuntary transferred legally if the nursing home cannot meet his / her needs. However, a nursing home may claim they cannot meet a resident’s needs, but in reality, do have the capability to meet his / her needs. If this is the case, an involuntary transfer is illegal. If a nursing home is trying to transfer a resident based on an inability to meet his / her needs, it must be reported what needs are not able to be met, how the nursing home tried to meet these needs, and what services the nursing home in which the resident will be transferred will provide in order to meet the resident’s needs. Please note that sometimes a nursing home will try to use this type of eviction when a resident is “difficult”, which could be due to troublesome behaviors due to Alzheimer’s disease or a related dementia.

What to do in this situation: File an appeal with the state long-term care ombudsman. As long as there is a pending appeal, a nursing home resident cannot be forced to move out of the facility.

 

Nursing Home No Longer Accepts Medicaid

The Nursing Home Resident Protection Amendments (NHRPA) of 1999 makes it illegal to involuntarily transfer or discharge a patient when a nursing home withdraws from accepting Medicaid-funded residents. While they no longer have to accept new Medicaid-funded residents, they cannot kick out the ones they already have.

What to do in this situation: Contact the state long-term care ombudsman to file an appeal. Until a hearing decision has been made, a resident of a nursing home facility cannot be forced to leave.

 

After Hospitalization, there is No Bed Available

In this situation, which is referred to as “hospital dumping”, a nursing home resident is admitted to a hospital and when it is time for discharge, the nursing home claims his / her bed is no longer available. Legally, a nursing home is required to hold a resident’s bed for a period of time upon hospitalization. (The exact timeframe varies by state, but is generally a week or two). For residents on Medicaid, despite the length of hospitalization, the nursing home must readmit the individual as soon as a Medicaid certified bed is available.

What to do in this situation: Persons on Medicaid should be persistent on readmittance and keep checking if there are available beds. If the nursing home residence makes it clear that they do not plan to readmit the individual, file a complaint with the state long-term care ombudsman. Those who are not on Medicaid can also file a complaint.

 

What A Resident / Family Can Do

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 he / she is ready to be discharged, there are steps that can be taken.

Don’t Move the Nursing Home Resident
First things first, the nursing home resident and his / her family should not panic and move the nursing home resident out of the facility. Remember, the nursing home must provide a written discharge notice a minimum of 30 days prior to the effective discharge date.

File an Appeal
Next, an appeal should be filed with the long-term care ombudsman in the state in which the nursing home resident is being involuntarily discharged or has been threatened to be evicted. (The appeal can be filed by the nursing home resident, his / her family, or his / her representative). To find a Long-Term Care Ombudsman Program in your area, click here. An appeal should be filed as quickly as possible following the receipt of a discharge notice. A nursing home resident cannot be discharged as long as there is a pending appeal. Please note that hearing procedures differ based on the state in which one resides. For instance, the hearing may be held at the nursing home or it may be done via telephone.

Apply for Nursing Home Medicaid
For persons who have run out of Medicare coverage or can no longer pay privately for nursing home care, an application for Medicaid as should be filed. A person who has applied for Medicaid and is waiting for approval cannot be forced out of a nursing home. As mentioned previously, even if a resident has been denied Medicaid coverage, if an appeal for coverage is filed, he / she cannot be forced to move out of the nursing home during this time. Learn how to apply here. Persons can also take a Medicaid eligibility test to see if they might meet the eligibility criteria.

Consult an Elder Law Attorney
For persons who find themselves in the position of an illegal nursing home discharge, it can be highly helpful to contact an elder law attorney.

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