Nursing Homes Can’t Evict Residents for the Wrong Reasons
Few things are more traumatic to a nursing home resident than being evicted (“involuntarily discharged”). One source says the death rate increases significantly for nursing home residents who are abruptly transferred.
Fortunately, most senior adults never require nursing home care. According to AARP, about 35% of people 65 and older will have at least one stay in a nursing home, and about half of them will stay for more than a year. However, those percentages translate into one out of every 5 or 6 seniors spending more than a year in a nursing home. That represents hundreds of thousands of Americans, including about 20,000 nursing home residents in Oklahoma at any given time.
Moving is physically and mentally draining on anyone. An involuntary move can be devastating for a nursing home resident. Most residents spend almost all their time in the same finite space, dependent on nurses and nurse’s aides. To be forced to a sudden change of environment and personnel can be traumatic to vulnerable residents.
Nursing Home Reform Law
If a nursing home attempts to discharge a patient without good cause, a knowledge of the law can prevent them from getting away with it.
The federal Nursing Home Reform Law (1987; Section 483.12(a), Title 42, Code of Federal Regulations) protects seniors and other residents from unjustified discharges. A nursing home may order an involuntary discharge only if one of the following five reasons exists. Notice that the first three of these reasons are rare.
- The resident has failed to pay. The vast majority of residents are covered by Medicare or Medicaid. This reason applies only to the small fraction of residents who pay privately.
- The resident’s needs cannot be met in a nursing home. Notice that this is not the same as a facility claiming that a resident should be transferred to another nursing home. All nursing homes are required by federal and state laws to meet certain staff, training and equipment requirements. If the resident needs a nursing home, the home where the resident currently resides should be able to meet the need.
- The nursing home is going out of business and closing its doors. It happens. When it does, there is nothing much a resident can do except transfer to another facility.
- The resident is endangering the health or safety of other residents or staff.
- The resident’s health has improved such that he or she no longer needs nursing home care.
Wrong Reasons for Nursing Home Eviction
In contrast to those legal reasons for a nursing home discharge, consider some common reasons to push a resident out that are actually illegal.
- The facility limits its services to those who require minimal care. There is no legal basis for this. For example, some nursing homes wish to specialize in short-term rehabilitation rather than long-term care. However, if a short-term stay becomes long-term, a home has no legal basis to attempt to transfer the resident.
- The facility wants to remove a “difficult” resident. A nursing home may prefer for all of its residents to be pleasant, passive and compliant. However, the law protects the rights of all nursing home residents, including those who are difficult to handle.
- The resident has been hospitalized. When a nursing home resident is hospitalized, the law requires the facility to hold the resident’s bed for a limited time period, provided the bed hold is paid for. If the hospitalization is extended, the facility has the right to open the bed for another resident. However, when the resident is released from the hospital, the nursing home must readmit the resident to its next available bed.
A 93-year-old nursing home resident in Camden, Maine, was evicted from her retirement home apartment while in the hospital in 2013. The woman contacted an attorney and filed a complaint. Among other things, she complained that the facility gave her no reason for the involuntary discharge and that the home also did not return her $2000 security deposit. The facility agreed to pay her $5000 to settle the legal action.
How to Carry Out an Eviction
Even if a facility has a legal basis for eviction, it must be careful how it carries it out.
- The involuntary discharge must be presented in writing to both the resident and the resident’s representative (e.g., family member). The written notice must state the reason(s) for the discharge, including specific details.
- The discharge notice must inform the resident of one’s right to appeal the eviction, to obtain an attorney, and instructions on how to request an appeal hearing. The name and phone number of the state inspection agency must also be included.
- The facility must prepare a discharge plan, which must be signed off by the resident’s doctor or the facility’s medical director.
How to Fight Nursing Home Eviction
A resident who has been involuntarily discharged should immediately seek an attorney’s help. In most cases a resident has only 10 days to appeal. Nursing home residents are citizens and the law protects their rights. See our webpage for more information about “Nursing Home Abuse.”
If you are a nursing home resident or the relative or representative of one whose rights are being violated, get it touch with us for a free consultation about your legal rights. Contact Hasbrook & Hasbrook by telephone (866-416-4737), email (firstname.lastname@example.org) or use our website contact form: Contact Us.