Involuntary Discharge Rights for Residents of Nursing Facilities
The threat of transfer or discharge from a nursing home can be both frightening and stressful for residents and their families. Too often, a facility may respond to resident’s difficulties or increasing need for care or repeated questions or complaints from family members by attempting to transfer or discharge a resident.
The Nursing Home Reform Law of 1987 prohibits nursing homes from transferring or discharging a resident unless it can establish one of the permissible reasons for transfer/discharge exist.
Those reasons include:
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the nursing home cannot provide adequate care for the resident;
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the resident's health has improved to the point that he or she no longer needs nursing home care;
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safety of individuals in the facility is endangered;
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the resident has failed to pay for care; or
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the facility ceases to operate.
Many of the permissible reasons for transfer or discharge can be addressed through assessment and care planning, making transfer or discharge unnecessary.
If a resident is to be transferred or discharged, the facility must provide adequate notice to the resident and the resident's family member, guardian, or legal representative, in writing, at least 30 days in advance.
Adequate notice includes:
- the reason for the transfer or discharge;
- the specific location to which the resident will be moved;
- the date of transfer or discharge;
- information about the right to appeal the decision to discharge the resident; and
- contact information for the State Long-Term Care Ombudsman.
Contact the Long-Term Care Ombudsman Program with concerns about a notice of discharge.
Resources
National Consumer Voice Prezi Presentation Regarding Involuntary Discharges
National Consumer Voice Involuntary Discharge Resource Page
Fact Sheet: Nursing Home Discharges You’ve Been Told to Leave…Now What? - This fact sheet was developed for long-term care consumers to inform them about their rights regarding involuntary discharges. This fact sheet can also be used in training by and for Ombudsman program representatives, for members of resident and family councils, facility-in-service training, and community education.
Transfer/Discharge Fact Sheet and Brochure
Consumer Voice, in partnership with Justice in Aging and the Center for Medicare Advocacy, developed a series of briefs which take a closer look at the revised nursing facility regulations.
Involuntary Transfer and Discharge - This brief explains the minor changes in transfer and discharge regulations, which include narrowing the facility’s ability to base a transfer/discharge on a supposed inability to meet the resident’s needs, by requiring increased documentation by the resident’s physician. The regulations also limit transfer/discharge for nonpayment.
Return to Facility After Hospitalization - This brief explains bed hold rights when a resident returns to a facility after a hospitalization. The brief provides information on advance notification of bed hold rights and residents' rights if they return to a facility after a bed hold period has been exceeded.
Transfer/Discharge in Residents' Rights
Discharge Planning Checklist from CMS
Webinar: Involuntary Transfer/Discharge: A Growing Problem We Can Do Something About (2013)
This webinar hosted by the National Consumer Law Center (NCLC) detailed the transfer and discharge provisions of the Nursing Home Reform Law and provided strategies and resources on handling transfer discharge cases. Presenters included Lori Smetanka, Director of the National Long-Term Care Ombudsman Resource Center (NORC); Eric Carlson, Directing Attorney at the National Senior Citizens Law Center (NSCLC); and Mary Ann Parker, attorney for the D.C. Long-Term Care Ombudsman Program/Legal Counsel for the Elderly
Involuntary Transfer and Discharge from Nursing Homes: Prevention, Advocacy, and Appeals (2015)
The webinar discussed strategies and best practices for preventing and advocating for residents facing involuntary discharge from a nursing home, and considered how those strategies, best practices change/stay the same if the resident is in assisted living. The presenters also reviewed best practices for supporting residents and families, identifying legal support, appealing discharge notices, and more. Lori Smetanka, director of the National Long-Term Care Ombudsman Resource Center (NORC) presented, along with Eric Carlson, Co-Directing Attorney, National Senior Citizens Law Center and Mary Ann Parker, Attorney, DC Long-Term Care Ombudsman Program.
National Ombudsman Resource Center Transfer/Discharge Issue Page
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Requirements of Skilled Nursing Facilities to Use LTCOP Electronic Portal (Public Act 22-57)