FAQs & Resources

Questions about Nursing Home Transfer/Discharge Rights

Click to Open or CloseCan a nursing home resident be evicted from the facility because he breaks a rule or because he complains too much?

No. Federal law limits the reasons a person can be transferred or discharged from a nursing home.There are only six valid reasons a nursing home resident can be forced to move to another nursing home or institutional setting (a “transfer”) or sent to a non-institutional setting such as his home or the home of an adult child (a “discharge”).The only allowable reasons for an involuntary transfer or discharge are:

  1. the transfer or discharge is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility;
  2. the resident’s health has improved enough that she no longer needs the facility’s services;
  3. the safety of individuals in the facility is endangered;
  4. the health of individuals in the facility would otherwise be endangered;
  5. the resident has failed to pay despite reasonable and appropriate notice; or
  6. the facility ceases to operate.

These are the only legitimate reasons for an involuntary transfer or discharge under federal law.

Click to Open or CloseCan a nursing home force the family to remove the resident from the facility without notice?

No. Federal law requires a nursing home to have a valid reason for the discharge or transfer (see previous Q&A) and also requires the facility to give the resident and a family member or legal representative advance written notice of the planned transfer or discharge.The notice must be in language that the resident and family can understand.Normally, the nursing home should give at least 30 days notice of the transfer or discharge, but there are some exceptions to the 30 day requirement, and, in those cases, the notice must be given “as soon as practicable.”

The notice must include specific information, including the reason for the discharge or transfer, the effective date of the transfer or discharge, the location to which the resident is to be transferred or discharged, a statement of the resident’s right to appeal the action, the name, address and phone number of the State Long Term Care Ombudsman, the mailing address and phone number of the agency responsible for the protection and advocacy of the developmentally disabled if the resident has a developmental disability, and the mailing address and phone number of the agency responsible for the protection and advocacy of the mentally ill if the resident has a mental illness.

Click to Open or CloseWhat can I do if I receive, or my loved one receives, a notice from the nursing home threatening to transfer or discharge me or my loved one?

You should immediately contact the local long term care ombudsman who covers the area in which the nursing home is located.The ombudsman’s job is to help residents resolve problems in the nursing home.Sometimes, the ombudsman can talk to the administrator and convince him or her that the discharge or transfer is not appropriate.

You also have the right to file an appeal with the Department of Medical Assistance Services (“DMAS”).You have a right to appeal an involuntary transfer or discharge to DMAS even if you are not on Medicaid. (The exception to this rule is if your nursing home does not accept Medicaid, meaning it only take private pay and Medicare.In this situation, there are no appeal rights).Even if you are self-pay or private pay, if your nursing home accepts Medicaid residents, you have the right to appeal the discharge. You must file an appeal before the date the transfer/discharge is scheduled.Filing an appeal will stop the threatened transfer or discharge until the hearing is held and a written decision is issued.Normally, the hearing will be held at the nursing home so that the resident can attend.You have the right to review the file, to have witnesses, to question the facility’s witnesses, etc.Because the hearing is very important to whether you have the right to stay in the facility, it is a good idea to be represented by a lawyer or paralegal.You may want to contact legal aid to see if a lawyer or paralegal can represent you or you can contact a private attorney familiar with nursing home issues.Do not delay seeking representation, because your representative will need plenty of time to obtain records and prepare your case.

Click to Open or CloseHow do I file an appeal with the Department of Medical Assistance Services (DMAS)?

You may want to read about the appeals process or down load their brochure at http://www.dmas.virginia.gov/app-home.htm. You may appeal the discharge by writing to:

Department of Medical Assistance Services
Division of Client Appeals
600 E. Broad Street, Suite 1300
Richmond, Virginia 23219
Telephone:(804)-371-8488; Fax:(804)-371-8491

Be sure to state that you are appealing the discharge and include pertinent information such as the facility name and resident name along with the discharge notice, and your contact information.

Click to Open or CloseDo I have the right to an appeal if the facility wants to transfer me, or my loved one, from one unit of the facility to another unit and I don’t want to move?

You do not have the right to appeal simply because the facility wants to change your roommate or change your room assignment.But you do have the right to an appeal if you are being asked to move from one distinct part of the facility to another part which is separately certified under Medicare or Medicaid.If the transfer is between two units which are separately certified, you are entitled to all the notice and appeal protections that are available for any other involuntary transfer or discharge.

Click to Open or CloseWhat is the doctor’s role in making a transfer/discharge decision?

It is very important that you contact your, or your loved one’s, doctor to see if he or she agrees with the facility’s decision to transfer or discharge you, and to ask your doctor to help fight the transfer/discharge if he or she does not agree with it.Under state law, the facility is required to consult with the resident’s attending physician (and with the resident and family or responsible party) before the discharge or transfer.In addition, the attending physician or medical director of the facility, under state law, is supposed to make a written notation in the clinical record approving the discharge or transfer “after consideration of the effects of the transfer or discharge, appropriate actions to minimize the effects of the transfer or discharge, and the care and kind of service the patient needs upon transfer or discharge.”In addition, federal law also requires that the resident’s clinical record be documented by the resident’s doctor if the reason for the transfer or discharge is either that it is necessary for the resident’s welfare or that the resident’s health has improved sufficiently that he no longer needs the facility’s services.However, facilities do not always obtain the legally required documentation.Failure to properly document the clinical record or to obtain the attending physician’s approval is one basis for challenging the transfer/discharge.

Click to Open or CloseCan the facility simply put me, or my loved one, out without any assurance that the new placement is appropriate for my care needs?

Unfortunately, this does occur sometimes, but it is illegal under federal and state law.Federal and state law requires that the discharging facility provide sufficient preparation and orientation to residents to “ensure safe and orderly transfer or discharge from the facility.”At a minimum, this obligation requires that the resident be sent to a place which can provide the care the resident needs.Sending a quadriplegic resident home to live with his disabled daughter, without any plan for in-home services, for example, would not be an appropriate discharge plan and would be grounds to challenge the discharge.

Click to Open or CloseWhat kind of arguments can be made at a hearing which might successfully stop a threatened transfer or discharge?

There are a number of possible arguments.The notice itself may be defective—it may not have all the necessary information or may include erroneous or misleading information.The facility may not have obtained the documentation of the clinical record which is required by federal and state law.The facility may not have done appropriate discharge planning and may plan to send the resident to a place which is unable to care for him appropriately.Or, the facility may not have valid legal grounds for the transfer or discharge.For example, the facility may claim that a resident is a danger to the safety of others, but the resident’s behavior consists merely of cursing or other irritating, but not dangerous, behaviors.In that case, the hearing officer may find that the discharge is not justified because the resident is not truly a danger to the safety of others. All relevant and valid arguments should be made at the hearing—don’t rely on just one—since you don’t know which argument or arguments the hearing officer may find persuasive.

Click to Open or CloseWhat actions can a hearing officer take once a hearing has been held? What should I do if I receive an unfavorable decision?

The hearing officer could sustain (or agree with) the facility’s action to transfer or discharge the resident.If so, the facility could go ahead with the plan to transfer or discharge the resident as set out in the original letter, although they would probably send a new notice with the new discharge date.The hearing officer could reverse the action of the facility and tell the facility that it cannot transfer or discharge the resident, either because the facility did not have valid legal grounds for the transfer/discharge or because the facility had not followed the legally-required procedures prior to transferring or discharging the resident.A hearing officer could also remand or send the case back to the facility to take further actions before transferring or discharging the resident.Although this allows the facility to go ahead with the transfer or discharge once those additional steps have been taken, the facility may decide not to go ahead with the transfer/discharge after all.Sometimes, conditions have changed or the relationship between the resident and staff has improved to the point that the facility is no longer as anxious to “get rid” of the resident.

If the hearing decision is unfavorable to the resident, there are additional appeals which might be taken under certain circumstances.A lawyer should immediately assess the case to decide whether an appeal is justified.You should consult a lawyer quickly before the resident is actually moved from the facility.

Click to Open or CloseIs it a good idea to be represented at the transfer/discharge hearing by an attorney or trained paralegal?

Yes, definitely.These cases are complicated.There are many different kinds of arguments that can be made and there are records which need to be reviewed. Failure to put on a persuasive compelling case at the hearing may result in the resident being transferred or discharged from his home.Further appeals from the hearing officer’s decision are usually based on the hearing record, so there may be little that can be done on appeal if a thorough record was not made at the hearing.If the resident has limited income, he or she may qualify for legal services representation at no cost.It is very important to contact legal aid or a private lawyer as early as possible and certainly as soon as you have requested a Medicaid hearing.It is also important to contact the local long term care ombudsman immediately when you first receive the notice of the transfer/discharge so that the ombudsman can attempt to resolve the problem before a hearing becomes necessary.Often these cases can be won if someone simply stands up for the resident and advocates for her rights under federal and state law.