Nursing Home Neglect Complaint
Nursing Home Discharge Rights: How to Fight an Improper Eviction
Nursing homes can only discharge residents for specific legal reasons. Learn the valid grounds, notice requirements, appeal rights, and how to fight an illegal discharge.
Being told that a loved one must leave their nursing home — often with 30 days' notice — is one of the most stressful experiences a family can face. What many families don't realize is that nursing homes can only legally discharge residents for six specific reasons under federal law, and the procedural requirements are extensive. Improper discharges are common, and families who understand their rights and appeal them often succeed in reversing the discharge or securing a better placement.
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The Six Legal Grounds for Nursing Home Discharge
Under 42 C.F.R. § 483.15(c)(1), a nursing home may only discharge or transfer a resident when:
1. Medical improvement: The transfer is necessary for the resident's welfare because needs cannot be met in the facility.
2. Safety of others: The resident's presence endangers the health or safety of other residents.
3. Non-payment: The resident has failed to pay for their stay after reasonable notice (not applicable to Medicaid residents who are current on their portion).
4. Welfare of others/safety: For the health or safety of individuals in the facility.
5. Medicaid recertification failure: The facility has ceased to participate in Medicaid, and the resident was admitted under Medicaid coverage.
6. Facility closure: The facility is closing.
Notice what's not on this list:
- The resident is 'difficult' or makes complaints
- The facility wants to admit a private-pay patient instead of a Medicaid patient
- The family is 'too demanding'
- The facility wants to use the room for other purposes
These are the most common illegal reasons for discharge, and they're prohibited.
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Notice Requirements: What the Facility Must Provide
A valid discharge requires written notice that meets specific requirements under 42 C.F.R. § 483.15(c)(3):
Timing: At least 30 days' notice in most situations. Shorter notice (as short as possible) when necessary for the resident's welfare or safety.
Content the notice must include:
- The specific reason for the discharge
- The effective date
- The location to which the resident will be transferred
- Information about the resident's right to appeal the discharge
- Contact information for the state Long-Term Care Ombudsman
- Contact information for the state legal aid organization (if available)
Missing elements = defective notice: If the notice doesn't include all required elements, it's invalid. This can be used as a procedural defense in the appeal.
Medicaid-specific protections: Medicaid residents cannot be discharged for non-payment of the facility's portion — they can only be responsible for their Medicaid patient pay amount. If the facility is claiming non-payment but the resident is on Medicaid, the claim is very likely improper.
How to Appeal a Discharge Notice
Federal regulations require that discharges be appealable before they take effect:
Step 1 — Contact the Ombudsman immediately: The Ombudsman can review the discharge notice, advise on its validity, and assist with the appeal. Call the day you receive the notice.
Step 2 — Contact your state's Medicaid Fair Hearing office (for Medicaid residents): Request a Fair Hearing to contest the discharge. In most states, filing for a Fair Hearing before the discharge date means the resident cannot be discharged while the appeal is pending — this is called 'aid continuing' or 'continuance of placement.'
Step 3 — File a formal appeal: The notice must include information on how to appeal. Follow those instructions. The appeal must typically be filed within 10–30 days of the notice.
Step 4 — The appeal hearing: You can present evidence showing why the stated reason for discharge is invalid or that the discharge process was defective. The facility must prove it has valid grounds.
The key protection: If you appeal before the discharge date, the resident typically stays in the facility until the appeal is resolved. This is the most important thing to know — file the appeal before the deadline.
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Medicaid Discrimination: Discharges Targeting Medicaid Residents
The most common improper discharge pattern involves Medicaid residents. Nursing homes may attempt to discharge Medicaid residents to free beds for higher-paying private-pay patients.
This is prohibited: 42 C.F.R. § 483.12(c)(4) prohibits discriminating in the discharge process based on payment source.
Signs of Medicaid discrimination:
- The resident was accepted as Medicaid but is being discharged after converting from private pay
- The stated reason for discharge is vague or pretextual
- The discharge notice arrives shortly after benefits conversion
- Other Medicaid residents are being discharged under similar circumstances
Filing a discrimination complaint: File with the State Survey Agency and request investigation. Medicaid discrimination in discharge is both an OBRA violation and potentially a Medicaid program violation subject to state enforcement.
The 'difficult family' discharge: Facilities sometimes use vague health or safety grounds to discharge residents whose families are assertive advocates. If a discharge notice arrives shortly after you filed a complaint or demanded better care, document the timeline carefully — the connection may support a retaliation claim.
What Happens at a Discharge Appeal Hearing
For Medicaid residents, the discharge appeal is a Medicaid Fair Hearing before a state administrative law judge or hearing officer. Private-pay residents may use the facility's internal grievance process and then go to court.
At the hearing:
- The facility must present its legal basis for discharge
- You can cross-examine facility staff and witnesses
- You can present evidence: medical records, care plans, your own documentation, and expert testimony
- A Medicaid Fair Hearing is a formal proceeding — representation by an elder law attorney is advisable
Grounds for winning:
- The stated reason doesn't meet one of the six legal grounds
- The stated reason is pretextual (documented pattern shows real motive is different)
- The notice was defective (missing required elements)
- The facility hasn't genuinely tried to address the cited issue
- The resident can be adequately cared for in the facility
Win rates: When families are represented and prepared, discharge appeals have meaningful success rates. Many discharges are reversed or modified — to a different facility of the family's choice rather than the facility's choice.
Still have questions? Read the FAQs below — or let the AI handle it for you →
Frequently Asked Questions
Quick answers to the most common questions on this topic.
Can a nursing home discharge a resident to a homeless shelter?
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No. Federal regulations require that the facility identify an appropriate discharge location for the resident. 42 C.F.R. § 483.15(c)(5) requires that residents be discharged only to safe and appropriate settings. Discharging a frail elderly resident to a shelter or an inappropriate setting violates federal law.
What if the nursing home says it can't meet the resident's care needs?
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This is one of the six legal grounds, but the facility must document specifically why the needs can't be met — and must have actually tried to meet them. If the facility has simply become unwilling to provide care that's within its licensure, that's not the same as incapable. Request documentation of specific care needs and why the facility is unable to provide them.
Does filing an appeal automatically stop the discharge?
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For Medicaid residents who request a Fair Hearing before the discharge date, yes — this typically triggers 'aid continuing,' which keeps the resident in place pending the appeal. For private-pay residents, the protection is less automatic and may require a court injunction. Contact the Ombudsman and an attorney promptly.
What if the resident is being discharged for 'behavioral issues'?
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Behavioral issues alone rarely justify discharge. The facility must first attempt to address the behaviors through appropriate care planning, including behavioral assessments, individualized interventions, and referrals to mental health services. If the facility hasn't genuinely tried these approaches, discharge is premature and potentially improper.
What is a 30-day discharge notice used for most often?
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Non-payment situations, facility-initiated care transitions, and sometimes pretext for other improper reasons. The 30-day window is your appeal window — use every day of it productively. Contact the Ombudsman on day 1, file the appeal by day 10, and use the remaining time to build your case.