Back to Articles

August 15, 2012

Nursing Home Discharges

What happens if nursing home staff wants to discharge your 97-year old mother and you think it is not in her best interests to come home? Are there rules in place to prevent nursing homes from “dumping” difficult patients or those for whom this would not be a safe discharge?

Federal law requires nursing homes to make a “safe and orderly” discharge when transferring or discharging any patient.1

Furthermore, the nursing home may only transfer or discharge a patient if one of the following six conditions exists:

  1. The transfer or discharge is necessary to meet the resident’s welfare and the resident’s welfare cannot be met in the facility.
  2. The resident’s welfare has improved sufficiently so the resident no longer needs the services provided by the facility.
  3. The safety of residents in the facility is endangered.
  4. The health of individuals in the facility would otherwise be endangered.
  5. The resident has failed, after reasonable and appropriate notice, to pay for a stay at the facility.
  6. The facility ceases to operate.

The patient record must show which condition exists that would allow the transfer or discharge. In addition, if items (1) or (2) above are noted, then the resident’s physician must approve the discharge.2

The nursing home must give the patient and immediate family, if known, thirty (30) days advance notice of intent to discharge the patient.3 There are some exceptions to the full thirty day notice, but for the most part, thirty days advance notice will be required. Even with an exception, the law requires as many days advance notice as practicable.4

If the resident or immediate family objects to the proposed transfer or discharge then an Administrative Hearing is required.5

I recommend that the objecting family, having received a notice of intent to discharge their loved one, immediately contact the Long Term Care Ombudsmen (aka Patient Rights Advocate) to receive counsel and advice on whether a hearing is appropriate and as to what proof is required at the hearing to convince the fact finder that the attempted discharge is “unsafe”.

Information for the local ombudsman for your county can be found at:

Remember that the issue is whether the transfer or discharge will result in an unsafe environment for the patient. This is not a “best interest” test which would require that the optimal situation for the health of the patient must be found. You may be familiar with your parent’s needs and wants, and thereby know his or her wishes regarding skilled nursing and activities of daily living, yet this is not a matter of choosing the best option, but instead, a reasonably safe environment. As a result, before objecting to a discharge you must be confident that the motivation for the objection is not a desire to avoid the “burden” of one’s parents, but instead, a factually based position that the alternative residence setup is potentially dangerous to the health of the resident.

Examples of unsafe discharges would include the discharge of a resident that lacks the ability to follow simple instructions regarding taking medicine or who cannot afford around the clock home aides. In these situations, the resident should remain in the facility. In New York State there is no law, as of yet, which requires a child to provide support for his or her parent. The fair hearing burden of establishing that proper care can be provided outside the nursing home is upon the nursing home itself.

Put them to the test.

1 42 U.S.C. 1396(r)(2)(C)(2)(C).
2 Id. At subparagraph (2)(A)(i-vi).
3 Id. At subparagraph (2)(B).
4 Id.
5 42 U.S.C. 1396(r)(2)(E)(3)