The Discharge Notice: When They Say She Has to Leave

The appeal window can be as short as ten days, and the worst thing you can do is comply quietly.

What is an involuntary discharge?

A facility telling you that the person living there has to leave. It is the most common complaint in long-term care in the country, and it has held that position for seven straight years.

It usually arrives after something: a hospital stay, a psychiatric admission, a period of resistance to care, a Medicare benefit ending, or a Medicaid application still in process. Sometimes it comes as a formal letter. Sometimes it comes as a phone call telling you to start looking, which is not a notice at all and should not be treated as one.

What kind of facility is she in?

Everything follows from this, and most families get it wrong.

• A nursing facility certified by Medicare or Medicaid is governed by federal law. It may discharge for only six reasons: her needs cannot be met there; she no longer needs the services; her presence endangers the safety of others; her presence endangers the health of others; nonpayment after reasonable notice; or the facility is closing. Notice must be written, in her language, generally at least 30 days in advance, must state where she is going, must be documented by her physician, and must tell her how to appeal.
• Assisted living, residential care, and most memory care are licensed by the state. None of those federal protections apply. What governs is state law and the residency agreement.

Most memory care in this country is licensed as assisted living. Most families assume the nursing home rules cover them. Find out which one you are in before you do anything else — the answer changes every step that follows.

Read the notice for what is missing

A defective notice is itself a ground for challenge.

In a certified nursing facility, the notice should contain the reason for the discharge, the effective date, the specific location she is being discharged to, contact details for the ombudsman program, a plain statement of the right to appeal, and the means to request a hearing.

Notices arrive missing several of those routinely. “Her needs exceed our capabilities” with no detail is not a reason. A destination of “home” when there is nobody at home is not a destination. Point out what is absent, in writing, and copy the ombudsman.

The reason they give is often the weakest part

Certain stated reasons are commonly improper, and knowing which ones changes the conversation.

• “Her behavior.” The most common and the most frequently improper. Behavior that has not been assessed for a medical cause, or addressed with a changed care plan, is a care planning failure rather than grounds for eviction. Ask what was ruled out — pain, constipation, infection, a new medication — and what was tried.
• “Medicare has stopped paying.” The end of a rehabilitation benefit is not grounds for discharge. She has the right to remain and pay privately or through Medicaid.
• “We do not take Medicaid at that rate.” A certified facility generally may not discriminate by payment source.
• “Her Medicaid application has not come through.” Nonpayment while an application is pending is usually not the same as nonpayment.
• “She needs one-to-one care.” Needing more care is not automatically needing a different building, and the facility is expected to show what it did.

The strongest ground a facility has is genuine danger to other residents, and even that requires documentation and evidence of what was attempted first.

What to do, in the first 48 hours

• Call the long-term care ombudsman. Free, independent, and this is precisely what they do. Call before deciding anything.
• File the appeal if there is one, even if you are unsure. It is far easier to withdraw an appeal than to revive an expired deadline.
• Do not move her out. Most residents lose these by leaving voluntarily rather than by losing a hearing. Once she is gone, the leverage is gone.
• Request a care plan meeting and ask what would have to change for her to stay. Sometimes the answer is a medication review, a different aide, or hospice involvement — and sometimes the notice is really a negotiating position.
• Put everything in writing. Follow every phone call with an email summarizing what was said and who said it.
• Request the records: the care plan in force, the incident reports behind the stated reason, and the staffing on the relevant shifts.
• Contact legal aid or an elder law attorney, particularly if she is being kept out of a facility she has a right to return to.

How to make it less likely

The questions that prevent this get asked on the tour and before any hospital admission.

Ask on the tour what would make them ask a resident to leave, what the notice period is, and whether they have discharged anyone in the last two years and why. Ask what the highest level of care they offer is, because that ceiling is where the discharge conversation eventually starts.

And before any hospital or psychiatric admission, get the bed-hold terms in writing — how long it is held, at what cost, and what would make them refuse to take her back. One email, sent before she leaves, is worth more than any argument made afterward.