Chapter 11: If the Nursing Home Wants to Discharge Your Mother

1.  When the nursing home can force your mother to move out.

A nursing home may discharge (evict) your mother against her wishes, for only four reasons:

  • medical reasons (this means your mother needs medical care the home is not able to provide);
  • your mother’s physical safety;
  • the physical safety of other residents, the facility staff or facility visitors;
  • late payment or nonpayment, if the home follows specific procedural requirements.

Your mother cannot legally be discharged because the staff say she or you are rude or uncooperative or ask too many questions.  She cannot be discharged because the staff do not like her or your “attitude.”   They cannot discharge her because they say you or she are not satisfied with her care.  She cannot be discharged because she refuses to “cooperate” with her care plan or participate in activities.  She cannot be discharged because you or she complains about the facility to the nursing home staff, a government agency, or a state legislator.  The home cannot discharge your mother because of anything you or any other family member or visitor does (except refuse to pay a bill for which you are legally responsible.)  (Of course, if you threaten or otherwise endanger your mother or another person, they can refuse to let you in.)

Except in an “emergency,” the nursing home staff must give your mother written notice of discharge at least 21 days ahead of the date they say she must leave.  Notice must still be given in an emergency, but it does not have to be advance notice.  An “emergency” means:

  • her doctor orders that she be transferred to a hospital or discharged because of her health care needs; or 
  • your mother’s transfer or discharge is “mandated by the physical safety of other residents, the facility staff, or facility visitors.”  

2.  What if your mother goes to the hospital.   

If Medicaid is paying for your mother’s nursing home care and she is hospitalized, your mother has a right to return to the home within 10 days if she is able.  After 10 days, the home must let her move into the first available suitable bed.  “Suitable” means the bed is in a part of the home staffed and equipped to meet her needs, and all roommates would be of the same sex.

If your mother is not on Medicaid and is hospitalized, she has a right to return to the home so long as she has paid whatever amount the home requires to hold the bed.  If she does not pay to “hold” the bed, the home must let her move into the first available suitable bed.  The home cannot refuse to let her pay to “hold” the bed unless it has a lawful reason to discharge her and gives her a discharge notice.

If the nursing home does not want to let your mother return to the home from the hospital, it must give her proper notice.  If it is not an “emergency, “ the home must give your mother 21 days advance notice, and let her return if she appeals within 10 days after getting the notice.  The home cannot simply refuse to let her move back in.


3.  Before the discharge notice

For any resident living in a home in the Medicare or Medicaid programs, (even if Medicare or Medicaid is not paying for the resident's nursing home care) who is being discharged because of health or safety reasons (including protecting other people,) the nursing home must do an assessment and attempt to create a care plan to meet her needs and protect other people, before trying to discharge her.  Such discharges most commonly occur when people with Alzheimer's disease or another dementia strike out or become otherwise aggressive.  This is a normal part of the disease process, and staff should know (or be able to learn) how to anticipate and deflect it, or  keep it from occurring at all.  The Alzheimer's Association booklet on Behaviors may be helpful to you and to the staff in deciding how to respond appropriately to aggressive behavior.


4.  What to do if your mother gets a discharge notice.

The discharge notice must say why the nursing home wants to discharge your mother, and when.  The discharge date must be at least 21 days after the date your mother (or her legal representative) gets the notice.).  The notice must have the address and phone number of the Illinois Department of Public Health.  It must also have the name and phone number of the nursing home resident ombudsman.  

The notice must say that your mother has 10 days to appeal the discharge.  The best way to appeal the notice is to call the phone number for the Illinois Department of Public Health that is on the notice.  You can also write to the Illinois Department of Public Health at the address on the notice.  

The nursing home resident ombudsman will usually be able to file the appeal notice and represent your mother at the appeal, or refer you to a lawyer with whom the ombudsman program works who will represent you for free.  In some areas, lawyers who work for other free legal services programs will represent residents at nursing home discharge hearings.  Of course you can hire an attorney to represent you.

It is almost always better to be represented by a lawyer or the ombudsman at a discharge hearing than not.  Do not let the 10 day period to appeal pass, while you look for somebody to represent your mother.   Call Public Health to tell them your mother wants to appeal the discharge notice.  If your mother does not have a lawyer on the day of the hearing, you can ask the hearing officer to refer her to the ombudsman or a legal services program to represent her.


5.  Discharging a resident who has a criminal record.

After Illinois nursing homes began admitting increasing numbers of residents with serious criminal records, there were also increasing reports of some of these residents threatening and physically injuring other residents and staff.  In response, Illinois law was changed to require that criminal background checks be performed on almost all people entering a nursing home, and that a licensed forensic psychologist evaluate the background and current status of any person entering a home who has a serious criminal record.  (Illinois calls these people "identified offenders.")  If the nursing home staff decide that they cannot "safely manage" a resident who is an "identified offender,"  the home must start discharge proceedings.  Some nursing homes will not admit residents until the criminal background check is completed, because they refuse to admit any residents with serious criminal histories.  They are allowed to do this.

Once an "identified offender" is admitted to a nursing home, however, the reasons for discharging that resident are the same as for everybody else.  As with any other resident, If an "identified offender" endangers other residents or the staff, and the nursing home cannot take measures to protect those other people, the nursing home is required to discharge that resident.  For "identified offenders," the nursing home staff  can use the evaluation done by the forensic psychologist as the basis for deciding that the resident cannot be safely cared for in the nursing home.

Just because a resident has a criminal record -- even a terrible criminal record -- does not mean that person is still dangerous.  There are people living in nursing homes who have criminal convictions from sixty years ago, and have lived model lives since then.  There are people who were convicted of things they would never be charged with today, because laws and societal norms have changed.  And there are people who are physically incapable of hurting anybody.  For these reasons, a nursing home may not automatically discharge a person because of a criminal record.  The discharge must be based on a determination that the person is dangerous now, considering that person's individual circumstances.