People trust their loved ones to nursing homes, but staff may engage in abuse and neglect in various ways. One type of abuse that is not often talked about is wrongful discharge.
Wrongful discharge from a nursing home occurs when a resident is discharged or transferred without following proper legal procedures or for an unlawful reason. Nursing homes can only discharge residents under specific circumstances, such as if the resident's health improves and they no longer need nursing home care. Residents are entitled to written notice of a discharge or transfer, including the reason, proposed date, and information on how to appeal.
To learn that your loved one has been discharged from a nursing home without the resident’s consent can be a frustrating situation. Fortunately, there are options available. Contact Newman Law Group, LLP, to discuss your situation and see how our skilled legal team can help you.
The Laws
California and federal laws are in place to provide strong protections against nursing home evictions. Residents have several rights in this regard to prevent inappropriate and unnecessary transfers and discharges.
- The resident’s needs can no longer be met at the facility.
- The resident’s health has improved to the point that facility services are no longer necessary.
- The resident’s behavior or condition poses a danger to others’ safety.
- The health of others in the facility would otherwise be at risk.
- The facility is closing.
- The resident has not paid after receiving proper notice and opportunity.
Reasons for Wrongful Discharge
Wrongful discharge often happens in two main ways:
- Resident dumping. Nursing homes may try to remove residents they see as difficult or undesirable, a practice known as “resident dumping.” However, a facility cannot discharge a resident unless all legal procedures are followed. Federal law requires nursing homes to provide the care needed for residents to reach their highest physical, mental, and emotional well-being. Dumping often signals a failure to meet that standard.
- Retaliation. It is illegal for a facility to evict a resident in retaliation for a complaint filed on their behalf. Under California law, any eviction within 180 days of such a complaint is presumed to be retaliatory.
Fighting a Nursing Home Wrongful Discharge
If you or a loved one is facing a wrongful discharge from a nursing home, you have legal rights and remedies.
Here are the steps to take:
1. Demand a Written Notice of Discharge
Under federal law, a nursing home must give a written notice at least 30 days before a planned discharge or transfer (except in emergencies).
This notice must include all of the following, or else it is not considered valid:
- The reason for the transfer or discharge
- The effective date of the transfer or discharge
- The name and address of the location to which the resident will be transferred or discharged
- A statement of the resident’s appeal rights, along with instructions on how to request a hearing and where to get help with the appeal process
- Contact information for the Transfer and Discharge Appeal Unit operated by the Office of Administrative Hearings and Appeals within the California Department of Health Care Services. This includes the name, mailing address, email, and phone number.
- The name, mailing address, phone number, and email of the Long-Term Care Ombudsman
- For residents with a developmental, intellectual, or mental disability, the notice must also include the contact information for Disability Rights California, the state’s protection and advocacy agency
- A statement advising the resident that they may represent themselves or be represented by an attorney, family member, friend, or other representative
2. File an Immediate Appeal
You have the legal right to appeal any discharge you believe is unjustified. Ask the facility for the appeal form or contact the ombudsman to help file. Submit it in writing as soon as possible. You often have 10 days to file to stay the discharge until a hearing is held. The discharge is typically put on hold while the appeal is pending.
During the appeal process, you have the right to:
- Review all documents and records the skilled nursing facility plans to use at the hearing, both beforehand and during the hearing itself.
- Present all relevant facts and evidence related to your case.
- Call witnesses to testify on your behalf.
- Make your case without unnecessary interference.
- Challenge any testimony or evidence.
- Cross-examine witnesses who testify against you.
3. Involve the Long-Term Care Ombudsman
Every state has a Long-Term Care Ombudsman Program that advocates for nursing home residents. The ombudsman can:
- Investigate whether the discharge violates federal or state law.
- Help mediate between you and the facility.
- Assist with filing appeals or complaints.
- Attend hearings with you if needed.
4. Document Everything
Keep a detailed record of conversations with nursing home staff. Make copies of all notices and correspondence. Jot down dates of any threats, pressure, or retaliation. Also, get statements from doctors or family.
5. Consult with an Elder Law Attorney
You don’t have to handle a wrongful discharge on your own. Hiring a lawyer can be very helpful. If you're facing resistance or your appeal is denied, an elder law attorney can:
- Review the discharge notice for legal violations.
- Represent you at administrative hearings.
- Help request an injunction to stop the discharge.
- File a lawsuit if the discharge is retaliatory or discriminatory.
Contact Newman Law Group Today
A nursing home can discharge a patient if it is done properly. If procedures are not followed, a facility can face legal issues.
Wrongful discharge from a nursing home can be considered elder abuse. Get the help you need from a Sacramento wrongful discharge attorney from Newman Law Group, LLP. We have practiced elder law for three decades and can fight your case from every angle.
Fill out the online form or call (916) 352-3224 to schedule a consultation today.
