Nursing Facility Discharge - How to Respond

Family members call because a nursing home is trying to discharge their loved one either back home or to a different facility. Fortunately, both Virginia and federal law protect residents when nursing facilities wish to discharge a resident.

Nursing facilities can only discharge a resident for specific reasons. They are:

  1. The discharge is necessary to meet the resident's care which otherwise cannot be met by the facility;

  2. The discharge is necessary for the health and safety of the resident or for the health and safety of other residents;

  3. Nonpayment to the facility for services to the resident;

  4. The facility ceases to operate.

Even more important is the law requires the facility give 30 days notice to the resident of the impending discharge and their right to a pre discharge hearing. Hearings for the pre discharge hearing is held before the Virginia Department of Medical Assistance Services (DMAS).

If a hearing is requested before the 30 days notice has expired, all discharge actions must cease until the hearing officer makes a decision as to the legality of the discharge. The right to a pre discharge hearing applies to all residents whether private pay or on Medicaid or Medicare.

Issues that frequently invalidate the discharge action include:

  • Does the notice of discharge meet the strict requirements of a discharge notice;

  • Does the reason for the discharge meet the limited statutory reasons for a discharge;

  • If the reason for the discharge meets the statute is the evidence sufficient to allow a discharge;

  • Does the discharge plan meet safety and health requirements for the resident and has the medical facility's physician approved the discharge plan?

The last issue is particularly important because the facility cannot discharge the resident to an unsafe location. Often times the medical director is not aware of the discharge much less sign off on the discharge plan.

Nevertheless, a discharge action by the facility is always traumatic for both the resident and the family. However, in my experience, filing for a pre discharge hearing makes everyone step back and ask if there is a better solution then the one proposed by the facility. Can the discharge issue be remedied or is there a more appropriate facility to effectuate a safe and voluntary discharge?

The main issue is to insure that resident rights are protected. Knowledge of those rights is paramount.

Edward Zetlin Law is experienced in such issues. Don't hesitate to call if you face such an issues or if you have additional questions. Edward Zetlin Law would be happy to discuss. Please contact us at 703-379-0442 or e-mail at

Contact us at (703)379-0442;

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