The Only Reasons You Can Be Legally Discharged From a Nursing Home

They all look nice when they are taking your money, but what about when the money is gone and your family member needs Medicaid? I have recently seen a disturbing increase in the number of Houston area nursing homes that threaten and attempt to discharge a resident simply because their Medicaid application is pending. Is this legal? How can you fight an illegal discharge?

It may not always seem like it, but nursing homes are subject to certain laws that they must follow. While it is not uncommon for nursing home administrators to make threats to family members about discharging their loved one for any reason they can think of, there are only a handful of valid legal reasons that a nursing home can discharge a resident against their will. Unfortunately this is a growing trend with Houston area nursing homes which I hope does not spread to other parts of Texas. One of the most common situations arises when the nursing home resident has applied for Medicaid benefits and stops paying the nursing home while the application is pending which can be 45-90 days or more if a hearing is required.

Let’s start at the beginning, which is a nursing home cannot discharge a resident unless they can fit the discharge into one of the valid legal reasons below. They cannot make up a new reason on their own, it has to be one of these established reasons. Here is the law, exactly as written in Texas and in the Federal Code:

The facility must permit each resident to remain in the facility and must not transfer or discharge the resident from the facility unless:

(1) the transfer or discharge is necessary for the resident’s welfare, and the resident’s needs cannot be met in the facility;

(2) the transfer or discharge is appropriate because the resident’s health has improved sufficiently so the resident no longer needs the services provided by the facility;

(3) the safety of individuals in the facility is endangered;

(4) the health of other individuals in the facility would otherwise be endangered;

(5) the resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare or Medicaid) a stay at the facility. For a resident who becomes eligible for Medicaid after admission to a facility, the facility may charge a resident only allowable charges under Medicaid;

(6) the resident, responsible party, or family or legal representative requests a voluntary transfer or discharge; or

(7) the facility ceases to operate or participate in the program which pays for the resident’s care.

Number 5 is the rule that comes into play when a nursing home resident has applied for Medicaid and an overzealous Administrator believes they can easily discharge a resident while the application is pending. As you can see, the rule is not written as clear as it could be to include a prohibition of discharge while a Medicaid application is pending. In my opinion, even as poorly written as it is, it does leave the door open to prevent a discharge while the Medicaid application is pending if you make the right argument. Unfortunately, the people responsible for interpreting and applying this rule are the Health and Human Services Commission who may take a different approach for policy reasons. If they disagree with this interpretation then your last chance is to appeal to the appropriate court and attempt to convince a judge. Remember, it is the nursing home’s burden to prove the discharge satisfies the criteria above; it is not your burden to prove anything prevents the discharge.

Get Help Today

This is only the beginning of our discussion on improper discharges from Houston nursing homes. If you or a family member has been the victim of an improper discharge contact us and share your story so other families can avoid nursing homes that act in this what I consider illegal way. If you are a nursing home administrator that rejects this horrible practice and will not attempt to discharge a resident simply because they applied for Medicaid let us know so we can recognize your fairness.

If your family member is going to be applying for Medicaid benefits in the future, be prepared and consider obtaining legal help before the resources are all spent on the nursing home that may end up attempting to discharge your family member that gave them all of their money. Call (832) 592-7913 today. is your connection to an experienced Houston Medicaid Attorney who can help you find the right nursing home, get the best care, and pay for it all without going broke. We are currently focused on Harris and Montgomery Counties, including the areas of Houston, Conroe, The Woodlands, Spring, Tomball, Humble, and Katy. We also provide Elder Law and Medicaid consulting services throughout all of Texas.

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  1. My husband is in a nursing home, I have applied for Medicad, it has not yet been approve. My open an QIT funds for him. Can they still take my home after I die?

  2. I am not sure I understand your question. A Qualified Income Trust is only for Medicaid applicants who receive more than $2,022 per month in income and is not connected with Medicaid Estate Recovery from a home. The best strategy for protecting a home or any asset is to hire an experienced Medicaid attorney before applying for Medicaid. Once the application process is started your asset protection options become less and less as time passes.

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