Can a Nursing Home Discharge a Resident for Refusing Care?

Refusing treatment is a nursing home resident's right, and a home that wants to discharge her has to point to one of six federal reasons it can show in her record.1,2 So whether a nursing home can discharge a resident for refusing care comes down to which reason the home is claiming and what its paperwork says. When a refusal puts her or others at risk, federal inspection guidance also lists what the home must be able to show first.2 If someone has told you Mom "refuses care" and may have to leave, you can check the home's work against that list.

In This Guide

• Her Right to Refuse Care in a Nursing Home
• Can a Nursing Home Discharge a Resident for Refusing Care? What CMS Expects
• Nursing Home Discharge for Refusing Care: Which Reason Is the Home Claiming?
• What Inspectors Treat as an Unsupported Discharge
• Ask for a Care-Plan Meeting and Her Records
• The Discharge Notice and How an Appeal Stops the Move
• If She's Sent to the Hospital During a Crisis
• If You're Pressed to Sign Her Out
• Who Can Help
• Frequently Asked Questions
• Learn More

Her Right to Refuse Care in a Nursing Home

Hearing that your mother "refuses care" can land like an accusation, as if she's being difficult or you've failed her. She hasn't, and you haven't. Under the federal resident-rights rule at 42 CFR 483.10, a nursing home resident has the right to request, refuse or discontinue treatment.1 The federal resident-rights rule (42 CFR 483.10) also gives a nursing home resident the right to be told in advance, by the physician or another practitioner, the risks and benefits of proposed care and the alternatives, and to choose the option she prefers.1

Nursing home residents also have the right to take part in care planning, including asking for meetings, asking for changes to the care plan, and seeing the plan.1 The right to refuse has one stated limit: the rule says it shouldn't be read as a right to receive treatment or services deemed medically unnecessary or inappropriate.

If your mother can't speak for herself, her representative can exercise her rights to the extent they've been delegated. For a resident a court has found incompetent under state law, her rights pass to the representative appointed under state law, and she must still be given chances to take part in care planning where practicable.1 Our guide to nursing home residents' rights covers the full list, and our guide on what the ombudsman can do when Mom can't consent covers the harder cases.

Her refusals also belong in her care plan. Federal care-planning rules require the comprehensive care plan to describe any services she would otherwise get but doesn't, because she exercised her right to refuse treatment.2

Can a Nursing Home Discharge a Resident for Refusing Care? What CMS Expects

The Centers for Medicare & Medicaid Services (CMS) tells state inspectors how to judge nursing home discharges in its F627 surveyor guidance, part of Appendix PP of the State Operations Manual, reissued in Transmittal 232. CMS's F627 guidance says residents have a right to remain once admitted, and that discharging a resident violates that right unless the facility can demonstrate that one of the limited circumstances in the federal discharge rule is met.2

CMS's F627 guidance then addresses refusal of care directly. When a resident's choice to refuse care or treatment poses a risk to her own or others' health or safety, the nursing home's records should show each of these:2

If the home can't resolve a refusal that poses that kind of risk, CMS says the administration, nursing and medical director "may wish to convene an ethics meeting, which includes legal consultation," to decide whether the facility can meet her needs or whether she should be transferred or discharged.2 That's permissive wording, so don't expect every home to hold one. But it also means CMS's guidance contemplates that an unresolved, risky refusal can end in a transfer or discharge decision. Your leverage is in the steps above: if the care plan, the risk notes or the reassessment are missing, ask why.

Nursing Home Discharge for Refusing Care: Which Reason Is the Home Claiming?

Federal rules let a nursing home discharge a resident only for one of six reasons, listed at 42 CFR 483.15: her needs can't be met there and the move is necessary for her welfare; her health has improved enough that she no longer needs the facility's services; the safety of people in the facility is endangered by her clinical or behavioral status; the health of people in the facility would otherwise be endangered; she hasn't paid after reasonable notice; or the facility is closing.2 Our nursing home discharge rights guide walks through all six.

CMS files its refusal-of-care guidance under the heading for three of those reasons: needs that can't be met, endangered safety, and endangered health.2 So if a notice ties the move to her refusals, check which reason it actually names, then check the medical record against the rule for that reason.

The table follows the federal documentation rule at 42 CFR 483.15(c)(2), which also requires the home to send appropriate information to the place receiving her.2 Here's what that means for Mom. If the notice says her condition or behavior endangers other people, CMS's F627 guidance says a physician has to document the reason, though not necessarily her own doctor, and where state law allows, a non-physician practitioner may complete the discharge paperwork.3 So ask to see that note. CMS lists a safety or health discharge with nothing in the medical record to support it as an example of an unsupported discharge, which makes a missing note something you can point to in a care-plan meeting or an appeal.3

What Inspectors Treat as an Unsupported Discharge

It helps to know how an inspector reads the file you're about to ask for. CMS's F627 guidance tells surveyors to look for noncompliance when evidence suggests a facility shouldn't have discharged a resident at that time, or at all. One of the circumstances it lists is a medical record that doesn't support the stated basis for discharge, and the examples it gives, which it says aren't the only ones, include:3

• A discharge for needs that can't be met, with no evidence the home tried to meet them, or no assessment at the time of discharge showing which needs can't be met.
• A discharge because others' safety or health is endangered, with nothing in her medical record supporting it.
• A discharge carried out while her appeal is pending, with no documentation that keeping her would endanger the health and safety of people in the facility.

CMS also describes one case it treats as immediate jeopardy (Severity Level 4). A nursing home discharged a resident, saying it couldn't meet his needs. A complaint investigation found that while he was depressed and had challenging behaviors requiring staff attention, he didn't have needs the facility couldn't meet, and the facility was caring for other residents with similar behaviors. He was also discharged to an unsafe setting, or in a manner, that placed him at risk for serious harm.3 Both parts matter in that example, and it's one case on its own facts, not a general rule about residents whose behavior is hard to manage.

Where she's going matters too. The written discharge notice must name the location she's being sent to, and CMS's guidance says discharge planning must make sure the destination meets her health and safety needs and preferences.2

Ask for a Care-Plan Meeting and Her Records

You know your mother in ways a chart never will. Because she has the right to request care-plan meetings and revisions, you or she can ask for a meeting to talk through what she's refusing and whether a different approach would work.1 Ask the team the question CMS's steps require: would a change to the plan let the home meet her needs?

Before that meeting, ask for her records. A nursing home must give a resident access to her personal and medical records within 24 hours of an oral or written request, not counting weekends and holidays, and must provide copies on 2 working days' notice for a reasonable, cost-based fee.1 When you read them, look for the five items in the checklist above, and for any physician note about a discharge reason.

If the refusal is about medication, one more right is worth knowing. A resident has the right to be free from chemical restraints imposed for discipline or convenience and not required to treat her medical symptoms.4 Federal pharmacy rules also require that a resident who hasn't used psychotropic drugs not be given them unless they're necessary to treat a specific condition diagnosed and documented in her clinical record.5

The Discharge Notice and How an Appeal Stops the Move

Before discharging her, the home must tell her and her representative in writing, in a language and manner they understand, and send a copy of the notice to the Long-Term Care Ombudsman Program.2 The notice must state the reason, the effective date and the location she's being moved to.2 A nursing home's written discharge notice must also explain the resident's appeal rights, including how to reach the entity that hears appeals and how to get an appeal form and help filing it, and must give the contact information for the state's Long-Term Care Ombudsman office.2,6

Timing depends on the reason. Under federal rules, a nursing home must usually give written discharge notice at least 30 days before the move, but when others' safety or health would be endangered, the notice must come as soon as practicable instead.2

Appealing is the strongest step most families have. Once a resident appeals, the nursing home may not transfer or discharge her while the appeal is pending, unless failing to move her would endanger the health or safety of her or others, and the home must document that danger.2 The deadline to appeal is set by your state, within a federal cap of 90 days from the date the notice is mailed, and the federal rule doesn't require the notice to state the deadline.7 Call the appeal entity named on the notice the day it arrives and ask for the deadline. The hub guide's appeal steps cover the hearing itself.

If She's Sent to the Hospital During a Crisis

Sometimes a hard week ends with an ambulance. CMS's guidance treats an emergency trip to the hospital as a transfer, not a discharge, because her return is generally expected, and residents sent out this way must be permitted to return.2 If the home decides to discharge her while she's hospitalized, it must have evidence that her condition when she seeks to return, not when she left, meets one of the first four discharge reasons.2 CMS's refusal-of-care guidance makes the same point: the home must fully evaluate her, not judge her by her status when she was sent to the hospital.2

You can appeal from the hospital. CMS's guidance says that if she or her representative appeals while she's in the hospital, the home must allow her to return during the appeal unless there is evidence it can't meet her needs or that her return would pose a danger to the health or safety of her or others.2 Another passage of the same guidance states the exception more narrowly, as documented evidence that her return would endanger health or safety. Our guide to a nursing home refusing to readmit a resident covers this situation in depth.

If You're Pressed to Sign Her Out

Sometimes the message isn't a notice at all. It's a suggestion that the family take her home, or a form to sign her out against medical advice (AMA). Federal rules give residents the right to exercise their rights free of interference, coercion or reprisal from the facility. CMS's guidance says AMA sign-outs should be thoroughly investigated to find out whether the resident or her representative was forced, pressured or intimidated into leaving, and that a home offering to discharge a resident to a place that doesn't meet her health or safety needs is noncompliance even if she agrees.1 Our guide to pressured and unsafe nursing home discharges explains what to ask for before anyone signs.

Who Can Help

You don't have to argue this alone. Every state has a Long-Term Care Ombudsman program, a federally mandated advocate for nursing home residents whose services are free and confidential. The ombudsman program investigates and resolves complaints made by or on behalf of residents, and it follows the resident's wishes when someone else files the complaint.8 The Administration for Community Living points families to a state directory to find their program.8 A nursing home must not prohibit or discourage a resident from talking with the ombudsman.6 Our Long-Term Care Ombudsman guide explains what the ombudsman can and can't do.

You're also not the first family to make that call. The HHS Office of Inspector General reported in 2021 that state ombudsman programs cited complaints about discharge and eviction more often than any other concern from 2013 through 2019.9

Worried that speaking up will make things worse for her? Under the Older Americans Act, each state must prohibit retaliation or reprisal by a facility against any resident or other person for filing a complaint with, or cooperating with, the ombudsman, and must provide for sanctions.10

Learn More

Find personalized help checking a nursing home discharge notice against your parent's care plan at brevy.com.

The information on Brevy.com is for educational purposes only and is not a substitute for professional legal, financial, or medical advice. Rules vary by state and program and change frequently. Always verify with the relevant agency or a qualified professional. Brevy is not a law firm, financial advisor, or healthcare provider.