Case Management, Guardianship Support, Legal Support

Can My Loved One be Forced to Leave a Nursing Facility?

 September 30, 2015

By  Kimberly German

This week we have a guest blog post written by Carl G. Archer, Esquire.  Mr. Archer is an experienced attorney with a practice limited to elder law, Medicaid applications and litigation, Veterans’ Aid and Attendance benefits, guardianships, and estate planning and administration in New Jersey and New York.  He has worked in caregiver advocacy, support, and elder law topics for over a decade. Mr. Archer knows firsthand how caregivers suffer daily under the constant stress of caring for their loved ones. This constant strain is not something caregivers may recognize on a daily basis, but over the course of years it can take a toll on their physical and mental health. Mr. Archer steps in and guides caregivers through these tough times. His job is to protect elderly people and their families, who sacrifice so much to care for them.

Care managers, who work with the elderly population, understand these issues. They work closely with elder law attorneys to advocate for families and individuals who need that extra bit of help to navigate through the system. Whenever possible, we help to keep people in the community by identifying services and strategies to keep people in their home environment as long as possible. When appropriate, we help to identify placements. In this post, Carl discusses the rights of the family when a nursing home tries to discharge the patient and the family is not in agreement. Working with a good care manager and attorney in situations like these helps to ensure your rights are exercised.

 “Can My Loved One Be Forced to Leave a Nursing Facility?”

Five years ago my friend’s mother was in the hospital with flu-like symptoms and for some (still unknown) reason stopped breathing. After a nine day coma, she was diagnosed with anoxia. She cannot walk, is incontinent and is on a feeding tube. She has been in the same nursing home for the last three years. My friend visits as frequently as possible, but her mother is having anger issues and acting out on a fairly regular basis. Eventually, she met with the Social Services Director, who recommended she take her mother home and secure round-the-clock home health care. They also insinuated that since there is “nothing medically” wrong with her mother, the nursing home really doesn’t need to keep her. My friend has five children at home, and her husband works out of town 48 weeks per year. There is no possible way she can take care of her mother herself. She came to me asking if the nursing facility can legally “kick her mother out.”

In New Jersey, what skilled nursing facilities don’t want you to know is having admitted you into the building, it’s really difficult for a building to involuntarily transfer or discharge someone. Here are the reasons under federal law that allow for an involuntary discharge:

 The resident:

  • endangers the safety or health of other individuals,
  • has medical needs that no longer can be met by the facility,
  • has recovered his or her health significantly so that care is no longer necessary
  • has failed to pay for services, or
  • the facility closes.
  • The State of New Jersey provides additional protections for residents in the regulations, making
  • it a difficult and cumbersome process to involuntarily discharge a resident. This is not to say that
  • the facility’s representatives won’t pressure the caregivers to voluntarily remove their loved ones.

 They certainly will not give you any of this information. This is a situation where an experienced elder law attorney can make an enormous difference in quality of life for you, your loved one, and your entire family. If you get feedback from a skilled nursing or assisted living facility regarding their plans for your loved one, it is critically important that you are aware of your rights so you are able to advocate effectively for yourself and your family.



Archer_113-Finala1-236x300Carl G. Archer, Esquire is a graduate of Rutgers University and Rutgers School of Law-Camden. He has extensive litigation and regulatory experience in New Jersey and New York.


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