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Fighting Nursing Home Evictions

July 1, 2021

Federal Law

Federal law allows eviction from a nursing facility only for six reasons:

  1. The resident has failed to pay.
  2. The resident no longer needs nursing facility care.
  3. The resident’s needs cannot be met in a nursing facility.
  4. The resident’s presence in the nursing facility endangers others’ safety.
  5. The resident’s presence in the nursing facility endangers others’ health.
  6. The nursing facility is going out of business.

If a nursing facility believes that it has grounds to evict a resident, it must give a written notice to the resident and resident’s representative in a language that the resident and representative understand. The notice must include the alleged reason for the eviction, the planned eviction date, the location to which the resident will be transferred, an explanation of the resident’s appeal rights, and contact information for the long-term care ombudsman program. In general, the notice must be given at least 30 days before the planned eviction, although in some cases a shorter notice period is allowed.

If the resident appeals, a hearing officer decides whether the nursing facility will be allowed to carry out the eviction. Hearing procedures vary from state to state. Generally the hearing is held in the facility itself.

The relevant federal regulations can be found at section 483.15(c) of Title 42 of the Code of Federal Regulations.

How to Challenge an Eviction

There are two simple steps in challenging an eviction:

  1. Don’t move out!
  2. Request an appeal hearing.

The “don’t move” advice seems obvious but in fact, many residents panic and move out after receiving a notice. Residents should resist any such sense of panic. Residents win most appeal hearings (with state-to-state variance), and there generally is little downside to remaining in the nursing facility and requesting a hearing. The request for a hearing generally should be made to the designated state agency, which should be identified in the eviction notice. If the notice does not include the necessary information, the resident or representative should make phone calls or do internet research to identify the correct phone number or e-mail address. Understand that the agency conducting the hearings may or may not be the same agency that investigates complaints against nursing facilities. In this case, the resident is requesting a transfer/discharge hearing, which is not the same as filing a complaint.

Recognizing Improper Evictions

Below are summaries of seven common types of evictions, ways to recognize them, and tips for fighting them. Suitable for use by legal services offices and ombudsman programs.

Challenging a Nursing Home Eviction: Facility Claims that It Cannot Meet Resident’s Needs, Arguing that Resident and/or Family Members Have Complained About Quality of Care

Challenging a Nursing Home Eviction: Facility Claims That Residents Must Leave When Their Medicare Ends

Challenging a Nursing Home Eviction: Facility Claims That the Resident Has Refused Health Care

Challenging a Nursing Home Eviction: Facility Tries to Evict Because Medicaid Has Claimed Resident Is No Longer Eligible

Challenging a Nursing Home Eviction: Nursing Home Claims That Resident Has Broken Facility Rules

Challenging a Nursing Home Eviction: Facility Claims Non-Payment While Medicaid Application Is Pending

Challenging a Nursing Home Eviction: Facility Claims That Resident Is Endangering Others

Administrative Hearing Briefs

Below advocates can access, download, and adapt five sample briefs developed by Justice in Aging for defending residents at eviction hearings.

Facility Alleges Nonpayment for Charges Incurred Prior to Resident’s Medicaid Coverage

Facility Bases Transfer/Discharge on Supposedly Endangering Safety of Others

Facility Bases Transfer/Discharge on Supposed Need for Higher Level of Care

Facility Alleges Nonpayment While Resident’s Medicaid Application is Pending

Facility Bases Transfer/Discharge on Resident’s Refusal of Treatment

Seeking Court Order to Stop Hospital Dumping

One common way that nursing facilities evict residents is by refusing to allow them to return after hospitalization. Below are three sample complaints for seeking injunctive relief that advocates can download and adapt.

Kentucky Sample: Complaint When Seeking Injunctive Relief to Allow Nursing Facility Resident to Return to Facility from Hospital (Can be adapted for use in states other than Kentucky.)

New Mexico Sample: Application for Immediate Injunctive Relief to Allow Nursing Facility Resident to Return to Facility from Hospital (Can be adapted for use in any state that uses a four-part injunctive relief test similar to the test used in New Mexico.)

Kansas Sample: Application for Immediate Injunctive Relief to Allow Nursing Facility Resident to Return to Facility from Hospital (Can be adapted for use in any state that uses a five-part injunctive relief test similar to the test used in Kansas.)

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