Understanding Nursing Home Discharge Requirements
California and federal nursing home discharge regulations protect residents from unnecessary evictions and discharges. Nursing home residents rights include the right to stay at their facilities unless they receive adequate documentation (defined below, 1 thru 6) specifying the reasons for their discharge.
Getting notice of discharge without legal justification and prior warning can be shocking for a resident and their family. If the facility unfairly discharged your loved one, a nursing home abuse lawyer from Berberian Ain LLP can help you challenge the discharge and explore your legal options.
There Must Be Valid Reasons for a Transfer and Discharge
If a nursing home decides to discharge a resident, it must be for a legally valid reason. A notice for discharge from a nursing home must contain one of the following six reasons:
- The facility cannot meet the resident’s needs
- The resident’s health improved sufficiently, and they no longer need the facility’s services
- The resident’s clinical and behavioral status endangers the other residents’ safety
- The health of residents would be in danger
- The resident has failed to pay after reasonable and appropriate notice
- The facility shuts down
Can a Nursing Home Kick a Patient Out?
Nursing home eviction laws require nursing homes to resolve the reason for discharge and address the issues before kicking a patient out. If the nursing home can no longer meet the resident’s needs, the nursing home must document the following in the resident’s records:
- The resident’s medical needs
- The facility’s efforts to meet those needs
- Services available at the new facility that will address the resident’s needs
A resident’s physician must provide documentation if the facility claims it cannot meet their needs, the resident no longer requires its services, or the nursing home claims that other patients’ health or safety is at risk.
Can a Nursing Home Discharge a Patient for Non-Payment?
If the facility claims non-payment from the resident, the resident must provide adequate paperwork for third-party payment, such as a Medicaid application and evidence that payment is pending. A nursing home cannot discharge a resident if their Medicaid application is denied and they are appealing the decision.
The Notice Must Contain Details Regarding the Discharge
Residents and their representatives must receive the notice 30 days before the discharge date. The nursing home facility must include the following information in the notice:
- Reasons for transfer or discharge.
- Transfer or discharge date.
- The proposed new location for the resident.
- Information on the resident’s right to appeal, including how to obtain the appeal form and submit it.
- Contact information for the Office of Administrative Hearings and Appeals and the California Department of Public Health.
- Contact information for Disability Rights California for residents with developmental, intellectual, or mental disabilities.
- Statement permitting the resident to self-represent, use legal representation, or have another spokesperson appeal on their behalf.
If any items are missing from the notice, it is considered invalid, and the resident does not have to leave. Verbal discharges from nursing home staff members do not count as official discharges. Nursing homes may attempt to force out residents with verbal orders, threats, and harassment in a self-eviction attempt. Residents who receive verbal discharge instructions may ask for a written notice.
Are There Exceptions to the 30-Day Rule for a Notice of Discharge?
In California, nursing homes can provide reasonable advance notice of transfers and discharges in writing, except in emergency situations. Federal law allows notice to be given as soon as possible before the transfer or discharge, provided that the following conditions apply:
- The health and safety of the residents are at risk.
- An urgent medical need for the resident requires an immediate transfer.
- The resident’s health has improved to the point when the nursing facility can discharge or transfer them quickly.
- A resident has resided in the facility for fewer than 30 days.
Nursing home dumping may occur when a resident receives temporary treatment in the hospital and another resident takes over their bed. When the patient is released from the hospital and wants to return to the nursing home, the facility denies readmittance and sends them back to their families.
Nursing homes that dump residents violate federal and state laws regarding transfers and discharges. If a nursing home must discharge a resident, it must satisfy all discharge planning requirements to ensure the resident’s physical and emotional well-being.
What Are the Discharge Planning Requirements?
Nursing facilities should provide residents with a discharge plan that involves steps the resident and their families can take to meet their discharge goals. A discharge plan can minimize the transfer trauma that can cause anxiety or depression in new residents.
If a nursing home plans to transfer a resident, it must work with the resident to choose a facility that can meet the resident’s needs based on the quality of the facility and the resident’s treatment preferences. Nursing homes must refer residents to appropriate community services and resources if the transfer is to a long-term home or community setting.
The facility has to create a discharge summary that details the following:
- Discharge plan for alternative care and housing arrangements
- Follow-up guidance for the resident’s care team of caregivers and doctors
- The new facility’s location for the discharged resident
- Information on medications, therapies, services, durable medical equipment, and care needed after discharge
Additionally, the nursing home must prepare and orient the resident in a language and manner that they understand for a safe and orderly discharge. Residents and their representatives are entitled to participate in all aspects of discharge planning. As part of the planning, the residents can visit the new facility to see if it meets their medical needs and preferences.
Appealing a Nursing Home Discharge Summary
Nursing home residents are entitled to appeal to the Office of Administrative Hearings and Appeals (OAHA) before discharge if they believe they have been mistreated. The OAHA guarantees a fair appeals process to nursing home residents.
An OAHA hearing representative oversees and records the hearing. They also take sworn testimony from participants. Nursing facilities have the burden of proof that their actions comply with federal and state laws.
During the hearing, the resident and their representative present relevant testimony, including testimony from witnesses. They also have the right to:
- Examination of all the nursing facility’s documentation for use before and during the hearing
- Identification of all relevant facts and circumstances
- Presentation of an argument without undue interference
- Interrogation and rebuttal of any testimony or evidence, including cross-examination of witnesses
After the hearing, the OAHA representative will write a Decision & Order for their final administrative decision.
A resident must file their appeal before the discharge date. The facility cannot discharge the resident until OAHA decides the outcome of the appeal.
Can You Check Yourself Out of a Nursing Home?
If a nursing home believes you are mentally and physically competent, they can let you leave. The staff members may assist you in packing and have you sign a discharge form to limit liability if there are any problems after you leave.
However, residents can choose to undergo voluntary discharge from a nursing home in neglect and abuse cases. In Samantha B. v. Aurora Vista Del Mar, the plaintiffs discharged themselves to other facilities after experiencing egregious abuse from the defendant.
Can a Nursing Home Refuse to Discharge a Patient?
The decision of the nursing home to refuse a resident discharge should be based on the resident’s health and well-being. All nursing home residents must be mentally competent to make medical decisions, including leaving the facility.
If a resident is mentally unable to decide for themselves, the nursing home can refuse to discharge a patient. Instead, the resident can designate a personal representative to make medical decisions on their behalf. A resident who cannot leave a nursing home voluntarily should consider working with a lawyer for nursing home abuse and neglect.
Obtain Legal Representation After an Unsafe Discharge From a Nursing Home
If you or a loved one have been wrongfully discharged, transferred from a nursing home or have any questions regarding a discharge, our nursing home neglect lawyers at Berberian Ain LLP can help answer your questions by requesting a free consultation. We can investigate your notice to ensure it lists the reason for your discharge, follows all state and federal guidelines, and helps you seek compensation if a case exists.
We can also represent you in an OAHA hearing to present evidence and appeal your discharge. Contact us today or complete our online form for a free consultation.
42 CFR §483.15 Admission, transfer, and discharge rights
42 CFR §483.21 Comprehensive person-centered care planning.
42 CFR §431.242 Procedural rights of the applicant or beneficiary.
H&S Code §1418.81 Quality of Long-Term Health Facilities