Q.  My father was discharged from the hospital into a nursing home, has been there only about 2 weeks under MediCARE, and now they are pressing us to bring him home. But, he’s not ready and still needs care. Is this right?

A.  No, it is not. Unfortunately, many nursing homes are concerned about whether MediCARE will continue to pay for care after the initial 20 days, and so often pressure the family to bring their loved one home, or move to another facility for further care. This is not right and is not in compliance with either the federal Nursing Home Reform Act (“NHRA”), nor California State law.  Assuming the facility is licensed as a “Skilled Nursing Facility” (fancy name for Nursing Home, and often abbreviated as “SNF”), it cannot force your loved one out if he or she still needs care.

Under the NHRA and later Regulations, there are only six (6) reasons that a SNF may use to discharge patients. If none apply, it cannot discharge the patient so long as that continued stay is paid for, whether by MediCARE, Private Pay, Private Insurance, or Medi-CAL. Those reasons are:

(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 due to the clinical or behavioral status of the resident;

(4) The health of 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; or

(6) The facility ceases to operate.

Further, as part of any discharge, the SNF must make suitable arrangements in writing for care elsewhere.

If a resident has applied for a Medi-CAL subsidy, and that application is pending, the SNF may not transfer or discharge a resident while that application (or any  appeal therefrom) is pending.

Still further, the resident has a right to appeal a Notice of Transfer or Discharge, and may request an actual hearing before a judicial officer, to be held at the SNF, itself, or another place convenient to the resident. At the hearing, the resident has the right to be represented by a family member or an attorney, the right to review documents ahead of time, the right to cross examine witnesses and/or to bring his own to the hearing.

If your loved one is not ready to be discharged, or even transferred within the facility to another room, I would suggest the following:

1) Advise the Administrator that continued care is needed and that your loved one does not intend to leave. Confirm that advice by a follow up letter;

2) Request a formal hearing by contacting the “Transfer Discharge and Refusal to Readmit Unit” of the Department of Health Care Services at 916-445-9775;

3) Arrange to review all of your loved one’s medical records and any additional records that the SNF intends to offer at the hearing;

4) Contact the Long Term Care Ombudsman for assistance. The Phone # should be conspicuously posted in the lobby of the SNF. If not, call 1-800-231-4024 or 510-638-6878 for Alameda, Contra Costa and Solano Counties;

5) Consider arranging for your loved one’s doctor to write a letter affirming your father’s continued need for care or, better yet, ask the doctor to appear at the hearing in person or by telephone;

6) Consider engaging an attorney for assistance.

Good wishes to you and your loved one.

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References:  CANHR’s “The Epidemic In Nursing Home Evictions“; and “Transfer and Discharge Rights”;

List of discharge reasons per Federal Law in 42 CFR § 483.15(c)(1)