Estate PlanninG

Lawful Grounds for Discharge from a Skilled Nursing Facility and Defenses

As an elder law attorney and advocate I often get frantic calls from family members when a skilled nursing facility has advised them that they plan to the discharge the resident within a week or days. The family member is justifiably upset because they do not have the means, time or place, to care for the resident.

So when can a skilled nursing facility [“SNF”], legally discharge a resident?

First, be aware that the Nursing Home Reform Act of 1987, a federal law, requires all SNFs to “… provide services and activities to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident in accordance with a written plan of care”.

What this means is that within 14 days of a resident’s admission to a SNF a plan of care has to be in place that family members previously discussed and approved.

Also make sure that from day one, the SNF is aware of the family’s limitations to care for the resident at home.

The Six (6) Legal Reasons for a Discharge:

i.The resident’s health has greatly improved so that the resident no longer needs the care provided by the SNF;

ii.The level of care needed by the resident cannot be provided by the SNF;

NOTE: For the above 2 reasons the SNF must provide the resident’s doctor with evidentiary support of these reasons and the resident’s doctor has to agree to the SNF’s evaluation in writing.

iii.The health of individuals would otherwise be endangered;

iv.The safety of individuals is endangered;

NOTE: Again, a doctor has to sign off on the SNF’s report agreeing with the SNF’s decision.

v.The resident has failed to pay after reasonable notice and

vi.The SNF ceases to operate.

Watch out for the most common reasons SNF’s give for a discharge which are not legally correct:

  • “We don’t have Medi-Cal beds”. NOTE: There is no such thing as a Medi-Cal bed! All of the beds in the SNF are available for Medi-Cal residents;
  • Medicare is not paying anymore. The form of payment from Medicare or Medi-Cal is not grounds for a discharge;
  • Conversion from Medicare to Medi-Cal. In addition, under California’s Welfare and Institutions Code the resident should not even be moved from his or her room;
  • Difficult, demanding, problem residents. These are the specific type of residents SNF’s are licensed to provide care for!
  • Wandering – the SNF may have an argument if the facility does not have a secured perimeter, but the resident’s family should get documentation from the nursing home regarding the wandering episodes, which the SNFs are required to document;
  • Refusal of treatment;
  • “Lateral” transfers.

So, what is Proper Discharge Planning?

  1. The reasons for the discharge must be documented in the resident’s chart;
  2. The family and resident most be provided sufficient orientation and preparation for the move from the SNF – at least 60 days;
  3. The SNF has to provide orientation and post-discharge plan of care developed with the family and resident’s care providers;
  4. The Discharge Pan must help the resident adjust to his or her new living environment.
    • NOTE: Numbers 3 & 4 are requirements mandated by federal law.
  5. If the resident is transferred to an assisted living or board and care, family members should have trial visits so that the new facility staff is aware of the resident’s needs upon his or her transfer.

Don’t be afraid to say “NO” if you do not agree with the discharge and request an appeal. Family members can request a Discharge Appeal Hearing with the Department of Health Care Services immediately.

This is the time for you to question the discharge. Don’t give up your rights and wait until it is too late.

If you have questions about proper SNF discharge procedures, the attorneys at Santaella Legal Group, APC, based in San Ramon and servicing the Tri-Valley area of the east bay, are here to help.