Transfer and Discharge Rights in Nursing Homes
CANHR Fact Sheets:
Residents have very specific rights regarding the facility’s ability
to transfer or discharge a resident out of a skilled nursing facility.
A resident may be transferred or discharged only if:
- The resident’s health has improved sufficiently so the resident
no longer needs the services provided by the facility(42
C.F.R. §483.12 (a)(2)(ii));
- It is necessary for the resident’s welfare and the resident’s
needs cannot be met in the facility(42 C.F.R. §483.12
(a)(2)(i));
- The health of individuals would otherwise be endangered (42
C.F.R. §483.12 (a)(2)(iv));
- The safety of individuals is endangered (42 C.F.R.
§483.12 (a)(2)(iii));
- The resident has failed, after reasonable and appropriate notice,
to pay (42 C.F.R. §483.12 (a)(2)(v));
- The facility ceases to operate (42 C.F.R. §483.12
(a)(2)(vi)).
Documentation
The facility must have adequate documentation in the resident’s
records to substantiate a transfer or discharge. The records must document
accurate assessments and attempts through care planning to address the
resident’s needs, through multi-disciplinary interventions, attention
to the resident’s customary routines, and accommodation of individual
needs. Under reasons 1 and 2 listed above, the resident’s physician
must provide documentation. Under reason 3, any physician can provide
documentation. Under reason 5, for a resident who becomes eligible for
Medi-Cal after admission, only allowable charges may be imposed by the
facility. Conversion from private pay to Medi-Cal is not grounds for eviction.
(Cal. Welfare & Institutions Code §14124.7)
Written Notice
Before transferring or discharging a resident, the facility must provide
written notice to the resident, and if known, to a family member or legal
representative. Except when specified below, the notice must be given
at least 30 days before the discharge date (see the next section). The
notice must contain all the following information. If any of the following
items are missing, the notice is not valid:
- the reason for the transfer or discharge and the effective date
(42 C.F.R. §483.12 (a)(6)(i - ii));
- the location to which the resident will be transferred (42
C.F.R. §483.12 (a)(6)(iii));
- a statement that the resident has the right to appeal to the state
(42 C.F.R. §483.12 (a)(6)(iv));
- the name, address and phone number of the state Licensing and Certification
District Office (Department of Health Services, Licensing
& Certification Division, Policy & Procedure Manual, (“PPM”)
§618.03);
- the name, address and phone number of the Long-Term Care Ombudsman
(42 C.F.R. §483.12 (a)(6)(v));
- a statement that the resident may represent him/herself or use legal
counsel, a relative, friend or other spokesperson
(PPM §618.03);
- a statement that the resident or resident’s representative must
be allowed to review, prior to and during the appeal hearing, the resident’s
medical records and the documents to be used by the state (PPM
§618.03);
- a statement that the resident may bring witnesses to the hearing
(PPM §618.03);
- a statement that the resident should file the appeal within 10 days
so as not to jeopardize the ability of the state to make a ruling prior
to the discharge date (PPM §618.03);
- a statement that the facility may permit the resident to remain even
if the state has not made a decision within 30 days (PPM
§618.03);
- a statement that if the state upholds the discharge notice, that
the resident should be prepared to be transferred (PPM
§618.03).
Exceptions to 30-Day Notice
As mentioned above, there are a few exceptions to the 30-day notice
requirement. Generally these exceptions are for more serious or immediate
situations. Under California law, “reasonable notice” must be
given in all cases of transfer or discharge, unless there is an emergency.
(Cal. Health & Safety Code §1599.78)
Under federal law, notice may be made “as soon as practicable,”
when: the health or safety of individuals in the facility would be endangered;
the resident’s urgent medical needs require a more immediate transfer;
the resident’s health has improved sufficiently and a more immediate
transfer is appropriate; the resident has resided in the facility less
than 30 days. (42 C.F.R. §483.12(a)(5))
Converting to Medi-Cal
Facilities are prohibited from transferring or evicting
residents who have made a timely application for Medi-Cal and for whom
an eligibility determination has not been made. In addition, facilities
are prohibited from transferring the resident to a different room because
of that payment change, except that the resident may be transferred from
a private room to a semi-private room. (California
Welfare & Institutions Code §14124.7)
Bed Hold
The facility’s refusal to readmit a resident during a bed hold
will be treated as an involuntary transfer, allowing the resident the
right to appeal the transfer. If the resident is Medi-Cal eligible or
has another source of payment, he/she can remain in the hospital until
the final determination of the hearing officer. If the resident is not
on Medi-Cal or has no other source of payment, the hearing and final determination
must be made within 48 hours. (Health & Safety
Code §1599.1(h))
After a hospitalization, a resident who is a Medi-Cal recipient has
the right to be readmitted to the nursing home’s first available
bed even if he or she is absent from the nursing home for more than 7
days. (42 C.F.R. §483.12(b)(3))
Transfer Trauma
The facility must also provide sufficient preparation and orientation
to residents to ensure safe and orderly transfer or discharge from the
facility (42 C.F.R. §483.12 (a)(7)).
Staff should take steps to minimize unnecessary and avoidable anxiety
or depression that often accompanies a transfer. This phenomenon is known
as “transfer trauma”, and it occurs when residents have little
choice or control over their discharge.
Resident Dumping
Facilities often try to “dump” residents they view as undesirable.
However, nursing homes are bound by law to provide services to allow each
resident to attain or maintain his/her highest practicable physical, mental
and psychosocial well being (42 C.F.R. §483.25
- Quality of Care). A resident may refuse such treatment
or services, but that alone is not grounds for eviction. If a nursing
home fails to provide such services, it will have a hard time justifying
a transfer or discharge.
Retaliation
Facilities also attempt to evict residents when a family member has
filed a complaint with the state. State law forbids a nursing home from
evicting a resident because someone has filed a complaint on the resident’s
behalf. Any attempt to do so within 180 days of the complaint will be
presumed as retaliation or discrimination (California
Health & Safety code § 1432).
Appealing a Transfer or Discharge
A resident has the right to appeal the nursing home’s attempted
transfer or discharge, and have a hearing and decision issued by the California
Department of Health Services, Licensing & Certification Division
(see contact information
for your local office). Here are a few basic steps to follow if a
nursing home attempts an eviction:
Has the resident received anything in writing about the proposed
transfer/discharge?
If not, the nursing home cannot evict the resident. (see above, “Exceptions to 30-day Notice.”)
If the resident has received written notice, check that it contains all
of the information listed above under “Written Notice.” If
it does not, then the notice is not valid, and the nursing home cannot
evict the resident until it gives a complete, proper notice. Has the
nursing home given less than 30 days notice? If so, check above under
“Exceptions to 30-Day Notice” to see if the nursing home is
allowed to do so.
Is the reason given for transferring the resident one of the 6 valid
reasons listed at the beginning of page one of this fact sheet? If not,
the attempted transfer is not legal.
Has the resident’s discharge been properly planned?
A nursing home is not allowed to simply evict a resident, but rather
it must provide planning, in advance, to help the resident get oriented
to the new place he or she will be going. If no discharge planning has
been done, the proposed eviction may be challenged on that basis.
File an appeal and a request for hearing within 10 days of receipt
of a written notice of transfer or discharge.
It is very important that the resident file an appeal and request for
hearing within 10 days of the date of the transfer/discharge notice.
The appeal is filed at the Department of Health Services, Licensing and
Certification Division. The Licensing and Certification Division will
make an investigation, and if a hearing is scheduled, it will most likely
take place in the nursing home.
Contact the Ombudsman.
Every county has a program, called the Long-Term Care Ombudsman Program,
that is responsible for helping residents resolve conflicts with nursing
homes. Getting the Ombudsman involved can sometimes help stop an improper
eviction.
*Call the statewide Elder Service Locator number at 1-800-510-2020 for
your local ombudsman office.
Contact the nursing home.
Talk to the Administrator of the nursing home and tell him or her the
reasons that the proposed transfer or discharge is not proper (e.g. the
resident has not been given written notice, the reason given for the
transfer is not one of the allowable 6 reasons, no discharge planning
has been done, etc.). After talking to the Administrator, always document
the conversation in writing, by sending a letter to the nursing home
outlining what was discussed, and reiterating that the proposed eviction
is improper. Always send such a letter by certified mail.
Request the resident’s records from the nursing home.
If the appeal goes to a hearing, a review of the resident’s records
will help prepare his or her case. Since documentation about the resident’s
health condition is often at issue, a thorough review of the records
is essential.
These transfer and discharge rights are found under both Federal and
State law. The Federal rights are found in the Code of Federal Regulations
(“C.F.R.”), Title 42, which can be accessed
online at http://www.gpoaccess.gov/cfr/index.html. The State rights are found in the Health & Safety and
Welfare & Institutions Codes, which can be accessed online at http://www.leginfo.ca.gov/calaw.html.
The required contents of the Notice of Transfer/Discharge are found in
§618.03 of the Policy & Procedure Manual, published by the Department
of Health Services, Licensing & Certification Division.
For more information on transfer, discharge and appeal rights, contact
CANHR at (800) 474-1116.
Updated 1/2006
