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Transfer and Discharge Rights
Federal and California laws provide strong protections against evictions of nursing home residents. Residents have very specific rights that are intended to prevent inappropriate, unnecessary and untimely transfers and discharges.
The facility must permit each resident to remain in the facility, and not transfer or discharge the resident from the facility unless:
The facility must document the basis for the transfer in the resident’s record. 42 CFR §483.15(c)(2). If the facility claims it cannot meet the resident’s needs (reason 1 above), effective November 28, 2017, it must document the specific needs that cannot be met, its attempts to meet the needs, and the services available at the receiving facility to meet the resident’s needs. 42 CFR §483.15(c)(2)(i)(A).
When a facility claims it cannot meet the resident’s needs or the resident no longer needs its services (reasons 1 and 2 above), the resident’s physician must provide the documentation. 42 CFR §483.15(c)(2)(ii)(A). Any physician can provide the documentation when the facility claims that the health or safety of individuals in the facility would be endangered (reasons 3 and 4 above). 42 CFR §483.15(c)(2)(ii)(B).
Before transferring or discharging a resident, the facility must provide written notice to the resident and the resident’s representative in a language and manner they understand. 42 CFR §483.15(c)(3)(i). The facility must send a copy of the notice to the long-term care ombudsman program. Except when specified below, the notice must be given at least 30 days before the resident is transferred or discharged (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:
If the information in the notice changes, the facility must notify the resident and resident’s representative of the changes as soon as practicable. 42 CFR §483.15(c)(6). For significant changes, such as a change in the destination, a new notice must be given that clearly describes the change(s) and resets the transfer or discharge date, in order to provide 30 day advance notification. CMS State Operations Manual, Appendix PP – Guidance to Surveyors for Long Term Care Facilities, at F623.
A resident does not have to leave the facility if it has not provided a written notice that complies with these requirements.
Exceptions to 30-Day Notice
As mentioned above, there are a few exceptions to the 30-day notice requirement. Federal regulations permit notice to be made “as soon as practicable” before transfer or discharge 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 to allow a more immediate transfer or discharge; or the resident has resided in the facility less than 30 days. 42 CFR §483.15(c)(4).
Even if an exception to the 30-day notice requirement is satisfied, the facility must nevertheless provide written notice in advance of a proposed transfer or discharge and an opportunity to appeal. A nursing home cannot transfer or discharge a resident while an appeal is pending, unless delay would endanger the health or safety of the resident or other individuals in the facility. 42 CFR §483.15(c)(1)(ii).
California law requires nursing homes to give “reasonable advance notice” in writing in all cases of transfer or discharge, unless there is an emergency. H&S Code §1599.78, 22 CCR §72527(a)(6).
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 Care Services. To request an appeal, call the Transfer/Discharge and Refusal to Readmit Unit of the Department of Health Care Services at (916) 445-9775 or (916) 322-5603.
Once an appeal has been made, the facility may not discharge the resident while the appeal is pending. CMS State Operations Manual, Appendix PP – Guidance to Surveyors for Long Term Care Facilities, at F623.
A hearing officer who works for the Department of Health Care Services will conduct the hearing and issue a written decision. The hearings are usually held at the nursing home where the resident resides or, if the resident is hospitalized and appealing a denial of readmission, at the hospital.
The resident has important due process rights to ensure a fair hearing process. Subpart E of Part 431 in Title 42 of the Federal Code of Regulations. During transfer and discharge appeals, residents have the right to:
If the hearing decision is favorable to a resident who was improperly transferred or discharged, the Department of Health Care Services must promptly provide for the resident’s admission or readmission to the nursing home. 42 CFR §431.246.
Readmission to a Nursing Home After a Hospital Stay
Nursing home residents have the right to be readmitted after a hospital stay. Whenever a resident is transferred to a hospital, the nursing home must allow the resident or family member to hold the resident’s bed for up to seven days. 22 CCR §72520. This is called a bed hold. If the resident is on Medi-Cal, the Medi-Cal program will pay for the bed hold for up to seven days. 22 CCR §51535.1.
Nursing homes must give a written bed-hold notice to the resident and a family member when a resident is transferred to the hospital. 22 CCR §72520(b) & 42 CFR §483.15(d). If the nursing home doesn’t comply, the nursing home must offer its next available bed at the conclusion of the hospital stay. 22 CCR §72520(c).
Furthermore, any resident on Medi-Cal has a right to be readmitted to a nursing home even if the resident’s hospital stay exceeds seven days. If the resident still needs nursing home care, the nursing home must readmit the resident to his or her previous room if available or immediately to the first available bed in a semi-private room. 42 CFR §483.15(e).
The facility’s refusal to honor a bed hold or readmit a resident following a hospital stay will be treated as an involuntary transfer, allowing the resident the right to appeal the transfer. H&S Code §1599.1(h). To request an appeal, call the Transfer/Discharge and Refusal to Readmit Unit of the Department of Health Care Services at (916) 445-9775 or (916) 322-5603 and ask for a readmission appeal. 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. H&S Code §1599.1(h)(5).
If the hearing decision is favorable to a resident who was denied readmission, the Department of Health Care Services must promptly provide for the resident’s readmission to the nursing home. 42 CFR. §431.246.
See the above section on “Appealing a Transfer or Discharge” for more information regarding appeals.
Converting to Medi-Cal
A resident who becomes eligible for Medi-Cal after admission is only required to pay charges allowed by Medi-Cal, known as a “share-of-cost.” 42 CFR §483.10(f)(11), H&S Code §1599.69.
Facilities are prohibited from transferring or discharging residents who have made a timely application for Medi-Cal and for whom an eligibility determination has not been made. W&I Code §14124.7, 42 CFR §483.15(c)(1)(i)(E). If a resident’s initial Medi-Cal application is denied but appealed, the resident is not considered to be in nonpayment status. Thus, an appeal suspends a finding of nonpayment. CMS State Operations Manual, Appendix PP – Guidance to Surveyors for Long Term Care Facilities, at F622.
In addition, facilities are prohibited from transferring the resident to a different room due to a change from Medicare or private payment to Medi-Cal, except that the resident may be transferred from a private room to a semi-private room. W&I Code §14124.7.
Evicting Residents After Medicare Coverage Ends
One of the most common – and illegal – types of nursing home evictions is throwing residents out when their Medicare coverage ends. Residents on Medicare have the right to challenge coverage determinations about their skilled nursing facility stay and to remain in the facility after their Medicare coverage ends if they still need nursing home care and their care is are paid for.
In Medi-Cal certified facilities, residents on Medicare have a right to transition to Medi-Cal if they are eligible. W&I Code §14124.7. Every bed in a Medi-Cal certified skilled nursing facility is certified so a facility’s claim that it does not have available Medi-Cal or “long term care” beds is untrue. It is illegal to discriminate against residents who are on Medi-Cal or applying for it. W& I Code §14124.10, 42 USC §1396r(c)(4).
A notice of non-coverage from Medicare or other insurers is not the same as a transfer or discharge notice from a nursing home and does not suffice to initiate a transfer or discharge.
If a nursing home is pressuring you to leave voluntarily when your Medicare days are up, simply don’t go. Tell it that no discharge can be performed without following all of the notice and other legal requirements and that changing payment source is not a sufficient legal reason for discharge.
For more information on the transfer and discharge rights of residents on Medicare, read CANHR’s commentary on the epidemic in nursing home evictions after Medicare coverage ends and the Center for Medicare Advocacy’s excellent issue brief on the discharge rights of Medicare beneficiaries.
Transfer Trauma and Discharge Planning
The facility must provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility. 42 CFR §483.15(c)(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.
Nursing homes must also provide discharge planning for each resident that treats the resident and resident representative as partners in planning the discharge and is focused on the resident’s discharge goals and treatment preferences. 42 CFR §483.21(c). When a facility is planning to transfer a resident to another nursing home, it must assist the resident in using available data on the quality of facilities to help the resident select a facility that can meet his or her care and treatment preferences. The facility must also share a great deal of important care information to the “receiving provider” before initiating a transfer or discharge. 42 CFR §§483.15(c)(2)(iii), 483.21(c)(2).
If discharge to home or another community setting is planned, the nursing home must make and document appropriate referrals to services and resources in the community. The facility must develop a discharge summary that recapitulates the resident’s stay and a post-discharge plan of care that indicates where the resident plans to reside, arrangements for follow-up care and any post-discharge medical and non-medical services. 42 CFR §483.21(c), H&S Code §1418.81.
Facilities often try to “dump” residents they view as undesirable. However, no resident may be transferred or discharged unless all of the procedural requirements previously discussed are satisfied. 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 USC §1396r(b)(2), 42 CFR §483.24. Facilities that attempt to dump residents typically have failed to provide such services.
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. H&S Code §1432.
If a facility is closing, California law requires it provide the residents with a minimum of 30 days advance written notice, which can be extended up to an additional 60 days if needed. H&S Code §1336. In addition, the facility must make significant efforts to minimize transfer trauma such as identifying residents’ relocation needs and suggesting alternative placements. H&S Code §1336.2. If 10 or more residents are going to be discharged as a result of the closure, the facility must develop a relocation plan and obtain state approval from the California Department of Public Health. H&S Code §1336.2.
Federal law requires at least 60 days notice of an impending closure to residents, their representatives, the Department of Public Health and the long-term care ombudsman. A facility cannot admit any new residents after this notification is submitted. The nursing home’s transfer plan must include assurances that residents will be transferred to the most appropriate facility or other setting in terms of quality, services, and location, taking into consideration the needs, choice and best interests of each resident. 42 CFR §483.70(l), 42 CFR §483.15(c)(8).
Investigation by the California Department of Public Health
In addition to filing an appeal with the Department of Health Care Services (as described above), you have the right to file a complaint with the Department of Public Health (DPH) if you are being evicted or denied readmission. The DPH is the California agency charged with licensing and inspecting nursing homes. If you file a complaint, the DPH will make its own findings on the nursing home’s compliance with transfer, discharge and readmission requirements. It can impose fines and other penalties against the nursing home if it finds your rights are being violated. Contact the DPH district office of its Licensing and Certification Division in your area to file a complaint. CANHR’s fact sheet on filing a complaint gives contact information for district offices and details on the complaint process.
Advocacy Tips on Fighting an Eviction
H&S refers to California Health and Safety Code; W&I refers to California Welfare and Institutions Code; 22 CCR refers to Title 22 of the California Code of Regulations; 42 USC refers to Title 42 of the United States Code; and 42 CFR refers to Title 42 of the Code of Federal Regulations.
For more information on transfer, discharge, and readmission rights, contact CANHR at (800) 474-1116.
Page Last Modified: September 11, 2018