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Transfer and Discharge Rights
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 facility must have adequate documentation in the resident’s records to substantiate a transfer or discharge (42 C.F.R. §483.12(a)(3)). 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).
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:
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)). 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.
Converting to Medi–Cal
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. 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 (Cal. Welfare & Institutions Code §14124.7).
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 Cal. Code of Regulations §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 Cal. Code of Regulations §51535.1).
Nursing homes must offer a written bed–hold notice to the resident and a family member when a resident is transferred to the hospital (22 Cal. Code of Regulations §72520(b) & 42 C.F.R. §483.12(b)(2)). If the nursing home doesn’t comply, the nursing home must offer its next available bed at the conclusion of the hospital stay (22 Cal. Code of Regulations §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 him or her to the first available bed in a semi–private room (42 C.F.R. §483.12(b)(3)).
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 (Cal. Health & Safety 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 (Cal. Health & Safety Code §1599.1(h)). See the "Appealing a Transfer or Discharge" section below for more information regarding appeals.
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.
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 C.F.R. §483.25). 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 (California Health & Safety Code § 1432).
If a facility is closing, it must provide the residents with a minimum of 30 days advance written notice. In addition, the facility must make significant efforts to minimize transfer trauma such as identifying residents’ relocation needs and suggesting alternative placements (Cal. Health & Safety 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.
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. 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. To file 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.
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.
Here are a few basic steps to follow if a nursing home attempts an eviction:
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 US Government Publishing Office. Additional rules governing notices, hearings, decisions and corrective actions are found at 42 C.F.R. §431.200 - §431-246. 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 Public Health, Licensing & Certification Division.
For more information on transfer, discharge and appeal rights, contact CANHR at (800) 474–1116 or visit www.canhr.org.
Page Last Modified: April 26, 2016