The skilled nursing facility calls and says, “We’re discharging your father Thursday at 10 am; have the car ready and we’ll help load him in back.” Wait, that’s only two days from now!He’s not ready, you think. We’re not ready. He needs full-time assistance, and I have to work!So you panic and scramble to find proper care and assistance before Thursday.
It shouldn’t be that way.
“The problem is the facility delivers the information as a commandment, and most people assume that’s what they have to do, whether [discharge] seems prudent or not,” said Phil Lindsley, elder law attorney and founder of San Diego Elder Care Law.
Federal law requires the SNF to provide written notice to the resident,and if known, a family member or legal representative at least 30 days prior to transfer or discharge.
“The grounds for the discharge should be adequately documented in the chart. Federal law also requires that discharge planners explore transfer facilities and alternatives with the family,” said Lindsley, speaking with me on a recent episode of The Aging Boomers podcast. “This should be done, but more often than not, it’s not, and the grounds for discharge are simply, ‘We’re done here.’
“The [hospital and skilled nursing] system works because people don’t what their rights are,” Lindsley said. “I tell my clients to not be afraid to step up and say, wait a minute, I have some questions.”
If the resident won’t leave voluntarily, there are six reasons, under federal law, that the facility can discharge people.
Lawful Reasons for Discharge
- It is necessary for the resident’s welfare because their needs can’t be met in the facility
- The resident’s health has improved to where they no longer need the services provided by the facility
- The health of other residents would be endangered
- The safety of other individuals would be endangered
- The resident has failed, after proper notice and legal process, to pay
- The facility ceases to exist
Note what is not on that list.
Not Legal Reasons for Discharge
- Facility claims they don’t have any ‘custodial’ beds, or they’re only a short-term care facility
- Medicare isn’t paying anymore (that may be true, but it’s not grounds for discharge)
- Resident talks too much, wanders, is physically demanding, howls at night, or is otherwise a nuisance
Just Say No
“If you have a parent in skilled nursing, and the discharge planner wants to discharge them before they’re ready,”Lindsley said, “Just say ‘No! We are not discharging him home. We require some thoughtful discharge planning and we require that you look into this and here’s what we the family think.’
Don’t Yell at the Nursing Assistant
“Don’t start yelling at the nursing assistants,” he said. “I know you’re frustrated, but what you need to do is talk to the director of nursing or somebody higher up, and say, ‘I have these issues, and what do you think about this, and what are you going to do?’Follow up the conversation by writing a letter to that person in which you reiterate what they said they were going to do.
“Once you put something in writing and send it to the facility you have elevated yourself to a person who will hold them accountable. They have to put that letter in the file.”
- Question everything, especially anything that sounds like a commandment (e.g., “We’re discharging your dad on Wednesday.”)
- Don’t yell at the nursing assistants
- Talk to the people higher up, and
- Document, document, document.
Don’t hesitate to find out what your appeal rights are in your country, Lindsley said. “Under federal and state law you have the right to file complaints and appeals, and that documentation can only help your cause.“
If you need further assistance, Lindsley said, “Consult with an elder law attorney. They are the ones that are trained in your rights and in the health care system, trained as to the available public benefits assistance programs, and can help your family at the moment you’re saying, ‘Oh my gosh, what do we do now? How do we pay for this, and how do we get that care?’”
If you’re in California, feel free to contact Phil Lindsley at www.SanDiegoElderLaw.com. If you’re not, you can find certified elder law attorneys through the National Elder Law Foundation, www.nelf.org, and elder law practitioners through the National Academy of Elder Law Attorneys, www.naela.org.