Transitioning from Short Term Rehabilitation in a Skilled Nursing Facility: Your Discharge Rights

Attribution: Philip P. Lindsley, CELA, CLS, of the San Diego Elder Law Center assisted with this article.


Short term rehabilitation in a skilled nursing facility often follows a significant stay in the hospital and allows a patient to heal and strengthen under skilled care before coming home. Medicare will pay for the first 100 days (or so) of care in such a facility, but after that you will need to cover the cost directly or through insurance.

skilled-nursing-facility-discharge-rights-01258280Unfortunately, there can be significant financial incentives for skilled nursing facilities to move patients out the door quickly. Patients and their families often find that the facility staff will say something like “Medicare has stopped paying,” “your dad isn’t making enough progress to stay here,” or “we don’t have any more custodial beds.”

But you don’t have to accept these statements at face value. According to Philip Lindsley of the San Diego Elder Law Center, under Federal Law, there are only six reasons that a patient can be discharged from a skilled nursing facility without the resident patient’s consent:

  1. It’s necessary for the resident’s welfare and the patient’s needs cannot be met in the facility;
  2. The resident’s health has improved sufficiently so the resident no longer needs the services provided by the facility;
  3. The health of the other patients in the facility would be endangered;
  4. The resident is a danger to the other patients (behavior);
  5. The resident has failed, after reasonable and appropriate notice, to pay, or to submit the necessary paperwork to have payment from a third party of benefit program;
  6. The facility ceases to operate.

And it’s not enough for the facility to just say one of these applies. They must document the grounds and support their position with evidence. For example, if they’ve concluded that the resident’s health has improved sufficiently, then the discharge plan must include supporting documentation from the resident’s physician. And you can insist on your own physician being part of this conversation as well.

Further, if the facility is going to insist on discharge, the supporting documents must not only include the lawful grounds for discharge, they also need to include a post-discharge plan of care that helps the patient transition to a new living arrangement or return home. The patient’s family (or legal representative) must be involved in this conversation.

In practice, this discharge plan is actually pretty rare. That’s because too many people simply accept the facility’s determination that it’s time to go and the facility staff doesn’t have to put the work into developing one.

When my father was in a rehab facility recently, they began talking about discharge within weeks of his being admitted. My mother and I insisted that he stay there as long as possible in order to maximize the physical therapy he was getting. It also gave us time to work with a care manager to prepare his home for his return. In the meantime, our refusal to discharge him forced the facility to work with us to create a post-discharge care plan and to engage in the preparations for his return home.

So the first thing you should do when someone tells you it’s time for your loved one to be discharged is to just say “hold on a minute.” Ask why he or she needs to leave the skilled nursing facility and what comes next. If you disagree with the facility’s determination, you can appeal the decision and get a prompt review from an independent agency. Once you refuse to discharge your loved one, the facility must provide you with a written notice which will also include instructions for challenging their determination. At this point, you can also bring in trained professionals like care coordinators or even an elder care attorney to help you navigate the discharge and obtain the care your loved one needs.

At Blankinship & Foster, we help our clients plan for and successfully navigate major life events such as an illness or an injury, whether it’s their own or that of a loved one. When life changes happen, we are ready to contribute as part of the team. This may be way above and beyond what most financial advisors are willing to do, but that’s just who we are. To discuss how we can be part of your team, please contact us.

About Rick Brooks

Rick Brooks, CFA®, CFP® is a partner of Blankinship & Foster LLC and is the firm’s Chief Investment Officer. He is a lead advisor, counseling clients on all aspects of personal financial management. Rick serves on several boards. He is the Chairman of the Board of Girl Scouts San Diego, and also chairs the San Diego Foundation’s Professional Advisor Council. Rick and his family live in Mission Hills. Rick enjoys spending time with his family, theater, cooking, skiing, gaming and reading.

Comments are closed.