Hospital Discharge Planning and Medicare Patient Rights

Since introduction of the  prospective payment system (PPS), Hospitals have a financial incentive to discharge patients quickly because Medicare pays a fixed rate for a hospitalization without regard to length of stay (excluding outliers). See Improving Hospital Discharge Planning for Elderly Patients (Cited below). With payments fixed, the incentive for hospitals is to reduce costs, which means discharging the patient as quickly as possible. In the media, this is known as leaving the hospital “quicker and sicker.” See The Quicker-and-sicker Story Revisited. The person responsible for facilitating the discharge is often called a discharge planner, although other titles aboud. Many of discharge planners view their role as cost control which means discharging (or dumping) the patient to “home” (whatever that means) or to any nursing home with an available bed. When the discharge is not to a nursing home, follow-up for unresolved medical problems is critical. Doctors S. Potthoff, R. Kane, and S. Franco said “With shortened lengths of hospital stay, it is difficult to assess a patient’s medical prognosis and prehospital level of functioning, much less predict posthospital potential. Posthospital acuity levels have increased, resulting in more complex arrangements and increased teaching needs for patients and family caregivers.” See Improving Hospital Discharge Planning for Elderly Patients (Cited below). Doctors Calrton Moore, Thomas McGinn and Ethan Halm concluded in their paper, Tying Up Loose Ends: Discharging Patients with Unresolved Medical Issues (2007), “between 19% and 23% of patients who were recently hospitalized experienced an adverse event after discharge. Many of the adverse events described in the studies by Forster et al were due to inadequate postdischarge follow-ups for patients’ unresolved medical problems.” They also noted that the high incidence of medical errors cited in the Institute of Medicine’s report “To Err is Human” carry over into discharge planning and post-discharge follow-up.

The potential consequences of an unsafe discharge made news in 2021 after a 68 year old man was found dead following discharge from a Georgia hospital. Reporter Mark Winnie spoke with Conyers Police Deputy Chief Scott Freeman who said “68-year-old man was discharged from the hospital Thursday. A hospital employee told officers that the man had been at the hospital for 35 days and that Medicare would not continue to pay for his treatment. The employee said that security dressed the man and walked him out.”

Medicare beneficiaries have rights under federal law when they are treated in a hospital and the hospital must inform you of your rights before providing services. 42 C.F.R. § 482.13(a)(1). At or near the time of admission, a hospital must give Medicare recipients the Important Message from Medicare. They will likely give you other notices as well and you should read all documents carefully. If you don’t understand something, then ask about it or contact your lawyer. For lawyers researching this issue, some of the key articles for advocates were written by Alfred J. Chiplin, Jr. who, before passing, was a senior attorney at the Center for Medicare Advocacy. His article, Breathing Life into Discharge Planning, 13 Elder Law Journal 1, at 16 (2005), is cited in this post. Although the focus of this post is on hospital discharges, Chiplin’s article discusses discharge rights in other settings such as a skilled nursing facility, a rehabilitation center or hospital, or for terminating services of a home health agency.

When a hospital determines that a Medicare beneficiary should be discharged, you have the following rights under federal law:

Hospital Discharge Procedure Must be Written

The hospital must have a written discharge procedure that applies to all patients. 42 C.F.R. § 482.43.

The hospital must have an effective discharge planning process that focuses on the patient’s goals and treatment preferences and includes the patient and his or her caregivers/support person(s) as active partners in the discharge planning for post-discharge care. The discharge planning process and the discharge plan must be consistent with the patient’s goals for care and his or her treatment preferences, ensure an effective transition of the patient from hospital to post-discharge care, and reduce the factors leading to preventable hospital readmissions.

Identify patients who need planning

The hospital must identify patients at an early stage who would likely suffer adverse health consequences following a discharge if there is no discharge planning. 42 C.F.R. § 482.43(a). See also Georgia Ga. Comp. R. & Regs. r. 111-8-40-.20(a). In Georgia, the Georgia Caregivers Act now requires hospitals to notify a lay caregiver identified by the patient or patient’s health agent of its intent to discharge the patient prior to discharge. The Georgia Caregivers Act is codified at O.C.G.A. § 31-36B-1 through 31-36B-5.

Right to a discharge planning evaluation

“The discharge-planning evaluation is different from the discharge plan.” See A. Chiplin, Breathing Life into Discharge Planning, 13 Elder Law Journal 1, at 16 (2005). The hospital must provide a discharge planning evaluation for any at-risk patients upon request. 42 C.F.R. § 482.43(b)(1). At-risk patients include those who:

• have a disability,
• have a chronic illness (such as diabetes and/or heart or lung dis-ease),
• are unable to care for yourself,
• are homeless,
• have low income,
• are age 85 and older and live alone, or
• need follow-up or ongoing care.

The Discharge Plan Evaluation

The discharge plan evaluation must be

a. developed by a nurse, social worker or other qualified personnel. 42 C.F.R. § 482.43(b)(2);
b. must include an evaluation of the patient’s likelihood of needing post-hospital services and the availability of those services. 42 C.F.R. § 482.43(b)(3);
c. The plan must include an evaluation of the patient’s likely capacity for self-care or the possibility of the patient being cared for in the environment from which he or she entered the hospital. 42 C.F.R. § 482.43(b)(4);
d. The plan must be completed on a timely basis so appropriate plans can be made for post-hospital care before there is a discharge and to avoid unnecessary delays in the discharge. 42 C.F.R. § 482.43(b)(5);
e. The discharge planning evaluation must be placed in the patient’s records for use in establishing an appropriate discharge plan. 42 C.F.R. § 482.43(b)(6);
f. The hospital must discuss the results of the discharge planning evaluation with the patient or the patient’s representative. 42 C.F.R. § 482.43(b)(6).

The Discharge Plan

If the discharge planning evaluation indicates the need for a discharge plan, then a registered nurse, a social worker or other qualified personnel must develop a discharge plan. 42 C.F.R. § 482.43(c)(1). Ask for written discharge instructions (that you can read and understand) and a summary of your current health status.

If you need continuing care services, the hospital discharge planner must give you a written discharge plan before you leave the hospital. The discharge plan must contain information on:

1. The continuing care services you need, including medical treatments, medical transportation, and homemaker services
2. Detailed information about the services that have been arranged
3. Names, addresses, and phone numbers of the service providers
4. A schedule outlining when nursing, therapeutic or custodial care services will begin
5. Medications you will need and instructions on their use
6. Information about special diets and treatments
7. The schedule for any of your follow-up medical appointments.

If you are told by hospital staff that you are ready for discharge, but you have not yet received a written discharge plan, ask for it. You must sign the plan to indicate you received the plan. This signature does not mean you agree that the plan is appropriate for you.

In some cases, you may not agree with the discharge plan. For example, you may think the plan does not arrange for all the services that you will need at home, or your family caregiver will not be able to help you as you originally thought. If you are dissatisfied with your discharge plan, immediately notify the discharge planner. Talk with the discharge planner and your doctor about your concerns.

Tell the discharge planner immediately, while you are still in the hospital, that you do not agree with the plan. Be prepared to tell him or her why you disagree with the plan (e.g., you cannot take care of yourself, your caregiver cannot provide the level of help needed, the home is not safe).The discharge planner must arrange a meeting with you and try to develop a plan that is acceptable. If you feel that you are not medically ready to be sent home, you should contact your discharge planner and doctor immediately. You have the right to an immediate, independent medical review (appeal) of the decision to discharge you from the hospital. If you do this, you will not have to pay for the services you receive during the appeal (except for charges like copays and deductibles). Ask the hospital for a Hospital Notice of Noncoverage or, if you are in a Medicare HMO, a Notice for Discharge and Appeal Rights. These written notices will say: the notice is not an official Medicare determination; when your financial obligation will begin; and, the address and toll-free phone number of how to appeal.

Patient can request discharge plan

Even if the hospital finds that no discharge plan is necessary, you can request a discharge plan. If you request a discharge plan, then the hospital must develop one for the patient. The hospital must then arrange for initial implementation of the discharge plan, must reassess the patient’s discharge plan if there are factors affecting continuing care needs or if the plan is not appropriate, and must counsel family members to prepare them for post-hospital care. 42 C.F.R. § 482.43(c)(2)-(5). Ask where you’ll get care after you leave (after you’re discharged). Do you have options (like home health care)? Be sure you tell the staff what you prefer.

Here are some questions you should ask your doctor before you go into the hospital or as soon as possible after you are admitted:

• Will I need skilled nursing or therapy services?
• When will I be able to resume normal activities?
• Should I arrange for a ride home, or for transportation during my recovery?
• Will I need someone to stay with me during my recovery?
• Will I need help with bathing, dressing or toileting when I arrive home?
• Will I need help buying groceries or preparing meals?
• Will I need help with housekeeping or yard work?
• Will I need help coping with my operation, illness or recovery?
• Will I need to go to a rehabilitation center or nursing home? May I choose the center?
• Will my insurance pay for my procedure and aftercare needs?
• Are there community programs that provide these services or help pay for these services?

Appealing a Discharge Plan

You have the right to appeal a hospital discharge plan. CANHR says “request an appeal if your concerns about early discharge are not resolved. You can stay in the hospital and Medicare will continue to cover your stay as long as you file the appeal before you are discharged. Once you appeal, you will not have to pay for the services you receive during the appeal (except for charges like copays and deductibles).” If you need skilled nursing facility services but a bed is not available in your area, the hospital must allow you to stay. Medicare covers hospital stays until a skilled nursing facility bed is located. 42 C.F.R. §§ 424.13(c) and 412.42(c)(1). Under these circumstances, the physician should certify (or recertify) the “need for continued hospitalization if he or she finds that the patient could receive proper treatment in a SNF but no bed is available in a participating SNF.” 42 C.F.R. §§ 424.13(c)(1). See also S. Willson, How to Appeal Medicare Hospital Coverage Denials under the DRG System, 20 Clearinghouse Rev. 434 (1986-1987).

Refusing a Proposed Discharge

If you are unhappy with a proposed discharge placement, explain your concerns to the hospital staff, in writing if possible. Get your doctor involved. Ask to speak with the hospital Risk Manager and let them know you are unhappy with your discharge plan. If a hospital proposes an inappropriate discharge, you may refuse to go. Although you cannot stay in a hospital indefinitely, the hospital cannot discharge someone needing long term care until it arranges safe and adequate follow-up care. (See notes regarding 42 C.F.R. §§ 424.13(c) and 412.42(c)(1) in Appealling a Discharge Plan). If you feel you need to file a complaint, you can file a complaint with Medicare and with Georgia authorities. Other resources and links for complaints against health care providers are here.

Identifying help

The hospital must give you a list of home health care agencies and nursing homes in your geographic area that participate in the Medicare program. If you are going home, then the home health care agencies must be in the area where you live. If you are going to a nursing home, then they nursing facilities must be in the area you request. This list is only required for patients where post-hospital care is determined to be necessary. If you are enrolled in a Medicare Advantage plan, then the hospital must indicate which home health care agencies participate in your plan. 42 C.F.R. § 482.43(c). For all patients needing post-dischare care, subsection (c) provides:

(1) The hospital must include in the discharge plan a list of HHAs, SNFs, IRFs, or LTCHs that are available to the patient, that are participating in the Medicare program, and that serve the geographic area (as defined by the HHA) in which the patient resides, or in the case of a SNF, IRF, or LTCH, in the geographic area requested by the patient. HHAs must request to be listed by the hospital as available.

(i) This list must only be presented to patients for whom home health care post-hospital extended care services, SNF, IRF, or LTCH services are indicated and appropriate as determined by the discharge planning evaluation.

(ii) For patients enrolled in managed care organizations, the hospital must make the patient aware of the need to verify with their managed care organization which practitioners, providers or certified suppliers are in the managed care organization’s network. If the hospital has information on which practitioners, providers or certified supplies are in the network of the patient’s managed care organization, it must share this with the patient or the patient’s representative.

(iii) The hospital must document in the patient’s medical record that the list was presented to the patient or to the patient’s representative.

(2) The hospital, as part of the discharge planning process, must inform the patient or the patient’s representative of their freedom to choose among participating Medicare providers and suppliers of post-discharge services and must, when possible, respect the patient’s or the patient’s representative’s goals of care and treatment preferences, as well as other preferences they express. The hospital must not specify or otherwise limit the qualified providers or suppliers that are available to the patient.

(3) The discharge plan must identify any HHA or SNF to which the patient is referred in which the hospital has a disclosable financial interest, as specified by the Secretary, and any HHA or SNF that has a disclosable financial interest in a hospital under Medicare. Financial interests that are disclosable under Medicare are determined in accordance with the provisions of part 420, subpart C, of this chapter.

Available Levels of Care

• Home delivered meals are for people over age 60 who cannot leave home. Several groups, including many senior centers and the Meals-On-Wheels Foundation, offer this service. Each group has its own rules on cost, those they serve, meal patterns, and delivery routes. Some groups require a doctor’s note.
• Home health care (abbreviated above as “HHA” for home health agency) is when a person provides skilled nursing care or therapy, as ordered by a doctor, in your home. Some also offer help with daily chores. In-home services provide help with household chores and self-care such as bathing, dressing, and transfer to and from bed. Medical care or therapy is not included.
• Adult day care provides health, social, and other support services in a protective setting during any part of a day.
• A rehabilitation facility offers physical, occupational, and speech therapy, as well as recreational therapy and social work, for those who do at least three hours of therapy a day. This facility may be either separate from or a special unit of a hospital.
• A assisted living facility provides personal care, medication distribution, housekeeping, meal preparation, and various levels of protective oversight. Often, you must be able to walk by yourself and do your own self-care.
• A skilled nursing facility (abbreivated above as “SNF”) provides skilled nursing care or rehabilitation services for those who require daily or full-time care. The care is done or supervised by a licensed nurse, as ordered by a doctor. Note, you can locate all nursing homes participating in Medicare or Medicaid (which means virtually every nursing home) using the care compare tool at Medicare.gov.
• Hospice provides support and some medical services for people who are terminally ill. The care may be given in a person’s home, nursing home or in a special facility.

Patients Have the Right to Choose

The hospital must inform you that you have the right to choose among the Medicare providers that provide post-hospital services. The hospital cannot specify or limit the qualified providers available to you. 42 C.F.R. § 482.43(c)(7). You an choose health services from any institution, agency, or person qualified to participate in the Medicare program. 42 U.S.C. § 1395a(a).

Use physicians and suppliers who are Medicare participating providers. They have agreed to accept the Medicare reasonable charge amount, less the 20% beneficiary co-payment, as payment in-full for Medicare-covered physician and supplier services (See, 42 U.S.C. §§1395u(b)(3); 1395n; 42 C.F.R. §§410.152; 424.55(b).

Disclosure of financial interest

If the hospital has a financial interest in any home health care agency or nursing facility recommended, then they must tell you about that interest.

Transfer or referral

If you need post-hospital care, then the hospital must transfer or refer you, along with any necessary medical information, to appropriate facilities, agencies or outpatient services for followup or ancillary care. 42 C.F.R. § 482.43(c).

Reassessment

The hospital must reassess your discharge plan on an on-going basis to ensure it is responsive to your needs. 42 C.F.R. § 482.43(a)(6).

Grievance Procedure

The hospital must have a process for promptly resolving patient grievances. The process must specify time frames for review of any grievance and for a response. 42 C.F.R. § 482.13(a)(2).

Potential Criminal or Civil Liability of the Discharge Planner

Under O.C.G.A. § 30-5-3, “Essential services” means social, medical, psychiatric, or legal services necessary to safeguard the disabled adult’s or elder person’s rights and resources and to maintain the physical and mental well-being of such person.  These services shall include, but not be limited to, the provision of medical care for physical and mental health needs, assistance in personal hygiene, food, clothing, adequately heated and ventilated shelter, and protection from health and safety hazards but shall not include the taking into physical custody of a disabled adult or elder person without that person’s consent. O.C.G.A. § 16-5-103 provides: An owner, officer, administrator, board member, employee, or agent of a long-term care facility shall not be held criminally liable for the actions of another person who is convicted pursuant to this article unless such owner, officer, administrator, board member, employee, or agent was a knowing and willful party to or conspirator to the abuse or neglect, as defined in Code Section 30-5-3 , or exploitation of a disabled adult, elder person, or resident. Query this: if a discharge planner has actual knowledge that he or she is discharging a patient to an unsafe setting, has the discharge planner deprived the patient of essential services? A nursing home employee was convicted of a felony county of depriving a resident of essential services in Nuckles v. State. At a minimum, it would seem failure to plan for a safe discharge from a facility currently providing essential services could be a breach of the standard of care when determining whether the discharge planner and facility are liable for civil damages if the discharge results in harm to the patient.

Resources:

• Breathing Life Into Discharge Planning
• S. Potthoff, R. Kane, and S. Franco, Improving Hospital Discharge Planning for Elderly Patients, 19 Health Care Finac. Rev. 47-72 (1997)
• Conditions of Participation for Hospitals, 42 C.F.R. Part 482
• Georgia Rules and Regulations 111–8-40-.20 (Discharge Planning and Transfers)
• Nursing Home Discharges – 42 C.F.R. § 483.15(c)
• Important Message from Medicare
• Discharge Planning
• Hospital Discharge Rights Advocate’s Brief
• Georgia: Discharge Planning for Crisis Stabilization Units and Behavioral Health Crisis Centers, 01-352
• Hospital Discharge Planning: A Guide for Families and Caregivers
• Hospital discharge planning
• CMS’ Discharge Planning Rule Supports Interoperability and Patient Preferences | Rule
• Your Discharge Planning Checklist
• Physician Responsibilities for Safe Patient Discharge
• Medicare Hospital Discharge Planning (DHHS Office of Inspector General)
• Challenging Hospital Discharge Decisions
• Georgia Caregivers Act
• Bipartisan Georgia Caregivers Act Becomes Law
• Georgia Police Blasts Hospital for Allegedly Discharging Sick Man Who Collapsed on Sidewalk
• Man with dementia found dead in woods after being released from Piedmont Hospital
• CDC: Characteristics of Patients Experiencing Rehospitalization or Death After Hospital Discharge in a Nationwide Outbreak of E-cigarette, or Vaping, Product Use–Associated Lung Injury — United States, 2019
• The Art of Discharge Planning: Teaching Nursing Students to Address Disparities Through Simulation
• Can He ever be cared for at Home: Discharge Planning for a New Bedbound Elderly