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Our hospital has a patient who no longer needs acute care. We gave her the “Important Message from Medicare,” and she has not appealed the discharge decision. However, she refuses to consent to the skilled-nursing facility placement we secured. What can we do?
During the COVID-19 pandemic, many statutes and regulations regarding discharge planning and consent for transfer have been waived. For example, the Centers for Medicare & Medicaid Services has waived the requirement to tell patients of their freedom to choose among participating post-acute providers and suppliers, and to provide data on quality measures and resource use measures. The requirement to include in the discharge plan a list of available post-acute providers has also been waived. However, the state and federal constitutions and common law (judge-made law) give individuals the right to self-determination – that is, to decide what happens to their bodies, including where to go. Forcibly transferring a patient somewhere they don’t want to go could be considered battery or kidnapping. These laws cannot be not waived.
This does not mean that the patient has the legal right to stay in the hospital. She does not. However, it is not usually possible for a hospital to get a local public health officer to legally order the patient to leave or a law enforcement officer to remove the patient. CHA recommends that the hospital carefully document the patient’s medical condition and readiness for discharge and present all available options to the patient. The hospital’s social services, pastoral care, or behavioral health department may be helpful in getting the patient to choose one of the options. Legal solutions are expensive and time-consuming, so creativity and persuasion are important. Should legal action eventually be necessary, it will be important for the hospital to show that it exhausted other avenues for transfer or discharge. If other efforts fail, a hospital should consult its legal counsel to consider an action for unlawful detainer and/or trespass.
Hospitals may also want to consider including language in their Conditions of Admission (COA) form that obligates the patient to leave when the need for acute care is over. It might help to show the patient that this is standard procedure, it is required of all patients, and she already agreed to it. (7/27)
