An Introduction to the Discharge Laws
California hospital discharge laws are designed to protect patients from premature or inappropriate discharge from hospitals. The laws typically require hospitals to provide patients with information about their rights to appeal a discharge decision and to obtain a second medical opinion before being discharged. Discharge laws also require that hospitals follow specific procedures when preparing for a discharge.
There are several attractions to California discharge laws: Logistics generally favors patients being discharged in the morning. While doctors and nurses sometimes make this a matter of practice rather than policy , patients have a right to expect that their discharge can be accomplished during the day rather than the late evening or at night. One reason is that an overnight departure can mean greater expense associated with a longer hospital stay. Another is that there can be unforeseen changes to the discharge plan that arise after the official discharge time. The resulting delay can create a problem that extends into the next day.
California discharge laws also have the goal of protecting patients against complications that can arise if there is not a proper transition from hospital stay to home or to another facility where there is a proper and safe plan for further care and treatment.
Rights of a Patient Upon Discharge
Patients generally enjoy a number of rights when it comes to having the hospital discharge its patients in California. Every patient is entitled to receive all of the information required by California law with regards to their discharge, including a comprehensive explanation of the process and information about their on-going care after discharge. Like any other major medical procedure, it is incumbent on the physician discharging the patient from the hospital to explain their condition and what they will require after being released. However, before a patient consents to their discharge appointment, the hospital must acquire their informed consent before actually discharging them.
The above means that the hospital must provide all reasonable information necessary for the patient to make an informed medical decision, including information related to whether or not the patient has the ability to get to the place he or she needs to go for post-discharge care.
If a patient has been discharged that has not been informed and has not consented to his or her discharge, that can be sufficient grounds for a lawsuit in California. Depending on the circumstances of the premature discharge, that may well constitute wrongful termination or even medical malpractice.
Responsibilities of a Provider During Discharge
Phase II of the Hospital Discharge Laws goes into effect on July 1, 2019. Phase II of the law requires additional documentation, education, and follow up on the part of the hospital to assist the patient as they transition home.
Brown Law Network represents many physicians and healthcare providers in cases dealing with California’s hospital discharge laws. Phase II of the hospital discharge laws requires hospitals to provide continuing care referrals for patients. In addition to providing information about different sources of post-hospital care, hospitals must continue to check in with their patients. This phase of the law is intended to reduce hospital readmissions and provide continuity of care for the patient after discharge. On or before January 1, 2020, California will begin tracking of healthcare facilities and their compliance with the law. Including any penalties that may be assessed or fines that may be imposed. In short, the California Department of Public Health will start collecting patient readmission data that will be compared with the hospital’s discharge practices. Any problems noted by the state will need to be immediately reported to the facility’s governing body. By July 1, 2019, all health care providers must make reasonable efforts to identify and document patients who are most likely to face defined discharge or post-discharge problems. Those patients must be referred to a caseworker who must make a post-discharge appointment with the patient or their family. The law also sets out what patient must be discharged with as they leave the hospital. Discharge paperwork must include information about the insurance, Medicare or Medicaid, financial assistance policy that may be available to the patient. The patient’s medical records must be available to the patient after discharge. In the event personal items are taken from the patient during their stay, such items must be returned to the patient upon discharge.
Procedural Requirements and Guidelines for the Discharge Process
As previously mentioned in the discussion on what is required to be done prior to discharge, California law requires a certain process and documentation to be followed under California Hospital Discharge Laws. Presently, Section 70422 (Cal. Code Regs. tit. 22, ยง 70422) includes the hospital’s admission and discharge policies and procedures; the description of the physician’s role in discharging patients; the policies and procedures for transitions of care for patients admitted for 24 hours or more; the hospital’s plan for discharging patients in a safe and timely manner; and a list of state and federal patients’ rights that contains detailed explanations of the legal rights of discharge patients. The California H&SC Section 1256.10 provides that the physician must inform adult patients or the parents or guardians of minor patients that the patient has a right to be discharged or transferred from the hospital if a third party payor has not provided authorization for continued hospitalization or if payment for continued hospitalization is no longer likely from the third party payor. California Health & Safety Code Section 1262.5 provides that, prior to the discharge of a person admitted to a hospital, there be an explicit and detailed discharge planning, prepared by the medical staff and other appropriate personnel, which shall be developed in collaboration with the patient, the patient’s family, and the physician, if the patient so desires. The discharge planning shall include but not be limited to: It is important that hospitals and healthcare providers become familiar with the mandated discharge planning requirements and documentation requirements and have these included in the discharge policy and follow them in every discharge situation. Otherwise, a challenge to whether proper procedures were followed may lead to recovery by the Plaintiff.
Appealing a Discharge
An essential health and safety rule for patients is that they can stay in a hospital or skilled nursing facility until hospital doctors discharge them. Many times this rule is broken.
Patients and their families have options within California to challenge or appeal a decision to discharge a patient when it is not medically appropriate. This may be done orally or in writing but must be done prior to discharge if the discharge is being challenged. If it is done after the discharge, this will be considered an appeal of the discharge.
If a discharge is being challenged, the hospital will either reverse the discharge order or offer you a post-discharge plan of care. You cannot be discharged from a hospital without appropriate advice about how to obtain proper follow-up care.
If your discharge is after the fact, the appeal must be submitted in writing to the hospital’s patient representative, patient advocate or social services department. The challenge or appeal is valid only "in good faith" and may be accepted orally.
Your appeal must be followed by a written notice from you that you want to appeal the discharge and that you have received that notice . That notice must be sent before midnight of the second day after the receipt of the discharge notice. A copy of that notice must be kept by the patient in their health care records.
When your appeal is received, the hospital’s case manager or other staff member will give you a new plan of care that continues your hospital stay at the same level of care, or at a different level of care such as a subacute unit of the hospital or a skilled nursing facility, if appropriate. Your physician must approve the new post-hospital plan.
The hospital may also ask you to go to the hospital’s grievance mechanism, often called a peer review body for a second level review of the discharge notice. That group will be independent from the hospital staff and will give serious consideration to your concerns. While this will delay your discharge, you should not have to worry about whether you will remain in the hospital.
If you are still not satisfied, you may ask for a third level of review to the hospital administrator: the director of your hospital department or the vice president overseeing your area of care.
The Issue of Insurance
Insurance policies also factor into the discharge process. If a pre-approval is required for admission, that may affect when your loved one can be discharged. So, too, will having an appropriate place available if a total care facility is not in-network.
There are also coverage and copayment issues to consider following discharge. Is your loved one eligible for skilled nursing care in the home, or must he or she be discharged directly to a skilled nursing facility? If he or she is going home, does post-surgical home care qualify for insurance reimbursement? Do not assume that your health insurer will automatically approve all post-discharge care. Be sure to ask for clarification so you understand your coverage options and responsibilities.
Helpful Resources for Patients and their Families
There are many types of cases handled by the California hospital malpractice lawyers at Levin & Nalbandian LLP. Some cases involve patients who have been harmed as a result of California hospital negligence such as a medication error or a hospital acquired infection (such as a central line infection or post-operative infection), while others involve patients who have been harmed by a critical care error, whereas there may not be an obvious negligence cause of action. Either way, the resources below can be utilized by patients and families to assist them with understanding the California hospital discharge laws and properly handling a hospital discharge.
California Department of Public Health
The California Department of Public Health oversees California hospitals and other health facilities. They answer patient and family questions and investigate complaints about California Hospitals , including complaints about discharges.
The Joint Commission (TJC):
The Joint Commission (TJC) is an independent, non-profit organization that sets standards for healthcare organizations and accredits hospitals and other healthcare organization that meet those standards. If you want to see what healthcare organizations must do to become accredited, you can search their online database, called Quality Check. You can also search it to see which hospitals are accredited.
Consumer Reports:
Consumer Reports rates hospitals on their quality and safety and publishes those ratings on-line. They also input data from the American College of Radiology that is related to hospitals and radiology quality.
California Health Care Foundation:
The California Health Care Foundation has lots of resources for patients relating to healthcare, health coverage, and health coverage.
AARP:
AARP has a guide titled "You and the Law: Hospitals: What You Need to Know" about your rights in a California hospital.