When your loved one is in a nursing home / rehab center for rehab after a hospital stay, and the nursing home / rehab center says it is “discharging” them, this is almost always untrue. In almost all cases, the facility is not issuing a true discharge notice at all. Rather, it is issuing a Notice of Medicare Non-Coverage, which only addresses whether Medicare will continue paying for skilled nursing and/or rehab services.
If a rehab facility says they are “discharging” your loved one, the first step is for you ask them for the written Notice of Medicare Non-Coverage (NOMNC) if they haven’t provided it. The next step is for you take 2 minutes to read the NOMNC document, and you will clearly see that it is NOT a discharge notice, but rather a notice that Medicare is planning to end coverage as of a certain date, and that the NOMNC explicitly contemplates that your loved one may stay in the facility and pay privately if they do not have Medicaid.
The next step is to contact an experienced Elder Law firm such as the Farr Law Firm to help you decide if Medicaid Planning makes sense in order to get your loved one eligible for Medicaid, which is almost always the case if you think your loved one needs to remain in the nursing home. Medicaid Planning should also be considered if the goal is to bring your loved one home with appropriate in-home care, because in most states, including Virginia and DC, Medicaid will pay for in-home care for someone who needs the nursing home level of care.
The distinction between a NOMNC and a discharge notice matters enormously. A Medicare coverage decision is not even remotely the same thing as a decision that your loved one must leave the facility. Families often do not know the difference, and nursing homes often do not explain it, instead tossing around the term “discharge” repeatedly and making the family feel they have no choice but to bring their loved one home or to find another living arrangement, such as at an assisted living facility, which as a general rule does not take Medicaid.
This almost always happens when the resident is weak, frightened, medically fragile, and dependent on the facility for care, and the family is tired, overwhelmed, and in the habit of listening to medical professionals who the family assumes they can trust.
CMS recently reinforced the seriousness of unsafe nursing home discharges in QSO-26-03-NH. CMS stated that it updated complaint procedures and expanded examples of complaint intakes warranting immediate-jeopardy prioritization, including “discharging a resident to an unsafe setting.”
What Is the Difference Between a Medicare Non-Coverage Notice and a Nursing Home Discharge Notice?
A Notice of Medicare Non-Coverage is a Medicare notice. Skilled nursing facilities (aka nursing homes, whether they call themselves rehab centers or health care centers or some combination thereof) must provide a NOMNC when Medicare-covered services are ending. The notice tells you that Medicare is going to stop paying as of a certain date, and it also specifically states that if the person stays at the nursing home, they will have to pay privately if they don’t have Medicaid. The NOMNC also tells you how to request an appeal via phone.
The NOMNC is about Medicare payment for covered skilled services. It is not a notice that the nursing home is going to discharge the resident from the facility.
This is where families are often misled, sometimes intentionally and sometimes through sloppy communication. A rehab resident may be told:
• “Medicare is ending, so you have to go home Friday.”
• “Therapy is done, so discharge is tomorrow.”
• “Your appeal is only about Medicare, so once Medicare stops paying, you have to leave.”
• “You are not making enough progress, so we are discharging you.”
• “The facility cannot keep you if Medicare will not pay.”
Some of those statements may be partly true as to Medicare payment. They are not true as to the resident’s right to remain in the facility.
What Does Federal Law Say about Nursing Home Transfers and Discharges?
The Nursing Home Reform Act protects residents from improper transfers and discharges. The nursing home statute says a skilled nursing facility “must permit each resident to remain in the facility and must not transfer or discharge the resident” unless one of the limited statutory grounds exists. Those grounds include that the resident’s needs cannot be met in the facility, the resident no longer needs the services provided by the facility, the health or safety of others is endangered, the resident has failed to pay after reasonable and appropriate notice, or the facility ceases to operate.
The regulation at 42 CFR § 483.15 similarly says that the facility “must permit each resident to remain in the facility, and not transfer or discharge the resident” except for the listed permissible reasons. It also says the facility may not transfer or discharge the resident while a proper appeal is pending, unless failure to transfer or discharge would endanger the health or safety of the resident or others, and the facility must document that danger.
This is not a casual “facility preference” issue. It is a federal resident-rights issue.
A Real Nursing Home Discharge Notice Generally Requires 30 Days Notice
A true nursing home transfer or discharge notice must be in writing and must satisfy specific content requirements. Federal regulation requires the facility to notify the resident and resident representative of the transfer or discharge and the reasons for the move in writing, in a language and manner they understand. The facility must also send a copy of the notice to the Office of the State Long-Term Care Ombudsman.
The timing requirement is critical. The regulation says that, except for limited exceptions, “the notice of transfer or discharge required under this section must be made by the facility at least 30 days before the resident is transferred or discharged.”
The written notice must include:
• The reason for transfer or discharge
• The effective date
• The location to which the resident is being transferred or discharged
• A statement of the resident’s appeal rights
• Contact information for the entity that receives appeal requests
• Information on how to obtain appeal assistance
• The contact information for the Office of the State Long-Term Care Ombudsman
• Additional protection-and-advocacy contact information when applicable.
A vague statement that “Medicare is ending” is not enough. A rushed conversation at the nurses’ station is not enough. A therapy update is not enough. A NOMNC is not enough.
What If the Nursing Home Says the Resident Is “Only There for Rehab”?
That statement is common. It is also incomplete and misleading.
Many residents enter a nursing home after a hospital stay for short-term skilled care and/or rehab. Medicare will pay for part of that stay if the resident meets Medicare coverage requirements. But once Medicare coverage ends, the question becomes whether the resident has a lawful basis to remain in the facility under nursing home resident-rights law and the answer is they do, whether the alternate payment source is private pay, long-term care insurance, or long-term care Medicaid.
This is where nursing homes often exert pressure. The facility may prefer to free up a short-term rehab bed for another Medicare patient because Medicare rehab rates are financially attractive. The resident and family may be told to arrange home care, assisted living, or family caregiving in a matter of days, even when the resident cannot safely transfer, toilet, walk, manage medications, or be left alone.
That is the danger point. The end of Medicare rehab coverage does not automatically mean the resident can safely go home, and it does not mean the facility has issued a valid discharge notice.
Why Medicaid Appeal Rights Matter
All nursing home residents, including those who entered the facility initially for short-term rehabilitation, are entitled to stay in the facility for long-term care after the rehab ends and Medicare stops. Whether or not you’re currently Medicaid-eligible, you’re entitled to a 30-day notice and a federal Medicaid fair-hearing prior to discharge. This appeal hearing structure is through Medicaid and not Medicare. The Medicaid fair-hearing regulation expressly implements an appeals process for any person who “is subject to a proposed transfer or discharge from a nursing facility.”
The same regulation defines an “action” to include “a determination by a skilled nursing facility or nursing facility to transfer or discharge a resident.”
The hearing system must meet the due process standards set forth in the US Supreme Court case of Goldberg v. Kelly, 397 U.S. 254 (1970),” and Goldberg requires meaningful pre-termination due process for public benefits.
The procedural rights are not cosmetic. The Medicaid hearing rules give the applicant or beneficiary, or their representative, an opportunity to examine the records used at the hearing, bring witnesses, establish facts, present argument, and question or refute testimony and evidence, including the opportunity to confront and cross-examine adverse witnesses.
In addition, federal regulation provides that if a nursing facility provides a 30-day notice of intent to transfer or discharge a resident, the agency may not terminate or reduce services until the notice period expires or, if a qualifying appeal has been filed, until the appeal has been resolved.
How Families Get Taken Advantage Of
Most families do not learn these rules at all, simply accepting the nursing home statement that that their loved one is being “discharged.”
Your loved one may have recently suffered a stroke, a fall, a fracture, an infection, leading to hospitalization and then rehab at the nursing facility.
You, as the spouse or adult child, may be exhausted and frightened. The nursing home has the chart, the nurses, the social worker, the therapy team, the billing office, and the “discharge planner.”
The family gets told, “We are discharging Mom Friday,” and the family accepts that this incorrect statement is true. Sometimes the nursing home doesn’t even give the family the Notice of Medicare Non-Coverage (NOMNC).
That is an unfair and one-sided system.
The facility will not usually explain that:
• The Medicare notice is not a nursing home discharge notice.
• A real nursing home discharge notice requires 30 days.
• The resident may have appeal rights.
• The resident has the right to remain during the appeal.
• The facility must identify a safe discharge location.
• “Home” is not a safe discharge plan merely because the facility writes “home” on a form.
• A family member’s inability to provide 24-hour care matters.
• Long-term care Medicaid may be the solution if nursing home level of care is still needed, whether in the nursing home or later, at home.
How Farr Law Firm Helps Through Level 4 Planning
At the Farr Law Firm, preventing improper nursing home discharges is a routine part of our Level 4 Life Care & Medicaid Planning. Level 4 Planning is not just paperwork. It is crisis advocacy, care coordination, asset protection, Medicaid Planning, and practical guidance when a loved one is already in the long-term care system or is about to enter it.
When a nursing home starts pressuring a family about “discharge,” we help determine what is actually happening:
• Did the facility issue only a Notice of Medicare Non-Coverage?
• Did the facility issue a real nursing home transfer or discharge notice?
• Does the notice comply with federal requirements?
• Was the Ombudsman copied?
• Does the notice identify a safe and specific discharge location?
• Is the facility claiming it cannot meet the resident’s needs?
• Has the resident’s physician documented the basis for discharge where required?
• Is the resident Medicaid-eligible, Medicaid-pending, private pay, or transitioning from Medicare to another payment source?
• Should an appeal be filed?
• Should the family push back against an unsafe discharge plan immediately?
This is closely connected to long-term care planning, Life Care Planning, and Medicaid Asset Protection Planning. Families need more than a legal answer. They need a plan for care, payment, authority, advocacy, and asset protection.
Why “Send Them Home” Can Be Dangerous
Most people in nursing homes for short-term rehab want to go home after rehab is over, and most family members want to bring them home. But many times, bringing someone home is dangerous, or the timing is off.
A nursing home discharge can be disastrous when the resident cannot safely function at home. A person may technically be “stable” from the facility’s perspective but still unable to live safely outside a staffed care setting.
Unsafe discharge concerns may include:
• Inability to transfer safely from bed to chair
• High fall risk
• Wandering, confusion, or dementia-related behaviors
• Medication mismanagement
• Wounds, infections, feeding issues, or continence problems
• Lack of 24-hour supervision
• Lack of a reliable caregiver
• Inability of a spouse to provide the necessary hands-on care
• Home layout problems, such as stairs, bathrooms, or narrow doorways
• No arranged home health services
• No realistic payment plan for private-duty care
CMS’s QSO-26-03-NH matters because CMS specifically recognized unsafe discharge as serious enough to be included among examples warranting immediate-jeopardy prioritization in complaint intake procedures. That is not a small point. Unsafe discharge can cause immediate harm.
What Should You Do When the Facility Uses the Term “Discharge”?
Do not assume the nursing home is correct. Do not assume a Medicare notice means your loved one must leave. Do not sign anything you do not understand. Do not agree to take someone home if home is unsafe.
Ask for the actual document the facility is relying on. If it is a Notice of Medicare Non-Coverage, understand that it addresses Medicare payment for skilled services. It is not a valid 30-day discharge notice under the Nursing Home Reform Act and 42 CFR § 483.15.
Ask whether the resident is being discharged because Medicare is ending, because the facility claims the resident no longer needs nursing facility services, because the facility claims it cannot meet the resident’s needs, or because of payment issues. Those are different arguments with different responses.
If long-term care Medicaid may be needed, get advice immediately. Medicaid Planning for long-term care coverage is not the same as planning for health insurance Medicaid, which is for low-income individuals. Long-term care Medicaid is for the majority of middle-class individuals and has no income limit. The program that can pay for nursing home care, and often certain home-based care, when strict eligibility requirements are met. The timing, paperwork, asset rules, and resident-rights issues must be handled carefully.
Nursing Home Discharge Problems Are Often Preventable
Improper nursing home discharges often happen because the family does not know the words to use, the deadlines to watch, or the documents to demand. The facility knows the system. The family usually does not.
That imbalance is exactly why experienced advocacy matters.
At the Farr Law Firm, we routinely help families push back when nursing homes attempt to remove vulnerable residents without proper notice, proper appeal rights, or a safe discharge plan. Sometimes the solution is stopping the discharge. Sometimes it is filing or preserving an appeal. Sometimes it is coordinating placement in a more appropriate facility. Sometimes it is converting the resident from Medicare rehab to long-term care Medicaid, or private pay first followed by Medicaid once we have implemented the appropriate Medicaid Asset Protection strategies under our Level 4 Planning.
Often, it is all of these at once.
A nursing home cannot simply call something a “discharge” and make it lawful. Families should know the difference between a Medicare non-coverage notice and a real discharge notice before they agree to anything.
Protect Your Loved One Before the Facility Controls the Timeline
If your spouse, parent, or loved one is in a nursing home or rehab facility and the facility says Medicare is ending or discharge is imminent, do not wait until the last day. The earlier you act, the more options you usually have.
Farr Law Firm helps families with Level 4 Life Care & Medicaid Planning, including nursing home discharge advocacy, long-term care Medicaid planning, asset protection, and care coordination. To learn more, visit our Level 4 Planning page, our Long-Term Care Planning page, or our prior article Is Nursing Home Eviction Ever Legal?.
Get in Touch or Schedule Your Consultation
Don’t wait for a crisis. Educate yourself, talk with those you trust, and work with a knowledgeable attorney here at the Farr Law Firm to make your decisions official.