© Elizabeth Zink-Pearson

Recent case law raise significant concerns about Healthcare Agency’s liability for abandoning patients who are discharged from services or have services reduced. Discharging patients is always an undesirable decision for HHAs, but agencies may discharge and avoid legal liability for abandonment if certain steps are followed.

To understand the legal concept of “patient abandonment” it must be distinguished from discharge. Abandonment, as applied in the health care setting, is a unilateral termination of services when there is a continuing need for health care services and a lack of reasonable notice to the patient. Thus there are three elements to a claim for abandonment.

1. The termination is not subject to mutual agreement i.e. is a unilateral decision by the health care provider;
2. The discharge occurs without reasonable notice to the patient- sufficient to allow the patient to obtain another care giver;
3. The patient must continue to need health care services provided by the health care entity.

In the Home care setting then, the a patient abandonment claim is viable where there is not sufficient notice to the patient. Courts generally use the concept of “reasonable” notice which implies that there has been sufficient time for patient to obtain another health care provider or find alternative means of obtaining the needed care.
To facilitate “reasonable notice,” agencies should follow the following steps:

1. Determine the patient’s need for services- as to frequency, duration, and availability of alternative care givers. If there exists an ongoing plan of care services likely should not be terminated until a normal endpoint, such as the next decertification date.
2. Similarly, if the patient is under a plan of care, then the HHA should advise the patient physician of the intent to discharge.
3. Provide the patient advance written notice of the intent to discharge him or her including the exact date services will end, and explanation of the reasons for the decision to discharge, and suggested alternative care givers. Notice should be sent by certified mail, return receipt requested to properly document the patient’s receipt. A copy of the notice should also be transmitted to the physician.

The procedures for patient discharge, as outline above, should be included in agencies’ clinical policies. The unilateral decision to discharge must be made in accordance with the above procedures and in light of each patients’ ongoing need. Thus the length of the notice to the patient which is “reasonable” likely will depend on the particular situation, i.e. the availability of other providers and the patient’s need for services.

In addition if the decision to discharge is based on financial hardship due to reimbursement limitations, an H.A. must be prepared to show that it can not longer reasonably expect to be able to meet the needs of the patient- i.e. can no longer pay staff to provide the care. Discharge notices should always include information on the 504 Rehabilitation Grievance Policy (See: “504 Rehabilitation Act Grievance Policy.” by Elizabeth Zink-Pearson, on this website). In the end, in these difficult situations, it is advisable to discuss the situation with your health care counsel to obtain advise on the particular issues pertaining to the proposed discharge.