transfers/discharges from long-term care facilities and
TRANSCRIPT
Transfers/Discharges From Long-Term Care Facilities and
the Appeal Process
Social Services Institute, Hickory, NC
August 1, 2019
Victor Orija, MPA -- State Long-Term Care Ombudsman
Misty L. Piekaar-McWilliams, JD -- Legal Services Developer
Long-Term Care Ombudsman Program
• Begun in 1972 as a demonstration program, today the Ombudsman program operates in all states, the District of Columbia, Puerto Rico and Guam, under the authorization of the OAA.
• Each state has an Office of the State LTC Ombudsman (Office), headed by a full-time State LTC Ombudsman (Ombudsman) who directs the program statewide.
• Ombudsmen designate staff and thousands of volunteers as representatives to directly serve residents.
Long-Term Care Ombudsman Program
• 42 U.S.C. § 3058g requires the State Ombudsmen to: • Identify, investigate and resolve complaints made on behalf of residents;
• Provide information to residents about long-term care services;
• Ensure that residents have regular and timely access to ombudsman services;
• Represent the interests of residents before governmental agencies and seek administrative, legal and other remedies to protect residents; and
• Analyze, comment on, and recommend changes in laws and regulations pertaining to the health, safety, welfare and rights of residents.
Long-Term Care Ombudsman Program in NC
State Long-Term Care
Ombudsman Program
NC Division of
Aging and Adult Services
Area Agencies on Aging
36 Regional Long-Term Care Ombudsmen
Boards of County Commissioners
Community Advisory Committees
Legal Services Developer
• 42 U.S.C. § 3058j requires the Legal Services Developer/Legal Assistance Developer to:
• Securing and maintaining the legal rights of older individuals (60+);
• Coordinating the provision of legal assistance;
• Provide technical assistance, train and educate;
• Promote financial management services to older individuals at risk of conservatorship;
• Assist older persons in understanding their rights; and
• Improve the quality and quantity of legal services
Legal Services though OAA in NC
NC Division of
Aging and Adult Services
1 Legal Services Developer
Area Agencies on Aging
16 Regions
Legal Service Providers
11 Law Firms
Federal and State Regulations
• Federal / CMS - Nursing Homes
• State Regulations
42 CFR 483.15 (fed) and 10A NCAC 22H (Nursing Homes)
NCGS §131D-4.8 (NC) and 10A NCAC 13F .0702 (Adult Care Homes)
10A NCAC 13G .0705 (Family Care Homes)
Declaration of Residents’ Rights
NCGS Chapter 131-E Article 6 (15)
To not be transferred or discharged from a facility except for medical reasons, the patient's own or other patients' welfare, nonpayment for the stay, or when the transfer or discharge is mandated under Title XVIII (Medicare) or Title XIX (Medicaid) of the Social Security Act . . .
NCGS 131D-21(17)
To not be transferred or discharged from a facility except for medical reasons, the residents' own or other residents' welfare, nonpayment for the stay, or when the transfer is mandated under State or federal law. The resident shall be given at least 30 days' advance notice to ensure orderly transfer or discharge, except . . .
Transfer and Discharge for Nursing Homes 42 CFR 483.15
6 Reasons for Transfer/Discharge • Necessary for the resident’s welfare and the resident’s needs
cannot be met • Resident no longer needs the facility’s services • Safety of others is endangered due to the clinical or behavioral
status of the resident • Health of others is endangered • Nonpayment
• But only if the resident does not submit the necessary paperwork for 3rd party reimbursement
• Facility closes
Transfer and Discharge for Adult Care Homes NCGS 131D -4.8
6 Reasons for Transfer/Discharge • Necessary for the resident’s welfare and the resident’s needs
cannot be met as documented by the resident’s physician, physician assistance or nurse practitioner
• Resident no longer needs the facility’s services as documented by the resident’s physician, physician assistance or nurse practitioner
• Safety of others is endangered • Health of resident/others is endangered • Nonpayment
• Resident failed to pay for costs and services as specified in the resident’s contract after notice
• Mandated by Medical Care Commission
Nursing Home Facility Cannot Meet Resident’s Needs
42 CFR 483.15(c )(2)(i)(B)
10A NCAC 13F .0702(b)(1) and 10A NCAC 13G .0705(b)(1)
Specific documentation in the medical record, by the resident’s attending physician, required if transfer/discharge based on inability to meet needs – (effective November 2017).
• “Specific resident need(s) that cannot be met”; • “Facility attempts to meet the resident needs”; and • “Service available at the receiving facility to meet the need(s)”
• Pre-admission requirement that facility provide “notice of special characteristics or service limitations”
Adult Care Home Facility Cannot Meet Resident’s Needs
NCGS § 131D- 4.8(a)
• Must be documented by the resident’s physician, physician assistant or nurse practitioner
• Hearing Officer will establish creditability of Dr.,PA or NP
• Resident remains in facility pending appeal except in case that resident’s needs cannot be met (NCGS § 131D-4.8(g))
• Factors test: Safety of person vs. appeal rights
• Hearing Office has no enforcement powers • Contact Adult Placement Specialist
Safety of Others is Endangered
42 CFR 483.15(c )(1)(i)(C)
10A NCAC 13F .0702(b)(3) and 10A NCAC 13G .0705(b)(3)
• Resident’s clinical or behavioral status (or condition) endangers health or safety of others
• Facility must document the danger that failure to transfer or discharge would pose
• A social behavior ≠ safety of others issue
• Documentation in the medical record by a physician
Adult Care Home Safety of Resident/Others is Endangered
NCGS 131D- 4.8(a)
• The statute has no additional requirements • Medical record can be noted by any Dr., PA, NP, SW, etc.
• Common safety of others cases: • Smoking (especially indoors)
• Non-compliant smoking
• Drinking inside the building
• Drugs
• Weapons
• Invitation of others onto the facility
Health of Others is Endangered
483.15(c)(1)(i)(D)
10A NCAC 13F .0702(b)(4) 10A NCAC 13G .0705(b)(4)
• Resident’s clinical or behavioral status (or condition) endangers health or safety of others
• Facility must document the danger that failure to transfer or discharge would pose
• Documentation in the medical record by any physician
Adult Care Home Health of Resident/Others is Endangered
NCGS § 131D-4.8 (a)
• NCGS 131D-4.8(g)(3), a resident can be discharged even if they have appealed providing the resident’s stay in the facility would be a health risk to others
• Health risk to others must be documented by a physician, physician assistant or nurse practitioner
• Real life – Facility seeks an IVC (NCGS §122C) • Involuntary Committal Order
Failure To Pay for Services
483.15(c)(1)(i)(E)
10A NCAC 13F .0702(b)(5) 10A NCAC 13G .0705(b)(5)
• Conversion from private pay to Medicaid does not constitute non-payment; nor does an appeal of a denial of Medicaid
• It is the responsibility of the facility to notify the resident of their change in payment status, and the facility should ensure the resident has the necessary assistance to submit 3rd party paperwork
• If a resident representative has failed to pay, if there is evidence of exploitation or misappropriation of the resident’s funds by the representative, the facility should notify the appropriate authorities, before discharging the resident.
Adult Care Home Non-Payment
NCGS 131D-4.8 (a)
• Note requirement to pay costs and services • hair care = service
• Payment due by due date as specified in contract • Evidence = contract
• Notice is due • Constructive notice vs actual notice
Adult Care Home Improved Health, Resident doesn’t need ACH
NCGS § 131D-4.8(a)(2)
•Seen among chronic homeless residents
•Resident often seeks another medical opinion • Discharge team planning is imperative (NCGS 131D-4.8(e))
• What is discharge team? Depends on county, facility, etc.
Adult Care Home Discharge Team NCGS § 131D-4.8(e)
• Required for all discharge/transfers • Unless resident doesn’t appeal or withdraws appeal • Burden ≠ Solely facility • Potential players
• Local management entities • Local DSS if Alzheimer’s, abuse, neglect • Regional LTC ombudsman, if requested
Information To The Receiving Provider
483.15(c)(2)(iii)
A minimum of the following:
• Responsible practitioner’s contact information
• Resident representative contact information
• Advance Directives
• Special instructions or precautions
• Comprehensive care plan goals
• Other necessary information, including the resident’s discharge
New Protection
• No transfer / discharge while appeal is pending , absent documented /endangerment to health or safety of resident or others.
• Facility must send copy of transfer/discharge notice to LTC ombudsman program.
• Facility must assist resident in “completing the form and submitting the appeal hearing request.
• No transfer/discharge for nonpayment if the resident has submitted all
necessary paperwork for third party payment, e.g., Medicaid application.
Notice Before Transfer
42 CFR 483.15(c )(3) 10A NCAC 13F .0702e ) 10A NCAC 13G .0705(e)
• To the resident and resident’s representative (DMA Forms 9050 & 9051 – NH, and DMA 9052 & 9053 – ACH)
• To the Office of the State LTC Ombudsman
• In writing
• In language and manner they understand
• At least 30 days before transfer-discharge, unless: • Health and safety of others in the facility are endangered • Resident’s health improves so that a more immediate transfer is allowed • Resident’s urgent medical needs require more immediate transfer • Resident has not resided in the facility for 30 days
Contents Of Notice
• Reason for transfer-discharge
• Effective date
• Location to which the resident will be transferred-discharged
• Appeal rights, including:
• name, address (mail and email), and telephone number of the entity receiving appeal
requests
• Information on how to obtain an appeal form
• Assistance in completing the form and submitting the appeal hearing request
• Contact information of the Office of the State LTC Ombudsman
• Also Protection & Advocacy for residents with intellectual and developmental
disabilities, or a mental disorder or related disabilities
Skilled Nursing Facility/ Adult Care Home Appeal Process
1. Reason to Issue Discharge/Transfer
2. Transfer/Discharge Handed with Appeal Form
3. Appealed within 11 calendar days
4. Case received by Hearing Office and processed (1-5 days)
5. Appellant contacted with notice of date of hearing (3 weeks)
6. Appellant can submit documentation but not required
7. Case continued, if necessary
8. Decision rendered (certified mail)
9. Residents stays or leaves facility
Helpful Tips & Tricks
• The hearing is only on the reason checked, cannot add another reason
• 11 calendar days = 11 calendar days
• Good cause exception
• Submit accompanying documentation to prove good cause
• If a transfer/discharge form is not accompanied by an appeals form, the
case is dismissed
• Copy of signature
• Telephone vs In-person
• Want facts of the case
Revised Nursing Home Regulations
• “The regulation at 42 CFR 483.15(c)(3)(i) requires, in part, that before a facility transfers or discharges a resident, the facility must “notify the resident and the resident’s representative(s) of the transfer or discharge and the reasons for the move in writing and in a language and manner they understand….” The facility must also “…send a copy of the notice to a representative of the Office of the State Long-Term Care Ombudsman.” Sending a copy of the notice to a representative of the Office of the State Long-Term Care (LTC) Ombudsman provides added protection to residents and ensures the Office of the State LTC Ombudsman is aware of facility practices and activities related to transfers and discharges.”
Revised requirements: Notice of Discharge
• If the facility determines the resident will not be returning to the facility, the facility must notify the resident, his or her representative, and the LTC ombudsman in writing of the discharge, including notification of appeal rights. If the resident chooses to appeal the discharge, the facility must allow the resident to return to his or her room or an available bed in the nursing home during the appeal process, unless there is evidence that the resident’s return would endanger the health or safety of the resident or other individuals in the facility.
• For concerns regarding notification of discharge, and the resident’s right to appeal the discharge, refer to the regulation and guidance at §483.15(c)(3)-(5)(F623).
Guidance letters to State Survey Agency Directors Memorandum Summary • Federal regulations allow facilities to initiate discharges of residents only in
specific instances. Despite these protections, discharges which violate Federal regulations continue to be one of the most frequent complaints made to State Long Term Care Ombudsman Programs.
• The Centers for Medicare & Medicaid Services (CMS) has begun an
initiative to examine and mitigate facility-initiated discharges that violate federal regulations. CMS is examining State survey agency’s intake and triage practices for these type of discharge complaints, developing examples of inappropriate and appropriate discharges for surveyors, identifying best practices for nursing homes, developing training and evaluating enforcement options for these types violations.
CMS Memorandum Ref: S&C: 17-27-NH • Notice of Transfer or Discharge
• The regulation at 42 CFR 483.15(c)(3)(i) requires, in part, that before a facility transfers or discharges a resident, the facility must “notify the resident and the resident’s representative(s) of the transfer or discharge and the reasons for the move in writing and in a language and manner they understand….” The facility must also “…send a copy of the notice to a representative of the Office of the State Long-Term Care Ombudsman.” Sending a copy of the notice to a representative of the Office of the State Long-Term Care (LTC) Ombudsman provides added protection to residents and ensures the Office of the State LTC Ombudsman is aware of facility practices and activities related to transfers and discharges. Specific requirements for transfers and discharges are outlined below:
• Facility-Initiated Transfers and Discharges
• In situations where the facility has decided to discharge the resident while the resident is still hospitalized, the facility must send a notice of discharge to the resident and resident representative, and must also send a copy of the discharge notice to a representative of the Office of the State LTC Ombudsman. Notice to the Office of the State LTC Ombudsman must occur at the same time the notice of discharge is provided to the resident and resident representative, even though, at the time of initial emergency transfer, sending a copy of the transfer notice to the ombudsman only needed to occur as soon as practicable as described below.
• For any other types of facility-initiated discharges, the facility must provide notice of discharge to the resident and resident representative along with a copy of the notice to the Office of the State LTC Ombudsman at least 30 days prior to the discharge or as soon as possible. The copy of the notice to the ombudsman must be sent at the same time notice is provided to the resident and resident representative.
• Emergency Transfers
• When a resident is temporarily transferred on an emergency basis to an acute care facility, notice of the transfer may be provided to the resident and resident representative as soon as practicable, according to 42 CFR 483.15(c)(4)(ii)(D). Copies of notices for emergency transfers must also still be sent to the ombudsman, but they may be sent when practicable, such as in a list of residents on a monthly basis.
• Resident-Initiated Transfers and Discharges
• A resident-initiated transfer or discharge means the resident or, if appropriate, the resident representative has provided verbal or written notice of intent to leave the facility. The medical record must contain documentation or evidence of the resident’s or resident representative’s verbal or written notice of intent to leave the facility. A resident’s expression of a general desire or goal to return home or to the community or elopement of a resident who is cognitively impaired should not be taken as notice of intent to leave the facility. For resident-initiated transfers or discharges, sending a copy of the notice to the ombudsman is not required.
Orientation For Transfer / Discharge
• Facility must provide – and document - sufficient preparation and
orientation to residents to ensure safe and orderly transfer
• In a manner the resident can understand
• Sufficient preparation and orientation means the facility informs the
resident where he or she is going, and takes steps under its control to
minimize anxiety
Notice Of Bed-Hold Rights
• Applies in case of hospitalization or visit with family or friends (“therapeutic leave”).
• Notice of bed-hold and facility policy
• Before transfer– probably during admission; and
• Upon transfer
Returning To A Facility
• Applies when bed-hold period has been exceeded.
• Right to return to room, or next available semi-private room. • If eligible for reimbursement under Medicaid or Medicare.
Frequent Complaints
Nursing facilities: • Improper eviction or inadequate discharge/planning • Unanswered requests for assistance • Lack of respect for residents, poor staff attitudes • Administration and organization of medications; and • Quality of life, specifically resident/roommate conflict Assisted living/board and care: • Improper eviction or inadequate discharge/planning • Administration and organization of medications • Quality, quantity, variation and choice of food • Lack of respect for residents, poor staff attitudes; and
• Building or equipment in disrepair or hazardous Source: NORS, FFY 2016
Perspective Of The Resident
• Displacement from community – town, neighborhood and facility community;
• May mean a move miles away from family and friends including separation of couples;
• Fear of being homeless – once labeled a “problem” options become limited.
• “Left with limited options, family members/caregivers may need to ‘settle’ for an available placement in a facility that is equally poorly equipped to provide dementia care but desperate to fill a bed.”
Perspective Of The Resident [contd]
• “A typical resulting scenario (and the point at which an ombudsman is often called in) is that the individual with dementia may be sent out to the local hospital for evaluation and then refused readmission by the facility that transferred the resident out. With this behavioral incident and ‘removal’/eviction on the resident’s record, finding alternative placement can be a daunting challenge. Meanwhile, the individual with dementia suffers additional negative impacts through the upheaval generated by this series of events - - removal by uniformed law enforcement officers in a disturbing, demeaning TDO (temporary detaining order) process, sudden loss of familiar people, surroundings, and routines further increasing the dementia sufferer’s anxiety and often resulting in a downward spiral of decompensation
Causes of involuntary Nursing Home Evictions
• In addition to increased complexity of resident care, Ombudsman programs report that the number of eviction & discharge complaints is increasing due to:
• Resident’s lack of access to sufficient services to support mental health needs; lack of person-centered dementia care.
• Facility staffing shortage of both direct care and nursing staff; reliance on agency staffing, which often results in a lack of person-centeredness and consistency in care provided.
• Lack of appropriate, affordable services and housing in community based settings, resulting in placements that do not meet the resident needs.
• Lack of understanding of Medicaid financial eligibility requirements by the resident or resident representative, resulting in lack of a payment source for the resident.
• Financial exploitation - resident representative diverts funds and fails to use the resident’s money to pay the facility.
• Ombudsmen report that the number of eviction & discharge complaints is increasing due to increased complexity of residents’ needs, especially for individuals living with dementia or who have behavioral health needs. This is compounded by inadequate specialized staff training to meet those needs.
Source: NORS ,FFY 2016
Rank 2016 2015 2014 2013 2012 2011 2010 2009 2008 2007 2006
1Discharge Discharge Discharge Discharge Discharge Discharge Failure to
respond
Failure to
respond
Failure to
respond
Failure to
respond
Failure to
respond
2
Failure to
respond
Failure to
respond
Failure to
respond
Failure to
respond
Failure to
respond
Failure to
respond
Discharge Discharge Discharge Discharge Discharge
3Dignity,
respect
Dignity,
respect
Dignity,
respect
Dignity,
respect
Dignity,
respect
Dignity,
respect
Dignity,
respect
Dignity,
respect
Dignity,
respect
Dignity,
respect
Dignity, respect
Involuntary Nursing Home Evictions Over Time
Admission, Transfer, Discharge, Eviction
0
2000
4000
6000
8000
10000
12000
14000
2012
2013
2014
2015
2016
NORS 2016
Regional Long-Term Care Ombudsmen are located within the Area Agencies on Aging (AAA)
• Contact Information for N.C. Regional LTC Ombudsmen
• http://www.ncdhhs.gov/aging/ombud/ombstaff.htm
•
Thank you
Questions
Questions
Questions
Victor Orija, MPA --- State Long-Term Care Ombudsman
Misty L. Piekaar-McWilliams, JD -- Legal Services Developer