Transfer and Discharge Procedures

PURPOSE: This rule provides instructions for persons who are discharged from a licensed long-term care facility under involuntary circumstances. When this proposed rule becomes effective it will replace 13 CSR 15-9.010(17) which will be rescinded by subsequent rulemaking. This rule also includes the provisions of section 198.088, RSMo, applicable to transfer or discharge and the notice and due process required of all licensed facilities. (1) For the purposes of this rule, the following terms shall be defined as follows: (A) Transfer means moving a resident from one institutional setting to another institutional setting for care and under circumstances where the releasing facility has decided that it will not readmit the resident or a legally authorized representative of the resident has not consented or agreed with the transfer. Unless indicated otherwise from the context of this rule, a transfer shall be deemed the same as a discharge; (B) Discharge means releasing from a facility or refusing to readmit a resident from a community setting under circumstances where the resident or a legally authorized representative of the resident has not consented or agreed with the move or decision to refuse readmittance. Refusal to readmit a former resident shall not constitute a discharge if the former resident has been absent from the facility for more than ninety (90) days; (C) Consent to or agreement with transfer or discharge means one of the following: 1. The resident or a legally authorized representative of the resident has consented to, agreed with, or requested the discharge; or 2. The resident’s treating physician has ordered the transfer and the releasing facility intends to readmit the resident if requested to do so; (D) Consent of the resident means that the resident, with sufficient mental capacity to fully understand the effects and consequences of the transfer or discharge, consents to or agrees with the transfer or discharge; and (E) Legally authorized representative of a resident means a duly appointed guardian or an attorney-in-fact who has current and valid power to make health care decisions for the resident. (2) The facility shall permit each resident to remain in the facility unless— (A) The transfer or discharge is appropriate because the resident’s welfare and the resident’s needs cannot be met by the facility; (B) The transfer or discharge is appropriate because the resident’s health has improved sufficiently so the resident no longer needs the services provided by the facility; (C) The safety of individuals in the facility is endangered; (D) The health of individuals in the facility would otherwise be endangered; (E) The resident has failed, after reasonable and appropriate notice, to pay for (or have paid under Medicare or Medicaid) a stay at the facility. For a resident who becomes eligible for Medicaid after admission to a facility, the facility may charge that resident only allowable charges under Medicaid; or (F) The facility ceases to operate. (3) When the facility transfers or discharges a resident under any of the circumstances specified in subsections (2)(A)–(E), the resident’s clinical record shall be documented. The facility shall ensure that documentation for the transfer or discharge is obtained from— (A) The resident’s personal physician when transfer or discharge is necessary under subsections (2)(A)–(B); and (B) A physician when transfer or discharge is necessary under subsection (2)(D); and (C) The facility administrator or the facility director of nursing in all circumstances. (4) Before a facility transfers or discharges a resident, the facility shall— (A) Send written notice to the resident in a language and manner reasonably calculated to be understood by the resident. The notice must also be sent to any legally authorized representative of the resident and to at least one (1) family member. In the event that there is no family member known to the facility, the facility shall send a copy of the notice to the appropriate regional coordinator of the Missouri State Ombudsman’s office; (B) Include in the written notice the following information: 1. The reason for the transfer or discharge; 2. The effective date of transfer or discharge; 3. The resident’s right to appeal the transfer or discharge notice to the director of the Department of Health and Senior Services or his/her designated hearing official within thirty (30) days of the receipt of the notice; 4. That a request for a hearing should be sent to Department of Health and Senior Services Appeals Unit, PO Box 570, 912 Wildwood Drive 3rd floor, Jefferson City, Missouri 65102-0570, by fax to (573) 751-0247, or by email to DHSS.Appeals@health. mo.gov and the phone number for the appeals unit is (573) 522-1699; 5. That filing an appeal will allow a resident to remain in the facility until the hearing is held unless a hearing official finds otherwise; 6. The location to which the resident is being transferred or discharged; 7. The name, address, and telephone number of the designated regional long-term care ombudsman office; 8. For Medicare and Medicaid certified facility residents with developmental disabilities, the mailing address and telephone number of the Missouri Protection and Advocacy Agency, 925 South Country Club Drive, Jefferson City, MO 65109, (573) 893-3333, or the current address and telephone number of the protection advocacy agency if it has changed. The protection and advocacy agency is responsible for the protection and advocacy of developmentally disabled individuals established under Part C of the Developmental Disabilities Assistance and Bill of Rights Act. For Medicare and Medicaid certified facility residents with mental illness, the address and telephone number of Missouri Protection and Advocacy Agency, the agency responsible for persons with mental illness under the Protection and Advocacy for Mentally Ill Individuals Act; and (C) Record and document in detail in each affected resident’s record the reason for the transfer or discharge. The recording of the reason for the transfer or discharge shall be entered into the resident’s record prior to the date the resident receives notice of the transfer or discharge, or prior to the time when the transferring or discharging facility decides to transfer or discharge the resident. (5) The notice of transfer or discharge described in this rule shall be made by the facility no less than thirty (30) days before the resident is to be transferred or discharged. In the case of an emergency discharge, the notice shall be made as soon as practicable before the discharge when it is specifically alleged in the notice that— (A) The safety of individuals in the facility would be endangered under subsection (2)(C) of this rule and the notice contains specific facts upon which the facility has based its determination that the safety of said individuals would be so endangered; (B) The health of individuals in the facility would be endangered under subsection (2)(D) of this rule and the notice contains specific facts upon which the facility has based its determination that the safety of said individuals would be so endangered; (C) The resident’s health has improved sufficiently to allow a more immediate transfer or discharge under subsection (2) (B) of this rule; (D) An immediate transfer or discharge is required by the resident’s urgent medical needs under subsection (2)(A) of this rule; or (E) The resident has not resided in the facility for thirty (30) days. (6) Any resident of a facility who receives notice of discharge from the facility in which he/she resides may file an appeal of the notice with the Department of Health and Senior Services Appeals Unit, PO Box 570, 912 Wildwood Drive 3rd floor, Jefferson City, Missouri 65102-0570, by fax to (573) 751-0247, or by email to DHSS.Appeals@health.mo.gov within thirty (30) days of the date the resident received the discharge notice from the facility. The resident’s legal guardian, the resident’s attorney-in-fact appointed under sections 404.700–404.725, RSMo (Durable Power of Attorney Law of Missouri) or pursuant to sections 404.800–404.865, RSMo (Durable Power of Attorney for Health Care Act), or any other individual may file an appeal on the resident’s behalf. A Nursing Facility Transfer or Discharge Hearing Request form (MO Form 886-3245) to request a hearing may be obtained from the Department of Health and Senior Services or the regional ombudsman. However, the use of a form is not required in order to file a request for a hearing. The request for a hearing shall be verified in writing by the resident, his/her legal guardian, attorney-in-fact, or any other party requesting a hearing on the resident’s behalf by attesting to the truth of the resident’s request for a hearing. (7) The director of the Department of Health and Senior Services shall designate a hearing official to hear and decide the resident’s appeal. (A) The designated hearing official shall notify the resident, the state long-term care ombudsman and the facility that the request for a hearing has been received and that a hearing has been scheduled. (B) The hearing may be held by telephone conference call or in person at any location the designated hearing official deems reasonably appropriate to accommodate the resident’s needs. (8) The discharge of the resident shall be stayed at the time the request for a hearing was filed unless the facility can show good cause why the resident should not remain in the facility until a written hearing decision has been issued by the designated hearing official. Good cause shall include, but is not limited to, those exceptions when the facility may notify the resident of a discharge from the facility with less than thirty (30) days notice as set forth in section (5) of this rule. (A) The facility may show good cause for discharging the resident prior to a hearing decision being issued by the designated hearing official by filing a written Motion to Set Aside the Stay with the Department of Health and Senior Services Appeals Unit at the address, fax number, or email address in paragraph (4)(B)4. The facility must provide a copy of the Motion to Set Aside the Stay to the resident, or to the resident’s legally authorized representative and to at least one (1) family member, if one is known. In the event that a resident has no legally authorized representative and no known family members, then a copy of the Motion to Set Aside the Stay must be provided to the Missouri State Long-Term Care Ombudsman’s Office. (B) Within five (5) days after a written Motion to Set Aside the Stay has been filed with the Department of Health and Senior Services Appeals Unit the designated hearing official shall schedule a hearing to determine whether the facility has good cause to discharge the resident prior to a written hearing decision being issued. Notice of the good cause hearing need not be in writing. All parties and representatives who received a copy of the Motion to Set Aside the Stay under subsection (8) (A) of this rule shall also be notified of the good cause hearing. 1. The designated hearing official shall have the discretion to consolidate the facility’s good cause hearing with the discharge hearing requested by the resident. In the case of an emergency discharge, an expedited hearing shall be held upon the request of the resident, legally authorized representative, family member, and in a case where notice was required to be SENIOR SERVICES sent to the regional ombudsman, to the state long-term care ombudsman, so long as the parties waive the ten- (10-) day notice requirement specified in section (9). 2. Subsequent to the good cause hearing, the designated hearing official shall issue an order granting or denying the facility’s Motion to Set Aside the Stay. If the facility’s good cause hearing and the resident’s discharge hearing were consolidated, the order shall also set forth whether the facility may discharge the resident. (9) Written notice of a hearing shall contain the date and time for the hearing and shall be mailed to the facility, the resident or the resident’s legally authorized representative, and to any and all parties in interest, including any family members who received notice of the discharge, that are known to the designated hearing official. The written notice shall be mailed to the parties at least ten (10) days prior to the hearing. (10) If the facility’s good cause hearing and the resident’s discharge hearing were not consolidated and the designated hearing official issues an order denying the facility’s Motion to Set Aside the Stay, the designated hearing official shall schedule the discharge hearing subsequent to the date the order which denied the facility’s motion was issued. After the hearing, the designated hearing official shall issue a written decision setting forth whether the facility may discharge the resident. The written decision shall be mailed to the facility, the resident or the resident’s legally authorized representative and counsels for all parties, if any. If the state long-term care ombudsman’s office received notice of the discharge, a copy of the hearing decision shall be sent to the ombudsman’s office. If a member of the resident’s family received notice of the discharge, a copy of the hearing decision shall be mailed to the family member upon request. (11) The burden of showing that the facility has complied with all requirements for appropriate discharge of the resident shall be upon the facility. The resident may provide any additional evidence competent to show that the facility has not met its burden. (12) The resident may obtain legal counsel, represent him/ herself or use a relative, a friend or other spokesperson. All natural parties, including residents, sole proprietors of a facility and a partner of a facility operated in the partnership form of business, may represent themselves in a pro se capacity on behalf of the facility. Corporate operators of a facility may only be represented by an attorney licensed to practice law in Missouri. (13) Hearings shall be subject to the hearing procedures found in 42 CFR Chapter IV, Part 483, subpart E, and the Missouri Administrative Procedures Act, specifically sections 536.070 through 536.080, RSMo, which include, but are not limited to, oral and written evidence, witnesses, objections, official notices, affidavits, transcripts, depositions and other discovery methods, sanctions, oral arguments and written briefs. Written medical statements by a physician, psychiatrist or psychologist shall be admitted as relevant and probative evidence and shall be given due weight in consideration by the director or his/ her designated hearing official. An audiotape recording of the hearing shall be made unless it is agreed by both parties to substitute a certified transcript. (14) If the decision is that there is no cause for discharge, the resident shall be permitted to remain in the facility. If the decision is in the facility’s favor, the resident shall be granted an additional ten (10) days after the decision is received for purpose of relocation, and the facility shall assist the resident in making suitable arrangements for relocation. If the resident prevails and has already been discharged, the facility shall notify the resident, the qualified representative, or any other responsible party who will assure that the resident is made aware of the decision and that the resident may return to the facility. In the event that there are no beds available, the facility shall admit the resident to occupy the first available bed without regard to any waiting list maintained by the facility. AUTHORITY: sections 192.2000, 198.009, and 198.088, RSMo 2016.* This rule was originally filed as 13 CSR 15-10.050. Original rule filed Feb. 13, 1998, effective Sept. 30, 1998. Moved to 19 CSR 30-82.050, effective Aug. 28, 2001. Amended: Filed Sept. 1, 2021, effective March 30, 2022. Original authority: 192.2000, RSMo 1984, amended 2014; 198.009, RSMo 1979, amended 1993, 1995; and 198.088, RSMo 1997, amended 1988, 1989, 1994.