Nursing Home Discharge Training for Advocates

Stephanie D. Langguth, Staff AttorneyLegal Aid of the Bluegrass

Necessary for the resident’s welfare and the resident’s needs cannot be met in the facility;

Resident’s health has improved sufficiently so the resident no longer needs the services provided by the facility;

Safety of individuals in the facility is endangered;

Health of individuals in the facility is endangered; or

Resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare, Medicaid, or state supplementation) a stay at the facility.

See: 900 KAR 2:050 Section 2(1), 42 C.F.R 483.12(a)(2), and KRS 216.515(4).

Permissible Grounds for Discharge

Behavior issues, refusing treatment, refusing to see the facility doctor.

Resident physician must document in their clinical record that the discharge is necessary for the resident’s welfare and their needs cannot be met in the facility.

Review the MDS (Minimum Data Set), Care Plan notes, and Social Services Notes.

Review facility brochures and marketing materials to see what services they offer and see if the new facility offers the same services.

Necessary for the resident’s welfare and the resident’s needs cannot be met in the facility

The resident’s physician must document this in their clinical record.

900 KAR 2:050 Section 2(2)(a).

Resident’s health has improved sufficiently so the resident no longer needs the services provided by the facility

Safety of other residents…or safety of employees?

Get copies of incident reports;

Review care plans;

Look for notes from the doctor;

Look for medication changes;

Is the resident receiving adequate mental health treatment;

Look for patterns of behavior.

Safety of individuals in the facility is endangered

A physician must document this in the clinical record.

900 KAR 2:050 Section 2(2)(b).

Health of individuals in the facility is endangered

A resident cannot be discharged when their first Medicaid application is pending.◦ Per CMS - A resident cannot be transferred for non-payment if

he or she has submitted to a third party payor all the paperwork necessary for the bill to be paid. Non-payment would occur if a third party payor, including Medicare or Medicaid, denies the claim and the resident refused to pay for his or her stay.

◦ King v. Butler Rest Home, Inc., 365 S.W.3d 561 (Ky. Ct. App. 2011). A nursing home was not precluded from involuntarily discharging resident for non-payment, even though resident's appeal of benefit denial had not yet been reviewed

Resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare, Medicaid, or state supplementation) a stay at the facility

Most discharges happen because the resident has failed to obtain Medicaid. Usually, they need help to get Medicaid approved.

If the resident has no family or legal representative, the facility should assist them with applying for Medicaid or at least advise them how to apply.

If the resident is being exploited and their money is not being used to the pay the nursing home, then APS and/or law enforcement might need to be contacted.

Medicaid Residents

Medicare provides for a limited amount of skilled nursing facility (SNF) coverage under Medicare Part A.◦ After at least a 3 day qualifying inpatient hospital stay,

Medicare can pay for 100% of the first 20 days of SNF coverage and then the resident pays a daily copy of $157.50 for days 21-100.

◦ Medicare usually won’t pay for a full 100 days because they do not consider the care skilled.

◦ Some facilities stop therapy if the resident has stopped improving, but this is the wrong standard. See Jimmo v. Sebelius Medicare coverage depends on the

individuals need for skilled care – which can be to maintain or slow deterioration of the individual’s condition.

Medicare Residents

Residents can appeal the termination of Medicare coverage of SNF care (for reasons other than running out of benefit days) by calling the QIO – KEPRO at 1-844-430-9504.

The facility must issue a Notice of Medicare Non-Coverage two (2) days prior to Medicare’s cessation of SNF coverage.

The Notice of Medicare Non-Coverage must be given to the

resident and to a legal representative (if not competent). The notice must list instructions and contact information on how to appeal. The resident or legal representative must sign noting they received the notice.

If no notice, or improper notice is given, then the resident can

appeal to the QIO – KEPRO- If successful, the resident is not liable for the SNF bill until a proper

notice of non-coverage is provided.

Medicare Residents, cont.

Notice of discharge is required to be made by the facility at least thirty (30) days before the resident is discharged except in the following situations:

◦ An immediate discharge is required by the resident’s urgent medical needs;

◦ The resident’s health improves sufficiently to allow a more immediate discharge;

◦ The safety of individuals in the facility would be endangered;

◦ The health of individuals in the facility would be endangered;

◦ The resident has not resided in the facility for thirty (30) days.

Timing of the Notice of Discharge900 KAR 2:050 Section 2(4), 42 C.F.R 483.12(a)(5)

Before a facility transfers a resident, the facility shall notify the resident, and if known, a family member or legal representative of the resident, in writing, of the transfer or discharge, and the reasons for relocation in a language and manner they understand.

900 KAR 2:050 Section 2(3), 42 C.F.R 483.12(a)(4)(i).

Notice Before Discharge

The reason for discharge;

The effective date of discharge;

The location to which the resident is discharged;

A statement that the resident has the right to appeal the action to the cabinet;

The name, address, and telephone number of the state long-term care ombudsman; and◦ Sherry Culp, State Long Term Care Ombudsman

3138 Custer Drive, Suite 110Lexington, KY 40517Phone: (859) 277-9215, Toll Free: (800) 372-2991

Required Contents of the Discharge Notice 900 KAR 2:050 Section 2(5), 42 C.F.R 483.12(a)(6)

For nursing facility residents with developmental disabilities, or who are mentally ill, the mailing address and telephone number of Kentucky Protection and Advocacy.

Kentucky Protection and Advocacy100 Fair Oaks LaneFrankfort, KY 40601

◦ Phone: 502-564-2967 or 1-800-372-2988.

Required Contents of the Discharge Notice, cont.

A facility shall provide sufficient preparation and orientation to residents to ensure safe and orderly discharge from the facility.

◦ Sufficient preparation includes informing the resident where he or she is going and assuring safe transportation.  The resident and their family should be involved in selecting the new residence if possible.

◦ Orientation could include trial visits to the new location, assuring the resident their valued possessions will not be left behind or lost in the transfer, orienting staff of the receiving facility to the resident’s daily patterns and preferences, organizing staff to handle the discharge and transfer in a manner that minimizes unnecessary and avoidable anxiety or depression, and responding assuringly to known resident reactions to change if they are identified in the resident assessment and care plan.

Orientation for Discharge900 KAR 2:050 Section 2(6), 42 C.F.R 483.12(a)(7)

Must appeal within 15 days the resident shall inform the Cabinet in writing of his/her intent to appeal within fifteen (15) days from the resident’s receipt of notice of the facility’s intent to discharge.

Required to be sent to the Secretary of the Cabinet. ◦ Audrey Tayse Haynes◦ Cabinet for Health and Family Services

Office of the Secretary275 E. Main St., 5W-AFrankfort, KY 40621Phone - (502)564-7042 Fax - (502) 564-7091

Appeal Procedures900 KAR 2:060; 42 C.F.R 431, Part E, §§ 431.200-

431.250, see also KRS 13B

Send Copy of appeal to the Division of Administrative Hearings:

Health Services Administrative Hearings Branch

105 Sea Hero Rd., Suite 2Frankfort, KY 40601

Phone: (502)564-6621 Fax: (502)573-1014 Email: chfs.hsahb@ky.gov

Appeal Procedures, cont.

If you want to file a complaint with the Office of Inspector General (OIG), you can copy them on the appeal:

OIG, Division of Health Care 275 E. Main St. 5E-AFrankfort, KY 40621

Phone: (502) 564-7963Fax: (502) 564-6546

Appeal Procedures, cont.

◦ The appeal should request a stay of discharge to protect the resident until the Hearing Officer issues a decision.

◦ It is also best to request an in-person hearing at the facility, unless you believe it would not be good for the client to meet the hearing officer.

◦ File a Motion to Dismiss if the discharge notice is deficient prior to the hearing. If granted, the Hearing Officer will issue a Final Order

Summarily Reversing Involuntary Discharge, and the facility will either have to appeal to Circuit Court within 30 days (KRS 13B.140(1) and KRS 13B.150) or issue a new discharge notice.

Appeal Procedures, cont.

Residents are entitled to a nursing home discharge appeals when their nursing home “dumped” them.

◦ Typically, the facility sends a resident with behavior issues to the hospital and when the hospital is ready to discharge them the facility refuses to re-admit them.

The readmission rules are located at 900 KAR 2:050 Section 2, 3(c):◦ Permitting resident to return to facility. A long-term care facility shall establish and

follow a written policy under which a resident whose hospitalization or therapeutic leave exceeds the bed-hold period under the Medicaid state plan, is notified and readmitted to the facility immediately upon the first availability of a bed in a semiprivate room if the resident: Chooses to be readmitted; and

Requires the services provided by the facility; and

Is eligible for Medicaid nursing facility services and the facility is certified to participate in Title XVIII or Title XIX of the Social Security Act.

See also: 42 C.F.R § 483.12(b)

Nursing Home Dumping

Dumping cases are very fact intensive. It is important to review/copy records at the skilled nursing facility.

Residents are entitled to one free copy of their records within 24 hours of their request. K.R.S. 216.515(7), 42 U.S.C. § 483(a)(2)

Nursing Home Dumping, cont.

Any resident whose rights as specified in this section are deprived or infringed upon shall have a cause of action against any facility responsible for the violation. The action may be brought by the resident or his guardian. The action may be brought in any court of competent jurisdiction to enforce such rights and to recover actual and punitive damages for any deprivation or infringement on the rights of a resident. Any plaintiff who prevails in such action against the facility may be entitled to recover reasonable attorney's fees, costs of the action, and damages, unless the court finds the plaintiff has acted in bad faith, with malicious purpose, or that there was a complete absence of justifiable issue of either law or fact. Prevailing defendants may be entitled to recover reasonable attorney's fees. The remedies provided in this section are in addition to and cumulative with other legal and administrative remedies available to a resident and to the cabinet

You can sue for Violations of Resident’s Rights per KRS 216.515