Nursing Home Discharge Outline for Advocates
By: Stephanie D. Langguth, Attorney, Legal Aid of the Bluegrass
I. Permissible Grounds for Dischargeà 900 KAR 2:050 Section 2(1), 42 C.F.R 483.12(a)(2), and KRS 216.515(4).
a. Necessary for the resident’s welfare and the resident’s needs cannot be met in the facility;
i. Common situations when facilities use this reason for discharge is when the resident is having behavior issues and/or when they are refusing certain treatment of refusing to see the facility’s doctor.
ii. The resident’s physician must document in their clinical record that the discharge is necessary for the resident’s welfare and their needs cannot be met in facility. (900 KAR 2:050 Section 2(2)(a))
b. Resident’s health has improved sufficiently so the resident no longer needs the services provided by the facility;
i. The resident’s physician must document this in their clinical record. (900 KAR 2:050 Section 2(2)(a)).
c. Safety of individuals in the facility is endangered;
i. Frequently facilities will attempt to discharge residents who suffer from dementia under this clause.
d. Health of individuals in the facility would otherwise be endangered;
i. A physician must document this in the clinical record. (900 KAR 2:050 Section 2(2)(b))
e. 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; or
i. A resident cannot be discharged when their first Medicaid application is pending.
ii. The interpretive guidelines issued by the Centers for Medicare and Medicaid Services state:
1. 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.
iii. 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
iv. Medicare Issuesà if the resident is on Medicare, check to see if the facility issued a Notice of Medicare Provider Non-Coverage two days prior to the last day of Medicare covered care.
1. Medicare provides for a limited amount of skilled nursing facility coverage if a Medicare beneficiary has at least a 3 day qualifying stay as an inpatient at a hospital. Medicare pays 100% for the first 20 days and then daily co-pay is charged for days 21-100.
2. Some facilities have a practice of issuing a Notice of Medicare Provider Non-Coverage after a 20 day stay in a nursing home.
3. If the facility failed to issue a timely Notice of Medicare Provider Non-Coverage then you can appeal to the Quality Improvement Organization (QIO). See 42 C.F.R. 405.1200.
a. If not timely (2 days prior to Medicare’s cessation of payment) or if no notice is issued at all – the resident is not responsible for the facility bill until a proper notice of non-coverage has been issued, if the reason they are being terminated is for a reason other than running out of Medicare skilled coverage dates.
4. The resident can also appeal to the QIO if they feel their Medicare coverage should not be terminated. (I.e. they feel like they need more physical therapy to maintain their skills).
a. See Jimmo v. Sebelius, (D. VT, 1/24/2013). In Jimmo the judge approved a Settlement stating that Medicare coverage for nursing home care does not depend on the individual’s potential for improvement, but rather on his or her need for skilled care – which can be to maintain or slow deterioration of the individual’s condition.
5. KEPRO is Kentucky’s QIO – an appeal can be initiated by calling KEPRO at 1-844-430-9504. Leave a message if you call after hours as messages are checked on a regular basis.
f. Facility ceases to operate
II. Timing of the Notice of Dischargeà 900 KAR 2:050 Section 2(4), 42 C.F.R 483.12(a)(5)
a. 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:
i. An immediate discharge is required by the resident’s urgent medical needs;
ii. The resident’s health improves sufficiently to allow a more immediate discharge;
iii. The safety of individuals in the facility would be endangered;
iv. The health of individuals in the facility would be endangered;
v. The resident has not resided in the facility for thirty (30) days.
III. Notice Before Dischargeà before a facility transfers or discharges 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).
IV. Required Contents of the Written Notice of Dischargeà 900 KAR 2:050 Section 2(5), 42 C.F.R 483.12(a)(6)
a. The reason for discharge;
b. The effective date of discharge;
c. The location to which the resident is discharged;
d. A statement that the resident has the right to appeal the action to the cabinet;
e. The name, address, and telephone number of the state long-term care ombudsman; and
i. This is very specific and has to be the following information:
1. Sherry Culp, State Long Term Care Ombudsman
3138 Custer Drive, Suite 110
Lexington, KY 40517
Phone: (859) 277-9215, Toll Free: (800) 372-2991
f. For nursing facility residents with developmental disabilities, or who are mentally ill, the mailing address and telephone number of Kentucky Protection and Advocacy.
i. Kentucky Protection and Advocacy
100 Fair Oaks Lane
Frankfort, KY 40601
Phone: 502-564-2967 or 1-800-372-2988.
V. Orientation for dischargeà a facility shall provide sufficient preparation and orientation to residents to ensure safe and orderly discharge from the facility. 900 KAR 2:050 Section 2(6), 42 C.F.R 483.12(a)(7).
a. 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.
b. 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.
VI. Appeal Proceduresà 900 KAR 2:060; 42 C.F.R 431, Part E, §§ 431.200-431.250, see also KRS 13B
a. Must appeal in writing within 15 daysà 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.
i. Required to be sent to the Secretary of the Cabinet.
1. Audrey Tayse Haynes
Cabinet for Health and Family Services
Office of the Secretary
275 E. Main St., 5W-A
Frankfort, KY 40621
Phone - (502)564-7042
Fax - (502) 564-7091
ii. Send Copy of appeal to the Division of Administrative Hearings:
1. Health Services Administrative Hearings Branch
105 Sea Hero Rd., Suite 2
Frankfort, KY 40601
Phone: (502)564-6621
Fax: (502)573-1014
Email:
iii. If you want to file a complaint with the Office of Inspector General (OIG), you can copy them on the appeal:
1. OIG, Division of Health Care
275 E. Main St. 5E-A
Frankfort, KY 40621
Phone: (502) 564-7963
Fax: (502) 564-6546
b. The appeal should request a stay of discharge to protect the resident until the Hearing Officer issues a decision.
c. 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.
d. File a Motion to Dismiss Discharge 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.
VII. Nursing Home Dumpingà 900 KAR 2:050 Section 2, 3(c), 42 C.F.R § 483.12(b)
a. Residents are entitled to a nursing home discharge appeals when their nursing home “dumped” them.
b. 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.
c. The readmission rules are located at 900 KAR 2:050 Section 2, 3(c):
i. 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:
1. Chooses to be readmitted; and
2. Requires the services provided by the facility; and
3. 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.
d. You can sue the facility for violations of Resident Rights per KRS 216.515.
i. 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
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