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Adult Care

At the Law Office of Stacey L. Janssen we want you to be informed so you can make the best decisions for you and your loved ones. We have developed the following information for the Kansas Long Term Care Handbook, published by the Kansas Bar Association, and make it available to our current and future clients.

6.54 III. LONG-TERM CARE FACILITY TRANSFER AND DISCHARGE

In Kansas, long-term care facilities like assisted living and nursing home are specifically excluded from the Kansas Residential Landlord and Tenant Act. Long-term care facilities, however, are governed by a complex set of federal laws regarding involuntary transfer and discharge. These laws as they relate to Medicare certified facilities are found at 42 U.S.C. 1395i-3, et seq. The laws relating to Medicaid certified facilities are found at 42 U.S.C. 1396r, et seq. The federal laws apply to all facilities which receive either Medicare or Medicaid reimbursement. These laws apply to residents who are covered by Medicare and Medicaid. These laws also apply to all residents of a facility which receives Medicare or Medicaid reimbursement because facilities must maintain identical policies and practices for residents regardless of source of payment.

The Centers for Medicare and Medicaid Services formerly known as the Health Care Financing Administration (HCFA) has codified these statutes as Requirements for States and Long Term Care Facilities at 42 C.F.R. 483.

The State of Kansas has adopted the federal regulations at K.A.R. 28-39-148. The Kansas regulations apply not only to facilities that receive Medicare and Medicaid reimbursement, but to all adult care homes. Adult Care Homes are defined to include a nursing facility, a nursing home for mental health, an intermediate care facility for the mentally retarded, an assisted living facility, a residential health care facility, a home plus facility, and a board and care home. The regulations for involuntary transfer and discharge apply to all of these adult care homes.

This section discusses the federal and state laws regarding involuntary transfer and discharge, how to initiate an involuntary transfer and how to defend a proposed transfer.

6.55 A. Intra-Facility Transfer

An intra-facility transfer is a transfer within the physical plant of the long-term care facility. Often a transfer occurs when a resident's Medicare days have ended. The facility may seek to move the resident to a distinct part of the facility that is not certified for Medicare. Transfers may also occur when the resident's care needs change or to accommodate roommate preferences. The nursing facility is obligated to provide notice of the intended intrafacility transfer. The notice must be given to the resident and the legal representative or family member. The regulations do not specify any other requirements of the notice.

A resident has a general right to refuse a transfer. Additionally, a resident has an absolute right to refuse a transfer to a distinct part of the facility that is not a skilled nursing facility. The skilled nursing facility is the portion of the long-term care facility that is certified for Medicare. It may be advisable to refuse a transfer from the Medicare section of the facility if the resident is particularly frail. Transfers of any kind may be particularly traumatic to very frail residents.

If the facility fails to honor the resident's refusal to transfer, then the resident has several choices. All residents have a right to file a grievance with the facility. The resident may also contact the Kansas Long-Term Care Ombudsman. The Ombudsman is empowered to provide advocacy or mediation of long-term care related disputes. In mediation, the Ombudsman acts as a neutral third party to help the facility and the resident come to their own solution to the conflict. The Ombudsman does not have any power to sanction a facility in any circumstance.

In Kansas the Department of Health and Environment (herein after KDHE) handles licensure and complaints regarding long-term care facilities. A resident or her representative may make a formal complaint to KDHE. The Department operates a toll free Hotline for nursing home complaints and elder abuse at 1-800-842-0078. It is also good practice to follow up your telephone complaint with a letter citing your legal basis for filing a complaint. KDHE will investigate your complaint which may result in a citation of a regulatory deficiency for the facility and even a fine.

6.56 B. Inter-Facility Transfer and Discharge

Transfer and discharge generally involve the desire by the long-term care facility to remove the resident permanently. An inter-facility transfer may involve transfer to a psychiatric facility for evaluation or transfer to a hospital for treatment. A transfer or discharge may also involve admission to a different long-term care facility. Federal and state laws establish the requirements for an involuntary discharge.

Adult Care Homes are generally charged with the duty to "ensure safe and orderly transfer" of a resident in all situations. Kansas regulations are clear that the adult care home is not relieved of this duty in the involuntary discharge situation. The adult care home is required to "provide sufficient preparation and orientation to a resident to ensure safe and orderly transfer and discharge, "develop a discharge plan," and provide sufficient information to accompany the resident to assure continuity of care. Adult care homes need to take care that the resident is not discharged into an unsafe environment.

6.57 1. Therapeutic Transfers

Adult care home residents are often transferred to the hospital for treatment and/or evaluation. In these situations the resident needs to be concerned about holding their bed in the facility. Adult care homes are required to have a bed bold policy. Federal regulations give particular protection to the Medicaid resident. The bed hold policy must allow for readmission of the resident to the first available semi-private room. Notice of the policy is to be made available to the resident and family prior to the transfer and at the time of transfer. Kansas Medicaid will hold a bed for ten days. At the end of the ten days, the bed is not held unless the bed is paid for privately. Non-payment is a valid ground for discharge of a resident.

Kansas regulations extend the bed hold requirements to all residents of a nursing facility, assisted living facility, residential health care facility and home plus facility. The facility is required to provide written notice to the resident and if known, a family member or legal representative of the following:

(1) The period of time during which the resident is permitted to return and resume residence...

(2) The cost to the resident...

(3) That when the resident's therapeutic leave exceeds the period identified in the policy of the nursing facility, the resident will be readmitted to the nursing facility immediately upon the first available bed if the resident requires the services provided by the nursing facility.

A facility might assume that the transfers of a resident to a hospital for treatment or evaluation means the resident is discharged. The Kansas regulations make it clear that this is not the case. If the facility desires to discharge the resident then transfer to a hospital or other therapeutic leave is not sufficient. Instead the facility should follow the laws for involuntary discharge.

In addition to these protections, private pay patients should look to their individual contracts. It is possible that the private pay patient has a contractual right to return to the facility at the end of a therapeutic leave.

6.58 2. Involuntary Discharge (Eviction)

Involuntary discharge or eviction from a nursing facility is a serious matter. Frail and elderly residents are likely to suffer life-threatening consequences from transfer trauma. Medicaid residents generally face difficulty in choosing a facility and will want to fight to stay in their facility. A facility seeking to discharge a resident involuntarily will want to follow the statutory requirements carefully. Failure to follow the statutory requirements may mean the facility would face citation and fines from the Department of Health and Environment, and litigation from the resident.

6.59 a. Notice

The statutory requirements for notice of involuntary discharge are found at 42 U.S.C.S. 1395i-3(c)(2)(B), 42 U.S.C.S. 1396r(c)(2)(B), 42 C.F.R. 483.12(a), K.A.R. 28-39-148(a)(b)(c). The facility is required to provide written notice to the resident and/or his legal representative. The reasons for the discharge must be recorded in the resident's clinical record. The notice must be given 30 days in advance of discharge unless:

• The safety of other residents is at issue.

• The facility ceases to operate.

• The resident's health has improved so that care is no longer needed.

• The resident has an urgent medical need; or

Contents of the Notice are also governed by statute. See Appendix Form I EDS Notice. The notice must contain the following information.

• The grounds for discharge;

• The location of the intended discharge;

• The right to appeal the discharge; and

• The name, address and telephone number of the state Long-Term Care Ombudsman.

6.60 b. Grounds

A long-term care facility is limited on the grounds that may be used to discharge a resident involuntarily. Only five reasons are recognized as permissible grounds for involuntary discharge. Statutes also state how these grounds must be substantiated. The five permissible grounds are:

1. The discharge is necessary to meet the resident's welfare and resident's welfare cannot be met by the facility. This must be documented in the resident's clinical record by the resident's physician.

2. The resident's health has improved sufficiently so that the resident no longer needs the services provided by the facility. This must also be documented in the clinical record by the resident's physician.

3. The safety of individuals in the facility is endangered. The safety threat must be documented in the clinical record by a physician.

4. The health of individuals in the facility is endangered by the resident. Again, the health threat must be documented in the clinical record by a physician.

5. The resident has failed after reasonable notice to pay for the stay in the facility.

6.61 c. Appeal Process

The resident may request an appeal of the proposed discharge. In Kansas the appeals are heard by the state Medicaid agency, the Department of Social and Rehabilitation Services (SRS). The resident or her representative must make a written request for hearing to SRS. See Letter Form 2. The SRS fair hearing procedure is governed by the Kansas Administrative Procedures Act. Hearings are typically conducted by telephone. Provisions do exist for a face-to-face hearing if the resident is disabled or confined to an institution. The decision to have a face-to-face hearing is within the discretion of the hearing officer.

The SRS fair hearing is an administrative hearing. The rules of evidence are not strictly enforced Discovery and subpoena powers are available. A prehearing conference by the advocates is recommended. In Kansas, very few cases have been heard by the hearing officers. Also, an involuntary discharge hearing is a more complicated matter than the routine Medicaid or food stamp appeal usually before the hearing officer. The prehearing conference is an excellent time to begin to educate the hearing officer about the complexities of this type of case.

The decision of the SRS hearing officer may be appealed to the SRS Appeals Committee. Only after the administrative appeals process is exhausted is an appeal permitted to the District Court. The scope of review at the District Court is limited.

The SRS fair hearing may also occur concurrent with an investigation by the Kansas Department of Health and Environment (KDHE). KDHE has the power to issue a citation to the facility for any violation of regulations and to assess fines. A resident begins a KDHE investigation by making a complaint directly to KDHE. It is advisable to follow up your telephone complaint with a written explanation of the legal basis of your complaint. See Letter Form 3.

The Kansas Long Term Care Ombudsman may also be involved. The Long Term Care Ombudsman is charged with being an advocate for the long-term care resident. The Ombudsman may be useful in mediating a dispute or providing testimony of events. Mediation is often a powerful tool in resolving these disputes. A productive mediation session should include all the relevant parties including the resident and the hands on staff. The staff providing the every day care will often have valuable suggestions for how to resolve the problem. The Long-Term Care Ombudsman's staff has no power to issue citations or fines.

6.62 d. Defending an Involuntary Discharge

A resident who wishes to defend an involuntary discharge will want to involve as many agencies as possible. The advocate should request a fair hearing as well as investigation by KDHE. See Forms 2 and 3. Also, the advocate should contact the Long Term Care Ombudsman for assistance in resolving the dispute. The advocate should require the long-term care facility to produce all the resident's medical and social service records.

Typically the fair hearing will not take place before the date of intended discharge of the resident. If the facility will not voluntarily agree to postpone the discharge until after the hearing, then the advocate will want to take steps to restrain the facility from transferring the resident. Neither SRS nor KDHE have the power to stop a facility from transferring a resident. In exigent circumstances, petition for Injunctive Relief and Motion for Temporary Restraining Order should be filed with the District Court. Although, the resident is required to exhaust his administrative remedies, the Kansas Administrative Procedure Act does allow for the Court to issue injunctive relief to preserve the status quo until the fair hearing can occur. For the Court to issue the Temporary Restraining Order and the Injunction, the resident must establish:

1) The applicant is likely to prevail when the Court finally disposes of the matter;

2) without relief the applicant will suffer irreparable injury;

3) the grant of relief to the applicant will not substantially harm other parties to the proceedings; and

4) the threat to public health, safety, or welfare relied on by the agency is not sufficiently serious to justify the agency's action in the circumstances.

If the resident cannot meet the requirements of K.S.A. 77-616(c), the Court may also grant relief if the Court in its own independent judgment finds other temporary remedies unreasonable)

e. Special Situations

6.63 i. Involuntary Discharge for Behavior Problems

A common reason for involuntary discharge is that the resident's behavior has become objectionable to the facility. For example, a resident with dementia may become violent or develop other difficult to manage behaviors. The resident may have a habit that is dangerous, like smoking. In either case where the behavior or condition of the resident is at issue, it is important to look at the care plan. Each resident should have an individual care plan. When a problem arises there should be a multi-disciplinary team approach to dealing with the problem. Also, facilities have promised as part of their Medicare and Medicaid certification that they have staff trained to provide care to a variety of resident conditions including dementia.

In defending a behavior-based discharge, the key is generally the physician. The opinion of the physician is required in three of the five specified grounds for involuntary discharge. The physician is almost always an employee of the nursing facility or may see most of the facility's residents. Because of the close relationship between the long-term care facility and the physician it may be difficult for the physician to take the side of the resident. The resident, however, is always free to choose his own physician. A change of treating physician, therefore, may be necessary to successfully defend the discharge.

Additionally, an advocate should keep in mind other sources of law that may extend protections to the resident. In other jurisdictions, judges have extended the protections of the American's with Disabilities Act, 504 of the Rehabilitation Act of 1973 and the Fair Housing Amendment's Act of 1978 to residents of long term care facilities. These acts prohibit discrimination of services and housing to persons who are disabled.

A hypothetical example may help explain how all these regulations work. Suppose that Ruth is a nursing home resident. She has dementia and low vision. She has begun to spit at staff when they approach her to care for her. The nursing facility has decided to discharge Ruth claiming that the spitting is a health risk for the staff and other residents. In order to support this ground for discharge the medical record would need to reflect that there is indeed a medical risk as documented by the treating physician. Also, the problem should be addressed in a care plan meeting. The medical record should show attempts by the facility to try to deal with the problem. And finally, if discharge can be supported, the facility will need to find an appropriate location to transfer Ruth.

Ruth's advocates will want to make sure that the notice is technically correct and carefully review the supporting documentation for the discharge. Any mistake by the facility should be promptly reported to KDHE. Her advocates should also contact their Regional Long-Term Care Ombudsman for assistance resolving the dispute and request an appeal. It is also important to contact the treating physician about whether Ruth's behavior can be ameliorated in some way.

If Ruth's advocates cannot persuade the nursing home to keep Ruth until the appeal is heard, they will want to go to district court to enjoin the facility from transferring her. They may also want to bring a separate cause of action against the facility for discriminating against her because of her disability.

Such litigation can be exhausting and financially costly for all parties. Hopefully, a case like Ruth's would be resolved before it reached the courts.

6.64 ii. Involuntary Discharge for Non-payment

Non-payment is not as simple as it may appear. Non-payment extends only to nonpayment of "covered services." Each state defines what constitutes "covered services" in their Medicaid plan. Only non-payment of those services is considered grounds for discharge. Non-payment of a Medicare co pay is not considered non-payment and is not grounds for discharge. If the resident's stay is paid by Medicaid that is not considered non-payment. The state reimbursement rate for Medicaid is considerably lower than the private pay rate. The long term care provider, however, in its contract with the state of Kansas has agreed to accept Medicaid as full payment of the resident's long-term care nursing bill. Additionally, the submission of a Medicaid application is sufficient to avoid discharge for non-payment.

Finally, the long-term care facility should be sensitive to whether financial exploitation is the reason for nonpayment. If a family member or other fiduciary is controlling the resident's finances, but not paying for the resident's care, this may be financial exploitation. Medicaid may be denied because of malfeasance by the fiduciary. For example, an attorney in fact may have transferred property into his own name or have persuaded the resident to do so. This may make the resident ineligible for Medicaid. It also is a breach of fiduciary duty, and should be reported to KDHE as financial exploitation.

Attempting to discharge a resident for non-payment, while not exploring the issue of financial exploitation may expose the facility to other liabilities. Long-term care facility administrators and staff are mandatory reporters of abuse, neglect, and exploitation. Failure to report abuse and exploitation may be charged as a class B misdemeanor. Financial exploitation should be reported to KDHE. The appointment of a guardian and/or conservator may be necessary to protect the resident.

6.65 C. CONCLUSION

Transfer or discharge of a resident from a long-term care facility is carefully regulated by the state and federal government. The long-term care facility should take care to follow the requirements during any transfer and discharge. Residents should remember that they are not powerless when confronted with an unwanted transfer and/or discharge. Federal and state laws give residents recourse in these situations. Residents may also look to various state agencies like the Long-Term Care Ombudsman and the Kansas Department of Health and Environment for assistance in resolving their disputes with a long-term care facility.