Involuntary Discharge Procedures and FAQ’s

1. Involuntary Discharge Procedures and FAQ’s Lauren Meeker State Long Term Care Ombudsman Lauren.meeker@tn.gov

2. Applicable Rules 42 C.F.R. § 483.15 Admission, transfer, and discharge rights. Tenn. Comp. R. & Regs. 1200-13-01-.06 Special Federal Requirements Pertaining to Nursing Facilities

3. Transfer and Discharge Grounds For Involuntary Transfer or Discharge: • Necessary for resident’s welfare and resident’s needs cannot be met in the facility; • Resident’s health has improved; • Safety of individuals in facility is endangered due to clinical or behavioral status of the resident; • Health of individuals in the facility would otherwise be endangered; • Resident has failed, after reasonable and appropriate notice, to pay for a stay at the facility; or • Facility ceases to operate. 42 C.F.R. 483.15(c); Tenn. Comp. R. & Regs. 1200-13-01-.06(2)(d)(1)(i)

4. Burden of Proof The nursing home carries the burden of proving by a preponderance of evidence that it has a legal basis for involuntary transfer or discharge of a resident. Tenn. Comp. R. & Regs. 1360-04-01-.02(7)

5. Documentation Requirement Look to documentation requirements of Tenn. Comp. Rules & Regs. 1200-13-01-.06(2)(d)(1)(ii) “The basis for the transfer or discharge must be documented in the resident’s clinical record. In the cases described in items (I) [welfare/needs] and (II) [health improved] above, the documentation must be made by the resident’s physician, and in the case described in item (IV) [safety issue to others] above, the documentation must be made by a physician.”

6. The Resident’s Health has Improved This can come in the form of: • No longer meets the Nursing Home Level of Care on PAE • No longer meets the Nursing Home Level of Care on PASRR • Medical Director or Physician states resident has gotten better. When any of these reasons occur please make sure that this is documented in the residents clinical record and is accompanied with the supporting documents. Tip: When sending the Notice of 30 day Involuntary Discharge attach the supporting document.

7. The Facility Ceases to Operate When this is the case please notify the District and State Long Term Care Ombudsman and the Regional Supervisor at the Department of Health before you give the notices to the residents.

8. Resident’s Needs Cannot be Met in the Facility When using this reason for discharge you must have the following documented in the residents clinical record, and be able to provide it to all of the agencies notified: • Why the residents needs cannot be met in your facility. • Supporting documents such as doctors orders and nurses notes. • Where the resident is being transferred to and what that facility can do to meet their needs that you facility cannot.

9. Safety of Individuals in Facility is Endangered due to Clinical or Behavioral Status When using this reason for discharge you must have the following documented in the residents clinical record, and be able to provide it to all of the agencies notified: • Why the residents needs cannot be met in your facility. • Supporting documents such as doctors orders and nurses notes. • Show what steps the facility has taken to reduce/eliminate the dangerous behavior. • Change of Status PASRR • Where the resident is being transferred to and what that facility can do to meet their needs that your facility cannot.

10. Health of Individuals in the Facility Would Otherwise be Endangered When using this reason for discharge you must have the following documented in the residents clinical record, and be able to provide it to all of the agencies notified: • Why the residents needs cannot be met in your facility. • Supporting documents such as doctors orders and nurses notes. • Where the resident is being transferred to and what that facility can do to meet their needs that your facility cannot.

11. Failure to Pay Failure to pay basis: • The resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare or Medicaid) a stay at the facility. Non-payment applies if the resident does not submit the necessary paperwork for third party payment or after the third party, including Medicare or Medicaid, denies the claim and the resident refuses to pay for his or her stay.

12. Failure to PayFAQ’s Q: What should we do when the family refuses to give documents to assist with the Medicaid application? A: Contact your District LTC Ombudsman • Undue Hardship Waiver • Safety Letter Q: What should we do when the failure to pay is a result of the family (POA) misusing the residents funds to pay for things other than the residents care? A: You may send a letter or request a meeting with the family. If that does not resolve the issue, contact your District LTC Ombudsman. • Letter • Care Plan • Assistance with Legal resources for the resident

13. Financial Exploitation

14. Financial ExploitationKeep an eye on the TCAD website • A resource page that you can give to families who are allegedly misappropriating funds. • When to pursue Involuntary Discharge.

15. 30 Day Notice Before Transfer Nursing home is required to provide a resident and the resident’s representative with notice of the reason for discharge, effective date, location of transfer, appeal rights, contact information for State Long-Term Care Ombudsman and Advocacy Protection Groups. 42 C.F.R. 483.15(3) and (5); Tenn. Comp. R. & Regs. 1200-13-01-.06(2)(d)(4). A copy must be sent to the State Long-Term care Ombudsman, District Ombudsman, HCFA Commissioners Designee and the Department of Health Regional Supervisor. Excluding exceptions, the Notice must be made at least 30 days before transfer. 42 C.F.R. 483.15(4).

16. Discharge Notice: Page 1Available on the TCAD website https://www.tn.gov/content/dam/tn/aging/documents/NFDischargeTransferNotice.pdf Please also add a contact email. All highlighted sections are required to be filled out. This form may also be used for 5 (business) day emergency discharges-please be aware that this section must be filled out correctly. Where the resident is going must be filled in and this must be a safe and appropriate location. Please note the 4 reasons that require a doctors signature.

17. Discharge Notice: Page 2Available on the TCAD website https://www.tn.gov/content/dam/tn/aging/documents/NFDischargeTransferNotice.pdf All highlighted sections are required to be filled out. It is required that this section be filled out. For most reasons, it would be best to also state that your supporting documents (PAE/PASRR/Doctors Order) are attached. Please make sure that this section is signed-especially if your reason requires a doctors signature.

18. Discharge Notice: Page 3Available on the TCAD website https://www.tn.gov/content/dam/tn/aging/documents/NFDischargeTransferNotice.pdf If the resident refuses to sign or is incompetent-Please note this here and have a witness sign off. Additionally, make sure that it is noted that the Representative was given the notice. All highlighted sections are required to be filled out. The State Long Term Care Ombudsman must receive the notice on the same day as the resident. Please email it, so that it will arrive the same day. Do NOT fax the notice.

19. Contact Sheet for Involuntary Discharges Please send the notice to all required parties for your area. Department of Health Regional Supervisors EAST Tamra Tuberville 865-594-0736 Tamra.tuberville@tn.gov MIDDLE Donna Smith 615-532-6883 Donna.smith@tn.gov WEST Paula Tipton 731-984-9712 Paula.tipton@tn.gov State LTC Ombudsman Lauren Meeker 615-837-5112 Lauren.meeker@tn.gov *Must receive at the same time as the resident. District LTC Ombudsman See next slide for all contact info. HCFA’s Commissioner’s Designee Administrative Law Judge (Appeal Officer) Audrey Seamon 866-797-9469 cd.appeals.tenncare@tn.gov

20. Tennessee Long Term Care Ombudsman Contact Sheet District 1-First Tennessee Debby Morrell 423-794-2488 dmorrell@laet.org Counties Served: Carter, Greene, Hancock, Hawkins, Johnson, Sullivan, Unicoi & Washington District 2-East TennesseeThomas Kahler865-691-2551 x4223tkahler@ethra.org Counties Served: Anderson, Blount, Campbell, Claiborne, Cocke, Grainger, Hamblen, Jefferson, Knox, Loudon, Monroe, Morgan, Roane, Scott, Sevier & Union District 3-Southeast Tennessee Kaitlyn Goffin 423-755-2877 kgoffin@partnershipfca.com Counties Served: Bledsoe, Bradley, Grundy, Hamilton, McMinn, Marion, Meigs, Polk, Rhea & Sequatchie District 4-Upper Cumberland Kim Fowler ombud@twlakes.net Counties Served: Cannon, Clay, Cumberland, DeKalb, Fentress, Jackson, Macon, Overton, Pickett, Putnam, Smith, Van Buren, Warren & White District 5-Greater Nashville Richard Robinson, Melinda Lunday and Marchell Gardner 615.850.3918 Richard Robinson rrobinson@mchra.com Counties Served: Rutherford & Williamson Melinda Lunday mlunday@mchra.com Counties Served: Davidson, Sumner, Trousdale, & Wilson Marchell Gardner mgardner@mchra.com Counties Served: Cheatham, Davidson, Dickson, Houston, Humphreys, Montgomery, Robertson & Stewart District 6-South Central Andrea Morrow 931-379-2926 amorrow@sctdd.org Counties served: Bedford, Coffee, Franklin, Giles, Hickman, Lawrence, Lewis, Lincoln, Marshall, Maury, Moore, Perry & Wayne District 7-Northwest Tennessee Kim Boyd 731-694-1835 kboyd@wtls.org Counties Served: Benton, Carroll, Crockett, Dyer, Gibson, Henry, Lake, Obion & Weakley District 8-Southwest Tennessee Norma Bell 731-668-6411 nbell@swtdd.org Counties Served: Chester, Decatur, Hardeman, Hardin, Haywood, Henderson, McNairy & Madison District 9-Memphis-Delta Zev Samuels & Carlos Royston Counties Served: Fayette, Lauderdale, Shelby & Tipton Zev Samuels 901-529-4565 zsamuels@mifa.org Carlos Royston 901-529-4562 croyston@mifa.org

21. How to Appeal an Involuntary Discharge An IVD can be appealed by any of the following methods: • Mail: TennCare’s Commissioner’s Designee Unit, ATTN: Involuntary NF Discharge Appeals, 310 Great Circle Road- 3W, Nashville, TN 37243 • Fax: 615-734-5317 • Email: cd.appeals.tenncare@tn.gov • Phone: 866-797-9649 Required information: • Nursing Facility Name • Resident Contact Information (and Representative) • Indication of intent to appeal

22. Discharge During an Appeal Nursing homes may not transfer or discharge the resident while the appeal is pending, unlessthe failure to discharge or transfer would endanger the health and safety of the resident or other individuals in the facility. 42 C.F.R. 483.15(c)(1)(ii); Tenn. Comp. R. & Regs. 1200-13-01-.06(2)(d)(2)(iv) and (2)(d)(3)(i). Further, the nursing home must document the danger that failure to transfer would pose. 42 C.F.R. 483.15(c)(1)(ii).

23. Pre-Transfer Nursing Homes Must Consider • Traumatic effect on the resident. • Proximity of the proposed location to the present nursing home and to family and friends of resident. • Availability of necessary medical and social services at the proposed nursing home. • Compliance by the proposed nursing home with all applicable federal and state regulations. Tenn. Comp. R. & Regs. 1200-13-01-.06(2)(d)(1)(v)

24. RETURNING FROM HOSPITALIZATION AND THERAPEUTIC LEAVE 42 C.F.R. § 483.15(e)(1)(ii) Permitting residents to return to facility. A facility must establish and follow a written policy on permitting residents to return to the facility after they are hospitalized or placed on therapeutic leave. The policy must provide for the following: (1) A resident, whose hospitalization or therapeutic leave exceeds the bed-hold period under the State plan, returns to the facility to their previous room if available or immediately upon the first availability of a bed in a semi-private room if the resident (a) Requires the services provided by the facility; and (b) Is eligible for Medicare skilled nursing facility services or Medicaid nursing facility services. (2) If the facility that determines that a resident who was transferred with an expectation of returning to the facility cannot return to the facility, the facility must comply with the requirements of paragraph (c) as they apply to discharges.

25. ORIENTATION 42 C.F.R. § 483.15(c)(7) A facility must provide and document sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility. This orientation must be provided in a form and manner that the resident can understand. 

26. Review of TCAD Website https://www.tn.gov/aging.html

27. Lauren Meeker State Long Term Care Ombudsman 615-837-5112 Lauren.meeker@tn.gov