Resident versus Facility Initiated Discharges

Jeannine LeCompte, Compliance Research Specialist

The regulations governing facility and resident initiated discharges are comprehensive and limit the circumstances under which a facility can initiate a transfer or discharge. This protects nursing home residents from involuntary discharge.

In the case of resident initiated discharges, the facility must have fully evaluated the resident, and ensured that the resident status at time of discharge allows the affected person to be safely transferred.

The law states specifically that a facility can only transfer or discharge a resident for whom they genuinely cannot care. Facilities are required to determine their capacity and capability to care for residents before admittance, as discharge on that basis after admittance can lead to penalties (unless, of course, the patient’s condition changes unexpectedly).

There may be occasions, such as when a crime has occurred, that a facility can initiate an immediate discharge—but such instances are relatively rare.

Resident initiated transfers or discharges occur when the resident, or, if appropriate, his/her representative, has given written or verbal notice of their intent to leave the facility. A resident who is clinically cognitively-impaired and who expresses a general desire to leave, or who elopes, should of course, not be granted the sole right of being able to give notice of intent to leave the facility. In such cases, legal guardians or resident representatives have to be involved.

Discharges following completion of skilled rehabilitation may not always be a resident initiated discharge. In cases where the resident may not object to the discharge, or has not appealed it, the discharge could still be involuntary and must meet all requirements of this regulation.

The medical record should contain documentation or evidence of the resident’s or resident representative’s verbal or written notice of intent to leave the facility. A complete discharge care plan, and documented discussions with the resident or, if appropriate, his/her representative, containing details of discharge planning and arrangements for post-discharge care, must form part of the documentation. Additionally, the comprehensive care plan should contain the resident’s goals for admission and desired outcomes, which should be in alignment with the discharge if it is resident initiated.

The OIG has a specific survey process in place for disputes dealing with involuntary discharges, and one of the most common methods of investigating complaints about facility initiated discharges includes a review of both transfer and discharge requirements.

If transfer is due to a significant change in the resident’s condition, but not an emergency requiring an immediate transfer, then prior to any action, the facility must conduct and document the appropriate assessment to determine if revisions to the care plan would allow the facility to meet the resident’s needs.

A resident’s declination of treatment does not constitute grounds for discharge, unless the facility is unable to meet the needs of the resident or protect the health and safety of others.

The facility must be able to demonstrate that the resident or, if applicable, resident representative, received information regarding the risks of refusal of treatment, and that staff conducted the appropriate assessment to determine if care plan revisions would allow the facility to meet the resident needs or protect the health and safety of others.

In the case of a facility initiated transfer or discharge, the facility must notify the resident and the resident’s representative(s) of the transfer or discharge and the reasons for the move in writing and in a language and manner they understand.

Additionally, the facility must send a copy of the notice of transfer or discharge to the representative of the Office of the State Long-Term Care (LTC) Ombudsman. Notice to the Office of the State LTC Ombudsman must occur before or as close as possible to the actual time of a facility initiated transfer or discharge.

For any other types of facility initiated discharges, the facility must provide notice of discharge to the resident and resident representative along with a copy of the notice to the Office of the State LTC Ombudsman at least 30 days prior to the discharge, or as soon as possible. The copy of the notice to the ombudsman must be sent at the same time notice is provided to the resident and resident representative.

The facility’s notice must include the following:

The specific reason for the transfer or discharge;
The effective date of the transfer or discharge;
The location to which the resident is to be transferred or discharged;
An explanation of the right to appeal to the State;
The name, address (mail and email), and telephone number of the State entity which receives appeal hearing requests;
Information on how to request an appeal hearing;
Information on obtaining assistance in completing and submitting the appeal hearing request; and
The name, address, and phone number of the representative of the Office of the State LTC Ombudsman.

For residents with intellectual and developmental disabilities and/or mental illness, the notice must include the name, mailing address, email address, and phone number of the state protection and advocacy agency responsible for advocating for these populations.