A tale of two transfers

Sometimes legal issues are best prevented right at the bedside, especially when transferring or discharging residents from one place to another.

According to Federal regulations, “Transfer and discharge includes movement of a resident to a bed outside of the certified facility whether that bed is in the same physical plant or not.” [42 C.F.R. § 483.12(a)]. The regulations provide that a nursing facility may not transfer or discharge a resident unless one of six specific conditions has been met. Those six conditions are:

1. The transfer/discharge is necessary to meet the resident’s needs which cannot be met by a facility;
2. A resident’s health has improved to the point where the services provided by the facility are no longer necessary;
3. Continued stay in the facility endangers the safety of individuals;
4. The health of individuals within the facility would be at risk;
5. After reasonable notice, the resident (or responsible party) has failed to pay (or have Medicare or Medicaid pay) for remaining in the facility; and
6. The facility ceases to operate.

Two cases involving a transfer/discharge are briefly discussed below. Following those cases additional regulatory requirements involving transfer and discharge as well as recommendations are noted.

Case #1

After a survey at a nursing facility, the Centers for Medicare and Medicaid Services (CMS) determined that “immediate jeopardy” existed and imposed a civil money penalty based on its allegation that a resident was discharged without adequate preparation and orientation and without a satisfactory post-discharge plan of care. The resident was a 76-year-old insulin-dependent man who weighed 204 pounds, was paralyzed on the left side of his body and had weakness on the right side. He needed extensive assistance with virtually all of his activities of daily living (ADLs). The resident was discharged one evening to a house he shared with his 77-year-old wife, who had recently been discharged from the facility after her own rehabilitation for a fractured femur. No other family members resided at the home.

When the resident arrived home, he had to wait in his garage for about an hour because his wheelchair would not fit through the doorway. He had prescriptions for 11 different medications that needed to be filled, since the facility did not send any medications with him upon discharge. The man also needed to be catheterized every eight hours as needed and required an insulin injection each evening. Further, he required a two-person assist and a sling to be transferred to his bed.

After remaining at his home for approximately 22 hours, the resident was readmitted to the skilled nursing facility. During that time, he did not receive his insulin or any other medications. He did receive care from the facility’s staff the day after discharge but only after his family and a state worker requested that care, according to the Administrative Law Judge (ALJ), who upheld CMS’ determination of immediate jeopardy.

The facility asserted that its social worker made calls two days before the discharge to arrange for a nurse aide from a home health agency to be available on the day of discharge. However, the ALJ found that even if the facility attempted to have other caregivers provide necessary services, it did not confirm that those clinical services were in place, leaving untrained family members to care for the resident. The ALJ held that the facility failed to “ensure a safe and orderly discharge,” as required by the regulation.

According to the ALJ, the resident’s daughter allegedly stated that the conversations with the facility focused on transfer to another facility, not to the resident’s home and that no training was provided to any family member regarding how to administer insulin or use the sling lift. For its part, the facility claimed that the resident’s daughter and wife were “sabotaging family members” because they failed to cooperate with the recommendations of the discharge plan and also failed to fill the prescriptions for the resident’s medications.

Still, the ALJ held that the facility had a duty to determine whether the resident’s family was able and willing to provide the care required before discharging the resident. The fact that the facility failed to provide a number medications, did not perform a home assessment prior to discharge and did not develop an adequate post-discharge plan of care incorporating the resident’s family led the ALJ to find that the facility was not in substantial compliance with the regulation governing transfer and discharge.

Case #2

Following a survey, CMS imposed a denial of payment for new admissions because it alleged that a facility improperly discharged a resident.

The resident at issue had altercations involving other residents and staff. He refused to cooperate with facility procedures, refused to follow direction, refused medical treatment and became increasingly disruptive. His conduct included assaulting two female residents, hitting another resident with his belt and throwing a piece of wood at a staff member, which resulted in an injury.

A psychologist evaluated the resident and concluded that he was “resistant and disruptive” and was “likely to remain aggressive with little impulse control.” The psychologist suggested a different type of facility and the resident was discharged to a Salvation Army facility.

Although CMS claimed that the transfer was inappropriate, the ALJ refused to find any violation by the facility. The ALJ noted that it was clear that the resident posed a serious threat to other residents and staff, which alone could have justified the transfer. The ALJ also noted that the resident’s condition had improved to the point where he no longer needed skilled nursing care, which is another and separate basis for a transfer/discharge.

CMS argued that the facility had an obligation to accommodate the resident in spite of his repeated and escalating aggressive and violent behaviors. Unconvinced, the ALJ held that the facility was not obligated to keep the resident once it became apparent that he endangered other residents and staff.

Lessons learned

The two cases above illustrate how the specific facts of a situation will determine the outcome if an improper discharge is alleged by CMS. As is virtually always the case, documentation will play a critical role. If the facility in Case #2 did not have adequate documentation of: 1) the resident’s disruptive and violent attacks on other residents and staff, 2) the psychologist’s evaluation, and 3) evidence that the resident’s underlying medical condition had significantly improved, the outcome might have been very different.

It is important to note that when a facility transfers or discharges a resident based on any of the six reasons noted above, it must adequately document the circumstances in the resident’s medical record. Some documentation must be made by the resident’s physician, including supporting documentation to show that a transfer is needed because the resident’s needs cannot be met, the resident has improved to the point that the resident no longer needs the facility’s services, a transfer is necessary for the resident’s welfare, or that the health of other individuals in the facility would be endangered.

Before the transfer or discharge occurs, a facility should notify the resident’s family member or legal representative in writing with the reasons supporting the transfer or discharge. The written notice must be made 30 days before the transfer unless the safety or the health of individuals in the facility would be at risk if the resident was allowed to remain in the facility. In such as case, the written notice should be made as soon as practicable before the transfer or discharge. Additionally, a facility is required to provide adequate orientation and preparation to residents so as to enable a safe and orderly transition from the facility.

Note that the requirements for discharge and transfer discussed above are based on the Federal regulations. Each state has its own regulations concerning discharge and transfer which may impose additional restrictions and/or requirements on facilities. Therefore, providers should have competent legal counsel advise them accordingly, especially in problematic situations.

Experienced nursing home administrators and directors of nursing know that even when a discharge or transfer is warranted and in accord with the regulations, dysfunctional or disgruntled family members may file a complaint against a facility. Being proactive and making sure that adequate documentation exists to support one of the six permissible reasons for a transfer or discharge will avoid considerable problems down the road. Towards that end, it may be prudent risk management to have a checklist of items that can be completed prior to a discharge or transfer. One such checklist, Sample Planned Patient Transfer to the Community Checklist, is published by AMDA – The Society for Post-Acute and Long-Term Care Medicine and available online. Note that any checklist would be in addition to adequate contemporaneous documentation in a resident’s medical record.

Alan C. Horowitz

Alan C. Horowitz, Esq., is a partner at Arnall Golden Gregory LLP, where he focuses his legal practice on regulatory compliance for skilled nursing homes, hospices and home health agencies and manages cases where the Centers for Medicare and Medicaid Services (CMS) has imposed an enforcement action. He is a former assistant regional counsel Office of the General Counsel, U.S. Department of Health and Human Services. As counsel to CMS, he was involved with hundreds of enforcement actions and successfully handled appeals before administrative law judges, the HHS Departmental Appeal Board and in federal court. He also has clinical healthcare experience as a registered respiratory therapist and registered nurse. He can be reached at alan.horowitz@agg.com.