Current through Register Vol. 49, No. 18, September 16, 2024
PURPOSE: This amendment transitions transfer and
discharge hearings from the Department of Social Services to the Department of
Health and Senior Services, updates the mailing address and adds a fax number,
a phone number and email address about where to send transfer or discharge
appeals and motions, and where to contact the Department of Health and Senior
Services.
(1) For the purposes
of this rule, the following terms shall be defined as follows:
(A) Transfer means moving a resident from one
institutional setting to another institutional setting for care and under
circumstances where the releasing facility has decided that it will not readmit
the resident or a legally authorized representative of the resident has not
consented or agreed with the transfer. Unless indicated otherwise from the
context of this rule, a transfer shall be deemed the same as a
discharge;
(B) Discharge means
releasing from a facility or refusing to readmit a resident from a community
setting under circumstances where the resident or a legally authorized
representative of the resident has not consented or agreed with the move or
decision to refuse readmittance. Refusal to readmit a former resident shall not
constitute a discharge if the former resident has been absent from the facility
for more than ninety (90) days;
(C)
Consent to or agreement with transfer or discharge means one of the following:
1. The resident or a legally authorized
representative of the resident has consented to, agreed with, or requested the
discharge; or
2. The resident's
treating physician has ordered the transfer and the releasing facility intends
to readmit the resident if requested to do so;
(D) Consent of the resident means that the
resident, with sufficient mental capacity to fully understand the effects and
consequences of the transfer or discharge, consents to or agrees with the
transfer or discharge; and
(E)
Legally authorized representative of a resident means a duly appointed guardian
or an attorney-in-fact who has current and valid power to make health care
decisions for the resident.
(2) The facility shall permit each resident
to remain in the facility unless-
(A) The
transfer or discharge is appropriate because the resident's welfare and the
resident's needs cannot be met by the facility;
(B) The transfer or discharge is appropriate
because the resident's health has improved sufficiently so the resident no
longer needs the services provided by the facility;
(C) The safety of individuals in the facility
is endangered;
(D) The health of
individuals in the facility would otherwise be endangered;
(E) The resident has failed, after reasonable
and appropriate notice, to pay for (or have paid under Medicare or Medicaid) a
stay at the facility. For a resident who becomes eligible for Medicaid after
admission to a facility, the facility may charge that resident only allowable
charges under Medicaid; or (F) The facility ceases to operate.
(3) When the facility transfers or
discharges a resident under any of the circumstances specified in subsections
(2)(A)-(E), the resident's clinical record shall be documented. The facility
shall ensure that documentation for the transfer or discharge is obtained from-
(A) The resident's personal physician when
transfer or discharge is necessary under subsections (2)(A)-(B); and
(B) A physician when transfer or discharge is
necessary under subsection (2)(D); and
(C) The facility administrator or the
facility director of nursing in all circumstances.
(4) Before a facility transfers or discharges
a resident, the facility shall-
(A) Send
written notice to the resident in a language and manner reasonably calculated
to be understood by the resident. The notice must also be sent to any legally
authorized representative of the resident and to at least one (1) family
member. In the event that there is no family member known to the facility, the
facility shall send a copy of the notice to the appropriate regional
coordinator of the Missouri State Ombudsman's office;
(B) Include in the written notice the
following information:
1. The reason for the
transfer or discharge;
2. The
effective date of transfer or discharge;
3. The resident's right to appeal the
transfer or discharge notice to the director of the Department of Health and
Senior Services or his/her designated hearing official within thirty (30) days
of the receipt of the notice;
4.
That a request for a hearing should be sent to Department of Health and Senior
Services Appeals Unit, PO Box 570, 912 Wildwood Drive 3rd floor, Jefferson
City, Missouri 65102-0570, by fax to (573) 751-0247, or by email to
DHSS.Appeals@health.mo.gov and the phone number for the appeals unit is (573)
522-1699;
5. That filing an appeal
will allow a resident to remain in the facility until the hearing is held
unless a hearing official finds otherwise;
6. The location to which the resident is
being transferred or discharged;
7.
The name, address, and telephone number of the designated regional long-term
care ombudsman office;
8. For
Medicare and Medicaid certified facility residents with developmental
disabilities, the mailing address and telephone number of the Missouri
Protection and Advocacy Agency, 925 South Country Club Drive, Jefferson City,
MO 65109, (573) 893-3333, or the current address and telephone number of the
protection advocacy agency if it has changed. The protection and advocacy
agency is responsible for the protection and advocacy of developmentally
disabled individuals established under Part C of the Developmental Disabilities
Assistance and Bill of Rights Act. For Medicare and Medicaid certified facility
residents with mental illness, the address and telephone number of Missouri
Protection and Advocacy Agency, the agency responsible for persons with mental
illness under the Protection and Advocacy for Mentally Ill Individuals Act;
and
(C) Record and
document in detail in each affected resident's record the reason for the
transfer or discharge. The recording of the reason for the transfer or
discharge shall be entered into the resident's record prior to the date the
resident receives notice of the transfer or discharge, or prior to the time
when the transferring or discharging facility decides to transfer or discharge
the resident.
(5) The
notice of transfer or discharge described in this rule shall be made by the
facility no less than thirty (30) days before the resident is to be transferred
or discharged. In the case of an emergency discharge, the notice shall be made
as soon as practicable before the discharge when it is specifically alleged in
the notice that-
(A) The safety of
individuals in the facility would be endangered under subsection (2)(C) of this
rule and the notice contains specific facts upon which the facility has based
its determination that the safety of said individuals would be so
endangered;
(B) The health of
individuals in the facility would be endangered under subsection (2)(D) of this
rule and the notice contains specific facts upon which the facility has based
its determination that the safety of said individuals would be so
endangered;
(C) The resident's
health has improved sufficiently to allow a more immediate transfer or
discharge under subsection (2)(B) of this rule;
(D) An immediate transfer or discharge is
required by the resident's urgent medical needs under subsection (2)(A) of this
rule; or
(E) The resident has not
resided in the facility for thirty (30) days.
(6) Any resident of a facility who receives
notice of discharge from the facility in which he/she resides may file an
appeal of the notice with the Department of Health and Senior Services Appeals
Unit, PO Box 570, 912 Wildwood Drive 3rd floor, Jefferson City, Missouri
65102-0570, by fax to (573) 751-0247, or by email to DHSS.Appeals@health.mo.gov
within thirty (30) days of the date the resident received the discharge notice
from the facility. The resident's legal guardian, the resident's
attorney-in-fact appointed under sections 404.700-404.725, RSMo (Durable Power
of Attorney Law of Missouri) or pursuant to sections 404.800-404.865, RSMo
(Durable Power of Attorney for Health Care Act) or any other individual may
file an appeal on the resident's behalf. A Nursing Facility Transfer or
Discharge Hearing Request form (MO Form 886-3245) to request a hearing may be
obtained from the Department of Health and Senior Services or the regional
ombudsman. However, the use of a form is not required in order to file a
request for a hearing. The request for a hearing shall be verified in writing
by the resident, his/her legal guardian, attorney-in-fact, or any other party
requesting a hearing on the resident's behalf by attesting to the truth of the
resident's request for a hearing.
(7) The director of the Department of Health
and Senior Services shall designate a hearing official to hear and decide the
resident's appeal.
(8) The
discharge of the resident shall be stayed at the time the request for a hearing
was filed unless the facility can show good cause why the resident should not
remain in the facility until a written hearing decision has been issued by the
designated hearing official. Good cause shall include, but is not limited to,
those exceptions when the facility may notify the resident of a discharge from
the facility with less than thirty (30) days notice as set forth in section (5)
of this rule.
(A) The facility may show good
cause for discharging the resident prior to a hearing decision being issued by
the designated hearing official by filing a written Motion to Set Aside the
Stay with the Department of Health and Senior Services Appeals Unit at the
address, fax number, or email address in paragraph (4)(B)4. The facility must
provide a copy of the Motion to Set Aside the Stay to the resident, or to the
resident's legally authorized representative and to at least one (1) family
member, if one is known. In the event that a resident has no legally authorized
representative and no known family members, then a copy of the Motion to Set
Aside the Stay must be provided to the Missouri State Long-Term Care
Ombudsman's Office.
(B) Within five
(5) days after a written Motion to Set Aside the Stay has been filed with the
Department of Health and Senior Services Appeals Unit the designated hearing
official shall schedule a hearing to determine whether the facility has good
cause to discharge the resident prior to a written hearing decision being
issued. Notice of the good cause hearing need not be in writing. All parties
and representatives who received a copy of the Motion to Set Aside the Stay
under subsection (8)(A) of this rule shall also be notified of the good cause
hearing.
1. The designated hearing official
shall have the discretion to consolidate the facility's good cause hearing with
the discharge hearing requested by the resident. In the case of an emergency
discharge, an expedited hearing shall be held upon the request of the resident,
legally authorized representative, family member, and in a case where notice
was required to be sent to the regional ombudsman, to the state long-term care
ombudsman, so long as the parties waive the ten- (10-) day notice requirement
specified in section (9).
2.
Subsequent to the good cause hearing, the designated hearing official shall
issue an order granting or denying the facility's Motion to Set Aside the Stay.
If the facility's good cause hearing and the resident's discharge hearing were
consolidated, the order shall also set forth whether the facility may discharge
the resident.
(9) Written notice of a hearing shall contain
the date and time for the hearing and shall be mailed to the facility, the
resident or the resident's legally authorized representative, and to any and
all parties in interest, including any family members who received notice of
the discharge, that are known to the designated hearing official. The written
notice shall be mailed to the parties at least ten (10) days prior to the
hearing.
(10) If the facility's
good cause hearing and the resident's discharge hearing were not consolidated
and the designated hearing official issues an order denying the facility's
Motion to Set Aside the Stay, the designated hearing official shall schedule
the discharge hearing subsequent to the date the order which denied the
facility's motion was issued. After the hearing, the designated hearing
official shall issue a written decision setting forth whether the facility may
discharge the resident. The written decision shall be mailed to the facility,
the resident or the resident's legally authorized representative and counsels
for all parties, if any. If the state long-term care ombudsman's office
received notice of the discharge, a copy of the hearing decision shall be sent
to the ombudsman's office. If a member of the resident's family received notice
of the discharge, a copy of the hearing decision shall be mailed to the family
member upon request.
(11) The
burden of showing that the facility has complied with all requirements for
appropriate discharge of the resident shall be upon the facility. The resident
may provide any additional evidence competent to show that the facility has not
met its burden.
(12) The resident
may obtain legal counsel, represent him/herself or use a relative, a friend or
other spokesperson. All natural parties, including residents, sole proprietors
of a facility and a partner of a facility operated in the partnership form of
business, may represent themselves in a pro se capacity on
behalf of the facility. Corporate operators of a facility may only be
represented by an attorney licensed to practice law in Missouri.
(13) Hearings shall be subject to the hearing
procedures found in 42 CFR Chapter I V, Part 483, subpart E and the Missouri
Administrative Procedures Act, specifically sections
536.070
through
536.080,
RSMo, which include, but are not limited to, oral and written evidence,
witnesses, objections, official notices, affidavits, transcripts, depositions
and other discovery methods, sanctions, oral arguments and written briefs.
Written medical statements by a physician, psychiatrist or psychologist shall
be admitted as relevant and probative evidence and shall be given due weight in
consideration by the director or his/her designated hearing official. An
audio-tape recording of the hearing shall be made unless it is agreed by both
parties to substitute a certified transcript.
(14) If the decision is that there is no
cause for discharge, the resident shall be permitted to remain in the facility.
If the decision is in the facility's favor, the resident shall be granted an
additional ten (10) days after the decision is received for purpose of
relocation, and the facility shall assist the resident in making suitable
arrangements for relocation. If the resident prevails and has already been
discharged, the facility shall notify the resident, the qualified
representative, or any other responsible party who will assure that the
resident is made aware of the decision and that the resident may return to the
facility. In the event that there are no beds available, the facility shall
admit the resident to occupy the first available bed without regard to any
waiting list maintained by the facility.
