Current through Supplement No. 394, October, 2024
1. For purposes of this section:
a. "Discharge" means movement from a facility
to a noninstitutional setting when the discharging facility ceases to be
legally responsible for the care of the resident.
b. "Resident" includes a person who has been
admitted and any legal representative of the resident.
c. "Transfer" means movement from a facility
to another institutional setting when the legal responsibility for the care of
the resident changes from the transferring facility to the receiving
institutional setting.
2. Except as provided in subsection 4, a
facility shall issue a written notice of involuntary transfer or discharge,
which meets the requirements of subsection 3, at least thirty days before the
date of intended transfer or discharge. The first day of that thirty-day period
is the day after the date of issuance. The date of issuance is the day notice
is delivered or mailed to the resident.
3. The notice provided by the facility must
contain:
a. A statement that the facility
intends to transfer or discharge the resident, as the case may be;
b. The reason for the transfer or discharge;
c. The effective date of the
transfer or discharge;
d. The
location to which the resident is to be transferred or discharged;
e. The specific provision of subsection 7
authorizing the transfer or discharge, or the change in federal or state law
requiring the action;
f. A
statement that the resident has the right to appeal the intended transfer or
discharge to the department, and the mailing address to which an appeal must be
sent;
g. The name, address, and
telephone number of the state long-term care ombudsman;
h. If the resident is developmentally
disabled or mentally ill, the address and telephone number of the committee on
protection and advocacy office that serves the area in which the resident
resides;
i. If the medicaid
program is paying for some or all of the cost of services furnished to the
resident by the facility, a statement that those medicaid payments will
continue until after the hearing unless:
(1)
The sole issue at the hearing is one of state or federal law or policy and the
resident is so informed in writing; or
(2) Some change in circumstances affects the
resident's eligibility for medicaid benefits and the resident is so notified in
writing.
j. A statement
that the transfer or discharge will be delayed, if a request for fair hearing
is filed before the effective date of the transfer or discharge:
(1) In the case of a discharge for nonpayment
of facility charges, at least until the hearing officer recommends a decision
that the charges were due and unpaid at the time the facility issued a notice
of discharge; and
(2) In all other
cases, until the fair hearing decision is rendered.
k. A statement that the resident may
represent himself or herself at the hearing or may use legal counsel, a
relative, a friend, or other spokesperson.
4.
a. A
facility need not provide a notice under subsection 2 if the resident:
(1) Provides a clear written statement,
signed by the resident, that the resident does not object to a proposed
transfer or discharge; or
(2)
Gives information that requires a transfer or discharge and indicates that the
resident understands that a transfer or discharge will result.
b. A facility must issue
a notice that meets the requirements of subsection 3, as soon as practicable
before an involuntary transfer or discharge, when:
(1) The safety of individuals in the facility
would be endangered;
(2) The
health of individuals in the facility would be endangered;
(3) The transfer or discharge is appropriate
because the resident's health has improved sufficiently to allow a more
immediate transfer or discharge;
(4) An immediate transfer or discharge is
required by the resident's urgent medical needs which cannot be met in the
facility; or
(5) The resident has
not resided in the facility for thirty days.
5. A resident of a facility may appeal a
notice from the facility of intent to discharge or transfer the resident. A
resident has appeal rights when the resident is transferred from a certified
bed to a noncertified bed or from a bed in a certified facility to a bed in a
facility certified as a different provider. A resident has no appeal rights
when the resident is moved from one bed in a certified facility to another bed
in the same certified facility. A resident has no appeal rights if the transfer
or discharge has taken place and the resident did not appeal within thirty days
after the date of issuance of a notice that meets the requirements of
subsection 3.
6. If a resident
with appeal rights files an appeal before the effective date of the transfer or
discharge, the resident shall not be transferred or discharged:
a. In the case of a discharge for nonpayment
of facility charges, earlier than the date a hearing officer recommends a
decision that the charges were due and unpaid at the time the facility issued a
notice of discharge; and
b. In all
other cases, until the fair hearing decision is rendered.
7. A facility may not discharge or transfer a
resident unless:
a. The resident has an
urgent medical need, which cannot be met in the facility;
b. The resident's physical condition
endangers or poses a threat to the health or safety of the resident or other
persons in the facility;
c. In
cases involving a mental condition or behavioral problem, the behavior of the
resident creates a serious and immediate threat to the resident or other
residents or persons in the facility and all reasonable alternatives to
transfer or discharge, consistent with the attending physician's orders, have
been attempted and documented in the resident's medical record;
d. The resident's health has improved
sufficiently so the resident no longer needs the services provided by the
facility;
e. The resident was
accepted by the facility for the purpose of receiving specialized services and
has fully benefited from those services or can no longer benefit from those
services, provided that the purpose of the admission and the expected length of
stay were agreed to, in writing, by or on behalf of the resident, prior to
admission;
f. The resident's
health or safety is at risk because the facility cannot reasonably accommodate
the needs of the resident;
g. A
public official with jurisdiction over matters of health or safety, in the
performance of official duties, determines the health or safety of the resident
is endangered by continued residence in the facility;
h. The facility's license is revoked,
suspended, or not renewed, or the facility's participation in medicare or
medicaid is terminated;
i. The
facility intends to cease operations; or
j. The resident fails to pay, or to arrange
for payment of, charges based on the daily rate established under chapter
75-02-06, provided that no involuntary transfer or discharge may be based on a
failure to pay charges for private rooms, holding a bed for a period in excess
of the covered bed hold period set forth in section
75-02-06-14, special services not
included in the daily rate, or medicare part B coinsurance and deductible.
General Authority: NDCC
28-32-02,
50-06-16
Law Implemented: NDCC
50-06-05.1
