Current through Reg. 49, No. 38; September 20, 2024
(a) Examples. Transfer and discharge includes
movement of a resident to a bed outside the certified facility, whether that
bed is in the same physical plant or not. Transfer and discharge does not refer
to movement within the same certified facility.
(b) Transfer and discharge requirements. The
facility must permit each resident to remain in the facility and must not
transfer or discharge the resident from the facility unless:
(1) the transfer or discharge is necessary
for the resident's welfare, and the resident's needs cannot be met in the
facility;
(2) 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;
(3) the safety of
individuals in the facility is endangered due to the clinical or behavioral
status of the resident;
(4) the
health of other individuals in the facility would otherwise be
endangered;
(5) 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. Nonpayment 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 the resident's stay. For a resident who becomes
eligible for Medicaid after admission to a facility, the facility may charge a
resident only allowable charges under Medicaid;
(6) the resident or resident representative
requests a voluntary transfer or discharge; or
(7) the facility ceases to operate as a
nursing facility and no longer provides resident care.
(c) Documentation. When the facility
transfers or discharges a resident under any of the circumstances specified in
subsection (b)(1) - (7) of this section, the facility must ensure that the
transfer or discharge is documented in the resident's clinical record and
appropriate information is communicated to the receiving health care
institution or provider.
(1) Documentation
must include:
(A) the basis for the transfer
per subsection (b)(1) - (7) of this section; and
(B) in the case of subsection (b)(1) of this
section, the specific resident's needs that cannot be met, facility attempts to
meet the resident needs, and the service available at the receiving facility to
meet the needs.
(2) The
documentation required by paragraph (1) of this subsection, must be made by:
(A) the resident's physician when transfer or
discharge is necessary under subsection (b)(1) or (b)(2) of this section;
or
(B) a physician when transfer or
discharge is necessary under subsection (b)(3) or (b)(4) of this
section.
(3) Information
provided to the receiving health care institution or provider must include the
following:
(A) contact information of the
practitioner responsible for the care of the resident;
(B) resident representative information,
including contact information;
(C)
advance directive information;
(D)
all special instructions or precautions for ongoing care, as
appropriate;
(E) comprehensive care
plan goals; and
(F) all other
necessary information, including a copy of the resident's discharge summary,
consistent with § 554.803 of this chapter (relating to Discharge Summary
(Discharge Plan of Care)), as applicable, to ensure a safe and effective
transition of care.
(d) Notice before transfer or discharge.
Before a facility transfers or discharges a resident, the facility must:
(1) notify the resident and the resident
representative about the transfer or discharge and the reasons for the move in
writing and in a language and manner the resident understands;
(2) if the discharge or transfer is initiated
by the facility, send a copy of the notice to a representative of the Ombudsman
Program at the time a discharge notice is presented to the resident and
resident representative, in accordance with the timeframes described in
subsection (e) of this section, except that the notice may be provided as soon
as practicable, such as in a list of residents sent on a monthly basis, when a
resident is temporarily transferred on an emergency basis to an acute care
facility;
(3) record the reasons
for the transfer or discharge in the resident's clinical record;
(4) include in the notice the items described
in subsection (f) of this section; and
(5) comply with § 554.2310 of this
chapter (relating to Nursing Facility Ceases to Participate) when the facility
voluntarily withdraws from Medicaid or Medicare or is terminated from Medicaid
or Medicare participation by HHSC or the secretary.
(e) Timing of the notice.
(1) Except when specified in paragraph (3) of
this subsection or in § 554.2310 of this chapter, the notice of transfer
or discharge required under subsection (d) of this section must be made by the
facility at least 30 days before the resident is transferred or
discharged.
(2) The requirements
described in paragraph (1) of this subsection and subsection (h) of this
section do not have to be met if the resident or resident representative
requests the transfer or discharge.
(3) Notice must be made as soon as
practicable before transfer or discharge when:
(A) the safety of individuals in the facility
would be endangered, as specified in subsection (b)(3) of this
section;
(B) the health of
individuals in the facility would be endangered, as specified in subsection
(b)(4) of this section;
(C) the
resident's health improves sufficiently to allow a more immediate transfer or
discharge, as specified in subsection (b)(2) of this section;
(D) the transfer and discharge is necessary
for the resident's welfare because the resident's needs cannot be met in the
facility, as specified in subsection (b)(1) of this section, and the resident's
urgent medical needs require an immediate transfer or discharge; or
(E) a resident has not resided in the
facility for 30 days.
(4) When an immediate involuntary transfer or
discharge as specified in subsection (b)(3) or (4) of this section, is
contemplated, unless the discharge is to a hospital, the facility must:
(A) immediately call the staff of the Office
of the State Long-term Care Ombudsman to report its intention to discharge;
and
(B) submit to HHSC the required
physician documentation regarding the discharge.
(f) Contents of the notice. For
nursing facilities, the written notice specified in subsection (d) of this
section must include the following:
(1) the
reason for transfer or discharge;
(2) the effective date of transfer or
discharge;
(3) the location to
which the resident is transferred or discharged;
(4) a statement of the resident's appeal
rights, including:
(A) the resident has the
right to appeal the action as outlined in HHSC's Fair and Fraud Hearings
Handbook by requesting a hearing within 90 days after the date of the
notice;
(B) if the resident
requests the hearing before the discharge date, the resident has the right to
remain in the facility until the hearing officer makes a final determination
unless failure to transfer or discharge would endanger the health or safety of
the resident or individuals in the facility. The facility must document the
danger failure to discharge would present; and
(C) information on how to obtain an appeal
form and assistance in completing the form and submitting the appeal hearing
request;
(5) the name,
address, email address, and telephone number of the managing local ombudsman
and the toll-free number of the Ombudsman Program;
(6) in the case of a resident with mental
illness, the address, email address, and phone number of the state mental
health authority; and
(7) in the
case of a resident with an intellectual or developmental disability, the
authority for individuals with intellectual and developmental disabilities, and
the phone number, address, and email address of the agency responsible for the
protection and advocacy of individuals with intellectual and developmental
disabilities.
(g)
Changes to the notice. If the information in the notice changes before
effecting the transfer or discharge, the facility must update the recipients of
the notice as soon as practicable once the updated information becomes
available.
(h) Orientation for
transfer or discharge. 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.
(i) Notice of relocation to another room.
Except in an emergency, the facility must notify the resident and the resident
representative at least five days before relocation of the resident to another
room within the facility. The facility must prepare a written notice which
contains:
(1) the reasons for the
relocation;
(2) the effective date
of the relocation; and
(3) the room
to which the facility is relocating the resident.
(j) Fair hearings.
(1) Individuals who receive a discharge
notice from a facility have 90 days to appeal. If the recipient appeals before
the discharge date, the facility must allow the resident to remain in the
facility, except in the circumstances described in subsections (b)(5) and
(e)(3) of this section, until the hearing officer makes a final determination.
Vendor payments and eligibility will continue until the hearing officer makes a
final determination. If the recipient has left the facility, Medicaid
eligibility will remain in effect until the hearing officer makes a final
determination.
(2) When the hearing
officer determines that the discharge was inappropriate, the facility, upon
written notification by the hearing officer, must readmit the resident
immediately, or to the next available bed. If the discharge has not yet taken
place, and the hearing officer finds that the discharge will be inappropriate,
the facility, upon written notification by the hearing officer, must allow the
resident to remain in the facility. The hearing officer will also report the
findings to HHSC Regulatory Services Division for investigation of possible
noncompliance.
(3) When the hearing
officer determines that the discharge is appropriate, the resident is notified
in writing of this decision. Any payments made on behalf of the recipient past
the date of discharge or decision, whichever is later, must be
recouped.
(k) Discharge
of married residents. If two residents in a facility are married and the
facility proposes to discharge one spouse to another facility, the facility
must give the other spouse notice of the spouse's right to be discharged to the
same facility. If the spouse notifies a facility, in writing, that the spouse
wishes to be discharged to another facility, the facility must discharge both
spouses on the same day, pending availability of accommodations.
