Virginia Office of Licensure and Certification Issues New Guidance on Nursing Facility Resident Transfer or Discharge

In December, the Virginia Department of Health Office of Licensure and Certification (OLC) issued revised guidelines intended to explain and clarify the regulations and previous guidance for resident transfer and discharge. The guidance is applicable to all licensed nursing facilities, irrespective of whether they accept Medicare or Medicaid reimbursement. The purpose of this advisory is to summarize the transfer and discharge guideline, explain how it differs from existing laws and practices, and highlight the OLC’s and the State LTC Ombudsman’s clarifications of the requirements the guidance imposes, such as notifying the State Ombudsman before involuntary transfer or discharge of a resident, and the pre-discharge notice steps that a facility must take.

Allowable Reasons for Discharge

The allowable reasons for transfer or discharge of a patient remain unchanged from 25 year old federal and state law, namely:

  1. When the facility can no longer meet the resident’s medical needs as documented by the resident’s physician in the resident’s medical record prior to the transfer/discharge;
  2. When the resident’s health has improved so that the resident no longer needs the services provided by the facility, as documented by the resident’s physician in the resident’s medical record;

iii. When the health and safety of the resident, other residents or staff is endangered as documented by a physician in the resident's medical record prior to the transfer/discharge;

  1. When 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;
  2. With the resident’s informed voluntary consent to the transfer or discharge; or
  3. When the facility ceases to operate.

Who Must Receive Written Notice

The most significant change in the guidance is the notice obligation to the State Ombudsman. As written, before a facility transfers or discharges a resident for any reason, the facility must provide written notice to the resident or the resident’s legal representative, as well as the Ombudsman program and place a copy in the resident’s record.

When questioned about the intent of requiring an ombudsman report on all discharges, OLC advised that the language in the guidance document is not regulatory and that policies and procedures related to notifying the State Ombudsman are within the purview of the State Ombudsman’s Office. OLC did not acknowledge any problem with the guidance, nor indicate that the broad notice language would be subject to change. From OLC’s response, it appears that a good faith effort to comply with the LTC Ombudsman notice requirement will keep a facility from triggering regulatory problems with the OLC related to notice.

The State Long-Term Care Ombudsman Office advised that the reporting of all transfers and discharges to the State LTC Ombudsman’s Office is unnecessary and that submitting a copy of each transfer or discharge notice to the State Ombudsman only in cases of involuntary transfer is expected. The LTC Ombudsman’s Office also advised that facilities may meet the notice obligation by faxing a copy of the written notice to the resident to the State Ombudsman Office at (804) 662-9140, or mailing a copy to:

Joani Latimer
Office of the State Long-Term Care Ombudsman
Department for Aging and Rehabilitative Services
8004 Franklin Farms Drive
Henrico, Virginia 23229

Mechanics of the Written Notice

Per federal law and the OLC guideline, a facility must give written notice to the resident, the resident’s legal representative, and the Ombudsman program at least 30 days prior to the involuntary transfer or discharge. However, the facility may only give a minimum of 5 days’ prior written notice of the transfer or discharge of a resident when (i) the health or safety of the individuals in the facility would be endangered, (ii) the resident’s health improves sufficiently to allow a more immediate transfer or discharge, (iii) an immediate transfer or discharge is required by the resident's urgent medical needs, or (iv) a resident has not resided in the facility for 30 days.

To be valid, the written notice must include: the reason for the action taken, the allowable reasons for transfer or discharge under the law, the effective date of the action, the address of the receiving location, the phone number for the OLC Complaint hotline, the name and phone number of the State Long Term Care Ombudsman, the name and phone number of the Virginia Office for Patient Advocacy for residents with developmental disabilities or mental illness (where applicable), and, regardless of payment source, information on filing an appeal of the facility’s decision with the Virginia Department of Medical Assistance Services (DMAS). All of these requirements memorialize current policy and good practice in one reference document.

Physician Documentation

Virginia[1] and federal[2] law limit the conditions under which a resident is permitted to be discharged or transferred. Appropriate physician documentation in a resident’s medical record becomes necessary for a transfer or discharge when (i) the resident's health has improved sufficiently so the resident no longer needs the services provided by the facility, (ii) the facility can no longer meet the resident’s medical needs, or (iii) the health and safety of the resident, other residents or staff is endangered. If the transfer or discharge occurs for either of the first two reasons, the resident’s attending physician, i.e. the physician identified by the resident or the resident's legal representative as having the primary responsibility in determining the delivery of the resident's medical care, may document. If the transfer or discharge occurs due to health and safety needs of staff and residents, the facility’s Medical Director in conjunction with the Director of Nursing may be consulted if the resident’s attending physician is not available. The facility must also communicate with and provide written documentation to the receiving location regarding the resident and the reasons or causes for the intended move.

New Procedures for Non-payment Collection and Discharge

Under the December 2012 VDH guideline, nursing facilities must implement separate procedures for collection for non-payment of a facility stay or other services. The procedure must include, but is not limited to: allowing no fewer than three written notices of non-payment no less than 15 days apart, discharge planning, and allowing the resident to back pay up to the date that the discharge or transfer is to be made and then may remain in the facility. A change in the resident’s payment status from private pay to Medicaid does not constitute non-payment of a facility stay. Nursing accounts receivable staff should remain aware of these payment issues as they could create longer waiting periods before discharge.

Furthermore, a nursing facility may not initiate a discharge for non-payment when a resident has submitted appropriate paperwork to a third party payer and is waiting for a response to a claim, or when a resident loses his or her Medicare or other insurance coverage unless that third party payment has stopped, the resident has been billed, and the resident has failed to make a timely payment. The guideline also memorializes DMAS policy that bars discharge of any resident, for any reason, during the multi-month pendency of a resident’s appeal of the discharge decision to DMAS. That alone can be a deterrent to pursuing involuntary discharge of certain residents.

Facility Plan and Bed-Hold Policy

The 2012 guideline repeats the 2011 guidance on bed-holds and readmissions. OLC recommends that each facility develop a bed-hold/ readmission plan, apprising the resident or the resident’s legal representative of the facility’s readmission and bed-hold policy.[3] While a facility is not obligated to hold a bed for a resident without payment of a bed-hold fee, notice of the facility’s bed-hold policy should be given at the time of admission to the facility, at any time the policy is updated, and at the time of the transfer.

The facility must have a written policy that allows a resident to be readmitted to the facility immediately upon the first available bed in a semi-private room if that resident requires the services provided by the facility and is eligible for Medicaid services. Additionally, the facility must readmit residents with outstanding Medicaid balances, but may discharge that same resident if the facility can demonstrate that non-payment of charges exists and documentation and 30 day notice requirements are followed pursuant to 42 CFR 483.12(b)(3).

Conclusion

Nursing facilities should review their transfer and discharge policies, written plans, and bed-hold and readmission policies to ensure that they contain all the information required by law, as well as confirm their procedures for documentation, consultation, and notice conform to the standards and timing specifications provided for under the law. If your organization needs assistance in transfer or discharge policy review or in further interpreting the Office of Licensure and Certification’s guidance, please contact Peter Mellette (peter@mellettepc.com), Harrison Gibbs (harrison@mellettepc.com), Nathan Mortier (nathan@mellettepc.com), or Jason Mackey (jason@mellettepc.com).

[1] Virginia Code § 32.1-138.1

[2] 42 C.F.R. § 483.12

[3] The Virginia Department of Health has issued revised model bed-hold policies that can be found under the “Guidelines” section for Nursing Facilities at http://www.vdh.virginia.gov/OLC/Laws/index.htm.

 

This Client Advisory is for general educational purposes only. It is not intended to provide legal advice specific to any situation you may have. Individuals desiring legal advice should consult legal counsel for up to date and fact specific advice.
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