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care that the facility cannot provide, or not needing Discharge Planning
nursing facility care — this documentation must Other provisions of the nursing facility
be done by the resident’s physician. regulations require that a facility have a
In addition, a new provision applies specifically discharge plan for each resident, and provide an
to transfer/discharge based on the resident allegedly explanation whenever discharge from the facility
needing care that the facility cannot provide. In is not considered feasible. The transfer/discharge
these situations, the resident’s physician must regulations include a separate provision, retained
document: from the previous regulations, that requires the
facility to provide sufficient preparation and
■ Specific need(s) that the facility allegedly orientation to ensure a safe and orderly transfer
cannot meet,
or discharge. The orientation “must be provided
■ Attempts by the facility to meet the need(s), in a form and manner that the resident can
and understand.”
7
■ Services available at the receiving facility
that supposedly will meet the need(s). Effective Dates
6
This documentation requirement may help to Almost all of the provisions relating to
deter facilities’ inclination to transfer residents involuntary transfer/discharge became effective
who are perceived as being difficult or “heavy on November 28, 2016. The exception is the
care,” but whose care needs fall within the level requirement that the resident’s physician provide
of service required by federal law. Since this extra documentation when the facility claims
documentation requirement is new, it will not that it cannot meet the resident’s needs. This
become effective until November 28, 2017. The requirement will become effective on November
other documentation requirements are not new and 28, 2017.
so are already in effect.
Finding the Regulations
Appeal Rights Involuntary transfer or discharge is discussed in
The resident has the right to appeal any section 483.15(c) of Title 42 of the Code of Federal
proposed transfer/discharge. A new provision Regulations.
requires the facility to assist the resident if the
resident needs help in completing and submitting a
request for an appeal.
Appeals are governed by the same regulations
that apply to Medicaid hearings, and those
regulations were untouched by this round of
regulatory changes. Residents continue to have
a right to examine relevant documents prior to
the administrative hearing, and to cross-examine
adverse witnesses.
As mentioned above, a facility cannot carry
out an involuntary transfer or discharge while an
appeal is pending.
6 42 C.F.R. § 483.15(c)(2)(i)(B), (ii); see 81 Fed. Reg. at 68,734. 7 42 C.F.R. § 483.15(c)(7).
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