RELATES TO:
KRS
216.510(2),
216.525,
216.555,
216.557,
216.560,
216B.015(13),
42 U.S.C.
1395,
1396,
42 C.F.R.
483.15,
483.204
NECESSITY, FUNCTION, AND CONFORMITY:
42 C.F.R.
483.204 requires that the state shall provide
a process for appeals related to involuntary transfer and discharge. This
administrative regulation establishes guidelines for this process for long-term
care facilities, including long-term care facilities certified in accordance
with 42 C.F.R. Part 483 . This administrative regulation also establishes the
requirements for reasonable notice of involuntary transfer or discharge
pursuant to
KRS
216.515(4) and appeal
rights.
Section 1. Definitions.
(1) "Discharge" or "transfer" means:
(a) Relocation of a resident from a long-term
care facility to a noninstitutional setting or another health facility as
defined by
KRS
216B.015(13); or
(b) Any intrafacility relocation of a
resident, except between beds within the same distinct Medicare or Medicaid
certified or noncertified part of the facility.
(2) "Facility" means a long-term care
facility as defined by
KRS
216.510(1), except for
family care homes licensed pursuant to
902 KAR
20:041.
(3) "Resident" is defined by
KRS
216.510(2).
(4) "Transfer or discharge rights" means
those rights of notification and appeal guaranteed in
KRS
216.515(4) and (26), and as
outlined in this administrative regulation.
Section 2. Transfer and Discharge Rights.
(1) Transfer and discharge requirements. The
facility shall permit each resident to remain in the facility, and shall not
transfer or discharge the resident from the facility unless:
(a) The transfer or discharge is necessary
for the resident's welfare and the resident's needs cannot be met in 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 to have paid under Medicare, Medicaid, or state supplementation) a stay at
the facility; or
(f) The facility
ceases to operate.
(2)
Documentation. Before a facility transfers or discharges a resident under any
of the circumstances specified in subsection (1)(a) through (f) of this
section, the reasons for the transfer or discharge shall be documented in the
resident's clinical record. The documentation shall be made by:
(a) The resident's physician if transfer or
discharge is necessary under subsection (1)(a) or (b) of this section;
and
(b) A physician if transfer or
discharge is necessary under subsection (1)(c) or (d) of this
section.
(3) Notice
before transfer. Before a facility transfers or discharges a resident, the
facility shall:
(a) Notify the resident and
the responsible party, responsible family member, or guardian, in writing, of
the transfer or discharge and the reasons for the relocation in a language and
manner they understand;
(b) Record
the reasons in the resident's clinical record; and
(c) Include in the notice the items described
in subsection (5) of this section.
(4) Timing of the notice.
(a) Except as specified in paragraph (b) of
this subsection, the notice of transfer or discharge required under subsection
(3) of this section shall be made by the facility at least thirty (30) days
before the resident is transferred or discharged.
(b) Notice may be made as soon as practicable
before transfer or discharge if:
1. An
immediate transfer or discharge is required by the resident's urgent medical
needs, under subsection (1)(a) of this section;
2. The resident's health improves
sufficiently to allow a more immediate transfer or discharge, under subsection
(1)(b) of this section;
3. The
safety of individuals in the facility would be endangered, under subsection
(1)(c) of this section;
4. The
health of individuals in the facility would be endangered, under subsection
(1)(d) of this section; or
5. The
resident has not resided in the facility for thirty (30) days.
(5) Contents of the
notice. The written notice specified in subsection (3) of this section shall
include the following:
(a) The reason for
transfer or discharge;
(b) The
effective date of transfer or discharge;
(c) The location to which the resident is
transferred or discharged;
(d) A
statement that the resident, responsible party, responsible family member, or
guardian has the right to appeal the action to the cabinet;
(e) The name, address (mailing and email),
and telephone number of the cabinet office responsible for receiving requests
for appeal;
(f) Information on how
to obtain assistance with submitting a request for appeal;
(g) The name, address (mailing and email),
and telephone number of the state long-term care ombudsman; and
(h) For a nursing facility resident with a
developmental disability or mental illness, the mailing and email address and
telephone number of Kentucky Protection and Advocacy.
(6) Orientation for transfer or discharge. A
facility shall provide sufficient preparation and orientation to residents to
ensure safe and orderly transfer or discharge from the facility.
(7) Notice of bed-hold policy and
readmission.
(a) Notice before transfer.
Before a facility transfers a resident to a hospital or allows a resident to go
on therapeutic leave, the facility shall provide written information to the
resident, responsible party, responsible family member, or legal guardian that
specifies the following:
1. The duration of
the bed-hold policy, which shall be requested if available under the Medicaid
state plan and provider agreement, during which a resident who receives
Medicaid or has a pending application for Medicaid benefits is permitted to
return and resume residence in the facility;
2. The facility's policies regarding bed-hold
periods, which shall be consistent with paragraph (c) of this subsection,
permitting a resident to return; and
3. For a resident who does not receive or
does not have an application pending for Medicaid, the facility's established
policy governing readmission.
(b) Notice upon transfer. Upon transfer of a
resident to a hospital or for therapeutic leave, a long-term care facility
shall provide written notice to the resident, responsible party, responsible
family member, or legal guardian. The notice shall specify the duration of the
bed-hold policy described in paragraph (a) of this subsection.
(c) Permitting resident to return to
facility. A long-term care facility shall establish and follow a written policy
under which a resident whose hospitalization or therapeutic leave exceeds the
bed-hold period under the Medicaid state plan, is notified and readmitted to
the facility immediately upon the first availability of a bed in a semiprivate
room if the resident:
1. Chooses to be
readmitted;
2. Requires the
services provided by the facility; and
3. Is eligible for Medicaid nursing facility
services and the facility is certified to participate in Title XVIII,
42 U.S.C.
1395, or Title XIX,
42 U.S.C.
1396, of the Social Security Act.
(8) Equal access to
quality care. A facility shall establish and maintain identical policies and
practices regarding transfer, discharge, and the provision of service under the
Medicaid state plan for all individuals regardless of source of
payment.
Section 3.
Appeal Rights.
(1) A resident, responsible
party, responsible family member, or guardian may appeal any
discharge.
(2) A resident,
responsible party, responsible family member, or guardian may appeal a transfer
if the resident is transferred from:
(a) A
certified bed into a noncertified bed; or
(b) A bed in a certified entity to a bed in
an entity that is certified as a different provider.
(3) A resident, responsible party,
responsible family member, or guardian has no appeal rights if the resident is
moved from a certified bed into another certified bed of the same certification
in the same facility.
(4) A
resident, responsible party, responsible family member, or guardian may request
that the cabinet review any proposed transfer or discharge. The cabinet shall
investigate the proposed transfer or discharge to ascertain whether there has
been a violation of the resident's transfer or discharge rights.
(5)
(a) A
resident, responsible party, responsible family member, or guardian may appeal
any discharge or appealable transfer to the cabinet.
(b) The resident, responsible party,
responsible family member, or guardian shall inform the cabinet in writing of
his or her intent to appeal within fifteen (15) days from receipt of notice of
the facility's intent to transfer or discharge and include:
1. A copy of the notice of the facility's
intent to transfer or discharge the resident; and
2. If not included on the notice, the name
and address of the facility.
(c) Hearing procedures for appeals shall be
followed, as established in
900 KAR
2:060.
(6) Penalties. The cabinet shall enforce the
provision of this administrative regulation pursuant to
KRS
216.555,
216.557,
and
216.560.