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The involuntary transfer and discharge of nursing home residents is the top complaint received by nursing home ombudsman programs nationwide.  In December 2017, the Centers for Medicare & Medicaid Services (CMS) announced an initiative “to examine and mitigate facility-initiated discharges that violate federal regulations.”[1]  While recognizing the seriousness of involuntary transfer and discharge for residents (and calling some of them “unsafe and/or traumatic for residents and their families”), CMS limits the initiative to reviewing only transfer and discharge deficiencies that are cited following complaint investigations or annual surveys.  CMS’s Regional Offices are not reviewing either administrative decisions by hearing officers in residents’ transfer and discharge appeals or complaints made to the ombudsman program.

In August 2018, the Center for Medicare Advocacy reviewed the transfer and discharge deficiencies (F622) that have been cited since the new uniform nursing home survey process went into effect in November 2017.  The Center’s study finds that as of July 20, 2018, nationwide, 137 deficiencies for transfer/discharge have been cited nationwide.  Only four of these 137 deficiencies were cited as either “harm” or “immediate jeopardy;” the remaining 133 deficiencies were cited as “no-harm” or substantial compliance. 

The reason for this coding is that most survey reports cited transfer and discharge solely as a paperwork problem.  Surveyors did not typically investigate or document what happened after residents received notices that were in violation of federal requirements.  Missing or inadequate paperwork was cited as the sole issue of noncompliance.  Surveyors generally did not follow up to determine whether residents were actually discharged without appropriate notice or for inappropriate reasons or without preparation and, if so, what happened to them following discharge.  In the few instances when surveyors investigated the circumstances of the discharge, they appeared to treat the discharge far more seriously.

For example, the single immediate jeopardy deficiency was cited at Brookhaven Manor, a Special Focus Facility in Tennessee, following in an annual survey completed March 21, 2018.[2]  The deficiency was based on the discharge of a resident to a hotel while his appeal of his discharge for alleged noncompliance with the facility’s smoking policy was pending before a state Administrative Law Judge (ALJ).

On December 21, 2017, a resident was given a Notice of Involuntary Discharge for allegedly violating the facility’s smoking policy.  The resident filed an appeal.  In a February 2, 2018 conference call, the state ALJ hearing his appeal issued a continuance of the appeal until February 21 so that the resident could get an attorney.  When the resident was found smoking on Friday, February 9, the interim administrator (who had begun working at the facility on January 29) asked the resident for his matches or lighter.  When the resident refused, he was immediately discharged to a hotel, driven in the facility’s van.  The facility paid for three nights at the hotel, which served breakfast, but facility staff did not know if the man had any money to pay for additional meals.  The facility also failed to send all of the resident’s prescribed medications with him to the hotel.  The former resident told surveyors he had one meal on Friday and, as described in the survey report, “2 boxes of peanut butter crackers and some candy to eat for the following 3 days.”  Neither the resident’s physician nor the facility’s Medical Director had been consulted prior to the resident’s discharge.

The state agency cited a total of six immediate jeopardy deficiencies related to the involuntary discharge, including, in addition to F622, deficiencies at F623 (failure to provide timely notification of discharge), F624 (failure to prepare resident for safe discharge), F745 (failure to provide medically-related social services), F835 (administration), F837 (governing body), and F867 (quality assurance and performance improvement).  Nursing Home Compare does not report any Civil Money Penalties for these deficiencies and it is unknown whether any penalty for these deficiencies has been imposed and is under appeal. 

September 20, 2018 – T. Edelman

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