Nursing Home Transfer and Discharge Risks

Issue Alert: Transfer and Discharge Requirements

1. Why are Transfer and Discharge Protections Important?

Unwanted transfers or discharges from a nursing home can be devastating for residents, affecting their physical health and safety, as well as their psychological well-being. According to the Centers for Medicare & Medicaid Services (CMS), inappropriate discharges can cause residents to be “uprooted from familiar settings,” thereby impeding relationships with staff, other residents, and family members.[1] Sadly, reports even indicate that, despite the fundamental requirement that a discharge be safe and appropriate, some nursing homes are discharging residents to homeless shelters.[2] In a recent (2017) memorandum, CMS acknowledged that “facility-initiated discharges continue to be one of the most frequent complaints made to State Long Term Care Ombudsman Programs.”[3]

2. What are the Transfer and Discharge Protections?

Federal law and regulation provide significant protections for residents in this regard. They include: (1) Limitations on the circumstances under which a resident can be discharged; (2) Notice requirements; (3) Appeal rights; and (4) Preparation and orientation requirements.

1.Limited circumstances under which a resident can be discharged. Federal regulations state that every licensed nursing home “must permit each resident to remain in the facility and must not transfer or discharge the resident from the facility,” except under the following limited conditions:[4]

• It is necessary for the resident’s welfare. “The transfer or discharge is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility;”
• The resident no longer needs services. “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;”
• The resident endangers the safety of others. “The safety of individuals in the facility is endangered due to the clinical or behavioral status of the resident;”
• The resident endangers the health of others. “The health of individuals in the facility would otherwise be endangered;”
• The resident failed to pay, or have Medicare or Medicaid pay, for services. “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 his or her 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;” or
• The nursing home closes. “The facility ceases to operate.”[5]

2. Notice requirements. Nursing homes must also adhere to notice requirements when transferring or discharging a resident. A resident cannot be transferred or discharged unless there has been 30 days’ notice. However, there are again limited exceptions, including when the safety or health of individuals are endangered, the resident’s health sufficiently improves to allow for an immediate transfer or discharge, the resident has an urgent medical need that requires a transfer or discharge, the resident has not been in the facility for 30 days, or the facility ceases to operate.[6] 

3. Appeal rights. Even when these limited exceptions have been met, nursing homes may not transfer or discharge a resident “when a resident exercises his or her right to appeal a transfer or discharge notice . . . unless the failure to transfer or discharge would endanger the health or safety of the resident or other individuals . . . .”[7] Furthermore, nursing homes must document “the specific resident need(s) that cannot be met, facility attempts to meet the resident needs, and the service available at the receiving facility to meet the need(s).”[8] According to CMS’s 2017 memorandum, “it should be rare that facilities who properly assess their capacity and capability of caring for a resident then discharge that resident based on the inability to meet their needs.”[9]

4. Preparation and orientation. Nursing homes must also “provide and document sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility . . .  in a form and manner that the resident can understand.”[10] CMS’s interpretive guidance provides that steps must be taken to minimize the resident’s anxiety, including explaining why the resident is being transferred or discharged.[11]

The overall goal of the transfer and discharge requirements is to “limit the circumstances under which a facility can initiate a transfer or discharge, thus protecting nursing home residents from involuntary discharge.”[12] Unfortunately, stories of residents being discharged to seemingly unsafe or inappropriate settings, such as homeless shelters that are not compliant with the Americans with Disabilities Act (ADA), signal that some nursing homes may be sidestepping or ignorant of this goal.

3. Are the Transfer and Discharge Standards Being Used to Effectively Protect Residents?  

Although residents and their families frequently complain about inappropriate transfers and discharges, data indicate that these complaints are often not being substantiated by state survey agencies and, therefore, are likely not being properly addressed by CMS. In fact, a 2013 federal report found that 31 percent of nursing home stays resulted in the facility failing to meet at least one of the discharge planning requirements.[13] The report called on CMS to make nursing homes more accountable and to increase enforcement of the related requirements.[14]

However, data from Nursing Home Compare show that, over the last three inspection cycles (three years, as of January 2018), state surveyors have only cited 272 deficiencies across the country for failing to allow a resident to remain at the nursing home and “not be transferred or discharged without adequate reason.”[15] During this time, state surveyors have also cited 685 nursing home deficiencies for failing to provide residents timely notification before a transfer or discharge. In total, these transfer and discharge deficiencies account for only .28 percent of all nursing home deficiencies on Nursing Home Compare over the last three inspection cycles.

4. How Can I Find Out About Transfer and Discharge Deficiencies in My Nursing Home or Those in My State?

As noted above, despite it being a frequent complaint, transfer and discharge citation rates are low across the country with considerable variations between the states. Nursing Home Compare (http://www.medicare.gov/nursinghomecompare) provides information on individual licensed nursing homes across the country. Citations for transfer and discharge deficiencies are reflected in a nursing home’s Statement of Deficiencies (SoDs) under the “Health Inspections” tab. Please note that the absence of a citation does not indicate that a facility has not violated the transfer and discharge requirements. Rather, citations indicate when and where a deficiency was substantiated by the survey system. Numerous studies have indicated that, for various reasons, state and federal agencies do not always identify substandard care or deficient practices. As discussed above, this is, evidently, particularly true when it comes to resident transfers and discharges.

In order to provide the public with relevant information on nursing home transfer and discharge citations, LTCCC’s Nursing Home Information & Data Page (on our www.nursinghome411.org website) has searchable and downloadable files on every licensed nursing home in the country, including the following data:

US Nursing Home Citations for Transfer and Discharge Deficiencies

This file provides individual folders for every state and Washington, DC. Each folder provides the names of each facility in the state that have been cited for transfer and discharge deficiencies over the last three years (as of the processing date indicated). It is searchable by facility name, address, city, and zip code.

All of the data are from the federal Medicare website. They have been formatted to make it easy for the public to access relevant information on nursing homes in their communities and states.

5. Case Study of a Resident Who was Put in Harm’s Way because of an Inadequate Discharge Notice

When a state surveyor identifies substandard care, those findings are described in what is called a Statement of Deficiencies (SoD). All nursing home SoDs are published on Nursing Home Compare. A September 2017 inspection of Willow Point Rehabilitation and Nursing Center in Vestal, New York, illustrates one such instance where surveyors cited a nursing home for substandard care due to deficient transfer and discharge practices.

When state surveyors inspected the nursing home, they found that the facility was deficient in “providing enough notice before discharging or transferring a resident.”[16]

The resident’s comprehensive care plan noted that she “had a knowledge deficit related to medications and impaired cognitive function related to dementia.”[17] The resident’s record showed that she had a health care proxy, who lived out of state but was involved in the resident’s care. The discharge plan provided that the resident was to be discharged to the out of state health care proxy.

Although the resident had a family member who often visited her, the health care proxy noted that the family member had memory issues and would not be a reliable caregiver. The resident’s physician did not believe that discharging her was appropriate at the time because of her “cognitive impairment and lack of community support.”[18] The nursing home notified the health care proxy of the physician’s determination.

The resident was later discharged to “someone other than the [health care proxy], and the other person was not considered reliable.”[19] The resident’s record documented that the resident signed a release and was discharged against medical advice. The nursing home administrator and the director of nursing were notified of the resident’s decision to leave the nursing home but they determined that “she could make her own decisions and the facility was unable to stop her.”[20]

During staff interviews, a licensed practical nurse (LPN) told surveyors that a health care proxy needed to be notified when a resident with a cognitive impairment wanted to leave the nursing home. The LPN further stated that the resident would not be able to sign a release and medications would not be given to a resident who was unable to self-medicate. The nursing home administrator similarly provided that the facility would have to contact the health care proxy and the resident would not be discharged. The administrator added that the police would be notified.

Surveyors found that the nursing home failed to “ensure all residents were safely discharged.”[21] Specifically, the surveyors noted that the nursing home allowed one resident to be discharged with medications to someone who was not the resident’s health care proxy. Despite the nursing home placing the resident at risk of harm and violating the discharge notice requirement, surveyors cited the deficiency at a “D” scope and severity level—meaning that they found “no harm” caused by this violation.[22]

6. A Note on Nursing Home Oversight & Accountability

The accurate identification of substandard nursing home care is a longstanding issue of public concern. Too often, even when resident abuse or neglect are cited, the problems are not identified by surveyors as having caused harm to the nursing home’s residents. A report by the Government Accountability Office (GAO) found that a “substantial proportion of federal comparative surveys identify missed deficiencies at the potential for more than minimal harm level or above.”[23] Recent studies by LTCCC also indicated that states only identify resident harm about 5% of the time that they cite a facility for substandard care, abuse, or neglect.[24] It is important to note that, in the absence of a finding of harm, facilities are rarely if ever penalized.

7. References for More Information & Help

• Fact Sheets. LTCCC’s website provides consumer fact sheets on nursing home transfer and discharge rights. See http://nursinghome411.org/?s=discharge.
• Webinars. LTCCC’s YouTube page contains previously recorded webinars on a host of nursing home resident issues, including transfer and discharge rights. See https://www.youtube.com/watch?v=jMCTwqlzPVE.
• Enforcement. CMS issued a revised State Operations Manual with revised regulations and interpretative guidance. See https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/som107ap_pp_guidelines_ltcf.pdf.
• News Report. “When Nursing Homes Push Out Poor and Disabled Patients,” a Kaiser Health News article, highlights the story of Anita Willis. Ms. Willis, a former Head Start teacher, was faced with the difficult decision of deciding whether to leave her nursing home or to pay up to $336 a day for care after she had a stroke. Unable to pay, Ms. Willis left the nursing home but had nowhere to go. Ms. Willis had become homeless after a breakup and was forced to begin a “months-long” struggle of moving from “budget motels to acquaintances’ couches to hospital ERs.” Sadly, Ms. Willis lost her appeal to return to the nursing home after the judge decided that she left the home voluntarily “because she refused the opportunity to pay to remain there.” See https://khn.org/news/when-nursing-homes-push-out-poor-and-disabled-patients/

Self-driving Uber taxi struck and killed a woman in Tempe, Arizona

Exactly why oversight and independent regulation is important and has a positive role to play.

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A self-driving Uber vehicle taxi struck and killed a woman in Tempe, Arizona on Sunday evening while she was walking with her bike. Uber has suspended its self-driving tests as a result of the accident, and the National Transportation Safety Board is investigating. The story received coverage on all three nightly news broadcasts and significant attention from national media outlets and technology-focused websites. The CBS Evening News (3/19, story 2, 2:25, Glor, 11.17M) reported the Uber SUV was operating in autonomous mode at the time of the accident “with only a safety driver on board.” The vehicle was traveling at about 40 miles per hour at the time of the collision, and Tempe Police Department Sgt. Ronald Elcock said, “Our investigation did not show at this time that there were significant signs of the vehicle slowing down.” CBS explained that the woman was struck “a good distance” from the crosswalk, and the NTSB will attempt to determine whether any driver would have been able to avoid the collision.
        ABC World News Tonight (3/19, story 9, 1:10, Muir, 14.63M) reported that autonomous vehicles have been involved in crashes before, but this incident “is likely the first pedestrian death involving an autonomous vehicle.” Uber CEO Dara Khosrowshahi said the company will “work with local law enforcement to understand what happened.” NBC Nightly News (3/19, story 2, 1:50, Holt, 16.61M) reported Center for Auto Safety Executive Director Jason Levine told NBC, “We are definitely moving much too quickly getting these things on the road in a location where you have pedestrians, bicyclists, people pushing children in strollers.”

        The San Francisco Chronicle (3/20, Said, 3M) reports Tempe Police Chief Sylvia Moir said after viewing videos of the incident that have not been released to the public, “it’s very clear it would have been difficult to avoid this collision in any kind of mode (autonomous or human-driven) based on how she came from the shadows right into the roadway.” Moir said, “It is dangerous to cross roadways in the evening hour when well-illuminated, managed crosswalks are available.” Moir pointed out that authorities determined that an autonomous Uber vehicle was not at fault for a 2017 collision in Arizona, and she added, “I suspect preliminarily it appears that the Uber would likely not be at fault in this accident, either.” However, she “won’t rule out the potential to file charges against the (backup driver) in the Uber vehicle.”

        The Associated Press (3/19) reports the accident “could have far-reaching consequences for the new technology” because a fatal event involving a pedestrian “was the event many in the auto and technology industries were dreading but knew was inevitable.” The AP reports the National Highway Traffic Safety Administration has also sent investigators to the scene. Reuters (3/19) calls the incident “the first significant test of how policy makers and the public will respond to the new technology.” Reuters says Uber and Waymo wrote to Senators requesting them to approve legislation bolstering self-driving vehicles “in the coming weeks.” However, Reuters reports that auto and technology officials have said that accidents and deaths caused by self-driving vehicles will be far lower than the number of people saved by eliminating the human error, distracted driving, and impaired driving of human operators. Reuters quotes Transportation Secretary Elaine Chao discussing autonomous vehicles on March 1, “The goal is to develop common sense regulations that do not hamper innovation, while preserving safety.”
        The New York Times (3/19, Wakabayashi, Subscription Publication, 13.35M) reports the testing of self-driving vehicles “has taken place in a piecemeal regulatory environment,” and Arizona has been more “lenient” in regulating autonomous vehicles in order to attract companies developing the technology in California. The Times adds that a bill under consideration in the US Senate “would free autonomous-car makers from some existing safety standards and pre-empt states from creating their own vehicle safety laws.” The NTSB said it will look into “the vehicle’s interaction with the environment, other vehicles and vulnerable road users such as pedestrians and bicyclists.” The Washington Post (3/19, Siddiqui, Laris, 15.96M) reports 50 companies have received permits to test autonomous vehicles in California, and starting next month, California will allow “technology developers to apply to test and deploy cars without a human behind the wheel if they meet various safety, notification and other criteria.”

Opiod Crisis and Accountability

In the last 20 years, deaths due to opioid use have drastically increased. In 2016 alone, according to a special report from Time magazine, nearly 64,000 Americans died from drug overdoses – “roughly as many as were lost in the entire Vietnam, Iraq and Afghanistan wars combined.” An average of 115 people die each day from an opioid overdose, according to the Centers for Disease Control (CDC). Life expectancy in the U.S. – one of the richest countries in the world – went down in both 2015 and 2016. So just how did we get here?

An Explosion of Pills and Prescriptions 

The original marketing for OxyContin as providing long-lasting and non-addictive pain relief was based on questionable research.

Last year, 236 million opioid prescriptions were doled out in the U.S. The amount of prescription opioids sold to pharmacies, hospitals and doctors’ offices nearly quadrupled from 1999 to 2010, yet there was no overall change in the amount of pain that Americans reported. Deaths from prescription opioids – drugs like oxycodone, hydrocodone, and methadone – have also quadrupled since 1999.
Until the mid-1990s, opioids were only prescribed for pain from severe injuries or to cancer patients. That all changed in 1996 with the introduction of OxyContin, an extended-release opioid from Purdue Pharma. This drug was heavily promoted to doctors as less addictive and therefore appropriate for more common conditions. As prescription opioids became a cash cow for many pharmaceutical companies, they continued to trivialize the risks while overstating the benefits of opioid usage.

Battling the Big Pharma Goliath

Trial lawyers are working with advocates to hold opioid makers accountable.

Addiction prevention and recovery organizations, law enforcement and health care advocates are doing the best they can to combat the many-headed monster of opioid abuse. Now, multiple states, counties, cities and other jurisdictions are banding together and filing lawsuits to hold opioid companies responsible for the consequences of the crisis.
In so doing, they are borrowing a page from the playbook of Mike Moore, a lawyer and former attorney general for Mississippi. In 1994, Moore was the first state AG to sue the tobacco industry for lying about nicotine addiction and to hold them accountable for the cost to the public of treating sick smokers. He gathered lawyers and other AGs from across the country to take on Big Tobacco – and won. It was the largest  corporate legal settlement in history, with 50 states participating and an enormous $246 billion agreement. This money funds smoking cessation and prevention programs to this day.
Last year, Moore decided to turn his sights on Big Pharma. Since then, more than 400 cities, counties and Native American tribes have filed lawsuits against pharmaceutical manufacturers, distributors and pharmacy chains. In February, the Justice Department announced it was standing behind the plaintiffs and plans to file a statement of interest as well.
Meanwhile, trial attorneys are working with the authorities in many of these jurisdictions to help claw back the millions spent on law enforcement, opioid-related crime prevention, and addiction treatment. Trial attorneys are also representing individuals and their families who have suffered the consequences of opioid addiction and forcing Big Pharma to acknowledge the shattered lives left in the wake of the opioid crisis.

Personal Responsibility and Activism

What can you do to help stem the growth of opioid addiction and create a future with fewer overdoses? One way is to support lawmakers who are taking on Big Pharma and holding them accountable. The other is by exercising extreme caution when coming in contact with prescription opioids in your life. If your doctor prescribes one of these drugs for you or a family member, ask about and seriously consider less addictive medications, appropriate therapies and other ways to manage pain. If you do decide to go with opiates, consider these tips:

• Make sure you are getting the right medication.
• Stay in touch with your doctor to make sure that the medication you are taking is working and that the dose is appropriate.
• Follow directions carefully. Use your medication the way it was prescribed.
• When you are nearing the end of your prescription, discuss the safest way to discontinue use and prevent withdrawal.
• Never use someone else’s prescription.
• Secure your prescription drugs.
• Properly dispose of medications. Don’t keep unused or expired drugs. Check the label or patient information guide for disposal instructions, or ask your pharmacist for advice.

Equifax breach

Surveys: US consumers continue putting personal data at risk despite Equifax breach.

CNBC (3/11, 3.71M) reports that, according to Jeff Faulkner, acting president and CEO of the National Foundation for Credit Counseling (NFCC), “putting too much personal information out on social media is the most egregious example” of how consumers set themselves up for identity theft. According to a separate report from Javelin Strategy & Research, “in the year before the Equifax hack, about 15.4 million consumers were victims of identity theft or fraud in 2016,” which was “a 16 percent increase from 2015.” Yet, the majority of people “still have not taken steps to find out whether their information is at risk.” A survey from CreditCards.com showed that “half of U.S. adults said they have not looked at their credit report or credit score since the Equifax breach,” meanwhile, “eighteen percent of adults have never checked their credit report or credit score.”