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Excerpts of Federal Code on Patient's Rights and Discharge
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§483.10 Resident rights.

The resident has a right to a dignified existence, self-determination, and communication with and access to persons and services inside and outside the facility. A facility must protect and promote the rights of each resident, including each of the following rights...

(11) Notification of changes. (I) A facility must immediately inform the resident; consult with the resident’s physician; and if known, notify the resident’s legal representative [sic] or an interested family member when there is -...

(D) a decision to transfer or discharge the resident from the facility as specified in §483.12(a). 42 CFR Ch. IV, §483.10, 1999 Edition.

§483.12 Admission, transfer and discharge rights. (a) Transfer and discharge - ...

(2) Transfer and discharge requirements. The facility must permit each resident to remain in the facility, and not transfer or discharge the resident from the facility unless - ... (ii) 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;... (v) 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.

(3) Documentation. When the facility transfers or discharges a resident under any of the circumstances specified in paragraphs (a)(2)(i) through (v) of this section, the resident’s clinical record must be documented. The documentation must be made by - ...(1) The resident’s physician when transfer or discharge is necessary under paragraph (a)(2)(i) or paragraph (a)(2)(ii) of this section;

(4) Notice before transfer. Before a facility transfers or discharges a resident, the facility must -...

(i) Notify the resident and, if known, a family member or legal representative of the resident of the transfer or discharge and the reasons for the move in writing and in a language and manner they understand.

(ii) Record the reasons in the resident’s clinical record; and

(iii) Include in the notice the items described in paragraph (a)(6) of this section.

(5) Timing of the notice. (i) Except when specified in paragraph (a)(5)(ii) of this section, the notice of transfer or discharge required under paragraph (a)(4) of this section must be made by the facility at least 30 days before the resident is transferred or discharged.
(ii) Notice may be made as soon as practicable before transfer or discharge when -
(C) The resident’s health improves sufficiently to allow a more immediate transfer or discharge under paragraph (a)(2)(ii) of this section.

(6) Contents of the notice. The written notice specified in paragraph (a)(4) of this section must include the following:

(i) The reason for transfer or discharge:

(ii) The effective date of transfer or discharge;

(iii) The location to which the resident is transferred or discharged;

(iv) A statement that the resident has the right to appeal the action to the State;

(v) The name, address and telephone number of the State long term care ombudsman.

(7) Orientation for transfer or discharge. A facility must provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility. 42 CFR Ch. IV, §483.12, 1999 Edition.

3. §483.25 Quality of care.

Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care. 42 CFR Ch. IV, §483.25, 1999 Edition.

4. §483.204 Provision of a hearing and appeal system. (a) Each State must provide a system for:

(1) A resident of a skilled nursing facility (SNF) or nursing facility (NF) to appeal a notice from the SNF or NF of intent to discharge or transfer the resident.

(b) The State must provide an appeals system that meets the requirements of this subpart, §483.12 of this part, and part 431 subpart E of this chapter. 42 CFR Ch. IV, §483.204, 1999 Edition.

5. Subpart E - Fair Hearings for Applicants and Recipients

§431.200 Basis and purpose.

This subpart implements section 1902(a)(3) of the Act, which requires that a State plan provide an opportunity for a fair hearing to any person whose claim for assistance is denied or not acted upon promptly. ... This subpart also implements sections 1819(f)(3), 1919(f)(3), and 1919(e)(7)(F) of the Act by providing an appeals process for individuals proposed to be transferred or discharged from skilled nursing facilities and nursing facilities and those adversely affected by the preadmission screening and annual resident review requirements of section 1919(e)(7) of the Act. 42 CFR Ch. IV, §431.200, 1999 Edition.

A facility may not discharge a resident where his or her health has not improved sufficiently, and he or she continues to require skilled nursing care and rehabilitative services provided by the facility. 42 CFR Ch. IV, §483.12.

A facility may not transfer or discharge a resident because the resident has not paid for (or have paid under Medicaid) a stay or for services provided by the facility. 42 CFR Ch. IV, §483.12.

Discharge notices must meet notice requirements including the location to which the resident would be discharged. 42 CFR Ch. IV, §483.12.

A facility must follow discharge regulations even if acting with the direction of a resident’s constitutional right to direct his or her care. The constitutional rights of an individual to self-determination and self-direction are set forth in §483.10 of the Code of Federal Regulations; however, Federal Code also directs that facilities must notify an interested family member in addition to the resident when they decide to discharge a resident.

And §483.12 outlines what actions must be taken prior to discharges being undertaken for specific reasons, stating that the required discharge notices must be given to both the resident and a family member, if known.

While the facility is obligated to respect and consider a resident’s right to self-direction, it also has the duty not to discharge a resident to a home or other location without proper and sufficient supports in place to ensure his or her safety and continued receipt of necessary care.

NOTE TO OUR READERS: This posting is not intended to take the place of legal counsel. Please refer to a qualified attorney if you have an issue or need clarification of anything posted on this page or site.

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