CMS Initiative to Address Facility Initiated Discharges that Violate Federal Regulations

PUBLISHED: Jan 8, 2018
Relevant to: Long Term Care

The Centers for Medicare and Medicaid Services (CMS) has begun an initiative to examine and mitigate facility-initiated discharges that violate federal regulations. Federal regulations allow facilities to initiate discharges of residents only in specific instances. Despite these protections, discharges which violate Federal regulations continue to be one of the most frequent complaints made to State Long Term Care Ombudsman Programs.

Federal regulations governing long term care facilities provide many protections for all nursing home residents, including the right to remain in the facility unless a limited set of circumstances apply:

  • 483.15(c)(1)(i) The facility must permit each resident to remain in the facility, and 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 due to the clinical or behavioral status of the resident;
    • (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 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
    • (F) The facility ceases to operate.

According to CMS, facilities are required to determine their capacity and capability to care for the residents they admit, so in the absence of atypical changes in residents’ conditions, 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.

CMS is examining State survey agency’s intake and triage practices for discharge complaints, developing examples of inappropriate and appropriate discharges for surveyors, identifying best practices for nursing homes, developing training, and evaluating enforcement options for these types of violations. CMS is encouraging States to pursue Civil Money Penatly (CMP)-funded projects that may help prevent facility initiated discharges that violate federal regulations.

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