Should They Stay, or Should They Go?

The New Requirements for Involuntary Discharges in Maryland Skilled Nursing Facilities.

Beginning October 1, 2019, nursing facilities in Maryland have been subject to additional statutory requirements and restrictions on the involuntary discharge of a resident.  Non-compliance with these requirements can expose facilities to additional penalties, including fines of up to $100,000 per violation and other sanctions. 

The new requirements for skilled facilities include changes to four key aspects of the involuntary discharge process: (1) the addition of new resident rights relating to discharges from a facility; (2) the expansion of required notice to the resident and their representative; (3) the addition of specific requirements for post-discharge plans of care; and (4) increased limitations on the involuntary discharge of a resident without informed consent.  These updated requirements apply to both comprehensive care facilities and extended care facilities. 

Additional resident rights

Under the amended law, residents are now guaranteed two additional rights – the right to notice, procedural fairness, and humane treatment when being involuntarily discharged and the right to participate in decision making regarding transitions in care, including involuntary discharges. 

The new requirements for skilled facilities include changes to four key aspects of the involuntary discharge process...  These updated requirements apply to both comprehensive care facilities and extended care facilities. 

New notice requirements

The basic rule for involuntary discharges remains unchanged – under Maryland law, a resident can be involuntarily discharged in only five specific instances and after sufficient written notice is provided.  What has changed, however, is what constitutes written notice.  Under the amended law, notice must be given in a standardized form provided to facilities by the Maryland Department of Health (“MDH”) to specifically defined persons.  The notice must be given at least 30 days in advance, and the resident has an opportunity for a hearing before the Office of Administrative Hearings.   

There are additional requirements as to what must be included in the written notice.  Although MDH provides facilities with the standard notice form, facilities should be aware of the new information they must provide.  These additions include: 1) the proposed date of the intended transfer or discharge; 2) the location to which the resident will be transferred or discharged; 3) the designation of a social worker to provide social and discharge planning services to the resident and prepare a post-discharge plan of care); and 4) a proposed date, within 10 days of the notice date, for a meeting with the resident, the resident’s representative, and facility staff to develop the post-discharge plan of care.  The amended law also requires notice to the resident of the availability of the Long-Term Care Ombudsman Program, and written notice of involuntary transfers or discharges must be provided to the resident, the resident’s representative, the Long-Term Care Ombudsman, and MDH.

The new law has not changed the requirement that facilities must provide written notice at least 30 days before the planned transfer or discharge; however, there are now two exceptions under which notice may be given “as soon as practicable,” rather than 30 days in advance.  These exceptions cover residents who have resided in the facility for less than 30 days and residents who present emergency health or safety concerns.  Any changes in the notice must also be provided “as soon as practicable” to the required recipients.

Post-discharge plans of care

The amended law now includes several specific requirements for what the plans must include and, most importantly, who must be involved in the development of the plans.

Under the amended law, the post-discharge plan of care must be developed with participation of the resident, the resident’s representative, the resident’s attending physician, a registered nurse responsible for the resident’s care, and “any other appropriate staff or professional involved with meeting the resident’s medical needs.”  The plan must: 1) address the resident’s post-discharge goals of care and treatment preferences; 2) identify the resident’s reasonably anticipated medical and basic needs after discharge or transfer; and 3) establish a plan for meeting those needs. The plan of care must also identify the designated social worker who will coordinate the development of the post-discharge plan of care, and the post-discharge plan of care meeting should be held with the facility, the resident, and the resident’s representative and must take place within 10 days of the discharge notice. 

The amended law emphasizes the role of the resident’s representative. It even requires that the representative cooperate and assist in the discharge planning process, including working with other facilities considering admitting the resident, and seek and actively pursue the resident’s enrollment in the medical assistance program.  Facilities are granted additional remedies for representatives who do not comply and may petition the court for an order directing the resident or the resident’s representative to comply with all requirements to be eligible for Medicaid.

Other requirements for involuntary discharges or transfers

Under the amended law, involuntary discharges or transfers are also subject to new 24-hour notice requirements.  Within 24 hours of discharge or transfer, facilities must provide the resident and the resident’s representative with: 1) a written statement of the medical assessment and evaluation of the resident, (which is required to be obtained or provided within 48 hours of the discharge); 2) written documentation from the resident’s attending physician indicating that the transfer or discharge is in accordance with the post-discharge plan of care and is not contraindicated by the resident’s medical condition; 3) the post-discharge plan of care; 4) the information necessary to assist the resident or their representative in obtaining additional prescriptions for necessary medication through consultation with the resident’s treating physician; and 5) a written statement containing the date, time, method, mode, and destination of discharge.

There are also new and additional procedural requirements for facilities discharging or transferring a resident involuntarily for one of the five enumerated reasons: The involuntary discharge or transfer must be done in accordance with the post-discharge plan of care; the resident must be sent to a safe and secure environment; the resident must be transferred to the community in which the resident resided before becoming a resident of the facility (unless the facility documents why it is in the best interest of the resident to be discharged to another location); and the resident must be discharged to another licensed provider.  However, transfer to another licensed provider is not required for residents who are discharged for sufficient health improvement or for residents who are being discharged for nonpayment and meet certain criteria  (e.g., the resident has no pending applications for medical assistance or the resident has not cooperated with the application process despite the facility’s attempts to assist the resident in seeking assistance).

The amended law also requires facilities to provide at least a 3-day supply of medications currently being taken by the resident at the time of discharge or transfer.

Practice tips

Although the legal bases for involuntarily discharging or transferring a patient have not changed, there are additional procedural and administrative hurdles for skilled nursing facilities completing these discharges and transfers.  Facilities must update their posted policies with the new resident rights and utilize the updated MDH standardized discharge forms to provide the additional information required under the amended law.  Facilities must also implement the enhanced notice requirements, complete comprehensive post-discharge plans of care, coordinate with all necessary parties, and consider the new limitations on involuntary discharges or transfers.

For more information about these new rule changes and other employment concerns, contact Ferrier Stillman or any member of the health care and senior housing practice groups.

This has been prepared by Tydings for informational purposes only and does not constitute legal advice.