16 Del. Admin. Code § 3102-3.0

Current through Register Vol. 28, No. 7, January 1, 2025

Section 3102-3.0 - Transfer, discharge and readmission rights of residents in a certified skilled nursing facility or a certified nursing facility as defined in 42 CFR Section 483.5 or an Intermediate Care facility (ICF/MR) as defined in 42 CFR Section 440.150

3.1 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:

3.1.1 The transfer or discharge is necessary for the resident's welfare and the resident's needs cannot be met in the facility. If the resident appeals a notice of discharge based on this section, the facility will not be cited during the pendency of the appeal for housing a resident whose needs exceed the permitted level of care in that facility.

3.1.2 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;

3.1.3 The safety of individuals in the facility is endangered;

3.1.4 The health of individuals in the facility would otherwise be endangered;

3.1.5 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. 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

3.1.6 The facility ceases to operate.

3.2 Documentation. When the facility transfers or discharges a resident under any of the circumstances specified in subsections 3.1.1 through 3.1.5 of this regulation, the resident's clinical record must be documented. The documentation must be made by:

3.2.1 The resident's physician when transfer or discharge is necessary in subsection 3.1.1 or subsection 3.1.2 of this regulation; and

3.2.2 A physician when transfer or discharge is necessary in subsection 3.1.4 of this regulation.

3.3 Notice before transfer. Before a facility transfers or discharges a resident, the facility must:

3.3.1 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;

3.3.2 Provide a copy of the notice to the Division; the State Long-Term Care (LTC) Ombudsman; the resident's Delaware Medicaid managed care organization (MCO), if any; any DHSS agency involved in the resident's placement in the facility, including Adult Protective Services (APS); and the protection and advocacy agency as defined in 16 Del.C. § 1102(7) if the resident is an individual with a developmental disability or mental illness;

3.3.3 Record the reasons in the resident's clinical record; and

3.3.4 Include in the notice the items described in subsection 3.5 of this regulation.

3.4 Timing of the notice.

3.4.1 Except as specified in subsections 3.4.2 and 3.8 of this regulation, the notice of transfer or discharge required in subsection 3.3 of this regulation must be made by the facility at least 30 days before the resident is transferred or discharged.

3.4.2 Notice may be made as soon as practicable before transfer or discharge when:

3.4.2.1 The safety of individuals in the facility would be endangered in subsection 3.1.3 of this regulation;

3.4.2.2 The health of individuals in the facility would be endangered, in subsection 3.1.4 of this regulation;

3.4.2.3 The resident's health improves sufficiently to allow a more immediate transfer or discharge, in subsection 3.1.2 of this regulation; or

3.4.2.4 An immediate transfer or discharge is required by the resident's urgent medical needs in subsection 3.1.1 of this regulation.

3.5 Contents of the notice. The written notice specified in subsection 3.3 of this regulation must include the following:

3.5.1 A detailed individualized explanation of the reason or reasons for the action being taken which includes, in terms understandable to the resident:

3.5.1.1 A statement of what action the agency intends to take;

3.5.1.2 The reasons for the intended action, including any information needed for the resident to determine from the notice alone the accuracy of the facility's intended action. When the reason is non-payment, an itemized statement of the resident's account for the preceding 12 months; and

3.5.1.3 The specific policy or regulation supporting such action.

3.5.2 The effective date of transfer or discharge;

3.5.3 The location to which the resident will be transferred or discharged;

3.5.4 A statement of the resident's right to a fair hearing as provided in this section;

3.5.5 The method by which the resident may request a fair hearing;

3.5.6 A statement that the resident may represent him or herself or may be represented by counsel or by another person; and

3.5.7 The name, address and telephone number of the State LTC Ombudsman;

3.6 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.

3.7 Notice in advance of facility closure. In the case of facility closure, the individual who is the administrator of the facility must provide written notification prior to the impending closure to the Secretary, the State LTC Ombudsman, residents of the facility, and the legal representatives of the residents or other responsible parties, as well as the plan for the transfer and adequate relocation of the residents, as required at 42 CFR § 483.75(r).

3.8 Room changes in a composite distinct part. Room changes in a facility that is a composite distinct part (as defined in 42 CFR § 483.5(c)) must be limited to moves within the particular building in which the resident resides, unless the resident voluntarily agrees to move to another of the composite distinct part's locations. A facility's discretion to transfer residents to another room is limited by 16 Del.C. § 1121(b)(34).

3.9 Notice of bed-hold policy and readmission.

3.9.1 Notice before transfer. Before a nursing facility transfers a resident to a hospital or allows a resident to go on therapeutic leave, the nursing facility must provide written information to the resident and a family member or legal representative that specifies;

3.9.1.1 Notice of State bed-hold. The duration of the bed-hold policy under the State plan, if any during which the resident is permitted to return and resume residence in the nursing facility, See DHSS Long Term Care Institutional Provider Specific Policy Manual at Section 4.5; and

3.9.1.2 Facility policies. The nursing facility's policies regarding bed-hold periods, which must be consistent with subsection 3.9.3 of this regulation, permitting a resident to return.

3.9.2 Bed-hold notice upon transfer. At the time of transfer of a resident for hospitalization or therapeutic leave, a nursing facility must provide to the resident and a family member or legal representative written notice which explains the bed-hold policy described in subsection 3.9.1.1 of this regulation.

3.9.3 Permitting resident to return to facility. A nursing facility must establish and follow a written policy under which a resident, whose hospitalization or therapeutic leave exceeds the bed-hold period under the State plan, is readmitted to the facility immediately upon the first availability of a bed in a semi-private room if the resident:

3.9.3.1 Requires the services provided by the facility; and

3.9.3.2 Is eligible for Medicaid nursing facility services.

3.9.3.3 Additional protection for readmission is found at 16 Del.C. § 1127(h).

3.10 Readmission to a composite distinct part. When the nursing facility to which a resident is readmitted is a composite distinct part (as defined in 42 CFR§ 483.5(c)), the resident must be permitted to return to an available bed in the particular location of the composite distinct part in which he or she resided previously. If a bed is not available in that location at the time of readmission, the resident must be given the option to return to that location upon the first availability of a bed there.

16 Del. Admin. Code § 3102-3.0

24 DE Reg. 275( 9/1/2020) (final)