Resident IN THIS ISSUENEWSLETTER BRIEF ISSUE NO28 FALL / WINTER 2014 NEWSLETTER BRIEF ISSUE NO28...

Kimberli Poppe-Smart Senior Attorney

[email protected]

Joan Redden, RN, BC, CLNCSkilled Healthcare, LLC

VP of Regulatory Affairs

The Ins & Outs of Resident Transfer and Discharge

NEWSLETTER BRIEF ISSUE NO28 FALL / WINTER 2014

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IN THIS ISSUECOVER STORY

The Ins & OuTs Of ResIdenT TRansfeR and dIschaRge .. 1

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+Nursing home residents have rights that extend to the prohibition against indiscriminate discharge

or transfer. A myriad of rules apply to transfer or discharge of a resident, at least partly in an effort to avoid a constellation of symptoms and outcomes known as relo-cation stress or transfer trauma. The stress of transfer may be most signifi-cant for the resident with early dementia when they first move from their family home into the nursing facility however, transfers and discharges from the facility must be carefully handled to avoid undue stress. As with all stress responses, the se-verity and duration of the stress reaction may range from none to severe and may last a few days or a few weeks. Trans-fer trauma, when it does occur, manifests in emotional, behavioral, and cognitive symptoms.

Despite the desire to protect nursing home residents from this type of stress, there are situations when a transfer or discharge from the facility is necessary. Knowing when such a discharge or transfer is al-lowable and how to best accomplish it will boost your credibility with families, pro-viders, and state surveyors.

PRE-ADMISSION SCREENINGProactive measures can be implemented by the nursing home before admission of a resident to minimize the need for trans-fers and discharges. A full assessment of the potential resident’s needs and condi-tion prior to admission, with a thorough evaluation of the ability of the facility to meet the resident’s needs and the family’s expectations, can minimize the disruption and animosity that can result from an in-congruity of needs, abilities, and expecta-tions. Screening the resident by obtaining clinical data about the extent of care needs as well as behaviors of the potential resi-dent will assist in carefully and thoroughly vetting the home’s ability to meet the resi-dent’s needs.

WHEN CAN YOU DISCHARGE OR TRANSFER A RESIDENT?“Transfer” and “discharge” of a resident refers to the movement of a resident to a bed outside of the Medicare certified facility, whether that bed is in the same physical plant or not. (See 42 C.F.R. § 483.12(a)(1).) Transfer and discharge in this context does not refer to a bed change within the same certified facility.

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NEWSLETTER BRIEF ISSUE NO28 FALL / WINTER 2014 NEWSLETTER BRIEF ISSUE NO28 FALL / WINTER 2014

Transfer & DischargeContinued from page 1

COVER STORY

The general rule is that a facility is required to allow a resident to remain in the facility. The exceptions, as defined in 42 C.F.R. § 483.12(a)(2) include situations when:1) the transfer or discharge is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility; 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) the safety of individuals in the facility is endangered; 4) the health of individuals in the facility would otherwise be endangered; 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 eli-gible for Medicaid after admission to a fa-cility, the facility may charge a resident only allowable charges under Medicaid; or 6) the facility ceases to operate.

Generally, a “transfer” refers to the move-ment of a resident from the nursing home to another setting that becomes responsible for the resident’s care and safety whereas a “discharge” results in the resident moving to a non-institutional setting where the dis-charging facility is no longer responsible for the resident’s care.

The conversion of a resident from private pay status to the Medicaid rate does not constitute failure to pay for the purposes of determining appropriateness of a transfer.

It is not uncommon for residents to refuse care in the nursing home. That refusal alone is not sufficient to support a transfer, unless the refusal results in the facility’s inability to meet the needs of the resident or protect the health and safety of the resident and others. If the refusal results in a risk to the resident’s safety or health, or that of other residents, then discharge or transfer may be appropriate. The risks of the refusals must be thoroughly explained to the resident or responsible party and thoroughly docu-

mented.

PROCEDURAL REQUIREMENTS FOR AN EFFECTIVE DISCHARGE OR TRANSFER I. Documentation

42 C.F.R. § 483.12 (a)(3) details specific documentation requirements in the event of a transfer or a discharge of a resident under the circumstances noted above as follows:

The documentation must be made by— (i) The resident’s physician when transfer or discharge is necessary under paragraph (a)(2)(i) or paragraph (a)(2)(ii) of this sec-tion; and (ii) A physician when transfer or discharge is necessary under paragraph (a)(2)(iv) of this section.

Prior to completing the transfer or dis-charge, a designated individual (e.g., Ad-ministrator or Director of Nursing) should review the record and verify the following elements are documented:1) the reason for the discharge is clear and falls within one of the allowable categories defined above;2) the records tell the story of events leading to the discharge or transfer including:

a. accurate assessments of the resident’s condition and response to intervention,b. clearly identified resident’s needs and care planned interventions developed by the multi-disciplinary team,c. accommodations of the individual’s needs, andd. engagement of the family/responsible party or significant others as appropriate and allowed by the resident; and

3) the physician documented that the trans-fer or discharge was necessary for the resi-dent’s welfare and the resident’s needs could not be met in the facility or the transfer or discharge was appropriate because the resi-dent’s condition had improved and they no longer required the services of the facility.

If the resident’s transfer is necessary due to a significant change in condition but it is not an emergency that requires an imme-diate transfer, then the facility must assess the resident to determine if a new care plan would allow the facility to meet their needs.

If the transfer is from one long term care facility to another, the transferring facility’s discharge summary should include rationale and justification as to why they were unable to meet the needs of the resident.

Form CMS-20060, linked here, can be uti-lized to assist you in evaluating your facil-ity’s compliance with transfer and discharge requirements. http://www.cms.gov/Medi-care/Provider-Enrollment-and-Certifica-tion/SurveyCertificationGenInfo/Down-loads/Admission-Transfer-Discharge.pdf If an open chart review is employed concur-rently with the discharge process, this tool can assist your organization in maintaining compliance with the CMS requirements.

II. Timing

Notice of a transfer or discharge must be provided to a resident or their guardian at least 30 days before the effective date in a non-urgent situation. If, however, the trans-fer or discharge is necessary due to threat to the health or safety of the other residents in the facility, the transfer or discharge is nec-essary due to the resident’s improvement eliminating the needs for the nursing facil-ity or an urgent medical need of the resident emerges, then the notice of transfer or dis-charge is to be made as soon as practicable. Additionally, if the resident has not resided in the facility for 30 days, the shorter notice period applies.

If the transfer or discharge is necessitated by closure of the facility, the facility must give at least 30 days notice to residents or their guardians prior to any change in the operation of the facility rendering it unable to care for its residents. California Health & Safety Codes §§ 1336-1336.2. The 30-day period can be extended to 60 days by agree-ment between the licensing agency and the facility if there are resident placement prob-lems that require additional time to resolve.

Residents and their representatives who have presented a grievance or complaint to government officials must be free from re-taliation. Efforts to transfer or discharge a resident who has complained can be scruti-nized by the licensing agency thus it is criti-cal that all efforts made to meet the needs of


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EmploymEnt law

New California Employment Laws for 2015


It’s time again to review the new employ-ment related laws in California which take effect in the coming year. Unless

noted otherwise, these laws take effect Janu-ary 1, 2015.

MANDATORY REPORTING TO OSHA

AB 326 amends current law requiring a com-pany to immediately report a severe occupa-tional injury, illness or death to the Division of Occupational Health Safety (OSHA) by phone or telegraph. The bill very simply re-places the ability to report by telegraph with email. An employer who violates the imme-diate reporting requirement may be assessed a civil penalty of not less than $5,000. Em-ployers continue to be required to report any occupational injury or illness which results in lost time beyond the date of the injury or illness, or which requires medical treatment beyond first aid, within 5 days after the em-ployer learns of the injury or illness.

PROHIBITION AGAINST DISCRIMI-NATION AND HARASSMENT OF UN-PAID INTERNS AND VOLUNTEERS

AB 1443 extends the current anti-discrimi-nation and harassment provisions of the Fair Employment and Housing Act (FEHA) to unpaid interns and volunteers. The bill pro-hibits discrimination in the selection, train-ing, termination or other terms or treatment

of any person in an unpaid internship on the basis of any legally protected classification (e.g. race, sex, age, etc.). It similarly pro-hibits the harassment of unpaid interns or volunteers based on any protected classifi-cation.

PAID SICK LEAVE

AB 1522 requires California employers to pay up to three days sick pay per year ef-fective July 1, 2015. Employers must permit employees to accrue paid sick leave at a rate of at least one hour of paid sick leave for every thirty hours worked. Exempt employ-ees are deemed to work 40 hours, unless the employee’s normal work week is less than 40 hours.

The employer may limit the use of paid sick days to 24 hours or three days in each year of employment. Employees who work 30 or more days within a year from commence-ment of employment are entitled to accrue sick days and are entitled to use accrued sick leave beginning on the 90th day of employ-ment. Employers may set a minimum incre-ment of sick hours to be used at one time, but that minimum cannot be more than two hours.

Sick leave may be used for diagnosis, treat-ment or preventative care for an employee or that employee’s family members. Family members include parents-in-law, grandpar-ents, grandchildren, and siblings. Sick leave may also be used for victims of domestic violence, sexual assault or stalking.

Unused hours must carry over year to year with a permissible cap of 48 hours or six days. However, if employees are given the total amount of sick days that may be used at the beginning of the year, no accrual or carryover is required. Employers are not

required to pay employees for accrued un-used sick pay at the time of separation from employment.

Employers must provide employees with an itemized statement setting forth avail-able sick leave on the employee’s itemized wage statement or a separate form each payday. Employees must also display a poster informing employees of their rights in a conspicuous location. Employers must also provide new employees with a written explanation of the law at the time of hiring. The poster and a template handout for new employees will be made available by the La-bor Commissioner. Arguably, these provi-sions become effective January 1, 2015.

Finally, an employer may not retaliate against an employee for exercising the right to use accrued sick leave.

PROHIBITION AGAINST DISCRIMI-NATION BASED ON DRIVER’S LI-CENSE FOR UNDOCUMENTED WORKERS

AB 1660 extends current anti-discrimination and harassment provisions of the FEHA be-cause the individual holds a driver’s license that indicates he or she is undocumented. It further prohibits an employer from requiring that an applicant or employee present a driv-er’s license unless having a driver’s license is a requirement of the job.

PROTECTING WORKERS IN THE NEW SUBCONTRACTED ECONOMY

AB 1897 requires a client employer to share all civil legal responsibility and civil liability for the payment of wages and the failure to obtain valid workers’ compensation cover-age for all workers supplied by certain labor contractors. It amends existing law which

Laura K. Sitar • [email protected]

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the resident and explanation as to why their needs cannot be met must be addressed with the resident/representative and thoroughly documented in the resident’s record. Cali-fornia Health & Safety Code § 1432 specifi-cally states that a licensee who attempts to “expel” a resident from a facility within 180 days after the resident has filed a grievance or complaint to any governmental entity will raise a rebuttable presumption that the action was taken in retaliation.

III. Contents of the Notice When giving notice of transfer or discharge to a resident, the following elements must be included:1) the reason for transfer or discharge;2) the effective date of the transfer or dis-charge;3) the location of where the resident is trans-ferred or discharged to;4) notice of appeal rights; and5) name, address and telephone number of the State long term care ombudsman.

If the nursing facility is treating develop-mentally disabled residents, the mailing ad-dress and telephone number of the agency responsible for protection and advocacy of developmentally disabled individuals must also be included. If the nursing facility is treating residents who are mentally ill, the mailing address and telephone number of the agency responsible for the protection and ad-vocacy of mentally ill individuals must also be included.

IV. Requirement to Minimize Transfer Trauma

California Health & Safety Codes § 1336.2 specifically requires facilities to take steps to minimize possible transfer trauma and main-tain safety of the resident in a situation where the transfer or discharge is necessitated by a change in the operation of the facility. At a minimum, the facility must do the following, using an interdisciplinary approach, in an ef-fort to protect the resident:

1) ensure the resident’s attending physician or facility medical director completes the medical assessment, specifically addressing the resident’s condition and susceptibility to adverse health consequence, including psychosocial effects, prior to written notice of transfer being provided to the resident or guardian;2) the physician’s assessment must address recommendations for counseling, follow-up visits, and other recommended services by designated health professionals to prevent or ameliorate potential adverse health conse-quences of the transfer;3) ensure that the facility nursing staff and activity director complete an assessment of the social and physical functioning of the resident based on the relevant portions of the MDS (minimum data set), before written notice of the transfer or discharge is issued. The assessment must provide recommenda-tions for preventing or ameliorating potential adverse health consequences in the event of the transfer;4) evaluate the relocation needs of the resi-dent including proximity to the resident’s representative and determine the most ap-propriate and available type of future care and services before issuing the notice of transfer;5) discuss the evaluation and medical assess-ment with the resident or their representative and make the evaluation and assessment part of the medical records for the transfer, un-less the resident or their representative chose to transfer prior to the completion of the as-sessments, in which case the facility must inform the resident or their representative, in writing of the importance of obtaining the assessments and follow-up consultation as recommended;6) inform the resident or their representative of alternative facilities that are available and adequate to meet the needs of the resident at least 30 days prior to the transfer; and7) arrange for appropriate future medical care and services, unless the resident or their representative has made arrangements inde-pendently.

The transferring facility is required to pro-vide orientation to the transferring resident to “sufficiently prepare” them for the transfer and minimize the potential negative impact of the transfer. The resident and their family should be encouraged to actively participate

in selecting the new facility. Preparation of the resident to transfer may include a tour of the new residence, trial visits, a thorough in-ventory of belongings and discussions about which things will go to the new residence and which will remain with family, a review of activities and schedules at the new facility and orientation of the receiving facility as to the resident’s daily patterns and preferences.

When the resident is discharging, they and their family should be engaged in the de-velopment of a post-discharge plan of care following a thorough multi-disciplinary as-sessment of the resident’s needs. Elements to consider in developing this plan include the type and amount of care required, pre-discharge preparation and education re-quired, and identification of post-discharge resources. A copy of the California Commu-nity Transitions Lead Organizations, com-piled as part of a Money Follows the Person grant-funded demonstration project with the California Department of Health Care Services, is found here and can be provided to families to assist them with their transi-tions: http://www.dhcs.ca.gov/services/ltc/Documents/California%20Community%20Transitions%20Lead%20Organizations.pdf. Another resource is “Planning for Your Discharge” developed by CMS. This check-list provides excellent talking points to be explored when transfer and discharge are be-ing considered. http://www.medicare.gov/Publications/Pubs/pdf/11376.pdf

V. Right to Appeal Refusal of Readmis-sion

California Health & Safety Code § 1599(h)(1) provides for the readmission of a resi-dent who has been hospitalized in an acute hospital and asserts their right to be readmit-ted to the nursing facility pursuant to bed hold provisions, or readmission rights under state or federal law. If the facility refuses to readmit him or her, the resident has the right to appeal that refusal. If the resident is a Medi-Cal resident, they remain in the hos-pital under the Medi-Cal coverage until the appeal is decided, unless the resident agrees to placement in another facility.

If a resident requires an admission to a free-standing psychiatric hospital, this is not

Transfer & DischargeContinued from page 2

COVER STORY


A Shareholder at Wroten & Associates, Darryl Ross maintains a diverse litigation practice with experience handling all aspects of civil litigation including arbitrations, complex settlements, trials (jury and court), and appeals. Mr. Ross’ practice focuses on the defense of nursing homes and residential care facilities. He has successfully handled a wide variety of health care matters for public and private entities including insurance coverage issues, product liability claims, interpretation, advice and enforcement of medical staff bylaws, as well as class action litigation.

EXPERT IN CIVIL LITIGATION

Darryl A. Ross • [email protected]

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6


Communication and Technology

The impact of technology on how we communicate comes with a variety of benefits and consequences. We

know that communication is an essential part of every aspect of our lives. The ability to communicate in a clear and concise man-ner is an important skill that employers look for in their employees, and that individuals look for in their relationships. Technologi-cal advancements in the modes of commu-nication, cell phones, email, text messaging, instant messaging and social media, have promoted faster communication, faster idea development, faster decision-making, and faster conflict resolution, all of which sat-isfy today’s demand for instant gratification.

BENEFITSWith the advancement of technology the world has become much smaller and we now have the ability to communicate with anyone across the globe and get a response within minutes. This ability to get a rapid response allows individuals and businesses to exchange thoughts and find quicker and better solutions to any problem. In cases when you want to communicate something urgently cell phones and emails can come in handy. Social media has allowed people to rekindle friendships, make new friends and gain new interests. Strengthened relation-ships are also a result of today’s technology as it is easier to stay in touch with friends

and business contacts. Another significant benefit is on-line education which allows many people to attain a skill or an education that they might otherwise not be able to due to cost or geographic location. CONSEQUENCESThere are also some negative consequences that today’s technology has had on com-munication. For the most part, most of us

have stopped hand writing letters, notes, and face-to-face conversations are few and far between, replaced by texting or chatting on-line. For today’s generation this lack of face-to-face conversation has created a void in the development of important inter-personal skills such as the ability to verbal-ize ideas and thoughts to others in person. With little face-to-face interaction impor-tant non-verbal cues are lost. This can be a critical blow to effective communication as research has shown that at least 80% of all communication is non-verbal. Not be-ing able to read non-verbal cues such as facial expressions, eye movements, hand gestures, pacing and body language signifi-cantly diminishes effective communication and leaves a lot to our interpretations, which often are incorrect. Today’s technology has also increased the generation gap as well. In many cases parents are not as tech savvy and are not used to the communication style of their children. The young people today often choose social media instead of social-izing in person creating the potential for iso-lation and limited success in future endeav-ors such as college, intimate relationships and in the work environment.

The frequency by which we receive emails and the tendency to check emails frequently has become very distracting and thus im-pacts the productivity of employees and individuals. Also, a poorly written email often leads to confusion rather than clarity, requiring even more time to clarify. The ac-tions of texting may seem rude under our conventional social norms and thus can lead to misunderstandings and conflicts. Social

media has allowed people to connect on dif-ferent levels. Caution should be exercised as to what is posted because many employ-ers check social media sites of candidates they are considering hiring!

We know that technology is here to stay so let’s embrace it and adapt it to improve our communication. How? We should be communicating face-to-face when possible and through visual technology as a second choice! We know that face-to-face meet-ings allow us to process non-verbal cues that we use as a basis for building clear communication and trusting relationships.

According to Eric Yuan, CEO of Zoom, a five minute video meeting can accomplish more than 20 emails. Visual communica-tion is so important both in our personal lives but in business as well. Our visual sig-nals can account for a large portion of what we communicate, more than what we are actually saying. People are more likely to remember more of what they see than what they hear, and people are more persuasive when they are seen and heard.

“The way we communicate with others and with

ourselves ultimately determines the quality of

our lives” - Anthony Robbins



Communication & Technology

Continued from page 6

LEADERSHIP INSIGHTTransfer & Discharge

Continued from page 4

New 2015 LawsContinued from page 3

EMPLOYMENT LAW



Effective collaboration in business is mainly about building relationships and a way to build and maintain them is through effec-tive communication. Direct visual contact (video) is the answer when you can’t do it in person. Today’s communication choices are many and need to be carefully selected based on the desired effect needed to elicit the re-sponses desired.

Additional information can be found on Mar-ilynn W. Allemann’s website and blog:

www.MWAExecCoach.com. www.MWAExecCoach.wordpress.com

Please contact Marilynn W. Allemann direct-ly at [email protected] with any questions.

COVER STORY

considered an acute care hospitalization and the resident does not have the same readmission rights to the skilled nursing facility. If the admission was to a psychi-atric unit of an acute care hospital, how-ever, the readmission rights are preserved.

SUMMARYProtection of nursing home residents’ safety, emotional and physical health ex-tends to where they reside and the manner in which they are transferred or discharged from their nursing home residence. Fol-lowing the information outlined here will help protect your organization from alle-gations of retaliation and unlawful transfer or discharge and can minimize the stress of transfer or discharge for the resident.

Be sure to regularly read the W&a legal Blog For ltC laW

updates

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prohibits a person or entity from entering into a contract for labor or services with a construction, farm labor, garment, janito-rial, security guard, or warehouse contrac-tor, if the person or entity knows or should know that the contract or agreement does not include sufficient funds for the contrac-tor to comply with laws or regulations gov-erning the labor or services to be provided.

TRAINING TO INCLUDE PREVEN-TION OF ABUSIVE CONDUCT (BUL-LYING)

AB 2053 amends current law to require that existing sexual harassment training required by AB 1825 include training on the preven-tion of abusive conduct. AB 1825 currently requires that employers with 50 employee or more provide sexual harassment training to supervisors located in California every two years. Abusive conduct is defined as “conduct of an employer or employee in

the workplace, with malice, that a reason-able person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.” Abusive conduct “may include repeated infliction of verbal abuse, such as the use of derogatory remarks, in-sults, and epithets, verbal or physical con-duct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance.” The law does not prohibit abusive conduct unless it’s re-lated to a protected classification under the FEHA. It does make training regarding the subject mandatory for supervisors.

TIME OFF FOR EMERGENCY RES-CUE PERSONNEL

AB 2536 expands the current definition of emergency personnel in Labor Code sec-tion 230.3 to include an officer, employee, or member of a disaster medical response entity sponsored or requested by the state. Existing law prohibits an employer from discharging or in any manner discriminating against an employee for taking time off to perform emergency duty as a volunteer fire-fighter, reserve peace officer, or emergency

rescue personnel. Existing law further re-quires an employer to reinstate and reim-burse an employee who is discharged or in any other manner discriminated against in his or her employment in violation of these provisions.

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NEWSLETTER BRIEF ISSUE NO28 FALL / WINTER 2014

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Resident IN THIS ISSUENEWSLETTER BRIEF ISSUE NO28 FALL / WINTER 2014 NEWSLETTER BRIEF ISSUE NO28...

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