Florida Nursing Home Discharge Hearings: What You Need to Know

Why Now?

On December 22, 2017, the Centers for Medicare & Medicaid Services ("CMS") issued a memorandum titled, "An Initiative to Address Facility Initiated Discharges that Violate Federal Regulations." Therein, CMS noted that although the Federal regulations set forth specific circumstances upon which a nursing facility may discharge or transfer a resident, complaints to State Long Term Care Ombudsman Programs with respect to improper discharges and transfers were on the rise. As a result, CMS began an initiative to examine and mitigate facility-initiated discharges/transfers that violate federal regulations. Therefore, a primer (or refresher) on the topic of nursing home discharge and transfer hearings is in order.

Background

A nursing home may discharge or transfer a resident in certain limited circumstances, regardless of whether the resident, the resident’s legal representative, or the resident’s treating physician consents to such action. Generally, those reasons are identified as follows:

1. Non-payment after reasonable and appropriate notice;

2. The nursing facility is closing;

3. The resident’s needs cannot be met in the nursing facility;

4. The resident’s health has improved sufficiently such that the resident no

longer needs the services provided by the nursing facility;

5. The health of other individuals at the nursing facility is endangered; or

6. The safety of other individuals at the nursing facility is endangered.

If a facility wants a resident out, it must be sure to follow certain state and federal regulations (a detailed discussion of each regulation is beyond the scope of this blog). One of those requires that the nursing facility provide thirty (30) days advanced written notice to the resident (or the resident’s legal representative) of its intent to discharge or transfer, with certain exceptions. Further, if the facility is transferring or discharging a resident for reasons 3, 4, 5, or 6, above, the facility must obtain the written consent of the resident’s treating physician, the facility medical director, or a nurse practitioner/physician’s assistant acting as the physician’s designee.

The Agency for Health Care Administration (“AHCA”) requires use of Form 3120-0002 (“Nursing Home Transfer and Discharge Notice”) for all such transfers and/or discharges initiated by the nursing facility (as opposed to those initiated by the resident, the resident’s legal representative, or the resident’s treating physician).

Unfortunately, it’s not as simple as completing the Nursing Home Transfer and Discharge Notice, handing it to the resident, and counting thirty days. What’s more, a resident of any Medicaid or Medicare certified facility may request that the State Long-Term Care Ombudsman Program or local ombudsman council review any notice of discharge or transfer given to the resident and formally challenge a transfer or discharge decision made by the facility.

There are two critical timing considerations to be aware of when faced with a resident’s possible request for a “fair hearing”. First, in order for the resident to stay a facility transfer or discharge (or hit the pause button on facility action), the resident must file for a discharge hearing within ten (10) days of receipt of the facility’s discharge or transfer notice. A resident who files an appropriate challenge to a discharge or transfer after the tenth day following receipt of the facility’s notice may do so, but the facility will be able to follow through with its transfer or discharge on the thirtieth day.

Prior to the Discharge Hearing/Transfer Hearing

When a resident (or a resident’s legal representative) (collectively “resident”) files a timely challenge to the proposed discharge or transfer, the matter goes before a hearing officer with the State of Florida, Department of Children and Families, Office of Appeal Hearings.

The facility’s first notice of the resident’s appeal while typically come in the form of an “Order to Produce Notice and Begin Hearing Process”, signed by the hearing officer. This notice will identify the resident challenging the facility, notify the facility that an appeal was filed, instruct the facility to submit the underlying discharge/transfer notice, advise the facility that a hearing will be scheduled with, at minimum, fourteen (14) days’ advance notice, and identify (albeit, incompletely) certain governing regulations.

Because a facility may (and should) be represented by counsel at all stages of the discharge process, a response to the Order to Produce should include the discharge/transfer notice and a notice of appearance. In fact, if a facility intends to be represented by counsel, the facility (or more appropriately, its attorney) is obligated to submit the notice of appearance with certain pertinent details.

Prior to the hearing, the facility may engage in discovery, request continuances and extensions, file motions, and respond to motions. Each, however, carries certain guidelines, requirements, and time frames that must be followed.

After responding to the Order to Produce, the hearing officer will issue an “Order Scheduling Hearing”. This Order not only sets the date, place, and time for the hearing, but also offers (limited) detail on how the hearing will proceed and instructs each party to send in their evidence seven (7) days prior to the hearing.

During the Discharge Hearing/Transfer Hearing

The discharge/transfer hearings are only open to parties and their witnesses, unless otherwise authorized by the hearing officer. If anyone else shows up, ask that they be removed. If the resident plans on eliciting testimony from any number of witnesses, invoke the rule.

Interestingly, the facility has the burden to prove the correctness of its action by a standard of clear and convincing evidence. In other words, the facility will likely present their side of the case first, beginning with an opening statement. The opening statement should be a preview of things you plan on proving through documentary evidence and witness testimony. Of course, the resident will have the same opportunity to present an opening statement before the hearing officer asks the facility to call its first witness.

At this point, you are in trial mode and need to be familiar with evidentiary issues (e.g. hearsay, authenticity, privilege, etc.), examining witnesses (direct and cross), impeaching witnesses, objecting to testimonial and documentary evidence, where appropriate, striking irrelevant and immaterial comments or documents, and the like; though the rules in a discharge/transfer hearing are generally more lax than those in a civil trial. You must also be able to deliver an effective closing argument.

Ultimately, the hearing officer’s powers are limited to re-instating the residency or upholding the discharge/transfer. That’s it.

Among other things, Michael B. Kornhauser, Esq. consults nursing homes on compliant transfers and discharges and represents nursing homes in transfer hearings and discharge hearings. If you have any questions, feel free to contact him.