Hepler Broom, LLC

Navigating the Rules for Nursing Home Involuntary Discharges/Transfers in Missouri: Steps to Follow Before the Resident Appeals

April 20, 2019

Under certain circumstances, Missouri nursing homes may discharge or transfer a resident even when the resident does not agree to the discharge/transfer (an “involuntary discharge/transfer”). If the resident appeals the discharge/transfer, Missouri law requires that an attorney represent the nursing home during the hearing/appeal process if the nursing home is operated by a corporate entity. 19 CSR 30-82.050(12). Before the hearing, however, the nursing home must follow specific rules to facilitate the resident’s discharge/transfer.

Missouri Rules on the Pre-Appeal Process

Missouri nursing homes may involuntarily discharge/transfer residents for the following reasons: 1) the nursing home cannot meet the resident’s health or safety needs; 2) the resident’s health has improved to the extent that he no longer needs the services provided at the nursing home; 3) the resident threatens other residents’ safety; 4) the resident threatens other residents’ health; 5) after “reasonable and appropriate notice,” the resident failed to pay for his stay at the facility or arrange for Medicare or Medicaid to pay for his stay; (6) the facility is no longer operating. 19 C.S.R. 30-82.050(2).

Once the nursing home decides to discharge/transfer the resident, the facility’s administrator or director of nursing must document in the clinical record the specific details regarding the need for transfer or discharge. If the resident’s discharge/transfer is because the nursing home cannot meet his health or safety needs, or because his health has improved to the extent he no longer needs the nursing home’s services, his personal physician must document in the clinical record that transfer or discharge is necessary. If the reason for discharge/transfer is that the resident is a threat to other residents’ health, a physician (not necessarily the resident’s personal physician) must document the need for transfer or discharge. 19 CSR 30-82.050(3).

After the appropriate documentation is made in the clinical record, the next step is notice. The nursing home must give the resident written notice that includes certain elements, and must also send the notice to “any legally authorized representative of the resident and at least one family member.” 19 C.S.R. 30-82.050(4)(A). It is very important that the notice contain the following required elements:

1. The reason for the transfer or discharge;

2. The effective date of transfer or discharge

3. The resident’s right to appeal the transfer or discharge notice to the director of the Division of Aging or his/her designated hearing official within thirty (30) days of the receipt of the notice.

4. The address to which the request for a hearing should be sent: Administrative Hearings Unit, Division of Legal Services, P.O. Box 1527, Jefferson City, MO 65102-1527.

5. That filing an appeal will allow a resident to remain in the Facility until the hearing is held unless a hearing official finds otherwise;

6. The location to which the resident is being transferred or discharged;

7. The name, address, and telephone number of the designated regional long-term care ombudsman office;

8. For Medicare and Medicaid certified facility residents with developmental disabilities, the mailing address and telephone number of the Missouri Protection and Advocacy Agency: 925 South Country Club Drive, Jefferson City,MO 65109, (573) 893-3333, or the current address and telephone number if it has changed.

19 C.S.R. 30-82.050(4)(B).

The resident’s discharge/transfer date cannot be less than 30 days from the date of the discharge/transfer notice, unless the discharge/transfer is an emergency. Emergency discharges/transfers can be made where the health or safety of other individuals in the nursing home is threatened by the resident’s continued presence. If that is the case, the transfer/discharge notice must include facts describing how the resident is a health/safety threat to the other individuals. An emergency discharge/transfer can also be made where 1) the resident’s health has improved sufficiently and he no longer needs the services at the nursing home; or 2) “an immediate transfer or discharge is required by the resident’s urgent medical needs; or 3) “the resident has not resided in the facility for thirty (30) days.” If one of these situations exists, the resident must receive notice “as soon as practicable” before the facility transfers/discharges him. 19 C.S.R. 30-82.050(5).

Appeal Process

Following the above requirements for the pre-appeal process will allow the facility to move more efficiently towards discharging/transferring the resident, or to the appeal stage. If the resident appeals the discharge or transfer, the nursing home should retain an attorney to represent it through the appeal process. If the nursing home is not operated by a corporate entity, Missouri law does not require it to be represented by an attorney. 19 CSR 30-82.050(12). Still, the appeal process can be complicated, and an attorney will be very helpful in questioning witnesses and providing evidence during the appeal hearing.