To best position the nursing home for the most successful outcome at the appeal hearing, the facility must follow specific rules and requirements as it discharges or transfers the resident and the facility must ensure it documents all necessary facts along the way.

What are the grounds for an involuntary discharge or transfer of a resident in Missouri?

1. The facility cannot meet the resident’s welfare and needs;
2. The resident’s health has improved such that the resident no longer needs the facility’s services;
3. The resident endangers the safety of others at the facility;
4. The resident endangers the health of others at the facility;
5. The residents has failed, after reasonable and appropriate notice, to pay (or have Medicare or Medicaid pay) for his or her stay at the facility; or
6. The facility ceases to operate.

19 CSR 30-82.050(2)(A)-(F).

What documentation is required before sending the notice of discharge?

If a facility determines that it must involuntarily discharge a resident, the facility must first determine the level of documentation required. This documentation must exist in the resident’s clinical record before the facility sends the discharge or transfer notice.

• The resident’s personal physician must document the reasons for the discharge or transfer if:
  • The facility cannot meet the resident’s welfare and needs;
  • The resident’s health has improved such that the resident no longer needs the facility’s services.
• A physician (but not necessarily the resident’s own personal physician) must document the reasons for the discharge or transfer if:
  • The resident endangers the safety of others at the facility.
• The administrator, the director of nursing, or both should always document the reasons for the resident’s discharge or transfer in the resident’s chart regardless of the reasons for discharge or transfer.

19 CSR 30-82.050(3).

What type of notice is required?

After the nursing home has all of the necessary documentation in the resident’s clinical record, the facility can then give the resident written notice of the discharge or transfer. The nursing home must also send the written notice to “any legally authorized representative of the resident” and to at least one family member. If the facility does not know of any family members, then the facility must send a copy of the written notice to the regional coordinator of the Missouri State Ombudsman’s office.

The written notice of discharge or transfer must include the following information:

1. The reason for the discharge / transfer;
2. The effective date of the discharge / transfer;
3. The resident has the right to appeal the discharge / transfer to the director of the Department of Health and Senior Services (or his/her designated hearing officer) within thirty (30) days of receipt of the notice;
4. The request for an appeal hearing should be sent to the Department of Health and Senior Services Appeals Unit, PO Box 570, 912 Wildwood Drive 3^rd floor, Jefferson City, MO 65102-0570, by fax to (573) 751-0247, or by email to DHSS.Appeals@health.mo.gov and the phone number for the appeals unit is (573) 522-1699[1];
5. That filing an appeal will allow a resident to remain in the facility until the hearing unless a hearing official finds otherwise;
6. The specific 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; and
8. For Medicare/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.

19 CSR 30-82.050(4)(B).

The content required in the written notice is mandatory, and discharges can be overturned for failure to include every element required in the notice. The written notice must be given at least 30 days before the effective date of the discharge / transfer, unless it is an emergency discharge.

What is an emergency discharge?

An emergency discharge may occur where the continued presence of a resident represents an immediate and ongoing threat to the safety or health of other residents or staff at the facility. 19 CSR 30-82.050(5)(A)-(B). Facilities can also issue emergency discharge notices if: a) the resident’s health has improved so much that he or she no longer needs the facility’s services and can be moved immediately; b) the resident has “urgent medical needs” that require an immediate discharge; or c) the resident has not resided in the facility for thirty (30) days. 19 CSR 30-82.050(5)(C)-(E). If a nursing home elects to issue an emergency discharge notice, the written notice must contain all of the elements listed above, including specific facts justifying the emergent nature of the discharge, and must be given “as soon as practicable” before the facility discharges the resident. 19 CSR 30-82.050(5).

What happens if a resident appeals?

If a resident appeals a discharge notice, the Department of Health and Senior Services will notify the nursing home of the appeal. The notice will include the name of the resident along with the date and time of the appeal hearing. If the nursing home is operated by a corporate entity, the nursing home should pass the notice along to its attorney. If the nursing home doesn’t have an attorney, it should retain an attorney, because Missouri law requires corporate operators of nursing homes to be represented by attorneys in these proceedings. 19 CSR 30-82.050(12).

If the resident appeals the discharge, the resident will be permitted to remain at the facility pending a decision, unless the hearing officer determines otherwise. 19 CSR 30-82.050(8). If the nursing home believes good cause exists for the resident not to remain at the facility pending a decision, the nursing home can consider filing a Motion to Set Aside the Stay of the resident with the hearing officer. The hearing officer will set a hearing date for the Motion to Set Aside the Stay. At times, the hearing date can be consolidated with the appeal hearing date, and the hearing officer will hear both the Motion to Set Aside and the discharge appeal concurrently.

The nursing home bears the burden of proof at the appeal hearing to demonstrate the discharge was appropriate. The appeal process itself can be complicated, and an attorney can be very helpful in sorting through the evidence, questioning witnesses, and presenting the case during the appeal hearing.

What happens after the appeal hearing?

Once the hearing concludes, the hearing officer will evaluate the evidence and make a decision. The hearing officer will communicate the decision, in writing, to all parties.

If the decision is that there was no cause for discharge, the resident may remain at the facility. If the resident had already been removed from the facility but prevailed on appeal, the facility must notify the resident and allow the resident to return. If no beds are available, the facility must give the resident the first available bed without regard to waitlists.

If the decision is in the facility’s favor and the discharge is affirmed, the resident has ten (10)  days after the decision is received for purposes of relocation, and the facility shall assist the resident in making suitable arrangements for relocation. 19 CSR 30-82.050(14).

For more questions about nursing home discharges, please contact Tanya Maerz or another member of our Healthcare Litigation team.

[1] The address and phone number for the appeals agency recently changed so if a facility is utilizing a template letter developed years ago, the facility should ensure the template letter is updated with the new information.

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