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A tale of two transfers

November 25, 2015
by Alan C. Horowitz, JD, RN
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Sometimes legal issues are best prevented right at the bedside, especially when transferring or discharging residents from one place to another.

According to Federal regulations, “Transfer and discharge includes movement of a resident to a bed outside of the certified facility whether that bed is in the same physical plant or not.” [42 C.F.R. § 483.12(a)]. The regulations provide that a nursing facility may not transfer or discharge a resident unless one of six specific conditions has been met. Those six conditions are:

  1. The transfer/discharge is necessary to meet the resident’s needs which cannot be met by a facility;
  2. A resident’s health has improved to the point where the services provided by the facility are no longer necessary;
  3. Continued stay in the facility endangers the safety of individuals;
  4. The health of individuals within the facility would be at risk;
  5. After reasonable notice, the resident (or responsible party) has failed to pay (or have Medicare or Medicaid pay) for remaining in the facility; and
  6. The facility ceases to operate.

Two cases involving a transfer/discharge are briefly discussed below. Following those cases additional regulatory requirements involving transfer and discharge as well as recommendations are noted.

Case #1

After a survey at a nursing facility, the Centers for Medicare and Medicaid Services (CMS) determined that “immediate jeopardy” existed and imposed a civil money penalty based on its allegation that a resident was discharged without adequate preparation and orientation and without a satisfactory post-discharge plan of care. The resident was a 76-year-old insulin-dependent man who weighed 204 pounds, was paralyzed on the left side of his body and had weakness on the right side. He needed extensive assistance with virtually all of his activities of daily living (ADLs). The resident was discharged one evening to a house he shared with his 77-year-old wife, who had recently been discharged from the facility after her own rehabilitation for a fractured femur. No other family members resided at the home.

When the resident arrived home, he had to wait in his garage for about an hour because his wheelchair would not fit through the doorway. He had prescriptions for 11 different medications that needed to be filled, since the facility did not send any medications with him upon discharge. The man also needed to be catheterized every eight hours as needed and required an insulin injection each evening. Further, he required a two-person assist and a sling to be transferred to his bed.

After remaining at his home for approximately 22 hours, the resident was readmitted to the skilled nursing facility. During that time, he did not receive his insulin or any other medications. He did receive care from the facility’s staff the day after discharge but only after his family and a state worker requested that care, according to the Administrative Law Judge (ALJ), who upheld CMS’ determination of immediate jeopardy.



Alan C. Horowitz

Partner at Arnall Golden Gregory

Alan C. Horowitz

Alan C. Horowitz, Esq., is a partner at...