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Title: Section 415.3 - Residents' rights

Effective Date

06/01/2021

415.3 Residents' rights. (a) The facility shall ensure that all residents are afforded their right to a dignified existence, self-determination, respect, full recognition of their individuality, consideration and privacy in treatment and care for personal needs, and communication with and access to persons and services inside and outside the facility. The facility shall protect and promote the rights of each resident, and shall encourage and assist each resident in the fullest possible exercise of these rights as set forth in subdivisions (b) - (i) of this section. The facility shall also consult with residents in establishing and implementing facility policies regarding residents' rights and responsibilities.

(1) The facility shall advise each member of the staff of his or her responsibility to understand, protect and promote the rights of each resident as enumerated in this section.

(2) The facility shall fully inform the resident and the resident's designated representative both orally and in writing in a method of communication that the individuals understand the resident's rights and all rules and regulations governing resident conduct and responsibilities during the stay in the facility. Such notification shall be made prior to or upon admission and during the resident's stay. Receipt of such information, and any amendments to it, shall be acknowledged in writing. A summary of such information shall be provided by the Department and posted in the facility in large print and in language that is easily understood.

(3) The written information provided pursuant to paragraph (2) of this subdivision shall include but not be limited to a listing of those resident rights and facility responsibilities enumerated in subdivisions (b) through (i) of this section. The facility's policies and procedures shall also be provided to the resident and the resident's designated representative upon request.

(4) The facility shall communicate to the resident an explanation of his or her responsibility to obey all reasonable regulations of the facility and to respect the personal rights and private property of other residents.

(5) Any written information required by this Part to be posted shall be posted conspicuously in a public place in the facility that is frequented by residents and visitors, posted at wheelchair height.

(b) Admission rights. The nursing home shall protect and promote the rights of residents and potential residents by establishing and implementing policies which ensure that the facility:

(1) shall not require a third party guarantee of payment to the facility as a condition of admission, or expedited admission, or continued stay in the facility;

(2) shall not charge, solicit, accept or receive, in addition to any amount otherwise required to be paid by third party payors, any gift, money, donation or other consideration as a precondition of admission, expedited admission or continued stay in the facility except that arrangements for prepayment for basic services not exceeding three months shall not be precluded by this paragraph;

(3) shall not require residents or potential residents to waive their rights to Medicare or Medicaid benefits;

(4) shall not require oral or written assurance that residents or potential residents are not eligible for, or will not apply for, Medicare or Medicaid benefits;

(5) shall obey all pertinent state and local laws which prohibit discrimination against individuals entitled to Medicaid benefits;

(6) may require an individual who has legal access to a resident's income or resources available to pay for facility care, to sign a contract, without incurring personal financial liability, to provide the facility payment from the resident's income or resources;

(7) may charge a resident who is eligible for Medicaid for items and services the resident has requested and received, and that are not specified at the time of admission as included in basic nursing home services, so long as the facility gives proper notice of the availability and cost of these items and services to the resident and does not condition the resident's admission or continued stay on the request for and receipt of such additional items and services; and

(8) may solicit, accept or receive a charitable, religious or philanthropic contribution from an organization or from a person unrelated to the resident, or potential resident, only to the extent that the contribution is not a condition of admission, expedited admission, or continued stay in the facility.

(c) Right to Information on Home and Community-Based Services. The nursing home shall ensure that all residents are provided with information on home and community-based services and community transitions programs that may be available to support the resident in returning to the community. To ensure that all residents are afforded the right to exercise their right to live in the most integrated setting, the facility shall:

(1) advise all residents upon admission, of their right to live in the most integrated and least restrictive setting, with considerations for the resident’s medical, physical, and psychosocial needs;

(2) provide all residents upon admission with information on home and community-based services and community transition programs;

(3) refer all residents to the Local Contact Agency or a community-based provider of the resident or designated representative’s choosing whenever the resident requests information about returning to the community, or whenever the resident requests to talk to someone about returning to the community during any state or federally mandated assessment;

(4) post in a public area of the facility, at wheelchair height, contact information for the Local Contact Agency;

(5) have staff available to discuss options for discharge planning, with consideration for the resident’s medical, physical, and psychosocial needs; and

(6) ensure that all discharge activities align with subdivision (i) of this section.

(d) Protection of Legal Rights. (1) Each resident shall have the right to:

(i) exercise his or her rights as a resident of the facility and as a citizen or resident of the United States and New York State including the right to vote, with access arranged by the facility and to this end may voice grievances without discrimination or reprisal for voicing the grievances, and have a right of action for damages or other relief for deprivations or infringements of his or her right to adequate and proper treatment and care established by any applicable statute, rule, regulation or contract; (ii) recommend changes in policies and services to facility staff and/or to any outside representatives, free of interference, coercion, discrimination, restraint or reprisal from the facility and to obtain prompt efforts by the facility to resolve grievances the resident may have, including those with respect to the behavior of other residents;

(iii) exercise his or her individual rights or have his or her rights exercised by a person authorized by state law;

(iv) inspect all records including clinical records pertaining to himself or herself within 24 hours after an oral or written request to the facility and, after receipt of such records for inspection, to purchase at a cost which is the lower of the cost incurred by the facility in production of the record or 75 cents per page, photocopies of the records or any portions of them upon request and two working days advance notice to the facility. The designated representative who has authority to make health care decisions for the resident shall likewise have access to the resident's records in accordance with this subparagraph, State law and the rights of a competent resident to deny such access. A resident or such designated representative shall not be denied access to the clinical records solely because of inability to pay.

(v) examine the results of the most recent survey of the facility conducted by federal or State surveyors including any statement of deficiencies, any plan of correction in effect with respect to the facility and any enforcement actions taken by the Department of Health. The results shall also be made available by the facility for examination. They shall be made available in a place readily accessible to residents and designated representatives without staffing assistance;

(vi) receive information from agencies acting as resident advocates, and be afforded the opportunity to contact these agencies;

(vii) be free from verbal, sexual, mental or physical abuse, corporal punishment and involuntary seclusion, and free from chemical and physical restraints except those restraints authorized in accordance with section 415.4 of this Part;

(viii) exercise his or her civil and religious liberties, including the right to independent personal decisions and knowledge of available choices, which shall not be infringed; and

(ix) request, or have the resident's designated representative request, and be provided information concerning his or her specific assignment to a patient classification category as contained in Appendix 13-A of this Title, entitled, "Patient Categories and Case Mix Indices Under Resource Utilization Group (RUG-II) Classification System."

(2) With respect to its responsibilities to the resident the facility shall:

(i) furnish a written description of legal rights which includes:

(a) a description of the manner of protecting personal funds, under subdivision (h) of section 415.26 of this Part; and

(b) a statement that the resident may file a complaint with the facility or the New York State Department of Health concerning resident abuse, neglect, mistreatment and misappropriation of resident property in the facility. The statement shall include the name, address and telephone number of the office established by the
Department to receive complaints and of the State Office for the Aging Ombudsmen Program;

(ii) promptly notify the resident and the resident's designated representative when there is:

(a) a change in room. Except when the medical condition of the resident requires an immediate room change or an emergency situation has developed, such change in room shall require prior notice and consultation with the resident as well as reasonable accommodation of any resident needs or preferences;

(b) a change in roommate assignment which shall be acceptable, where possible, to all affected residents; or

(c) a change in resident rights under Federal or State law or regulations as specified in this section;

(iii) record and periodically update the address and phone number of the resident's designated representative;

(iv) provide immediate access to any resident by the following:

(a) any representative of the Secretary of Health and Human Services;

(b) any representative of the Department of Health;

(c) the resident's responsible physician;

(d) ombudsmen who are duly certified and designated by the State Office for the Aging;

(e) representatives of the Commission on Quality of Care for the Mentally Disabled which is responsible for the protection and advocacy system for developmentally disabled individuals and mentally ill individuals;

(f) immediate family or other relatives of the resident, subject to the resident's right to deny or withdraw consent at any time;

(g) personal caregiving visitors, as defined in subdivision (1) of section 2801-h of the Public Health Law and pursuant to criteria specified in paragraph (3) of this subdivision, including those providing compassionate caregiving, as defined in subdivision (1) of section 2801-h of the Public Health Law and pursuant to criteria specified in paragraph (4) of this subdivision; and

(h) others who are visiting with the consent of the resident, subject to reasonable restrictions and the resident's right to deny or withdraw consent at any time;

(v) post the names, addresses and telephone numbers of all pertinent state client advocacy groups and provide reasonable access to any resident by any entity or individual that provides health, social, legal or other services to the resident, subject to the resident's right to deny or withdraw consent at any time;

(vi) comply with the provisions of Part 411 of this Title regarding Ombudsmen Access to Residential Health Care Facilities; and

(vii) inform residents of the facility's visiting hour policies.

(3) Personal caregiving visitors.

(i) During a public health emergency declared under section twenty-four or section twenty-eight of the executive law, the facility must continue to allow residents to access their designated personal caregiving visitors, notwithstanding any restrictions or prohibitions relating to residential health care visitation resulting from the declared public health emergency, subject to the following restrictions:

(a) If a facility has reasonable cause to believe that a resident will not benefit from accessing their designated personal caregiving visitors, and such reasoning has been documented in the resident’s individualized comprehensive plan of care, a facility may require a health or mental health professional duly licensed or certified in New York State under the Education Law, and who need not be associated with the nursing home, including but not limited to a physician, registered nurse, licensed clinical social worker, psychologist, or psychiatrist, to provide a written statement that the personal caregiving will substantially benefit the resident’s quality of life, including a statement from such medical provider that the personal caregiving visitation will enhance the resident’s mental, physical, or psychosocial well-being, or any additional criteria evidencing a benefit to quality of life as determined by the Department.  Such written statements from the medical provider shall be maintained in the resident’s individualized comprehensive plan of care.

(b) Notwithstanding any provision of this subparagraph (i), a facility may temporarily suspend or limit personal caregiving visitors to protect the health, safety and welfare of residents if: the declared public health emergency is related to a communicable disease and the Department determines that local infection rates are at a level that presents a serious risk of transmission of such communicable disease within local facilities; the facility is experiencing temporary inadequate staffing and has reported such staffing shortage to the Department of Health and any other State or federal agencies as required by law, regulation, or other directive; or an acute emergency situation exists at the facility, including loss of heat, loss of elevator service, or other temporary loss of an essential service. ​ Provided, however, that in the event a facility suspends or limits personal caregiving visitation pursuant to this clause, the facility shall notify residents, all designated personal caregiving visitors, ​and the applicable Department regional office of such suspension or limitation and the duration thereof within twenty-four hours of implementing the visitation suspension or limitation. Additionally, for each day of the suspension or limitation, the facility shall document the specific reason for the suspension or limitation in their administrative records. The facility shall further provide a means for all residents to engage in remote visitation with their designated personal caregiving visitor(s), including but not limited to phone or video calls, until such time that the suspension or limitation on personal caregiving visitation has ended.

(c) Notwithstanding any provision of this subparagraph (i), a facility may prohibit a personal caregiving visitor from entering if the facility has reasonable cause to believe that permitting the personal caregiving visitor to meet with the resident is likely to pose a threat of serious physical, mental, or psychological harm to such resident. In the event the facility determines that denying such personal caregiving visitor access to the resident is in the resident’s best interests pursuant to this subparagraph, the facility must document the date of and reason for visitation refusal in the resident’s individualized comprehensive plan of care, and on the same date of the refusal the facility shall communicate its decision to the resident and their designated representative.  Further, a facility may refuse access to or remove from the premises any personal caregiving visitor who is causing or reasonably likely to cause physical injury to any facility resident or personnel.

(ii) The facility shall develop written policies and procedures to ask residents, or their designated representatives in the event the resident lacks capacity, at time of admission or readmission, or for existing residents within fourteen days of the effective date of this paragraph, which individuals the resident elects to serve as their personal caregiving visitor during declared public health emergencies. A resident shall be entitled to designate at least two personal caregiving visitors at one time.

(iii) The facility shall maintain a written record of the resident’s designated personal caregiving visitors in the resident’s individualized comprehensive plan of care, and shall document when personal caregiving and compassionate caregiving is provided in the resident’s individualized comprehensive plan of care.

(iv) As part of its ongoing review of a resident’s comprehensive plan of care, the facility shall regularly inquire of all current residents, or their designated representative if the resident lacks capacity, whether the facility’s current record of designated personal caregiving visitors remains accurate, or whether the resident, or their designated representative if the resident lacks capacity, wishes to make any changes to their personal caregiving visitor designations. The facility shall update the resident’s individualized comprehensive plan of care with the date the facility sought updates from the resident and indicate any changes to the resident’s personal caregiving visitor designations therein. Such inquiries shall be made no less frequently than quarterly and upon a change in the resident’s condition; upon review of a facility’s visitation policies and procedures, the Department may also require the facility inquire of any resident whether the facility’s current record of designated personal caregiving visitors remains accurate.

(v) The facility shall require all personal caregiving visitors to adhere to infection control measures established by the facility and consistent with any guidelines from the Department, or in the absence of applicable Department guidance, consistent with long term care facility infection control guidelines from the U.S. Centers for Disease Control and Prevention and the Centers for Medicare and Medicaid Services. Such infection control measures may include, but need not be limited to:

(a) testing all personal caregiving visitors for any communicable disease that is the subject of the declared public health emergency, which may include rapid on-site testing or requiring the visitor to present a negative test result dated no more than seven days prior to the visit;

(b) checking the personal caregiving visitor’s body temperature upon entry to the facility, and denying access to any visitor with a temperature above 100 degrees Fahrenheit;

(c) conducting health screenings of all personal caregiving visitors upon entry to the facility, including screenings for signs and symptoms of any communicable disease that is the subject of the declared public health emergency or any other communicable disease which is prevalent in the facility’s geographic area, and recording the results of such screenings;

(d) requiring all personal caregiving visitors to don all necessary personal protective equipment appropriately, and providing such personal protective equipment to all personal caregiving visitors; and

(e) enforcing social distancing between persons during visitation, including personal caregiving visitation, except as necessary to provide personal caregiving by the personal caregiving visitor for the resident.

(vi) The facility shall establish policies and procedures regarding the frequency and duration of personal caregiving visits and limitations on the total number of personal caregiving visitors allowed to visit the resident and the facility at any one time. Such policies shall not be construed to limit access by other visitors that would otherwise be permitted under state or federal law or regulation. The facility shall ensure its policies and procedures respect resident privacy and take into account visitation protocols in the event a resident occupies a shared room. ​In establishing frequency and duration limits, the facility policy shall ensure that residents are able to receive their designated personal caregiving visitors for the resident's desired frequency and length of time, and any restrictions on that desired frequency and duration must be:

(a) attributable to the resident's clinical or personal care needs;

(b) necessary to ensure the resident’s roommate has adequate privacy and space to receive their own designated personal caregiving visitors; or

(c) because the desired visitation frequency or duration would impair the effective implementation of applicable infection control measures, including social distancing of at least six feet between the visitors and others in the facility, having sufficient staff to effectively screen all personal caregiving visitors and monitor visits to ensure infection control protocols are being followed throughout, and having a sufficient supply of necessary personal protective equipment for all personal caregiving visitors.

(4) Compassionate caregiving.

(i) In the event a resident experiences a long-term or acute physical, mental, or psychosocial health condition for which, in the opinion of the resident, their representative, or a health care professional (including but not limited to a physician, registered nurse, licensed clinical social worker, psychologist, or psychiatrist), a compassionate caregiving visitor would improve the resident’s quality of life, the resident or their representative shall designate at least two  compassionate caregiving visitors at one time, and the facility shall record such designation in the resident’s individualized comprehensive plan of care. A resident’s designated personal caregiving visitors may also provide compassionate caregiving.

(ii) Situations in which a resident is eligible for a compassionate caregiving visitor include but are not limited to the following:

(a) end of life;

(b) the resident, who was living with their family before recently being admitted to an adult care facility, is struggling with the change in environment and lack of physical family support;

(c) the resident is grieving after a friend or family member recently passed away;

(d) the resident needs cueing and encouragement with eating or drinking, and such cueing was previously provided by family and/or caregiver(s), and the resident is now experiencing weight loss or dehydration; and

(e) the resident, who used to talk and interact with others, is experiencing emotional distress, seldom speaking, or crying more frequently (when the resident had rarely cried in the past).

(iii) Compassionate caregiving visitation shall be permitted at all times, regardless of any general visitation restrictions or personal caregiving visitation restrictions in effect in the facility. Provided, however, that the facility shall require compassionate caregiving visitors to be screened for communicable diseases prior to entering the facility and visits must be conducted using appropriate social distancing between the resident and visitor if applicable based on guidance from the Department or the U.S. Centers for Disease Control and Prevention; if, however, personal contact would be beneficial for the resident’s mental or psychosocial well-being, the facility shall establish policies and procedures to ensure that such necessary physical contact follows appropriate infection prevention guidelines, including the visitor’s use of personal protective equipment and adhering to hand hygiene protocols before and after resident contact, and that the physical contact is limited in duration.

(5) The Department shall have discretion to review and require modifications to a facility’s personal caregiving visitation and compassionate caregiving visitation policies and procedures to ensure conformity with paragraphs (3) and (4) of this subdivision and any applicable visitation guidelines issued by the Department or the Centers for Medicare and Medicaid Services.

(e) Right to Privacy. Each resident shall have the right to:

(1) personal privacy and confidentiality of his or her personal and clinical records which shall reflect:

(i) accommodations, medical treatment, written and telephone communications, personal care, associations and communications with persons of his or her choice, visits, and meetings of family and resident groups. Resident and family groups shall be provided with private meeting space and residents shall be given access to a private area for visits or solitude. Such requirement shall not require the facility to provide a private room for each resident; and

(ii) the resident's right to approve or refuse the release of personal and clinical records to any individual outside the facility except when:

(a) the resident is transferred to another health care institution; or

(b) record release is required by law;

(2) privacy in written communications, including the right to:

(i) send and receive mail promptly that is unopened; and

(ii) have access to stationery, postage and writing implements at the resident's own expense; and

(3) regular access to the private use of a telephone that is wheelchair accessible and usable by hearing impaired and visually impaired residents.

(f) Right to Clinical Care and Treatment. (1) Each resident shall have the right to:

(i) adequate and appropriate medical care, and to be fully informed by a physician in a language or in a form that the resident can understand, using an interpreter when necessary, of his or her total health status, including but not limited to, his or her medical condition including diagnosis, prognosis and treatment plan. Residents shall have the right to ask questions and have them answered;

(ii) refuse to participate in experimental research and to refuse medication and treatment after being fully informed and understanding the probable consequences of such actions;

(iii) choose a personal attending physician from among those who agree to abide by all federal and state regulations and who are permitted to practice in the facility;

(iv) be fully informed in advance about care and treatment and of any changes in that care or treatment that may affect the resident's well-being;

(v) participate in planning care and treatment or changes in care and treatment. Residents adjudged incompetent or otherwise found to be incapacitated under the laws of the State of New York shall have such rights exercised by a designated representative who will act in their behalf in accordance with State law; and

(vi) self-administer drugs if the interdisciplinary team, as defined by Section 415.11, has determined for each resident that this practice is safe.

(2) With respect to its responsibilities to the resident, the facility shall:

(i) inform each resident of the name, office address, phone number and specialty of the physician responsible for his or her own care.

(ii) except in a medical emergency, consult with the resident immediately if the resident is competent, and notify the resident's physician and designated representative within 24 hours when there is:

(a) an accident involving the resident which results in injury requiring professional intervention;

(b) a significant improvement or decline in the resident's physical, mental, or psychosocial status in accordance with generally accepted standards of care and services;

(c) a need to alter treatment significantly; or

(d) a decision to transfer or discharge the resident from the facility as specified in subdivision (i) of this section; and

(iii) provide all information a resident or the resident's designated representative when permitted by State law, may need to give informed consent for an order not to resuscitate and comply with the provisions of section 405.43 of this Subchapter regarding orders not to resuscitate. Upon resident request the facility shall furnish a copy of the pamphlet, "Do Not Resuscitate Orders - A Guide for Patients and Families". 

(g) Residential Rights. Each resident shall have the right to:

(1) refuse to perform services for the facility. The resident may perform such services, if he or she chooses, only when:

(i) there is work available in the facility that the resident is capable of safely performing;

(ii) the facility has documented the need or desire for work in the plan of care;

(iii) the plan specifies the nature of the services performed and whether the services are voluntary or paid;

(iv) compensation for paid services is at or above prevailing rates; and

(v) the resident agrees to the work arrangement described in the plan of care;

(2) retain, store securely and use personal possessions, including some furnishings, and appropriate clothing, as space permits, unless to do so would infringe upon the rights or health and safety of the resident or other residents in which case the facility shall explore alternatives through discussion with the resident, the resident council or interdisciplinary care team, and provide or assist in the arrangement of storage for possessions. The resident shall have the right to locked storage space in his or her room;

(3) share a room with his or her spouse, relative or partner when these residents live in the same facility and both consent to the arrangement. If a spouse, relative or partner resides in a location out of the facility, the resident shall be assured of privacy for visits;

(4) participate in the established residents' council;

(5) meet with, and participate in activities of social, religious and community groups at his or her discretion; and

(6) receive, upon request, kosher food or food products prepared in accordance with the Hebrew orthodox religious requirements when the
resident, as a matter of religious belief, desires to observe Jewish dietary laws.

(h) Financial Rights. (1) Each resident shall have the right to manage his or her financial affairs or authorize in writing the facility to manage personal finances in accordance with paragraph (5) of subdivision (h) of section 415.26 of this Part. The facility may not require residents to deposit their personal funds with the facility;

(2) With respect to its responsibilities to the resident, the facility shall:

(i) inform each resident who is entitled to Medicaid benefits, in writing, at the time of admission to the nursing home or, when the resident becomes eligible for Medicaid of:

(a) the items and services that are included in nursing home services under the State plan and for which the resident may not be charged;

(b) those other items and services that the facility offers and for which the resident may be charged, and the amount of charges for those services; and

(c) the clear distinction between the two lists required by clauses (a) and (b) of this subparagraph;

(ii) inform each resident when changes are made to the items and services specified in clauses (a) and (b) of subparagraph (i) of this paragraph;

(iii) inform each resident verbally and in writing before, or at the time of admission, and periodically when changes occur during the resident's stay, of services available in the facility and of charges for those services, including any charges for services not covered by sources of third party payment or by the facility's basic per diem rate; and

(iv) prominently display in the facility written information, and provide to residents and potential residents oral and written information about how to apply for and use Medicare and Medicaid benefits, and how to receive refunds for previous payments covered by such benefits as well as a description of the requirements and procedures for establishing eligibility for Medicaid, including the right to request an assessment which will determine the extent of a couple's non-exempt resources at the time of institutionalization and attribute to the community spouse an equitable share of resources which cannot be considered available for payment toward the cost of the institutionalized spouse's medical care in his or her process of spending down to Medicaid eligibility levels.

(i) Transfer and discharge rights. Transfer and discharge shall include movement of a resident to a bed outside of the certified facility whether that bed is in the same physical plant or not. Transfer and discharge shall not refer to movement of a resident to a bed within the same certified facility, and does not include transfer or discharge made in compliance with a request by the resident, the resident’s legal representative or health care agent, as evidenced by a signed and dated written statement, or those that occur due to incarceration of the resident. 

(1) With regard to the transfer or discharge of residents, the facility shall:

(i) permit each resident to remain in the facility, and not transfer or discharge the resident from the facility unless such transfer or discharge is made in recognition of the resident's rights to receive considerate and respectful care, to receive necessary care and services, and to participate in the development of the comprehensive care plan and in recognition of the rights of other residents in the facility.

(a) The resident may be transferred only when the interdisciplinary care team, in consultation with the resident or the resident's designated representative, determines that:

(1) the transfer or discharge is necessary for the resident's welfare and the resident's needs cannot be met after reasonable attempts at accommodation 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; or

(4) The health of individuals in the facility is endangered;

(b) Transfer and discharge shall also be permissible when the resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare, Medicaid or third party insurance) a stay at the facility. For a resident who becomes eligible for Medicaid after admission to a facility, the facility may charge a resident only allowable charges under Medicaid. Such transfer or discharge shall be permissible only if a charge is not in dispute, no appeal of a denial of benefits is pending, or funds for payment are actually available and the resident refuses to cooperate with the facility in obtaining the funds.

(c) Transfer or discharge shall also be permissible when the facility discontinues operation and has received approval of its plan of closure in accordance with subdivision (i) of Section 401.3 of this Subchapter.

(ii) ensure complete documentation in the resident's clinical record when the facility transfers or discharges a resident under any of the circumstances specified in subparagraph (i) of this paragraph. The documentation shall be made by:

(a) the resident's physician and, as appropriate, interdisciplinary care team, when transfer or discharge is necessary under subclause (1) or (2) of clause (a) of subparagraph (i) of this paragraph; and

(b) a physician when transfer or discharge is necessary due to the endangerment of the health of other individuals in the facility under subclause (3) of clause (a) of subparagraph (i) of this paragraph;

(iii) before it transfers or discharges a resident:

(a) notify the resident and designated representative, if any, and, if known, family member of the resident of the transfer or discharge and the reasons for the move in writing and in a language and manner the resident and/or family member understand;

(b) record the reasons in the resident's clinical record; and

(c) include in the notice the items described in subparagraph (v) of this paragraph;

(iv) provide the notice of transfer or discharge required under subparagraph (iii) of this paragraph at least 30 days before the resident is transferred or discharged, except that notice shall be given as soon as practicable before transfer or discharge, but no later than the date on which a determination was made to transfer or discharge the resident, under the following circumstances:

(a) the safety of individuals in the facility would be endangered;

(b) the health of individuals in the facility would be endangered;

(c) the resident's health improves sufficiently to allow a more immediate transfer or discharge;

(d) an immediate transfer or discharge is required by the resident's urgent medical needs; 

(e) the transfer or discharge is the result of a change in the level of medical care prescribed by the resident’s physician; or

(f) the resident has not resided in facility for 30 days.

(v) include in the written notice specified in subparagraph (iii) of this paragraph the following:

(a) The reason for transfer or discharge;

(b) The specific regulations that support, or the change in Federal or State law that requires, the action; 

(c) The effective date of transfer or discharge;

(d) The location to which the resident will be transferred or discharged;

(e) a statement that the resident has the right to appeal the action to the State Department of Health, which includes: 

(1) an explanation of the individual’s right to request an evidentiary hearing appealing the decision;

(2) the method by which an appeal may be obtained;

(3) in cases of an action based on a change in law, an explanation of the circumstances under which an appeal will be granted; 

(4) an explanation that the resident may remain in the facility (except in cases of imminent danger) pending the appeal decision if the request for an appeal is made within 15 days of the date the resident received the notice of transfer/discharge;

(5) in cases of residents discharged/transferred due to imminent danger, a statement that the resident may return to the first available bed if he or she prevails at the hearing on appeal; and

(6) a statement that the resident may represent him or herself or use legal counsel, a relative, a friend, or other spokesman;

(f) the name, address and telephone number of the State long term care ombudsman;

(g) for nursing facility residents with developmental disabilities, the mailing address and telephone number of the agency responsible for the protection and advocacy of developmentally disabled individuals established under Part C of the Developmental Disabilities Assistance and Bill of Rights Act; 

(h) for nursing facility residents who are mentally ill, the mailing address and telephone number of the agency responsible for the protection and advocacy of mentally ill individuals established under the Protection and Advocacy for Mentally Ill Individuals Act;

(vi) provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility in the form of a discharge plan which addresses the medical needs of the resident and how these will be met after discharge, and provide a discharge summary pursuant to section 415.11, subdivision (d) of this Title; and

(vii) permit the resident, their legal representative or health care agent the opportunity to participate in deciding where the resident will reside after discharge from the facility.

(2) The department shall grant an opportunity for a hearing to any resident who requests it because he or she believes the facility has erroneously determined that he or she must be transferred or discharged in accordance with the following:

(i) the resident has the right to:

(a) request a hearing to appeal the transfer or discharge notice at any time within 60 days from the date the notice of transfer or discharge is received by the resident;

(b) remain in the facility pending an appeal determination if the appeal request is made within 15 days of the date of receipt of the transfer or discharge notice;

(c) a post-transfer/discharge appeal determination if the resident did not request an appeal determination within 15 days of the date of receipt of the transfer or discharge notice; 

(d) return to the facility to the first available semi-private bed if the resident wins the appeal, prior to admitting any other person to the facility; and

(e) represent him or herself, or use legal counsel, a relative, a friend or other spokesman. 

(ii) The resident or the resident’s representative as described in (2)(i)(e) of this paragraph must be given the opportunity to:

(a) examine at a reasonable time before the date of the hearing, at the facility, and during the hearing, at the place of the hearing:

(1) the contents of the resident’s file including his/her medical records; and 

(2) all documents and records to be used by the facility at the hearing on appeal;

(b) bring witnesses;

(c) establish all pertinent facts and circumstances;

(d) present an argument without undue interference; and

(e) question or refute any testimony or evidence, including the opportunity to confront and cross-examine adverse witnesses.

(iii) All hearings must be conducted in accordance with Article 3 of the State Administrative Procedure Act, and in accordance with the following: 

(a) the presiding officer shall have the power to obtain medical assessments and psychosocial consultations, and the authority to issue subpoenas;

(b) the nursing home shall have the burden of proof that the discharge or transfer is/was necessary and the discharge plan appropriate;

(c) an administrative hearing must be scheduled within 90 days from the date of the request for a hearing on appeal; and

(d) the parties must be notified in writing of the decision and provided information on the right to seek review of the decision, if review is available. 

(3) The facility shall establish and implement a bed-hold policy and a readmission policy that reflect at least the following:

(i) At the time of admission and again at the time of transfer for any reason, the facility shall verbally inform and provide written information to the resident and the designated representative that specifies: 

(a) the duration of the bed-hold policy during which the resident is permitted to return and resume residence in the facility; and

(b) the facility's policies regarding bed-hold periods, which must be consistent with subparagraph (iii) of this paragraph, permitting a resident to return.

(ii) At the time of transfer of a resident for hospitalization or for therapeutic leave, a nursing home shall provide written notice to the resident and the designated representative, which specifies the duration of the bed-hold policy described in subparagraph (i) of this paragraph.

(iii) A nursing home shall establish and follow a written policy under which a resident whose hospitalization or therapeutic leave exceeds the bed hold period is readmitted to the facility immediately upon the first availability of a bed in a semi-private room if the resident:

(a) requires the services provided by the facility; and

(b) is eligible for Medicaid nursing home services.

(iv) A nursing home shall establish and follow a written policy under which a resident who has resided in the nursing home for 30 days or more and who has been hospitalized or who has been transferred or discharged on therapeutic leave without being given a bed-hold is readmitted to the facility immediately upon the first availability of a bed in a semi-private room if the resident:

(a) requires the services provided by the facility; and

(b) is eligible for Medicaid nursing home services 

(4) With regard to the assurance of equal access to quality care, the facility shall establish and maintain identical policies and practices regarding transfer, discharge and the provision of all required services for all individuals regardless of source of payment.

Volume

VOLUME C (Title 10)

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