New Mexico Transfer/Discharge Appeal No. 525-16-1061 July 1, 1997
Hearing Officer: Victor Kovach
RECOMMENDATION OF HEARING OFFICER
_________________ appeals from a notice dated March 21, 1997 from the administrator of Las
Palomas Nursing and Rehabilitation Center (a Horizon/CMS Healthcare facility hereinafter
referred to as Las Palomas) informing him and his spouse, _________________, that he would
be discharged from Las Palomas. The hearing was held on April 30 and May 2, 1997 at Las
Palomas, 8100 Palomas NE, Albuquerque, New Mexico, with Hearing Officer, Victor Kovach,
presiding. Mr. Michael C. Parks of the Senior Citizens' Law Office appeared as legal counsel
and representative for __________________________________ Ms. Susan Sullivan, Associate
Counsel for Horizon/CMS Healthcare Corporation, represented Las Palomas.
Summary of Evidence
The documents of record indicate that _________________ is an 84 year old male resident of
Las Palomas. He is a medicaid recipient (category 81). _________________ was admitted to
Las Palomas on January 17, 1996 and his attending physician is Dr. Adrian Groenendyk.
Exhibit 9. According to the Minimum Data Set (MDS) Nursing Home Resident Assessment
and Care Screening information his diagnoses at admission to Las Palomas included congestive
heart failure (CHF), Hypertension (HTN), cerebrovascular accident (CVA), hemiplegia, atrial
fibrillation, hearing loss, acute prostatitis, kidney disorder/ureter nos. The MDS notes that
__________________________________ has cognitive deficits which impact his behavior, but
neither alzheimer's disease nor dementia were diagnosed or noted as having any relationship to
his daily living status, cognitive status, mood and behavior status, medical treatments or nursing
monitoring. The RAP Module accompanying the MDS contains an entry under the heading
Cognitive Loss/Dementia which indicates that a decision was made not to proceed with care
planning in this area. Exhibit 18.
The Care Plan identifies behavioral issues, including occasional verbal abuse with some
inappropriate sexual overtures, as a problem, with an onset date of October 13, 1996. The
approach noted to address behavioral issues includes telling
_________________._________________ that his behavior is inappropriate and will not be
tolerated, leaving and re-approaching him later, and one to one meetings with staff as needed.
Nursing and Social Progress Notes document incidents of sexually inappropriate behavior by
_________________ beginning shortly after admission to Los Palomas. Exhibits 26 & 46. In
May of 1996, _________________ began weekly therapy sessions with Lewis E Geiwitz, Ph.D,
of Elder Peaks Counseling, to address sexually inappropriate behavior. An entry from the
relevant Progress Notes, dated June 6, 1996, indicates that Dr. Geiwitz recommended a
``behavior modification program'' as he doubted that _________________ had the capacity to
understand and respond to other approaches. The Progress Notes show that the weekly therapy
sessions continued through January of 1997 with a consistent entry directing that
_________________ be discouraged from engaging in inappropriate behavior and encouraged to
express his feelings. An entry dated November 11, 1996, states ``therapy has not
changed_________________ inappropriate behavior'' with an entry on December 19, 1996
suggesting that someone explain the seriousness of his behavior to _________________ in
Spanish. Exhibit 25.
Physician Progress Notes indicate that a psychiatrist, Dr. Michael Muldower, was called in for an
evaluation of inappropriate behavior in July of 1996. The psychiatric impression was ``probable
mild to moderate dementia with sexual disinhibition'' and a low dose trial of Depakote was
suggested. Exhibit 24. Physician's orders show that Depakote was ordered for ``Bipolar
Affective Disorder Unsp.'', but that it was discontinued in late September due to adverse
reactions. Exhibits 22 & 23.
The quarterly updates of the MDS/RAP data indicate that
__________________________________ condition had improved as of April 1996 and
remained unchanged from that point through October 1996. Neither the August 1996 nor the
October 1996 quarterly updates include a diagnosis of either dementia or alzheimer's disease.
An annual MDS/RAP assessment was done in January of 1997. Exhibit 17. The diagnoses
remained essentially the same as those listed on the January 1996 assessment. Neither
alzheimer's disease nor dementia is noted as a diagnosis or a factor to review in regards to
cognitive loss or behavioral problems. Section Q of the MDS data indicates that there were no
changes in_________________ care needs and that there was no expectation that he would be
discharged within the subsequent ninety (90) day period. Exhibit 17.
Nursing and Social Progress Notes indicate that on January 30, 1997, _________________ hit a
male resident in the abdomen, that _________________._________________ physician was
notified and that no new orders were made. An entry for March 7, 1997 indicates that
_________________ hit a male resident in the face. Exhibits 26 & 28. Subsequently, on
March 10, 1997, Las Palomas staff met with _________________ family members at which
point it was determined that he would be taken home for the weekend and that a psychiatric
evaluation would be done. Dr. Robbin Gingery conducted the psychiatric evaluation on March
12, 1997 and his progress notes from that date state that _________________ was seen for
increased agitation and physical aggression and that_________________ had ``hit another
resident grabbed staff and shook her and hit the ombudsman all within 3 hours last week.'' Dr.
Gingery's impression was dementia - alzheimer's - vascular and he agreed with the July 1996
diagnosis of organic affective syndrome. Exhibit 24. Dr. Gingery's recommended treatment
plan was to prescribe Zoloft and to admit _________________ to St. Joseph's West Mesa
(hereinafter St. Joseph's) if he became aggressive.
Per letter dated March 13, 1997, the _________________ were advised that Las Palomas would
discharge _________________ to _________________ custody on April 12, 1997, because he
``struck a male resident on 3/7/97...and the safety of our residents is endangered.'' Exhibit 54.
That proposed discharge was subsequently retracted and is not the subject of this appeal.
Nursing Progress Notes dated March 18, 1997 and March 20, 1997 indicate that
_________________ was disruptive and threatening in the shower, that he punched a male
resident in the activity room and hit a CNA in the upper arm. The extent of injury suffered is
not indicated. On March 21, 1997 _________________ was transferred to St. Joseph's with a
Las Palomas physician's diagnosis of CHF, Atrial Fib, hearing loss and hypertension. Exhibit
13. On that same day, Las Palomas mailed the _________________ a notice that it would be
discharging _________________ to the _________________ home on April 20, 1997 on the
1.) _________________ assaulted a male resident on March 13, 1997.
2.) _________________ assaulted an employee of Las Palomas on March 21, 1997.
It's clear that the safety of individuals in our facility is endangered.
Pleading A. Implementation of the discharge was pended during the course of this appeal.
Documents from St Joseph's show a diagnosis upon admission of dementia of the alzheimer's
type with delusions. Exhibits 2 & 3. The conclusion of a neuropsychological evaluation done
by George Shute, Ph.D, on March 23, 1997, was that _________________ suffered from a
``very significant dementing disorder'' that appeared to be chronic and progressive. Exhibit 4.
On April 3, 1997, Dr. Ewing provided a psychiatric consult concerning how to manage what was
described as ``intractable aggressive behavior.'' Dr. Ewing's diagnosis was ``fairly plain,
moderately-advanced dementia.'' With respect to a treatment recommendation, Dr. Ewing noted
that _________________ ``seems not to have had an adequate trial of SSRI medication.''
Exhibit 5. In addition, he recommended Trazadone for sedation at night and Prozac to manage
aggression and that he would go to antipsychotics ``as a last resort... after less restrictive means
are given a good try.'' Id.
A report dated April 16, 1997, from a PASARR evaluation conducted at St Joseph's, includes a
diagnosis of depressive disorder and dementia/alzheimer's disease. The report notes that upon
admission to St. Joseph's _________________ was a ``significant threat'' but that he ``is now
having no episodes of agitated aggressive behavior and seemingly on present regime has
improved adequately to return to Level II facility for which he is eligible.'' Exhibit 1. On April
17, 1997, he was approved for transfer back to Las Palomas for Level II care.
Dr. Gingery provided a statement dated April 24, 1997, which indicates that he has known
_________________ for one month and that he had seen him for ``violent pugilistic behavior''.
Dr. Gingery states that ``all attempts at managing his violent pugilistic behavior have failed'' and
recommended that he be placed at Ft. Bayard which he described as ``a state facility, specifically
designed to manage severely delirious Alzheimer's patients.''
Las Palomas's administrative staff, testified that their facility is both a Skilled Nursing Facility
(SNF) and an Intermediate Care Facility (ICF) with 60% or its resident population consisting of
persons with dementia. According to Mr. Craig Shaffer, Las Palomas Administrator, personnel
are trained to deal with dementia patients but not those who are physically abusive. That
training includes a monthly dementia inservice by the Staff Development Coordinator. Mr.
Shaffer and Ms. Joan Earl, Director of Nursing, contend that _________________ was
discharged because of repeated instances of his hitting other residents and staff members.
Specifically, they first proposed a discharge based upon incidents that occurred on January 30
and March 7, 1997. Ms. Earl described the incident of January 30, 1997 as
__________________________________ striking a male resident in the dining hall. Ms. Earl
stated that on March 7, 1997, _________________ struck a male resident in the face after going
into his room. The second discharge notice was sent after two more occurrences on March 18,
1997 and one on March 20, 1997.
Ms. Earl and other direct care staff indicated that the facility has attempted to treat
_________________ behavioral problems through therapy with Dr. Geiwitz, setting limits and
redirection. Administration of Depakote was tried at the suggestion of Dr. Muldower, and was
successful, but had to be stopped due to __________________________________ falling. Las
Palomas staff indicated that their efforts in these areas have been unsuccessful in curtailing
_________________ behavior and they feel that placement in a facility with a special
Alzheimer's unit, would be more appropriate and safer.
Ms. Earl agreed that the Care Plan and MDS data were the primary documents for determining a
resident's care needs and treatment regimen and noted that those documents and the quarterly
updates did not include dementia as a diagnosis or address physically violent behavior. She also
noted that __________________________________ has a semi-private room and has had
roommates with whom he has not had problems.
Several nursing/direct care staff described _________________ as being ``combative''
``belligerent'' ``irritable'' and ``violent'' and related incidents of aggression against staff that
occurred upon_________________ return to Las Palomas from St. Joseph's. Specifically, staff
testified that a Nursing Assistant was kicked or kneed in the stomach when three staff went in
_________________ room to take his vital signs and weight. Several of these staff members
also noted that _________________ did appear to be groggy and confused upon his return from
St. Joseph's and his physical condition appeared to have worsened.
Mr. Thomas Mistretta, a Las Palomas resident, testified that_________________ came into his
room at night, while he was asleep, and that _________________ put his hands on his head and
face. He related that the incident frightened him. His sister testified that Mr. Mistretta had told
her that _________________ had come into his room at night and rubbed his head and
Mr. Michael Zapach, Jr. testified that he is the ombudsman that was referred to as being hit in
documents submitted by Las Palomas. He testified that _________________ did not hit him,
but instead put his hand on his arm for support. Ms. Katrina Hotrum, Regional Coordinator for
the State Agency on Aging's Ombudsmen Program, testified that Las Palomas has a higher than
average number of dementia patient [sic]. She indicated that she had reviewed the medical
records and believes the incidents of hitting are a symptom of dementia and related to confusion.
She noted that there were no incident reports, which would be indicators of injury and treatment,
concerning these occurrences. She believes the incidents may have antecedents in the facility
related to noise and activity levels and questioned whether other facilities described as more
appropriate by Las Palomas staff were significantly different from Las Palomas. She stated that
Fort Bayard is not a special dementia treatment facility, but rather a dumping ground.
Ms. Susan Stuart, President of the New Mexico Alzheimer's Association, testified that the
behaviors attributed to __________________________________ are common symptoms of
dementia with identifiable antecedents such as noise, confusion, and sudden approaches. Based
on her review of the medical records, she believes Las Palomas did not have an adequate
treatment plan addressing __________________________________ needs in that dementia was
not listed as a diagnosis or otherwise addressed in the plan of care. She also noted that the
medical records document that an incident occurred, but do not describe any antecedents, which
she feels are the key to effective care planning for dementia.
_________________ testified that she has been married to
__________________________________ for sixty (60) years and that she wants him to remain
at Las Palomas where she is able to visit him daily. She indicated that driving any further than
to Las Palomas would present a problem for her. She and other family members objected to
__________________________________ physical condition when he was transferred back from
A list of documents and pleadings entered into the record precedes the exhibits and pleadings
Federal law at 42 U.S.C. '1396r sets forth certain rights of nursing facility residents and
responsibilities of nursing facilities to ensure that those rights are provided and maintained. In
general, nursing facilities must provide services and activities to attain or maintain ``the highest
practicable physical, mental and psychosocial well-being of each resident''. The specific
statutorily required services that a nursing facility must provide residents include nursing and
related services, specialized rehabilitation services, medically related social services,
pharmaceutical services, dietary services, activity programs, dental services and certain services
required by mentally ill and mentally retarded residents. 42 U.S.C. '1396r(b)(4).
A nursing facility must conduct a comprehensive assessment of each resident's medical problems
and functional capacity and deliver the required services through the development and
implementation of a written plan of care that addresses how the medical, nursing and
psychosocial needs of the resident will be met. The plan of care must be periodically reviewed
and reassessed. 42 U.S.C. '1396r(b). The facility is responsible for protecting and promoting
the rights of each resident and must provide services that reasonably accommodate the individual
needs of each resident, except where the health or safety of other individuals or residents would
With respect to a resident's transfer and discharge rights, federal law provides that a nursing
facility must allow residents to remain in the facility, and is prohibited from transferring or
discharging a resident from the facility unless--
(i) The transfer or discharge is necessary for the resident's welfare and the resident's needs
cannot be met in the facility;
(ii) 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;
(iii) The safety of individuals in the facility is endangered;
(iv) The health of individuals in the facility is endangered;
(v) The resident has failed, after reasonable and appropriate notice, to pay for (or have paid
under Medicare or Medicaid) a stay at the facility...; or
(vi) The facility ceases to operate.
42 C.F.R. '483.12(a) (regulations implementing statutory section 1396r(c)(2)). When the
facility transfers or discharges a resident, the facility must provide prior written notice. 42
C.F.R. '483.12(a)(4). The written notice must include the following:
(i) The reason for transfer or discharge;
(ii) The effective date of transfer or discharge;
(iii) The location to which the resident is transferred or discharged;
(iv) A statement that the resident has the right to appeal the action to the State;
(v) The name, address and telephone number of the State long term care ombudsman;
(vi) 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; and
(vii) 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 the Mentally Ill Individuals Act.
42 C.F.R. '483.12(a)(6).
Courts that have reviewed the above requirements, in the context of a transfer or discharge under
regulatory sections (a)(1)(iii) & (iv), have considered whether the facility provided required
services through a plan of care designed to meet the specific needs of the resident, including the
needs for behavior modification related to aggressiveness, and whether, despite the provision of
such services, the resident's behavior endangered the health or safety of other individuals in the
facility. See Nichols v. St. Luke Center of Hyde Park, 800 F. Supp. 1564 (S.D. Ohio 1992);
Matter of Involuntary Discharge of J.S., 512 N.W. 2d 604 (Minn. App. 1994). Those cases
indicate that a nursing facility must prove, by a preponderance of the evidence presented, that it
had an appropriate plan of care addressing the resident's needs and that the resident was provided
with required services to achieve the highest practicable physical, mental and psychosocial
well-being. Additionally, the nursing facility must prove that the resident nonetheless
endangers the health or safety of others in the facility. As noted by the Minnesota Court, a
nursing facility must establish that it exhausted the treatment options available within the
authorized level of care to address the particular needs of the resident and the protection of
others. The federal Health Care Finance Administration (HCFA) has also noted, in its preamble
to the above regulations, that involuntary discharge of residents who are viewed as a threat to the
safety of other residents, specifically including residents with dementia, can not be used as
substitute for the provision of appropriate care. See Vol. 56 Federal Register, No. 187, pg.
48839 (Sept. 26, 1991).
The preponderance of the evidence presented indicates that Las Palomas did not have an
appropriate plan of care for the provision of necessary services to address _________________
dementia and behavioral problems, and thereby enable him to attain his highest practicable level
of well-being. The care planning documents and MDS data do not even include a diagnosis of
dementia despite indications of the same from consultative sources. A lack of coordination
between the various caregivers is apparent in that cognitive problems are noted, and dementia is
suggested as a probable diagnosis in July of 1996, but neither the care plan nor the MDS data is
updated to reflect the same. Similarly, the Elder Peaks counselor expresses his doubts as
to_________________ capacity to understand things but nonetheless prescribes a treatment
regimen, for a period of several months, that seems to assume that _________________ has the
ability to understand explanations concerning his behavior. As a whole, the behavioral
treatment plan that Las Palomas provided _________________ seems to be incident driven and
consists primarily of telling __________________________________ that his behavior is
inappropriate and that it will not be tolerated. Such a limited approach does not seem adequate
given_________________ condition. I also note that the recommendations of the consulting
psychiatrist, Dr. Ewing, seem to suggest that all appropriate courses of treatment have not been
explored. Taken as a whole, the evidence of record does not establish that Las Palomas
developed and implemented an appropriate, coordinated plan of care that identified dementia as a
diagnosis or contributing factor to _________________ behavioral problems.
With respect to Las Palomas's claim that _________________ continued presence in the facility
presents a danger to others, the medical records do contain entries which indicate that
__________________________________ ``struck'', ``hit'' or ``grabbed'' five individuals at the
facility during March of 1997. However, those entries are vague as to the details surrounding
the incidents, the severity of the incidents, and the possible antecedents to the incidents.
Additionally, there was little or no indication in the medical records submitted, or testimony of
witnesses, that the individuals involved required or received any medical treatment as a result of
the incidents and no incident reports were made. The evidence also suggests that those incidents
which occurred upon _________________ return from St. Joseph's, including the incident with
Mr. Mistretta, were the result of confusion related to the transfer and _________________
condition. The proposed discharge appears to be based upon a perceived threat of danger to
others rather than on actual evidence of injury or indications that any threat could not be
eliminated through the design and implementation of an appropriate plan of care.
In summary, Las Palomas has failed to meet its burden of establishing, by a preponderance of the
evidence presented, that it provided necessary services to address _________________ medical
condition and related behavioral problems or that his continued presence in the facility would
endanger others if he received appropriate care. Accordingly, I recommend that your decision
be in favor of _________________
Findings of Fact
1. _________________ is an 84 year old resident of Las Palomas.
2. _________________ suffers from dementia/alzheimer's disease with an onset date
prior to July of 1996.
3. _________________ struck another resident on March 7, 1997.
4. On March 18, 1997, _________________ was disruptive in the shower, he struck
another resident in the activity room at Las Palomas, and struck a nurses aide in the arm.
5. On the day of his return to Las Palomas from St. Joseph's,_________________ kicked
or kneed a nurses aide in the stomach while the nurses aide was trying to obtain his weight and
vital signs with the help of two other staff.
6. _________________ became confused and entered another resident's room, from a
common bathroom, and touched or rubbed the other resident's head and shoulders.
7. The other residents and staff involved in findings 3 through 6 did not sustain physical
injuries requiring significant medical treatment as a result of the incidents.
8. The incidents described in findings 3 through 6 are related to _________________
medical condition and diagnosis of dementia/alzheimer's.
Las Palomas has not provided an appropriate coordinated plan of care to address
_________________ medical needs.
I recommend that _________________ be permitted to remain at Las Palomas and that an
appropriate coordinated plan of care be designed and implemented to address his medical needs.
In re L.E., California Transfer/Discharge Appeal No. 08-0480 April 18, 1997
Hearing Officer: Kent Young
On March 19, 1997, Pavilion Health Care Center/Seacrest Village (Facility) issued a 30 day
notice of proposed involuntary transfer/discharge to Mrs. Lee Elkin (Resident) and her son, Peter
Elkin. This notice stated that it superseded a March 11, 1997, notice. The stated reasons for
Resident's transfer/discharge in the March 19 notice were Resident's failure to pay and that
Resident ``is not an appropriate resident for this facility because her health has improved
sufficiently so she no longer requires the services provided here.'' The notice goes on to indicate
that Resident has not provided documentation of Medi-Cal eligibility and that, for the period of
her stay from February 1, 1997, to present, Facility considers her payor status to be private. Her
private pay account was overdue in the amount of $7,936.67. The notice stated that the
transfer/discharge would be on April 19, 1997, and the location was listed as ``the home of Peter
Elkin at 266 Winterhawk Lane, Encinitas, CA 92118.'' The notice also referred to two
attachments, a form transfer/discharge notice and an itemized billing.
Subsequently, Peter Elkin (Appellant) filed an appeal of the notice.
PRESENTATION AT HEARING
The hearing convened at 9:30 a.m., April 11, 1997, at facility. All testimony was taken under
oath and the proceedings were tape recorded.
Facility counsel stated that, based on Facility's assessment of Resident, she no longer meets the
criteria established by Medi-Cal for continued skilled nursing facility (SNF) level of care.
Resident was admitted on September 18, 1996, for rehabilitation following a surgical repair of
her fractured hip, sustained from a fall in her home. She also had diagnoses that included
Alzheimer's disease, depression and hypertension. Initially, she was a beneficiary of Medicare
and her Part A benefits were exhausted on October 4, 1996. She was private pay thereafter.
Resident's progress was continually assessed during her rehabilitation to the point where she is
presently medically improved.
Facility presented its Medical Director, Bruce J. Sachs, M.D., who testified in summary of his
March 29, 1997, written evaluation of Resident's level of care needs. This evaluation was
performed upon the written order of the attending physician and indicated that her ambulation
had improved so that her gait showed ``minimal ataxia without assistive devices,'' and she was
easily able to rise independently from bed. Dr. Sachs assessed her mental status to be alert and
oriented to her name only with appropriate affect but with significant deficits in memory and
abstract ability. His impression was that Resident suffered from a ``severe cognitive
impairment,'' appearing to be medically stable and mostly independent in her activities of daily
living (most notably continent of bowel and bladder [B&B] except occasional bladder
incontinence at night). In his assessment of Resident's drug regimen (Quinine, Tums, Maxide
and Paxil), he determined that it was so uncomplicated that her medication administration did not
require supervision by a licensed nurse.
Facility summoned the attending physician, Seymour Myers, M.D., who authenticated his April
10, 1997, progress note and testified that, after reading Dr. Sachs's evaluation, he wrote the
progress note in concurrence. Dr. Myers' impression was that Resident had ``severe dementia,''
that required ``assisted living with cueing.'' Dr. Myers explained that, in response to a Facility
request, he wrote the order for the evaluation of Resident's level of care needs. Since the
condition of her hip had improved, Dr. Myers indicated that he wanted a ``payer'' to determine
her level of care.
At this point, Appellant's counsel interjected that, at the request of Appellant, Resident's mental
status had been reevaluated on April 7, 1997, by Facility's consultant psychologist, Ken
Dellefield, Ph. D. Dr. Myers indicated that he was familiar with Dr. Dellefield's October 7, 1996,
initial psychological evaluation, that indicated that Resident was then best suited for SNF level
of care. Yet, Dr. Myers consented to review this newest report. After this review, Dr. Myers
noted that Dr. Dellefield also recommended an assisted living level of care, and he added that,
despite some anticipated initial trauma from the transfer, there would not be a significant adverse
impact on Resident's health.
The facility presented a nurse consultant, who offered her expertise concerning Medi-Cal level of
care and who determined that Resident would not be approved as a SNF level beneficiary. The
facility's present Director of Nursing (DON) testified that he believed that Resident had three
falls, during her stay at the facility in the last six months and had been provided with a
Wanderguard electronic monitor for the last month. Nevertheless, the DON felt that Resident's
safety needs could be met in an assisted living setting. In response to questioning, the DON said
that it was his understanding that an assisted living facility had not been identified at the time the
transfer/discharge notices were issued due to Appellant's lack of cooperation in selecting such a
location to place Resident. Appellant insisted that he wanted Resident to stay in Facility and
refused to select an alternative location. In the absence of an alternative location, Facility
decided to include in the notice Appellant's home as the provisional location. The DON stated
that Appellant's home had not been evaluated as to whether it was a suitable transfer/discharge
site for Resident.
In a Notice of Action (NOA), dated April 9, 1997, Resident was approved as a Medi-Cal
beneficiary, with a monthly $801 share-of-cost, effective retroactively to February 1, 1997. The
date of Resident's Medi-Cal application was February 15, 1997. Facility was provided with a
copy of the NOA.
Dr. Myers signed a Medi-Cal Treatment Authorization Request (TAR) for SNF care (from
March 1, 1997, to March 1, 1999) on March 12, 1997. On March 27, 1996, a decision to
approve or deny this TAR was deferred pending a retroactive approval of Medi-Cal benefits.
Accordingly, the facility's controller testified that, in view of Resident's NOA approval, he would
resubmit the TAR. The controller provided a copy of the TAR and stated that prior to February
1, 1997, Appellant kept Resident's account current.
The facility administrator stated that, prior to issuing the transfer/discharge notices, she tried to
enlist Appellant's cooperation in identifying a suitable assisted living facility to transfer Resident
but Appellant ``blocked'' her attempts because he wanted his mother to stay in Facility.
Appellant declined her offer of assistance to select an assisted living facility. The administrator
said that Resident could only continue to stay at Facility, if she was private pay, and that
Resident was not SNF eligible under Medi-Cal.
The facility social service designee (SSD) testified that from an interdisciplinary team (IDT)
meeting with Appellant on September 30, 1996, it was suggested to attempt to identify if there
were any assisted living residences that would be willing to admit Resident. Copies of the
SSD's progress notes recording the IDT meeting were submitted.
Appellant's counsel stated that Appellant recalled raising the issue of Resident's eligibility for a
continued stay as a Medi-Cal beneficiary. In response, Facility made the determination that
Resident would not qualify for SNF care under Medi-Cal. Facility made it clear, if he wanted
his mother to stay, it would be for ``private pay or move.'' Yet, Facility recommended the
October 7, 1996, psychological evaluation by its own consultant, Dr. Dellefield, whose report
recommendation suggested that Resident would do well to stay at Facility. Appellant would not
have objected to Resident's transfer/discharge if Dr. Dellefield had not stated that she required
SNF care. In addition to Dr. Dellefield's previously referenced evaluations, Appellant's counsel
submitted letters from Resident's long term family physician, Frederick E. Caddell, M.D. (dated
April 7, 1997), and her neurologist, Robert J. Giambetti, M.D. (dated March 20, 1997), and Dr.
Dellefield's April 7, 1997, evaluation recommending that Resident remain in her current SNF
and not be moved. Appellant also documented three March 1997 telephone conversations with
Dr. Dellefield and Dr. Myers in which they indicated that Resident was in the right place and
seemed well adjusted in her current SNF level stay.
Appellant's counsel also pointed out that, according to the requirements of the Code of Federal
Regulations, the transfer/discharge notice was defective in that it omitted the telephone number
of the ombudsman and did not identify an actual location to where Resident would be
transferred, because Facility failed to assess Appellant's home for appropriateness. It was clear,
from Facility's testimony at the hearing and in its documentation, that an unidentified ``assisted
living'' facility was contemplated. Appellant's home is located at a lofty elevation with a large,
precipitous deck for which there is no supervision for Resident's safety. These circumstances
further require Facility to provide sufficient preparation and orientation to a resident to ensure a
safe and orderly transfer/discharge. Appellant's counsel stated that prior transfer/discharge appeal
hearings have held that technically defective notices are ``in and of themselves sufficient to deny
a proposed transfer.'' He stated that these transfer/discharge regulations do not allow for a
facility to be merely in substantial compliance. A copy of transfer/discharge appeal #91-0006,
dated September 22, 1992, in re: Eric M. Carlson, was submitted in support.
Appellant's counsel stated that Facility has alleged that Resident's health has improved
sufficiently so that she no longer requires SNF level care. Although Resident's physical health
(pertaining to her healed hip fracture) has improved, her mental health status, in regards to her
diagnosis of Alzheimer's dementia, has not improved as she still suffers from progressive
degenerative effects of this disease, which include gradual worsening of the following
symptoms: 1. frequent falling; 2. incontinence; and, 3. risk of wandering. Appellant's counsel
concluded that Resident still needs SNF care and that the only reason for attempting this
involuntary transfer/discharge was Facility's disappointment with Resident's change from private
pay to Medi-Cal pay status.
The ombudsman representative stated that she was present at the hearing to ensure that the
resident transfer/discharge rights specified in the Code of Federal Regulations were upheld for
the welfare of Resident. In Resident's best interests, the ombudsman sincerely hoped that the
dementia aspects of her condition were not overlooked in making a medical level of care
determination. It is well known that Alzheimer's dementia patients suffer from the trauma when
transferring to unfamiliar locations.
The Licensing and Certification (L&C) evaluator said that they were present primarily to gather
information. L&C did note that Facility was to assess Resident's mobility and they found that
Resident fell three times during the last six months of her stay. L&C must evaluate a facility's
compliance with the regulations and that Facility would be hearing from them soon. L&C stated
that in San Diego County, there are approximately 25 intermediate care facilities (ICFs) that
provide at least one daily shift of licensed nurse staffing, and are certified as nursing facilities
(NFs) which are eligible to serve Medi-Cal beneficiaries.
ANALYSIS AND DISCUSSION
I have reviewed the information presented at the informal hearing.
Title 42 Code of Federal Regulations (42 C.F.R.), ' 483.12(a) (2) sets forth the requirements for
a resident's rights pertaining to transfer/discharge from a SNF. The regulation requires that
residents must be permitted to remain in a facility and not be transferred or discharged unless one
of six enumerated conditions exist. In this case, two reasons were specified in the notice: (i)
Resident's condition has improved so that she no longer requires the services of the facility, and
(v) failure to pay of have Medicare or Medicaid (Medi-Cal in this State) for her stay.
When a facility seeks to transfer/discharge a resident, certain medical records documentation
must be met. In order to transfer a resident under (i) the attending physician must document the
necessity of the transfer under this provision. In this case, the attending physician made an
ambiguous medical record entry in his April 10, 1997, progress note in which he relied on the
opinion of the facility's Medical Director to recommend ``assisted living'' level of care. There is
no such category licensed by either the Departments of Health Services or Social Services. It is
interesting to note that neither physician had reviewed the latest psychological evaluation of the
resident's mental status before drawing their conclusion that the resident had no further need for
the medically related skilled nursing services provided by the facility. Nevertheless, all of these
medical professionals agreed that the resident requires direct care staff supervision to cue her
daily living activities, provide occasional bladder incontinent care, and to ensure her safety from
falls or wandering. Moreover, in an apparent contradiction to his documentation and testimony,
Resident's attending physician signed a Medi-Cal TAR recommending SNF services.
Consequently, I find that the ambiguity of these professional's recommendations does not justify
with certainty the stated reason for transfer/discharge under (i). However, the notice does
technically meet the documentary requirements under 42 C.F.R., ' 483.12 (a) (3) (i).
Although Facility produced private pay billing for Resident's stay from February 1, 1997 to
present, Appellant provided a Medi-Cal NOA in which Resident was financially eligible as a
Medi-Cal beneficiary. This would prompt Facility to resubmit a previously deferred TAR for
the Medi-Cal program to make determination for retroactive payment. Accordingly, I find there
is insufficient information to support the reason for transfer/discharge under ' 483.12(a)(3)(v).
One of the elements required of the notice is to specify the exact location to where the resident is
to be transfer/discharged. Implicit in this requirement is the right of residents and their families
to know where the resident is going. By the testimony at the hearing, it is clear that Appellant's
home was not intended to be the exact locus of Resident's transfer/discharge, as it had not even
been evaluated for appropriateness. Facility stated that Appellant ``blocked'' identifying a locus
of transfer/discharge by refusing to cooperate in selecting an assisted living site. This statement
shifts the sole responsibility for planning the transfer to Appellant, when this is not the intent of
42 C.F.R., ' 483.20(e)(3) that requires the facility to provide a current written post-discharge
plan of care. Without a specified locus of transfer, an adequate orientation and preparation to
ensure a safe and orderly transfer/discharge cannot be provided, and the requirements of 42
C.F.R., ' 483.12(a)(7) and ' 483.12(a)(6)(iii) are found to be not met.
My review of the contents of the March 19, 1997 notice finds that the telephone number of the
long-term care ombudsman was omitted. Thus, I find that 42 C.F.R., ' 483.12(a)(6)(v) is not
Although Facility did have the attending physician document into Resident's clinical record that
she requires assisted living with cueing, which implies that her condition had improved so that
she no longer needs the services provided by Facility. I find that this documentation is in
dubious compliance with 42 C.F.R., ' 483.12(a)(2)(i).
Facility did not provide in the written transfer/discharge notice a telephone number for the
long-term care ombudsman.
Facility did not specify the exact locus of transfer/discharge.
Facility did not provide evidence of orientation and preparation to ensure a safe and orderly
Facility did not provide evidence that it had developed a current, written post-discharge plan of
Facility is found to be in violation of the resident rights for involuntary transfer/discharge, as set
forth in 42 C.F.R., ' 483.12(a).
DECISION AND ORDER
For the reasons stated above, the appeal is GRANTED, and the facility may not transfer or
discharge Lee Elkin.
This is the FINAL ORDER AND DECISION of the Department, and no further administrative
remedies are available.