Section 481.63.34. Involuntary discharge or transfer.

         63.34(1) Involuntary discharge or transfer permitted. A facility may involuntarily discharge or transfer a resident for only one of the following reasons:

            a.               Medical reasons;

            b.               The resident’s welfare or that of other residents;

            c.               Nonpayment for the resident’s stay, as described in the contract for the resident’s stay; or

            d.               Due to action pursuant to Iowa Code chapter 229. (I, II, III)

         63.34(2) Medical reasons. Medical reasons for transfer or discharge shall be based on the resident’s needs and shall be determined and documented in the resident’s record by the primary care provider. Transfer or discharge may be required in order to provide a different level of care to the resident. (II)

         63.34(3) Welfare of a resident. Welfare of a resident or that of other residents refers to a resident’s social, emotional, or physical well-being. A resident may be transferred or discharged because the resident’s behavior poses a continuing threat to the resident (e.g., suicidal) or to the well-being of other residents or staff (e.g., the resident’s behavior is incompatible with other residents’ needs and rights). Written documentation that the resident’s continued presence in the facility would adversely affect the resident’s own welfare or that of other residents shall be made by the administrator or designee and shall include specific information to support this determination. (II)

         63.34(4) Involuntary discharge or transfer prohibited—payment source. A resident shall not be transferred or discharged solely because the cost of the resident’s care is being paid under Iowa Code chapter 249A or because the resident’s source of payment is changing from private support to payment under Iowa Code chapter 249A. (I, II)

         63.34(5) Notice. Involuntary transfer or discharge of a resident from a facility shall be preceded by a written notice to the resident and the responsible party. (II, III)

            a.               The notice shall contain all of the following information:

             (1)             The stated reason for the proposed transfer or discharge. (II)

             (2)             The effective date of the proposed transfer or discharge. (II)

             (3)             A statement, in not less than 12-point type, that reads as follows:

You have a right to appeal the facility’s decision to transfer or discharge you. If you think you should not have to leave this facility, you may request a hearing, in writing or verbally, with the Iowa department of inspections and appeals (hereinafter referred to as “department”) within 7 days after receiving this notice. You have a right to be represented at the hearing by an attorney or any other individual of your choice. If you request a hearing, it will be held no later than 14 days after the department’s receipt of your request and you will not be transferred before a final decision is rendered. Extension of the 14-day requirement may be permitted in emergency circumstances upon request to the department’s designee. If you lose the hearing, you will not be transferred before the expiration of either (1) 30 days following your receipt of the original notice of the discharge or transfer, or (2) no sooner than 5 days following final decision of such hearing, including the exhaustion of all appeals, whichever occurs later. To request a hearing or receive further information, call the department at [phone], or write to the department to the attention of: Administrator, Division of Health Facilities, Department of Inspections and Appeals, Lucas State Office Building, Des Moines, Iowa 50319-0083. (II)

            b.               The notice shall be personally delivered to the resident, and a copy shall be placed in the resident’s record. A copy shall also be transmitted to the department, the resident’s responsible party, the resident’s primary care provider, and the person or agency responsible for the resident’s placement, maintenance, and care in the facility. The notice shall indicate that copies have been transmitted to the required parties by using the abbreviation “cc:” and listing the names of all parties to whom copies were sent.

            c.               The notice required by paragraph 63.34(5)“a” shall be provided at least 30 days in advance of the proposed transfer or discharge unless one of the following occurs:

             (1)             An emergency transfer or discharge is mandated by the resident’s health care needs and is in accordance with the written orders and medical justification of the primary care provider. Emergency transfers or discharges may also be mandated in order to protect the health, safety, or well-being of other residents and staff from the resident being transferred. (II)

             (2)             The transfer or discharge is subsequently agreed to by the resident or the resident’s responsible party, and notification is given to the responsible party, the resident’s primary care provider, and the person or agency responsible for the resident’s placement, maintenance, and care in the facility.

            d.               A hearing requested pursuant to this subrule shall be held in accordance with subrule 63.34(7).

         63.34(6) Emergency transfer or discharge. In the case of an emergency transfer or discharge, the resident must be given a written notice prior to or within 48 hours following the transfer or discharge. (II, III)

            a.               A copy of this notice shall be placed in the resident’s file. The notice shall contain all of the following information:

             (1)             The stated reason for the transfer or discharge. (II)

             (2)             The effective date of the transfer or discharge. (II)

             (3)             A statement, in not less than 12-point type, that reads as follows:

You have a right to appeal the facility’s decision to transfer or discharge you on an emergency basis. If you think you should not have to leave this facility, you may request a hearing, in writing or verbally, with the Iowa department of inspections and appeals (hereinafter referred to as “department”) within 7 days after receiving this notice. You have a right to be represented at the hearing by an attorney or any other individual of your choice. If you request a hearing, it will be held no later than 14 days after the department’s receipt of your request. You may be transferred or discharged before the hearing is held or before a final decision is rendered. If you win the hearing, you have the right to be transferred back into the facility. To request a hearing or receive further information, call the department at [phone], or write to the department to the attention of: Administrator, Division of Health Facilities, Department of Inspections and Appeals, Lucas State Office Building, Des Moines, Iowa 50319-0083. (II)

            b.               The notice shall be personally delivered to the resident, and a copy shall be placed in the resident’s record. A copy shall also be transmitted to the department; the resident’s responsible party; the resident’s primary care provider; and the person or agency responsible for the resident’s placement, maintenance, and care in the facility. The notice shall indicate that copies have been transmitted to the required parties by using the abbreviation “cc:” and listing the names of all parties to whom copies were sent.

            c.               A hearing requested pursuant to this subrule shall be held in accordance with subrule 63.34(7).

         63.34(7) Hearing.

            a.               Request for hearing.

             (1)             The resident must request a hearing within 7 days of receipt of written notice.

             (2)             The request must be made to the department, either in writing or verbally.

            b.               The hearing shall be held no later than 14 days after the department’s receipt of the request unless either party requests an extension due to emergency circumstances.

            c.               Except in the case of an emergency discharge or transfer, a request for a hearing shall stay a transfer or discharge pending a final decision, including the exhaustion of all appeals. (II)

            d.               The hearing shall be heard by a department of inspections and appeals administrative law judge pursuant to Iowa Code chapter 17A and 481—Chapter 10. The hearing shall be public unless the resident or representative requests in writing that the hearing be closed. In a determination as to whether a transfer or discharge is authorized, the burden of proof by a preponderance of the evidence rests on the party requesting the transfer or discharge.

            e.               Notice of the date, time, and place of the hearing shall be sent by certified mail or delivered in person to the facility, the resident, and the responsible party not later than 5 full business days after the department’s receipt of the request. The notice shall also inform the facility and the resident or the responsible party that they have a right to appear at the hearing in person or be represented by an attorney or other individual. The appeal shall be dismissed if neither party is present or represented at the hearing. If only one party appears or is represented, the hearing shall proceed with one party present.

            f.               The administrative law judge’s written decision shall be sent by certified mail to the facility, resident, and responsible party within 10 working days after the hearing has been concluded.

         63.34(8) Nonpayment. If nonpayment is the basis for involuntary transfer or discharge, the resident shall have the right to make full payment up to the date that the discharge or transfer is to be made and then shall have the right to remain in the facility. (II)

         63.34(9) Discussion of involuntary transfer or discharge. Within 48 hours after notice of involuntary transfer or discharge has been received by the resident, the facility shall discuss the involuntary transfer or discharge with the resident, the resident’s responsible party, and the person or agency responsible for the resident’s placement, maintenance, and care in the facility. (II)

            a.               The facility administrator or other appropriate facility representative serving as the administrator’s designee shall provide an explanation and discussion of the reasons for the resident’s involuntary transfer or discharge. (II)

            b.               The content of the explanation and discussion shall be summarized in writing, shall include the names of the individuals involved in the discussion, and shall be made part of the resident’s record. (II)

            c.               The provisions of this subrule do not apply if the involuntary transfer or discharge has already occurred pursuant to subrule 63.34(6) and emergency notice is provided within 48 hours.

         63.34(10) Transfer or discharge planning.

            a.               The facility shall develop a plan to provide for the orderly and safe transfer or discharge of each resident to be transferred or discharged. (II)

            b.               To minimize the possible adverse effects of the involuntary transfer, the resident shall receive counseling services by the sending facility before the involuntary transfer and by the receiving facility after the involuntary transfer. Counseling shall be documented in the resident’s record. (II)

            c.               The counseling requirement in paragraph 63.34(10)“b” does not apply if the discharge has already occurred pursuant to subrule 63.34(6) and emergency notice is provided within 48 hours.

            d.               Counseling, if required, shall be provided by a licensed mental health professional as defined in Iowa Code section 228.1(6). (II)

            e.               The health care facility that receives a resident who has been involuntarily transferred shall immediately formulate and implement a plan of care which takes into account possible adverse effects the transfer may cause. (II)

         63.34(11) Transfer upon revocation of license or voluntary closure. Residents shall not have the right to a hearing to contest an involuntary discharge or transfer resulting from the revocation of the facility’s license by the department of inspections and appeals. In the case of the voluntary closure of a facility, a period of 30 days must be allowed for an orderly transfer of residents to other facilities.

         63.34(12) Intrafacility transfer.

            a.               Residents shall not be arbitrarily relocated from room to room within a licensed health care facility. (I, II) Involuntary relocation may occur only in the following situations, which shall be documented in the resident’s record: (II)

             (1)             A resident’s incompatibility with or disturbance to other roommates.

             (2)             For the welfare of the resident or other residents of the facility.

             (3)             For medical, nursing or psychosocial reasons, as judged by the primary care provider, nurse or social worker in the case of a facility which groups residents by medical, nursing or psychosocial needs.

             (4)             To allow a new admission to the facility that would otherwise not be possible due to separation of roommates by sex.

             (5)             In the case of a resident whose source of payment was previously private but who now is eligible for Title XIX (Medicaid) assistance, the resident may be transferred from a private room to a semiprivate room or from one semiprivate room to another.

             (6)             Reasonable and necessary administrative decisions regarding the use and functioning of the building.

            b.               Unreasonable and unjustified reasons for changing a resident’s room without the concurrence of the resident or responsible party include:

             (1)             Change from private pay status to Title XIX, except as outlined in subparagraph 63.34(12)“a”(5). (II)

             (2)             As punishment or behavior modification, except as specified in subparagraph 63.34(12)“a”(1). (II)

             (3)             Discrimination on the basis of race or religion. (II)

            c.               If intrafacility relocation is necessary for reasons outlined in paragraph 63.34(12)“a,” the resident shall be notified at least 48 hours prior to the transfer and the reason therefor shall be explained. The responsible party shall be notified as soon as possible. The notification shall be documented in the resident’s record and signed by the resident or responsible party. (II)

            d.               If emergency relocation is required in order to protect the safety or health of the resident or other residents, the notification requirements may be waived. The conditions of the emergency shall be documented. The family or responsible party shall be notified immediately or as soon as possible of the condition that necessitates emergency relocation and such notification shall be documented. (II)

            e.               A transfer to a part of a facility that has a different license must be handled the same way as a transfer to another facility and not as an intrafacility transfer. (II, III)

[ARC 1205C, IAB 12/11/13, effective 1/15/14; ARC 1752C, IAB 12/10/14, effective 1/14/15]