Sec. 19a-535. (Formerly Sec. 19-616). Transfer or discharge of patients. Notice. Plan required. Appeal. Hearing. - Connecticut Statutes

      Sec. 19a-535. (Formerly Sec. 19-616). Transfer or discharge of patients. Notice. Plan required. Appeal. Hearing. (a) For the purposes of this section: (1) "Facility" means the entity certified as a nursing facility under the Medicaid program or the entity certified as a skilled nursing facility under the Medicare program or with respect to facilities that do not participate in the Medicaid or Medicare programs, a chronic and convalescent nursing home or a rest home with nursing supervision as defined in section 19a-521; (2) "Medicare distinct part" means an entity certified as a skilled nursing facility under the Medicare program within a facility; (3) "transfer" means the transfer of a resident from a facility to a separate facility, including a transfer into or out of a Medicare distinct part, but does not include the transfer of a resident from one bed to another bed within the same facility; (4) "discharge" means the discharge of a resident from a facility to another institution or a noninstitutional setting.

      (b) A facility shall not transfer or discharge a patient from the facility except to meet the welfare of the patient which cannot be met in the facility, or unless the patient no longer needs the services of the facility due to improved health, or the health or safety of individuals in the facility is endangered, or in the case of a self-pay patient, for his nonpayment or arrearage of more than fifteen days of the per diem facility room rate, or the facility ceases to operate. In each case the basis for transfer or discharge shall be documented in the patient's medical record by a physician. In each case where the welfare, health or safety of the patient is concerned the documentation shall be by the patient's physician. A facility which is part of a continuing care facility which guarantees life care for its residents, as defined in subsection (b) of section 17b-354, may transfer or discharge (1) a resident self-pay patient who has intentionally transferred assets in a sum which will render the patient unable to pay the costs of facility care in accordance with the contract between the resident and the facility or (2) a nonresident self-pay patient who has intentionally transferred assets in a sum which will render the patient unable to pay the costs of a total of forty-two months of facility care from the date of initial admission to the facility.

      (c) Before effecting a transfer or discharge of a patient from the facility, the facility shall notify, in writing, the patient and the patient's guardian or conservator, if any, or legally liable relative or other responsible party if known, of the proposed transfer or discharge, the reasons therefor, the effective date of the proposed transfer or discharge, the location to which the patient is to be transferred or discharged, the right to appeal the proposed transfer or discharge and the procedures for initiating such an appeal as determined by the Department of Social Services, the date by which an appeal must be initiated in order to stay the proposed transfer or discharge, which date shall be ten days from the receipt of the notice from the facility, that the patient may represent himself or herself or be represented by legal counsel, a relative, a friend or other spokesman, and information as to bed hold and hospital readmission policy when appropriate. The notice shall also include the name, mailing address and telephone number of the State Long-Term Care Ombudsman. If the patient is, or the facility alleges a patient is, mentally ill or developmentally disabled, the notice shall include the name, mailing address and telephone number of the Office of Protection and Advocacy for Persons with Disabilities. The notice shall be given at least thirty days and no more than sixty days prior to the patient's transfer or discharge, except where the health or safety of individuals in the facility are endangered, or where the patient's health improves sufficiently to allow a more immediate transfer or discharge, or where immediate transfer or discharge is necessitated by urgent medical needs or where a patient has not resided in the facility for thirty days, in which cases notice shall be given as many days before the transfer or discharge as practicable.

      (d) No patient shall be transferred or discharged from any facility as a result of a change in his status from self-pay or Medicare to Medicaid provided the facility offers services to both categories of patients. Any such patient who wishes to be transferred to another facility which has agreed to accept him may do so upon giving at least fifteen days written notice to the administrator of the facility from which he is to be transferred and a copy thereof to the appropriate advocate of such patient. The patients' advocate may help the patient complete all administrative procedures relating to a transfer. As used in this section "self-pay" patient means a patient who is not receiving state or municipal assistance to pay for the cost of care.

      (e) Except (1) in an emergency, (2) in the case of transfer to a hospital, or (3) in the case of transfer into or out of a Medicare distinct part within the same institution, no patient shall be transferred or discharged from a facility unless a discharge plan has been developed by the personal physician of the patient or the medical director in conjunction with the nursing director, social worker or other health care provider. To minimize the disruptive effects of the transfer or discharge on the patient the person responsible for developing the plan shall consider the feasibility of placement near the patient's relatives, the acceptability of the placement to the patient and his guardian or conservator, if any, or his legally liable relative or other responsible party, if known, and any other relevant factors which affect the patient's adjustment to the move. The plan shall contain a written evaluation of the effects of the transfer or discharge on the patient and a statement of the action taken to minimize such effects. In addition the plan shall outline the care and kinds of services which the patient shall receive upon transfer or discharge. Not less than thirty days prior to an involuntary transfer or discharge a copy of the discharge plan shall be provided to the patient's personal physician if the discharge plan was prepared by the medical director, to the patient and his guardian or conservator, if any, or his legally liable relative or other responsible party, if known.

      (f) No patient shall be involuntarily transferred or discharged from a facility if such transfer or discharge is medically contraindicated.

      (g) The facility shall be responsible for assisting the patient in finding appropriate placement.

      (h) (1) Except as provided in subdivision (4) of this subsection, upon receipt of a request for a hearing to appeal any proposed transfer or discharge, the Commissioner of Social Services or his designee shall hold a hearing to determine whether the transfer or discharge is being effected in accordance with this section. A hearing shall be convened not less than ten, but not more than thirty days from the receipt of such request and a written decision made by the commissioner or his designee within sixty days of the termination of the hearing or within ninety days of the date of the hearing request, whichever occurs sooner. The hearing shall be conducted in accordance with chapter 54. In each case the facility shall prove by a preponderance of the evidence that it has complied with the provisions of this section.

      (2) The patient, his guardian, conservator, legally liable relative or other responsible party shall have an opportunity to examine, during regular business hours at least three business days prior to a hearing conducted pursuant to this section, the contents of the patient's file maintained by the facility and all documents and records to be used by the commissioner or his designee or the facility at the hearing. The facility shall have an opportunity to examine during regular business hours at least three business days prior to such a hearing, all documents and records to be used by the patient at the hearing.

      (3) If a hearing conducted pursuant to this section involves medical issues, the commissioner or his designee may order an independent medical assessment of the patient at the expense of the Department of Social Services which shall be made part of the hearing record.

      (4) In an emergency the notice required pursuant to subsection (c) of this section shall be provided as soon as practicable. For the purposes of this section "emergency" means that a failure to effect an immediate transfer or discharge would endanger the health, safety or welfare of the patient or other patients. A patient who is transferred or discharged on an emergency basis or a patient who receives notice of such a transfer or discharge may contest the action by requesting a hearing in writing within ten days of receipt of notice or within ten days of the transfer or discharge, whichever is later. A hearing shall be held in accordance with the requirements of this subsection within seven business days of receipt of the request.

      (5) Except in the case of a transfer or discharge effected pursuant to subdivision (4) of this subsection, (A) an involuntary transfer or discharge shall be stayed pending a decision by the commissioner or his designee, and (B) if the commissioner or his designee determines the transfer or discharge is being effected in accordance with this section, the facility may not transfer or discharge the patient prior to fifteen days from the receipt of the decision by the patient and his guardian or conservator, if any, or his legally liable relative or other responsible party if known.

      (6) A copy of a decision of the commissioner or his designee shall be sent to the facility. The decision shall be deemed to have been received within five days of the date it was mailed, unless the patient or his guardian, conservator, legally liable relative or other responsible party proves otherwise by a preponderance of the evidence. The Superior Court shall consider an appeal from a decision of the Department of Social Services pursuant to this section as a privileged case in order to dispose of the case with the least possible delay.

      (P.A. 76-331, S. 9, 16; P.A. 79-265, S. 1; P.A. 89-348, S. 1, 10; P.A. 93-262, S. 1, 87; 93-327, S. 2; 93-381, S. 9, 39; P.A. 94-236, S. 5, 10; P.A. 95-160, S. 2, 69; P.A. 96-139, S. 12, 13; June 18 Sp. Sess. P.A. 97-2, S. 115, 165; P.A. 99-176, S. 22, 24; P.A. 03-278, S. 124.)

      History: P.A. 79-265 defined "self-pay" patient in Subsec. (a) and added reference to self-pay status, added provisions re minimizing disruptive effects of transfers or discharges and re provision of copies of discharge plan and added Subsec. (c); Sec. 19-616 transferred to Sec. 19a-535 in 1983; P.A. 89-348 inserted new Subsecs. (a), (b), (c), (g) and (h) re the transfer or discharge of patients, a patient's right to appeal a transfer or discharge decision and a patient's right to a hearing, relettering previously existing Subsecs. as necessary; P.A. 93-262 authorized substitution of commissioner and department of social services for commissioner and department of income maintenance, effective July 1, 1993; P.A. 93-327 amended Subsec. (c) to permit notice no more than 60 days prior to transfer or discharge and amended Subsec. (f) to replace standard of imminent danger of death with "medically contraindicated"; P.A. 93-381 replaced commissioner of health services with commissioner of public health and addiction services, effective July 1, 1993; P.A. 94-236 amended Subsec. (b) to add requirements re transfer or discharge of a patient in a nursing facility which is part of a continuing care facility, effective June 7, 1994; P.A. 95-160 amended Subsec. (a) by replacing former definition of "nursing facility" with new definitions applicable to section, amended Subsec. (c) by allowing a facility to notify, in writing, or other responsible party, if known, of a patient transfer or discharge and by requiring additional information in the notice of transfer or discharge, deleted in Subsec. (h)(1) a provision allowing a patient notified of a transfer or discharge to request a hearing within 10 days of receipt of such notice and added requirement that commissioner provide notice to a patient within 5 business days of receipt of a notice of proposed transfer or discharge and specified the provisions such notice shall include, amended Subsec. (h)(2) by replacing the Commissioner of Public Health and Addiction Services with the Commissioner of Social Services, by extending the time for a hearing to be held from within 7 "business days" to not less than 10 but not more than 30 days of the date of such request, by requiring the commissioner to issue a written decision of his determination, by extending the time the commissioner has to issue such decision from within 20 days "of the termination of the hearing" to within 60 days "of the determination of the hearing" or within 90 days of the date of the hearing request, whichever occurs sooner and by adding a provision that the facility shall prove by a preponderance of the evidence that it has complied with the provisions of this section, added Subsec. (h)(3)and (4) re requirements for the patient to have the opportunity to examine the contents of such patient's file and re commissioner's authority to order an independent medical assessment for a hearing, amended Subsec. (h)(5) by deleting a provision allowing a facility, in an emergency, to request the commissioner to make a determination as to the need for an immediate transfer or discharge of a patient, by adding a provision providing that in an emergency, "notice required pursuant to subsection (c) of this section and subdivision (1) of this subsection shall be provided as soon as practicable", by adding a definition of emergency and by adding a provision allowing a patient who is transferred or discharged on an emergency basis to contest the action by requesting a hearing, amended Subsec. (h)(6) by providing that an emergency transfer or discharge be excepted from this Subdiv. and by adding Subdiv. (B) prohibiting the transfer or discharge of a patient prior to 15 days from the receipt of the decision and added Subsec. (h)(7) requiring a copy of the decision of the commissioner be sent to the facility and made technical changes, effective July 1, 1995; P.A. 96-139 changed effective date of P.A. 95-160 but without affecting this section; June 18 Sp. Sess. P.A. 97-2 amended Subsec. (c) by eliminating the requirement that the commissioner be notified by a facility of a transfer or discharge and requiring notification to include the procedures for the right to appeal, amended Subsec. (e) by adding transfer to a hospital or transfer into or out of a Medicare distinct part within the same institution to the exceptions in which a patient may be transferred or discharged unless a discharge plan has been developed and eliminating a requirement that the department be notified of an involuntary discharge if the patient receives payments under Title XIX of the federal Social Security Act, as amended, deleted Subsec. (h)(1) which required that the department notify the patient or his representative of any transfer or discharge action a facility plans to make, renumbered the remaining Subdivs. of Subsec. (h) and made technical and conforming changes, effective July 1, 1997; P.A. 99-176 amended Subsec. (c) to substitute "State Long-Term Care Ombudsman" for "state nursing home ombudsman" and to make provisions gender neutral, effective July 1, 1999; P.A. 03-278 made technical changes in Subsec. (c), effective July 9, 2003.

      See Sec. 17b-454 re power of Department of Social Services to take actions necessary to assure health, safety and welfare of the elderly and to transfer an elderly person from a nursing home.