Section 75-01-03-08.1 - Notice of facility's intention to transfer or discharge a resident1. For purposes of this section: a. "Discharge" means movement from a facility to a noninstitutional setting when the discharging facility ceases to be legally responsible for the care of the resident. b. "Resident" includes a person who has been admitted and any legal representative of the resident. c. "Transfer" means movement from a facility to another institutional setting when the legal responsibility for the care of the resident changes from the transferring facility to the receiving institutional setting. 2. Except as provided in subsection 4, a facility shall issue a written notice of involuntary transfer or discharge, which meets the requirements of subsection 3, at least thirty days before the date of intended transfer or discharge. The first day of that thirty-day period is the day after the date of issuance. The date of issuance is the day notice is delivered or mailed to the resident. 3. The notice provided by the facility must contain: a. A statement that the facility intends to transfer or discharge the resident, as the case may be; b. The reason for the transfer or discharge; c. The effective date of the transfer or discharge; d. The location to which the resident is to be transferred or discharged; e. The specific provision of subsection 7 authorizing the transfer or discharge, or the change in federal or state law requiring the action; f. A statement that the resident has the right to appeal the intended transfer or discharge to the department, and the mailing address to which an appeal must be sent; g. The name, address, and telephone number of the state long-term care ombudsman; h. If the resident is developmentally disabled or mentally ill, the address and telephone number of the committee on protection and advocacy office that serves the area in which the resident resides; i. If the medicaid program is paying for some or all of the cost of services furnished to the resident by the facility, a statement that those medicaid payments will continue until after the hearing unless: (1) The sole issue at the hearing is one of state or federal law or policy and the resident is so informed in writing; or (2) Some change in circumstances affects the resident's eligibility for medicaid benefits and the resident is so notified in writing. j. A statement that the transfer or discharge will be delayed, if a request for fair hearing is filed before the effective date of the transfer or discharge: (1) In the case of a discharge for nonpayment of facility charges, at least until the hearing officer recommends a decision that the charges were due and unpaid at the time the facility issued a notice of discharge; and (2) In all other cases, until the fair hearing decision is rendered. k. A statement that the resident may represent himself or herself at the hearing or may use legal counsel, a relative, a friend, or other spokesperson. 4.a. A facility need not provide a notice under subsection 2 if the resident: (1) Provides a clear written statement, signed by the resident, that the resident does not object to a proposed transfer or discharge; or (2) Gives information that requires a transfer or discharge and indicates that the resident understands that a transfer or discharge will result. b. A facility must issue a notice that meets the requirements of subsection 3, as soon as practicable before an involuntary transfer or discharge, when: (1) The safety of individuals in the facility would be endangered; (2) The health of individuals in the facility would be endangered; (3) The transfer or discharge is appropriate because the resident's health has improved sufficiently to allow a more immediate transfer or discharge; (4) An immediate transfer or discharge is required by the resident's urgent medical needs which cannot be met in the facility; or (5) The resident has not resided in the facility for thirty days. 5. A resident of a facility may appeal a notice from the facility of intent to discharge or transfer the resident. A resident has appeal rights when the resident is transferred from a certified bed to a noncertified bed or from a bed in a certified facility to a bed in a facility certified as a different provider. A resident has no appeal rights when the resident is moved from one bed in a certified facility to another bed in the same certified facility. A resident has no appeal rights if the transfer or discharge has taken place and the resident did not appeal within thirty days after the date of issuance of a notice that meets the requirements of subsection 3. 6. If a resident with appeal rights files an appeal before the effective date of the transfer or discharge, the resident shall not be transferred or discharged: a. In the case of a discharge for nonpayment of facility charges, earlier than the date a hearing officer recommends a decision that the charges were due and unpaid at the time the facility issued a notice of discharge; and b. In all other cases, until the fair hearing decision is rendered. 7. A facility may not discharge or transfer a resident unless: a. The resident has an urgent medical need, which cannot be met in the facility; b. The resident's physical condition endangers or poses a threat to the health or safety of the resident or other persons in the facility; c. In cases involving a mental condition or behavioral problem, the behavior of the resident creates a serious and immediate threat to the resident or other residents or persons in the facility and all reasonable alternatives to transfer or discharge, consistent with the attending physician's orders, have been attempted and documented in the resident's medical record; d. The resident's health has improved sufficiently so the resident no longer needs the services provided by the facility; e. The resident was accepted by the facility for the purpose of receiving specialized services and has fully benefited from those services or can no longer benefit from those services, provided that the purpose of the admission and the expected length of stay were agreed to, in writing, by or on behalf of the resident, prior to admission; f. The resident's health or safety is at risk because the facility cannot reasonably accommodate the needs of the resident; g. A public official with jurisdiction over matters of health or safety, in the performance of official duties, determines the health or safety of the resident is endangered by continued residence in the facility; h. The facility's license is revoked, suspended, or not renewed, or the facility's participation in medicare or medicaid is terminated; i. The facility intends to cease operations; or j. The resident fails to pay, or to arrange for payment of, charges based on the daily rate established under chapter 75-02-06, provided that no involuntary transfer or discharge may be based on a failure to pay charges for private rooms, holding a bed for a period in excess of the covered bed hold period set forth in section 75-02-06-14, special services not included in the daily rate, or medicare part B coinsurance and deductible. N.D. Admin Code 75-01-03-08.1
Effective February 1, 1995; amended effective July 1, 1996; May 1, 2006.General Authority: NDCC 28-32-02, 50-06-16
Law Implemented: NDCC 50-06-05.1