Protecting residents’ rights Through discharge notice collection and review The Office of the DC Long-Term Care Ombudsman Legal Counsel for the Elderly a DC Office on Aging Network Provider Consumer Voice Conference 2018

The Office of the DC Long-Term Care Ombudsman DC Office on Aging (DCOA) established the Office of DC Long-Term Care Ombudsman in 1975 DCOA awarded a grant to Legal Counsel for the Elderly (LCE) to operate the Ombudsman Program in 1985. DCLTCOP includes the District Ombudsman, 7 staff ombudsmen, 29 volunteers, an administrative associate, and a full-time attorney The District has 18 nursing homes with 2,582 beds and 12 ALRs and 101 CRFs with 1,576 beds

Residents Have Federally Protected Rights During Discharges/Transfers 42 CFR 483.15 protects residents’ rights to: Be discharged only for limited reasons Receive advance notice (30 days) Appeal the proposed discharge/transfer Not be discharged while the appeal is pending Be provided with preparation and orientation for a safe discharge/transfer (discharge planning)

Still … Violations of Discharge/Transfer Rights Remain an Ongoing Issue Complaints to the Ombudsmen Program about discharge and transfer remain the number one complaint throughout the country Complaints include failure of facilities to issue notices and follow the appeal process Identifying invalid discharge notices before the specified appeal deadline or the resident is moved is a challenge

Actions by Ombudsman Programs to Reduce These Complaints Educate residents, families, providers, administrative law judges and other stakeholders Partner with other stakeholders including local legal agencies to assist and represent residents facing discharges Work to change policies and law to better assist Ombudsman Programs in challenging and stopping involuntary discharges

Using revised 42 CFR 483.15(c)(3)(i) To Address These Complaints This Section revises the regulations to require facilities to send a copy of the notice to a representative of the Office of the State Long-Term Care Ombudsman This change could place a burden on Offices in receiving and tracking notices, however, this process can also prevent illegal discharges and identify systemic issues DCLTCOP has been receiving and tracking these notices for over 20 years and produces an annual brief on nursing home notice deficiencies

Federal Regulations are Strengthened by DC Law The DC Ombudsman receives notices in compliance with D.C. 6-108 Law (Nursing Homes and Community Residence Facilities Protection Act of 1985, D.C. Code § 44-1003.01-13, et al. The DC Ombudsman has worked with the regulatory agencies to develop and implement a single one notice for all discharges, transfers and relocations These notices are required to be sent by nursing homes, assisted living residences and community residence facilities The DCLTCOP receives approximately ??? Notices each year

DC’s Process in Receiving and Tracking Notices All notices are required to be faxed to a DCLTCO dedicated and secure fax number. DCLTCOP has one primary administrative staff person who receives the notices, tags and uploads into the Customer Box system which is an online storage system with limited accessibility. This staff person provides a daily update to the DC Ombudsman on the number of notices received and from which facilities. Once uploaded the ombudsmen assigned to the specific nursing home will review the notices and decide on next steps.

DC Process/Ombudsman Review Requiring Next Steps The assigned Ombudsman reviews questionable notices using the following procedures: After reviewing a questionable notice, the Ombudsman will reach out quickly to resident, the facility and, if necessary, the regulatory agency for investigative purposes. If invalid, the Ombudsman will notify the facility and request it is rescinded. If not resolved, the Ombudsman can file a formal complaint to the regulatory agency The Ombudsman will also advise the resident and his/her representative of the resident’s rights to appeal and to stay the discharge. If not resolved, the Ombudsman will refer to DCLTCOP attorney.

Impact of Reviewing Notices for Individual Residents Prevents illegal discharges or hospital dumping. Identify other resident right violations associated with a notice or a group of notices. Ensure Facilities are following the required discharge and transfer law. Better inform the regulatory agency of these violations.

Impact of Reviewing Notices on Systemic Issues Utilize data to identify widespread compliance issues. Utilize data to partner with regulatory agency and other stakeholders to make changes in the law and policy. Identify other noncompliance issues in a long term care facility for education purposes. 1)When discussing widespread compliance issues, this could be issues encompassing numerous nursing homes through out DC or be widespread throughout one nursing home. We have been alert to unsafe discharge locations because the same location is listed for more than resident and in more than one nursing home. It has been determined by our reg aency that homeless shelters are not safe locations. Years ago, nursing homes tried to get around this restriction by just listing the address. We saw this same address over and over. Recently, nursing homes throughout DC are using motels. We saw this on more than one notice and now working with Regulatory agency. Regarding widespread compliance issues within one nursing home. Reviewing transfer notices, saw many residents being transferred to hospitals for respiratory Problems. After an investigation, confirmed there was mold in facility. Now, we use to track number Of falls within a facility. 2) Data can also help change the law. We used data from notices to change our discharge transfer law to Include added protections by requiring facilities to do discharge planning for all discharges. Also, we were able to get “location’ added. This was already required for nhms, but now protects residents from ALRs and CRFs from being discharged without an appropriate location. 3) We do try to work with providers regarding noncompliance notice noncompliance issues. We do in-service trainings in individual facilities/Mark just did a training for all providers at their assoc’s meeting. We also do trainings for FCs and RCs.

Challenges Facing Our Office in This Review Process Lack of resources to review and assess notices every day. Ability to address the minor along with major deficiencies in a timely manner. Developing policies and procedures for collection and retention of all notices.

Meeting the Challenges By Use of Volunteers to review notices especially regarding document deficiencies. Use of legal interns to track notices for a specific period of time. Access to legal representation to quickly challenge the notice if necessary

Use of Volunteers Develop trainings and forms for volunteers to assist with notice review.   Excerpt from review sheet given to Volunteers: Number of specific deficiencies found in the Contents of Notices: ______ Name of facility, Resident and Resident’s Name ______ Designation of discharge, transfer or relocation ______ Specific Reason for Action ______ Date of Discharge/Transfer or Relocation _______ Bed Hold Days ______ Person Supervising Discharge _______ Signatures ________Appeal Rights

Use of Legal Interns Use tracking forms for daily review. Develop of time-period study used by the legal interns. The study would give examples of the number of facilities who submitted notices along with statistics on deficiencies. Share the results of this study with regulatory agency and pertinent facilities.

Access to Legal Representation DC laws allows the DCLTCO to file to contest a legally deficient notice without having to meet with resident first. DC has an attorney who works directly with and for the program. The law and access to representation eliminates the discharge process as an easy way for a facility to unilaterally remove residents. This increase of legal representation actually resolving contested cases without having to go to court or in some instances without having a formal notice issued.

Office of DC Long-Term Care Ombudsman Contact Information Mark C. Miller District of Columbia Ombudsman Office (202) 434-3038 Fax: (202) 434-6595 mcmiller@aarp.org Anthony Kahaly Nursing Home Ombudsman     Office:  202-434-2124   Fax: 202-434-6595     akahaly@aarp.org Mary Ann B. Parker Staff Attorney Office: (202) 434-2116 Fax: 434-6595 maparker@aarp.org

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