2013 Maryland Code
HEALTH - GENERAL
§ 19-345 - Transfer or discharge of resident

§19-345.

(a) A resident of a facility may not be transferred or discharged from the facility involuntarily except for the following reasons:

(1) The transfer or discharge is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility;

(2) The transfer or discharge is appropriate because the resident’s health has improved sufficiently so that the resident no longer needs the services provided by the facility;

(3) The health or safety of an individual in a facility is endangered;

(4) The resident has failed, after reasonable and appropriate notice, to pay for, or under Medicare or Medicaid or otherwise, to have paid for a stay at the facility; or

(5) The facility ceases to operate.

(b) (1) A Medicaid certified facility may not:

(i) Include in the admission contract of a resident any requirement that, to stay at the facility, the resident will be required to pay for any period of time or amount of money as a private pay resident for any period when the resident is eligible for Medicaid benefits; or

(ii) Transfer or discharge a resident involuntarily because the resident is a Medicaid benefits recipient.

(2) (i) Except as provided in subparagraph (ii) of this paragraph, a Medicaid certified facility is presumed to be transferring or discharging a resident in violation of this subsection, if the resident is or becomes eligible for Medicaid benefits.

(ii) A Medicaid certified facility is not presumed to be transferring or discharging a resident in violation of this subsection for transferring or discharging a resident for nonpayment for services while the resident was ineligible for assistance under the medical assistance program.

§ 19-345 - 1. Notice of discharge or transfer

(a) In general. -- Except as provided in subsection (e) of this section, a facility shall provide the resident with written notice of:

(1) Any proposed discharge or transfer; and

(2) The opportunity for a hearing in accordance with the provisions of this section before the discharge or transfer.

(b) Standard form. -- The Department shall prepare and provide each facility with a standardized form that provides, in clear and simple language, at least the following information:

(1) Notice of the intended discharge or transfer of the resident;

(2) Each reason for the discharge or transfer;

(3) The right of the resident to request a hearing;

(4) The right of the resident to consult with any lawyer the resident chooses;

(5) The availability of the services of the Legal Aid Bureau, the Older American Act Senior Legal Assistance Programs, and other agencies that may provide assistance to individuals who need legal counsel;

(6) The availability of the Department of Aging and local Office on Aging Long-Term Care Ombudsman to assist the resident; and

(7) The provisions of this section.

(c) When given; to whom given. -- Except as otherwise provided in this section, at least 30 days before the facility involuntarily transfers or discharges a resident, the facility shall:

(1) Provide to the resident the written notice required under subsection (a) of this section; and

(2) Provide the written notice required under subsection (a) of this section to:

(i) The next of kin, guardian, or any other individual known to have acted as the individual's representative, if any;

(ii) The Long-Term Care Ombudsman; and

(iii) The Department.

(d) Hearing; escrow account; appeal. --

(1) (i) In accordance with regulations adopted by the Secretary, the facility shall provide the resident with an opportunity for a hearing on the proposed transfer or discharge.

(ii) The regulations adopted by the Secretary may provide for the establishment of an escrow account when:

1. The basis for the discharge is nonpayment; and

2. The resident continues to reside in the facility while the appeal is pending.

(2) Except as otherwise provided in this subsection, hearings on proposed transfers or discharges shall be conducted in accordance with the provisions of Title 10, Subtitle 2 of the State Government Article and the Medicaid Fair Hearing Procedures.

(3) Any hearing on a proposed discharge or transfer of a resident:

(i) Is not a contested case as defined in § 10-202 of the State Government Article; and

(ii) May not include the Secretary as a party.

(4) A decision by an administrative law judge on a proposed discharge or transfer of a resident:

(i) Is not a decision of the Secretary;

(ii) Unless appealed, is final and binding on the parties;

(iii) Is not reviewable by the Board of Review of the Department; and

(iv) May be appealed in accordance with § 10-222 of the State Government Article as if it were a contested case but the appeal does not automatically stay the decision of the administrative law judge.

(e) Scope of section. --

(1) The provisions of this section requiring 30 days' notice and an opportunity for a hearing before discharge or transfer of a resident do not apply if:

(i) An emergency exists and health or safety of the resident or other residents would be placed in imminent and serious jeopardy if the resident were not transferred or discharged from the facility as soon as possible; or

(ii) The resident has not resided in the facility for 30 days.

(2) If a facility discharges or transfers a resident under the provisions of this subsection, the facility shall provide reasonable notice of the proposed discharge or transfer.

§ 19-345 - 2. Involuntary discharge

(a) Requirements. -- In addition to the provisions of §§ 19-345 and 19-345.1 of this subtitle, a facility may not involuntarily discharge or transfer a resident unless, within 48 hours before the discharge or transfer, the facility has:

(1) Provided or obtained:

(i) A comprehensive medical assessment and evaluation of the resident, including a physical examination, that is documented in the resident's medical record;

(ii) A post discharge plan of care for the resident that is developed, if possible, with the participation of the resident's next of kin, guardian, or legal representative; and

(iii) Written documentation from the resident's attending physician indicating that the transfer or discharge is in accordance with the post discharge plan of care and is not contraindicated by the resident's medical condition; and

(2) Provided information to the resident concerning the resident's rights to make decisions concerning health care, including:

(i) The right to accept or refuse medical treatment;

(ii) The right to make an advance directive, including the right to make a living will and the right to appoint an agent to make health care decisions; and

(iii) The right to revoke an advance directive.

(b) Resident's information. -- Except as provided in subsection (c)(3) of this section, at the time of transfer or discharge, the facility shall provide the resident or the resident's next of kin, guardian, or legal representative with:

(1) A written statement of the medical assessment and evaluation and post discharge plan of care required under subsection (a) of this section;

(2) A written statement itemizing the medications currently being taken by the resident;

(3) To the extent permitted under State and federal law, at least a 3-day supply of the medications currently being taken by the resident;

(4) The information necessary to assist the resident, the resident's next of kin, or legal representative in obtaining additional prescriptions for necessary medication through consultation with the resident's treating physician; and

(5) A written statement containing the date, time, method, mode, and destination of discharge.

(c) Written consent to discharge. --

(1) Except as provided in paragraphs (2) and (3) of this subsection, a facility may not discharge or transfer a resident unless the resident is capable of and has consented in writing to the discharge or transfer.

(2) A facility may discharge or transfer a resident without obtaining the written consent of the resident if the discharge or transfer:

(i) Is in accordance with a post discharge plan of care developed under subsection (a) of this section; and

(ii) Is to a safe and secure environment where the resident will be under the care of:

1. Another licensed, certified, or registered care provider; or

2. Another person who has agreed in writing to provide a safe and secure environment.

(3) A facility that is certified as a continuing care provider under Title 10, Subtitle 4 of the Human Services Article is not subject to the provisions of subsection (b) of this section if:

(i) The facility transfers a resident to a lesser level of care within the same facility in accordance with a contractual agreement between the facility and the resident; and

(ii) The transfer is approved by the attending physician.

(d) Discharge planning process. -- If the requirements of §§ 19-345 and 19-345.1 of this subtitle and subsections (a) and (b) of this section have been met, the resident's next of kin or legal representative shall cooperate and assist in the discharge planning process, including:

(1) Contacting, cooperating with, and assisting other facilities considering admitting the resident; and

(2) Cooperating with governmental agencies, including applying for medical assistance for the resident.

(e) Attorney General. -- If requested by any person during the process of transferring or discharging a resident or on its own initiative, the Office of the Attorney General may investigate whether an abuse of funds under § 19-346 of this subtitle contributed to the decision to transfer or discharge the resident and may make appropriate referrals of the matter to other government agencies.

§ 19-345 - 3. Penalties

(a) Violations by facility or resident's agent or legal representative. -- The Secretary may impose a civil money penalty not to exceed $ 10,000 for:

(1) Each violation by a facility of § 19-345, § 19-345.1, or § 19-345.2 of this subtitle; or

(2) Each willful or grossly negligent violation by a resident's agent or legal representative of § 19-345, § 19-345.1, or § 19-345.2 of this subtitle.

(b) Appeal. -- If a civil money penalty is imposed under this section, the facility or agent or legal representative of the resident shall have the right to appeal from an order imposing the civil money penalty in accordance with Title 10, Subtitle 2 of the State Government Article.

(c) Injunctive relief. -- A resident, resident's agent, or resident's attorney, or the Attorney General on behalf of the resident, who believes that an involuntary discharge or transfer that violates the requirements of § 19-345, § 19-345.1, or § 19-345.2 of this subtitle is imminent or has taken place may request injunctive relief from a circuit court.