Other·March 21, 2022

HSC 1439.6 (a)-(d) Health & Safety Code 1439 (a) Except as provided in subdivision (b), if a resident is notified in writing of a facility-initiated transfer or discharge from a long-term health care facility, the facility shall also send a copy of the notice to the local long-term care ombudsman at the same time notice is provided to the resident or the resident's representative. (b) If a resident is subject to a facility-initiated transfer to a general acute care hospital on an emergency basis, the facility shall provide a copy of the notice to the ombudsman as soon as practicable. (c) The copy of the notice shall be sent by fax machine or email, as may be directed by the local long-term care ombudsman, unless the facility does not have fax or email capability, in which case the copy of the notice shall be sent by first-class mail, postage prepaid. A facility's failure to timely send a copy of the notice shall constitute a class B violation, as defined in subdivision (e) of Section 1424. (d) For the purposes of this section, a "facility-initiated transfer or discharge" is a transfer or discharge that is initiated by the facility and not by the resident, whether or not the resident agrees to the facility's decision. On 8/10/21, at 2:15 p.m., an unannounced visit was conducted at the facility to investigate a complaint regarding Resident 1, for an allegation that the resident had been involuntarily discharged from the facility. The facility initiated Resident 1's discharge on 7/14/21. When doing so, the facility failed to comply with HSC 1439.6 (a)-(d), when the facility did not: 1. Provide a copy of the notice of facility-initiated discharge to the LTC Ombudsman; and 2. Provide a copy of the notice of discharge to the resident's representative for medical and financial decision-making. During a record review of Resident 1's "Admission Record," dated 8/10/2021, at 2:16 p.m., the Admission Record indicated, Resident 1 was admitted to the facility on 3/29/2021. Resident 1's medical diagnoses included fracture of the right patella (The patella is a small bone located in front of the knee joint) and the right tibial tuberosity (A moderate prominence where muscles and connective tissues attach), muscle weakness, difficulty walking, repeated falls, alcohol abuse, and anxiety disorder. The Admission Record indicated that Resident 1's husband (representative) was the resident's: "Power of Attorney" for medical care, "Responsible Party" for financial considerations, and primary "Emergency Contact." During a record review of Resident 1's "History and Physical" (H&P) from the acute care hospital dated 3/22/2021, the H&P indicated Resident 1 was an elderly female with alcohol dependence, history of falls, hypertension, and presented to the hospital ER (Emergency Room) in severe pain after a fall. The H&P indicated Resident 1 was drinking alcohol and had a mechanical, ground-level fall (A ground-level fall typically is defined as one that begins when a person has his or her feet on the ground) and the impact of the fall was on Resident 1's face and right knee. During an interview on 8/10/2021, at 2:05 p.m., with Resident 1, Resident 1 stated that she was informed by Administrative Staff A that the facility initiated her discharge by asking her to sign the discharge document, which she refused. Resident 1 stated that her husband could not take care of her at home. Resident 1 stated that her husband made the decisions regarding her care. During an interview on 8/11/2021, at 8:20 a.m., with Resident 1's representative, he stated that he received a copy of Notice of Medicare Non-Coverage for Resident 1 and he had contacted multiple agencies to appeal the decision. Resident 1's representative stated he never received Notice of Proposed Transfer/Discharge in writing from the facility. Resident 1's representative stated he could not care for Resident 1 if she would be discharged to their home. Resident 1's representative stated he was Resident 1's POA (Power of Attorney) to make health care decisions for her and that he had instructed her to not to sign any documents from the facility because he had to review them first. Resident 1's representative stated that a hearing to review Resident 1's involuntary discharge from the facility was conducted by the Office of Administrative Hearings and Appeals (OAHA) of the Department of Health Care Services (DHCS) on 7/26/2021, and his appeal was granted. As such, Resident 1 was permitted to remain in the facility. During an interview on 10/7/2021, at 10:30 a.m., with Administrative Staff A, Administrative Staff A stated that she provided the Notice of Proposed Transfer/Discharge to Resident 1 on 7/14/2021, but Resident 1 refused to sign the notice. Administrative Staff A stated she did not provide the Notice of Proposed Transfer/Discharge to Resident 1's representative because Resident 1 was responsible for herself. Administrative Staff A stated that the LTC Ombudsman's office was not provided with the Notice of Proposed Transfer/Discharge because the resident refused to sign the notice. During an interview on 10/11/2021, at 11:25 a.m., with the facility's Director of Nursing (DON), the DON stated that the facility did not send a copy of the Notice of Proposed Transfer/Discharge to the LTC Ombudsman because Resident 1 refused to sign the discharged notice and remained in the facility. The DON stated that Resident 1 was not incapacitated and can decide for herself. The DON stated Resident 1's husband was not provided with a copy of the discharge notice. During an interview on 10/11/2021, at 2:43 p.m., with the LTC Ombudsman, she stated she had not received a Notice of Proposed Transfer/Discharge for the facility-initiated discharge planned for Resident 1 on 7/14/2021. The LTC Ombudsman stated that it was difficult to advocate for the health and safety the residents of the facility if the LTC Ombudsman's Program was not being provided with these notices. During a review of a facility document titled, "Notice of Proposed Transfer/Discharge," the notice indicated that it was provided to Resident 1 on 7/14/2021, and the effective date of Transfer/Discharge was 7/17/2021. The notice indicated that Resident 1 will be discharged to the same address as her representative. The notice was signed by Administrative Staff A and Administrative Staff B. The notice had a handwritten note that stated, "Pt (patient) is refusing to sign." During a review of a document titled, "Advanced Health Care Directive of Resident 1," signed by Resident 1 on 2/18/2016, the document indicated, "I do hereby designate and appoint [resident's representative] ... as my agent to make health care decisions for me as authorized in this document. My agent's authority shall become effective immediately upon execution of the Advanced Health care Directive and shall remain in effect notwithstanding the state of my physical or mental capacity." During a review of facility policy and procedure (P&P) titled, "Admission, Transfer, and Discharge; Criteria for Transfer and Discharge," revised 2019, the P&P indicated, "The facility will notify the local LTC Ombudsman when a facility-initiated transfer or discharge occurs. The facility must send notice to the local LTC Ombudsman for any transfer or discharge that is initiated by the facility, whether or not the resident agrees with the facility's decision." This facility P&P did not indicate a language that staff have a duty to notify a resident representative during a facility-initiated transfer, a requirement indicated by federal regulation. In violation of the above-cited laws, the facility failed to notify necessary parties of a facility-initiated discharge when facility staff did not notify Resident 1's representative or the LTC Ombudsman in writing when the facility initiated Resident 1's discharge. These failures did not ensure notification to all necessary parties regarding the resident's facility-initiated discharge and did not afford Resident 1 the appropriate advocacy and support during the resident's facility-initiated discharge. This violation had a direct and immediate relationship to Resident 1's health, safety, and security.