Updates from Quarterly DOH-Nursing Home Provider Association Meeting

(Feb. 18, 2025) On Feb. 13, 2025, the Department of Health (DOH) hosted a quarterly nursing home provider association meeting highlighting changes regarding Transfer/Discharge as well as Plans of Correction (POCs) and Directed Plans of Correction (DPOCs).

Transfer/Discharge

DOH reviewed Dear Administrator Letter (DAL) NH 25-01, Transfer or Discharge Notice Expectations, as it relates to notification of the Ombudsman as well as resident/representative notice. The DAL is available here.

From the DAL:

Federal regulations governing Nursing Homes provide various protections for residents, including the right to remain in the facility unless a limited set of circumstances applies. Specifically, Title 42 of the Code of Federal Regulations (“42 CFR”), Section 483.15(c)(1)(i) states that “The facility must permit each resident to remain in the facility, and not transfer or discharge the resident from the facility unless -

The transfer or discharge is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility;
The transfer or discharge is appropriate because the resident’s health has improved sufficiently so the resident no longer needs the services provided by the facility;
The safety of individuals in the facility is endangered due to the clinical or behavioral status of the resident;
The health of individuals in the facility would otherwise be endangered;
The resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare or Medicaid) a stay at the facility. Nonpayment applies if the resident does not submit the necessary paperwork for third party payment or after the third party, including Medicare or Medicaid, denies the claim and the resident refuses to pay for his or her stay. For a resident who becomes eligible for Medicaid after admission to a facility, the facility may charge a resident only allowable charges under Medicaid; or
The facility ceases to operate.”

The following table illustrates minimum requirements the facility must demonstrate when one of the referenced regulatory circumstances applies. Please note that it is not intended to be all-inclusive as each circumstance is unique.

*Circumstance* *(42 CFR)*	*Minimum Requirement*
§ 483.15(c)(1)(i)(A)	The medical record must substantiate the basis for the transfer or discharge. Accordingly, such documentation must be made before or as close as possible to the actual time of transfer or discharge. The resident’s physician must document the basis for transfer or discharge. The inability to meet the resident’s needs, at minimum the documentation made by the resident’s physician must include: The specific resident needs the facility could not meet; The facility’s efforts to meet those needs; and The specific services the receiving facility will provide to meet the needs of the resident that cannot be met at the current facility.
§ 483.15(c)(1)(i)(B)	The medical record must substantiate the basis for the transfer or discharge. Accordingly, such documentation must be made before or as close as possible to the actual time of transfer or discharge. The resident’s physician must document the basis for transfer or discharge.
§ 483.15(c)(1)(i)(C)	The medical record must substantiate the basis for the transfer or discharge. Accordingly, such documentation must be made before or as close as possible to the actual time of transfer or discharge.
§ 483.15(c)(1)(i)(D)
§ 483.15(c)(1)(i)(E)
§ 483.15(c)(1)(i)(F)

The State Operations Manual (SOM) has excluded the resident- or facility-initiated discharge from its language.

All discharge notices need to be sent to the Ombudsman at the time the notice is given to the resident or resident’s representative. The contact information and email address for each region can be found at the end of the DAL.

The DAL also includes Frequently Asked Questions (FAQs), which will assist facilities that need further clarification.

Plans of Correction and Directed Plans of Correction

If the POC is unacceptable for any reason, the State will notify the facility in writing. If the POC is acceptable, the State will notify the facility by phone, email, etc. Facilities should be cautioned that they are ultimately accountable for their own compliance, and that responsibility is not alleviated in cases where notification about the acceptability of their POC is not made timely. The POC serves as the facility’s allegation of compliance, and without it, the Centers for Medicare and Medicaid Services (CMS) and/or the State have no basis on which to verify compliance. A POC must be submitted within 10 calendar days of the date the facility receives its Form CMS-2567. If an acceptable POC is not received within this timeframe, the State notifies the facility that it is recommending to the Regional Office (RO) and/or the State Medicaid Agency that remedies be imposed effective when notice requirements are met. The requirement for a POC is in 42 CFR Section 488.402(d). Further, 42 CFR Section 488.456(b)(ii) requires CMS or the State to terminate the provider agreement of a facility that does not submit an acceptable POC.

The facility’s POC must include the following elements to be acceptable:

Element 1 – Address how corrective action will be accomplished for those residents found to have been affected by the deficient practice
Element 2 – Address how the facility will identify other residents having the potential to be affected by the same deficient practice
Element 3 – Address what measures will be put into place or systemic changes made to ensure that the deficient practice will not recur
Element 4 – Indicate how the facility plans to monitor its performance to make sure that solutions are lasting
Element 5 – Include dates when corrective action will be completed.

For Category 1 remedies imposed, the facility will need to hire an outside consultant not employed by the facility to write a DPOC and/or Directed In-Service to be in compliance with their POC. DOH clarified that if a DPOC is imposed, the facility will need to reference the DPOC in their written in the text for the F-tag cited. If the facility fails to reference the DPOC, the POC will be rejected. This is only a requirement for facilities located in NYS. According to DOH, all ROs have been educated regarding this requirement.

Contact: Amy Nelson, anelson@leadingageny.org, 518-867-8383 ext. 146