FutureFocus January 24, 2018 Policy Insights

Lisa Remington

In this week’s FutureFocus, we discuss recommendations for future Medicare payments for home health, hospice and SNF. It is recommended that therapy payments be eliminated in home health. In another article, we provide key findings related to ACOs and the importance of discharge planning. In a related article, improper discharges from SNFs may start receiving civil penalties. Don’t miss the most common reasons for discharges from SNFs.

Lisa Remington, President, Remington Health Strategy Group

In a memo issued by CMS on December 22, 2017, post-acute discharges violating Federal regulations are one of the most frequent nursing home complaints made to the State Long Term Care Ombudsman Program.

The memo addressed to state survey agency directors, has solutions from CMS to solve the problem.


Federal regulations governing long term care facilities provide many protections for all nursing home residents, including the right to remain in the facility unless a limited set of circumstances apply: §483.15(c)(1)(i) The facility must permit each resident to remain in the facility, and not transfer or discharge the resident from the facility unless:

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

(B) 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;

(C) The safety of individuals in the facility is endangered due to the clinical or behavioral status of the resident;

(D) The health of individuals in the facility would otherwise be endangered;

(E) 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

(F) The facility ceases to operate. Facilities are required to determine their capacity and capability to care for the residents they admit, so in the absence of atypical changes in residents’ conditions, it should be rare that facilities who properly assess their capacity and capability of caring for a resident then discharge that resident based on the inability to meet their needs.

"The most commonly reported reason that residents are discharged is due to behavioral, mental, and/or emotional expressions or indications of resident distress." 

Occurrence of Facility initiated Discharges/Evictions Facility-initiated discharges continue to be one of the most frequent complaints made to State Long Term Care Ombudsman Programs. In FY 2015, ‘‘discharge/eviction’’ was the most frequent nursing facility complaint category processed by the Long-Term Care Ombudsman Programs nationally. Discharges which violate federal regulations are of great concern because in some cases they can be unsafe and/or traumatic for residents and their families. These discharges may result in residents being uprooted from familiar settings; termination of relationships with staff and other residents; and residents may even be relocated long distances away, resulting in fewer visits from family and friends and isolation of the resident. In some cases, residents have become homeless or remain in hospitals for months. The reasons for non-compliant discharges can vary. Analysis of federal deficiencies indicate that some discharges are driven by payment concerns, such as when Medicare or private pay residents shift to Medicaid as the payment source.

The Most Common Reasons For Discharges

The most commonly reported reason that residents are discharged is due to behavioral, mental, and/or emotional expressions or indications of resident distress. Sometimes facilities discharge residents while the resident is hospitalized for health concerns unrelated to the behaviors that form the alleged basis for the discharge. CMS is evaluating facility initiated discharge issues in nursing homes and considering a variety of interventions, including surveyor and provider training, intake and triage training, CMP funded projects that may help prevent facility initiated discharges that violate federal regulations, and enforcement. CMP Proposals Encouraged CMS is encouraging States to consider CMP reinvestment proposals that would utilize funds to prevent improper facility initiated discharges.

Such proposals may include but are not limited to the following:

  • Projects designed to educate residents and their families on their rights in relation to facility initiated discharge;
  • Projects creating teams of health professionals who could provide immediate support to facilities around the state to reduce risk of harm to self or others when a resident is exhibiting expressions or indications of distress. Such support may include consultation, resident assessments, and/or creating a more person-centered plan of care. This may be accomplished through in-person consultation or remotely with telemedicine;
  • Projects designed to educate facility staff on best practices for engaging residents and families in collaborative strategies such as person-centered environments and care plans to reduce resident distress; and/or
  • Formation and support of a collaborative group focusing on nursing home issues such as resident placement or transitional care, residents expressing or indicating distress, or medically complex residents such as those with dementia or delirium. Group members may consist of nursing homes, ombudsman, local hospitals, providers of long term services and supports, the regional QIN-QIO, and other stakeholders who have a vested interest in the protection and quality of care nursing home residents receive.

Appropriate use of CMP funds for this project may include but are not limited to a meeting space, facilitator, or administrative support for the group. Examples of organizations that could qualify include but are not limited to consumer advocacy organizations, resident or family councils, professional or state nursing home associations, private contractors, etc. Funds cannot be used to supplant activities that are already required or funded. For example, it may be appropriate for representatives from QIN-QIO or ombudsman organizations to participate in activities related to these projects, but their specific engagement shouldn’t be funded through CMP funds.