OAH Docket No. 8-0900-17475-2
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF HEALTH
|
In the Matter of the
Involuntary Discharge of E.H. (Petitioner) by |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATIONS |
The Minnesota Department of Health (the Department) initiated this contested
case proceeding by issuing a Notice of and Order for Hearing on August 30,
2006. The notice scheduled a hearing in
this matter for Wednesday, September 13, 2006, at Augustana Health Care of
Hastings,
Lori Goetz, Regional Ombudsman, Office
of Ombudsman for Older Minnesotans, Post Office Box 64971, Saint Paul, MN
55164-0971 appeared as the representative of Petitioner E. H. in this
proceeding. Steve Vesall, Augustana Care
Corporation,
NOTICE
This Report is only a recommendation to the Commissioner and is not a
final decision. The Commissioner will make her final decision after reviewing
this report and the hearing record. In making that decision the
Commissioner may adopt, reject or modify the Findings of Fact, Conclusions, and
Recommendations that appear in this Report.[1]
Under Minnesota Law,[2] the
Commissioner may not make her final decision until after the parties have had
access to this Report for at least ten (10) days. During that time the
Commissioner must give any party adversely affected by this Report an
opportunity to file objections to the Report and to present argument supporting
its position. As noted in the agency’s Notice of and Order for Hearing,
exceptions or arguments regarding the Report of the Administrative Law Judge
should be submitted in writing to Dianne Mandernach, Commissioner, Minnesota
Department of Health, Attention: Appeals Coordinator, 85 East Seventh Place,
P.O. Box 64970, St. Paul, MN 55164-0970.
The record of this proceeding closes upon the filing
of exceptions to the report and the presentation of argument to the
Commissioner, or upon the expiration of the deadline for doing so. The
Commissioner must notify the parties and the Administrative Law Judge of the
date upon which the record closes. If the Commissioner fails to issue a
final decision within 90 days of the close of the record, this report will
constitute the final agency decision.[3]
Likewise, the Commissioner is obliged to serve her
final decision upon each party and the Administrative Law Judge by first-class
mail.[4]
STATEMENT OF THE ISSUES
Whether Augustana may lawfully discharge
the Petitioner, E.H., for her failure to pay for the nursing care services she
has received?
Based upon the record in this matter, the Administrative Law Judge makes the
following:
FINDINGS OF FACT
1.
The Petitioner,
E.H., is an elderly woman who has both memory and cognitive impairments that impede
her functioning.[5] Also, based upon an assessment of her
“functional, treatment and diagnosis items,” E.H. was assigned a “case mix”
classification of PD1.[6]
2.
Prior to her
admission to Augustana, the Petitioner resided with her son, Robert, at her
home in a suburb of
3.
Apart from
Social Security benefits, E.H. does not have any independent source of income.[8]
4.
The Petitioner’s
son, Richard, holds a power of attorney that empowers him to handle E.H.’s
financial affairs.[9]
5.
On or about March
10, 2005, Linda, Richard’s spouse, executed an Admissions Agreement with
Augustana for the provision of nursing care services to E.H. The Admission Agreement states that Linda, as
the “Responsible Party,” agrees:
That [she]
has access to the Resident’s income, assets and resources and agrees to apply
Resident’s income, assets and resources to pay for care provide to Resident and
other amounts due under this Agreement.
Exhibit H. Compare also, Minnesota Statutes § 144A.6501(4)(d)
(“Nursing home admission contracts”).
6.
As of June 1,
2005, in addition to her accrued balances for health care services received
from Augustana, but as to which payment was not made, E.H. was incurring new charges
at a rate of $130.70 per day.[10]
7.
On or about October 1, 2005, the daily rate
for services provided to E.H. increased to $140.06.[11]
8.
On or about
March 1, 2006, Augustana sent E.H.’s son, Richard, an invoice for an accrued balance
for E.H.’s care totaling $40,353.22.[12]
9.
On or about
April 1, 2006, E.H. became eligible for Medical Assistance benefits,
retroactive to August 1, 2005.[13]
10.
As part of
participating in the Medical Assistance program, and the opportunity to receive
both retrospective and prospective assistance, E.H. was obliged to make some
contributions (known as “spend downs”) from her own assets for each month of
Medical Assistance coverage. These
“spend down” amounts were $859 for each month of Medical Assistance coverage in
2005 and $869 for each month of coverage in 2006.[14]
11.
While E.H.’s family members did make some
payments toward the monthly “spend down” amounts after April 1, 2006, the
course of payments from E.H.’s family members did not reduce either her pre-eligibility
arrearages, or equal the spend down amounts that were due for the period of
Medical Assistance eligibility between August 1, 2005 and April 1, 2006.[15]
12.
A review of the
invoices that relate to E.H.’s care, reveals gaps in the sequential order of
the checks used by E.H.’s son, Richard, to remit the required spend down
payments.[16] These checks were drawn an account that lists
both E.H. and Richard as account holders.[17] None of the witnesses testifying at the
hearing, however, was able to detail whether the intervening checks in this
sequential order were used for any purpose, and, if so, what payments were made
with those checks.[18]
13.
Accompanying the
invoices sent to E.H.’s son, Richard, in the months of May and June of 2006,
were demand notices for payment of arrearages of $16,649.20 and $16,945.20 respectively.[19]
14.
On or about July
26, 2006, Augustana sent a Notice of Discharge to E.H.’s son, Richard, stating
that the facility intended to discharge E.H. to Richard’s home, because the
cost of the Petitioner’s care at Augustana was not being paid. Facility Administrator, Jean Cole, wrote:
[Y]our
account is currently in arrears in the amount of $16,245.20. As a result of your non-payment of this debt,
Augustana Health Care Center of Hastings will be forced to discharge your
mother on August 25, 2006.
We will
discharge your mother to your home …. Between 9:00 a.m. and noon on August 25,
2006.[20]
15.
The discharge
notice to E.H.’s son, Richard, was sent by first class mail.[21]
16.
An amended
notice, clarifying that the home that Augustana proposed to discharge E.H. to,
was owned by her son Richard, and not E.H., was sent by Certified Mail, Return
Receipt Requested.
17.
On or about
August 14, 2006, Richard received the amended notice of discharge.[22]
18.
There is no
evidence in the hearing record that E.H., herself, received a copy of the
Notice of Discharge from representatives of Augustana.
19.
E.H.’s son, Richard,
does not agree to the transfer or willingly assume the responsibility of
maintaining E.H.’s care.[23]
20.
There is no
evidence in the hearing record that Augustana has conducted an orientation to
ensure the safety and orderly transition of E.H. to a new residence.
21.
There is no
evidence in the hearing record discharge planning for E.H. has substantially progressed
or been completed.[24]
22.
E.H.’s son,
Richard, neither testified, nor appeared, at the September 13, 2006 hearing in
this matter.[25]
23.
Linda, Richard’s
spouse, neither testified, nor appeared, at the September 13, 2006 hearing in
this matter.
24.
These Findings
are based on all of the evidence in the record. Citations to portions of
the record are not intended to be exclusive references.
25.
The Memorandum
that follows explains the reasons for these Findings, and, to that extent, the
Administrative Law Judge incorporates by reference that Memorandum into these
Findings.
Based upon the Findings of Fact, the Administrative Law Judge makes the
following:
CONCLUSIONS
1.
2.
Augustana is a “facility”
within the meaning of 42 C.F.R. § 483.5 and is therefore subject to the requirements
imposed by federal law relating to the discharge or transfer of any of its
residents.[27]
3.
E.H. is a
resident of Augustana within the meaning of 42 C.F.R. § 483.12 and is
therefore entitled to the rights created by federal law relating to any transfer
or discharge by Augustana.[28]
4.
The Regional Ombudsman, on behalf of E.H.,
filed a timely appeal of Augustana’s notice of discharge.[29]
5.
Under federal
law, one legal basis for discharging a resident from a facility is that “the
resident has failed, after reasonable and appropriate notice, to pay . . . for
a stay at the facility . . .”[30] In
order for a facility to rely on that legal basis for discharge, that reason
must be specified in the notice of discharge.
6.
Under
The Failure to Timely Pay for Nursing Care Services:
7.
Augustana has
the burden of proof in this proceeding to establish by a preponderance of the
evidence that E.H. has failed, after reasonable and appropriate notice, to pay
for her stay at Augustana.[32]
8.
The notice of
discharge that Augustana issued to E.H.’s son Richard, stated that the
Petitioner had “failed, after reasonable and appropriate notice, to pay . . .
for a stay at the facility . . .”[33]
9.
Augustana has
provided to E.H.’s son and daughter-in-law, Richard and Linda, reasonable and
appropriate notice of all monthly charges for E.H.’s care and of the arrearages
that have resulted from the failure to pay those charges.[34]
10.
Augustana has
proved by a preponderance of the evidence that E.H., and those responsible for
making payments for E.H.’s care, have failed to pay for E.H.’s stay at Augustana’s
facility. As a result, E.H. may be
subject to discharge from the facility.[35]
The Requirement of Service of the Notice on the
Resident:
11.
Before a
Medicare-certified long term care provider may involuntarily discharge a
resident, the facility must notify the resident, and if known, a family member
or legal representative of the resident, of the proposed discharge.[36] A nursing facility must issue the required
notices at least 30 days before the resident is scheduled to be discharged.[37]
Further, the facility must communicate this information in a language and
manner that the recipients of the notice understand.[38]
12.
Similarly,
Residents
shall not be arbitrarily transferred or discharged. Residents must be notified, in writing, of
the proposed discharge or transfer and its justification no later than 30 days
before discharge from the facility and seven days before transfer to another
room within the facility. This notice shall include the resident's right
to contest the proposed action, with the address and telephone number of the
area nursing home ombudsman pursuant to the Older Americans Act, section
307(a)(12). The resident, informed of this right, may choose to relocate
before the notice period ends. The notice period may be shortened in
situations outside the facility's control, such as a determination by
utilization review, the accommodation of newly-admitted residents, a change in
the resident's medical or treatment program, the resident's own or another
resident's welfare, or nonpayment for stay unless prohibited by the public
program or programs paying for the resident's care, as documented in the
medical record….[39]
13.
There is no
evidence in the hearing record suggesting that Augustana has fulfilled the
requirement of giving meaningful, personal notice to E.H. of the discharge
plan.
The Requirement for Adequate Orientation and
Discharge Planning:
14.
Under 42 C.F.R.
§ 483.12(a)(7), “[a] facility must provide sufficient preparation and
orientation to residents to ensure safe and orderly transfer or discharge from
the facility.”
15.
There is no
evidence in the hearing record to the effect that Augustana has completed (or
substantially completed) reasonable discharge planning on E.H.’s behalf.
16.
There is no
evidence in the hearing record that Augustana has provided the needed
orientation so as to ensure E.H.’s safe and orderly discharge from the
facility.
17.
Based upon the
current record, there is genuine doubt that E.H.’s medical and personal needs
can be adequately met following a discharge to her son’s Richard’s home.
18.
Under the
current circumstances, Augustana may not lawfully discharge the Petitioner from
its nursing facility.
19.
The Memorandum
that follows explains the reasons for these Conclusions, and, to that extent,
the Administrative Law Judge incorporates that Memorandum into these
Conclusions.
20.
The
Administrative Law Judge adopts as Conclusions any Findings that are more
appropriately described as Conclusions.
Based upon the foregoing Conclusions, the Administrative Law Judge makes the
following:
RECOMMENDATION
The Administrative Law Judge respectfully recommends that the Commissioner:
(1)
GRANT the
Petitioner’s appeal; and,
(2)
DENY Augustana’s
current request to discharge E.H., without prejudice to Augustana’s right to re-issue
a subsequent and conforming Notice of Discharge following the receipt of the
Commissioner’s Final Order.
|
Dated this |
9th |
day of |
October |
2006. |
|
/s/ Eric L. Lipman |
|
ERIC L. LIPMAN |
|
Administrative Law Judge |
Reported: Tape
recorded (three tapes); no transcript prepared.
MEMORANDUM
As the result of amendments to the Omnibus Budget Reconciliation Act of
1987,[40] a
long term care facility that has been certified as a Medicare provider may involuntarily
discharge a resident only in specified situations, and then, only after certain
statutory and procedural requirements have been satisfied. As a general
matter, the law permits discharge of a resident when the resident has failed,
after reasonable and appropriate notice, to pay for his or her stay at the
facility.[41] The issue in this contested case proceeding
is whether Augustana may proceed with discharging the Petitioner following her
nonpayment.
Under OAH rules,[42] the
party to a contested case proceeding that proposes a certain action be taken
must prove the facts at issue by a preponderance of the evidence – unless some
other substantive law provides for a different burden or standard. In
this case, Augustana proposes to discharge the Petitioner, E.H., from its
facility, and therefore bears the burden of proving by a preponderance of the
evidence that it has met the legal requirements for discharge.[43]
At the September 13 hearing, Augustana
presented uncontroverted evidence that, during her stay, E.H. has been accruing
monthly charges for her care of between $130.70 and $140.06 per day, and that
as of June 2, 2006 she had accumulated arrearages of $16,945.20. Augustana
also established that it had promptly and contemporaneously given to E.H.’s son
and daughter-in-law, Richard and Linda, monthly statements of account detailing
the accumulating arrearages.
These facts begin, but do not conclude,
the correct analysis. Under 42 C.F.R. §
483.12 a facility seeking to discharge a resident must also provide meaningful
notice to the resident of the
proposed discharge and to engage in “sufficient preparation and orientation”
prior to discharge. As the Ombudsman asserted at the hearing, there is no
evidence that Augustana has provided the requisite notice, or undertaken the planning
and orientation needed to discharge E.H.
Notwithstanding the size, or the duration of E.H.’s unpaid arrearages, which
are considerable, Augustana’s announcement that the Petitioner will be
discharged to the care of her son, by itself, does not meet the requirements of
federal law.
So as to give effect to the federal regulations, the best result is to deny Augustana’s current request for discharge, but to do so without prejudice to its tendering a subsequent Notice of Discharge if E.H.’s arrearages remain unpaid. This Office’s prior writings, and the instruction from the Minnesota Department of Health on the discharge process, support this approach. For example, in The Matter of the Involuntary Discharge of V.M., the Administrative Law Judge observed:
[F]ederal law requires that even
where a resident is discharged for nonpayment, it must perform appropriate
discharge planning. Under 42 C.F.R.
483.12 (a)(7), a facility seeking to discharge a resident must engage in
“sufficient preparation and orientation.”
While the November 15, 2005 Notice of Discharge states that “Roseville
Good Samaritan Care Center intends to fulfill its legal obligations in
performing appropriate discharge planning” there was no evidence presented at
the hearing that Roseville had engaged in any prior planning or orientation as
required for discharging a resident.
Simply relying upon the statement of the Petitioner’s representative,
Mr. Jones, that he would “take care of her” does not satisfy the federal
requirement.
Similarly, the Department’s instruction to
Medicare-certified providers has been to the effect that Notices of Discharge are
to be re-issued, and the statutory time periods reset, if federal requirements are
not observed during the discharge process.
As noted in Information Bulletin 94-1:
On several occasions facilities have
had to reissue the notice of discharge because the notice was not in compliance
with the provisions of 42 CFR 483.12 (a)(6). They have then had to provide a
new 30 day notice period.[45]
Granting the present appeal without prejudice to later
discharge notices from Augustana, is the result that best harmonizes the
several and competing provisions of state and federal law.
E.L.L.
[1] See,
[2] See,
[3] See,
[4] See,
[5] Testimony of L. Goetz.
[6] Exhibit G; compare generally, Minnesota Statutes § 144.0724 (2004).
[7] Testimony of R.H.
[8] Testimony of L. Goetz.
[9] Testimony of L. Goetz; Testimony of R.H.
[10] See, Exhibit A. at 3.
[11] See, Exhibit A. at 3.
[12] See, Exhibit A. at 12.
[13] See, Exhibit A. at 13-14.
[14] Id; compare generally, Minnesota Statutes § 256B.056 (3d) (Supp. 2005).
[15] See, Exhibit A. at 15-19.
[16] See, Exhibit B at 1-3, 6-8 and 10-11.
[17]
[18] See, Testimony of S. Vesall.
[19] See, Exhibit D and Testimony of S. Vesall.
[20] See, Exhibit 1 at 1.
[21]
[22] Exhibit F.
[23] See, Testimony of L. Cole; Testimony of L. Goetz.
[24] Compare also, Exhibit 3 and 4.
[25] On October 9, 2006, Richard telephoned the undersigned and stated that he did not receive notice of the September 13 hearing, and requested notice of future proceedings.
[26] See, 42 U.S.C. §§ 1395i-3 (e) (3) and
1396r (e) (3) (2004); 42 C.F.R. § 483.12 (2005);
[27] See generally, 42 C.F.R. § 483.10 (2005).
[28] See generally, 42 C.F.R. § 483.12 (2005).
[29] See, Notice and Order of Hearing, at 2.
[30] See, 42 C.F.R. § 483.12 (a) (2) (v) (2005).
[31] See,
[32] Compare,
[33] See, Exhibit 1.
[34] Compare, Exhibits A and D; with Minnesota Statutes § 144.6501 (4) (c) (2005) (Under nursing home admission contracts “[t]he facility must issue timely billing, respond to questions, and monitor timely payment”).
[35] See, Exhibits A, B, C and D.
[36] See, 42 C.F.R. § 483.12 (a) (4) (i)
(2005); In re Involuntary Discharge or
Transfer of J.S. by Hall, 512 N.W.2d 604, 610 (
[37] See, 42 C.F.R. § 483.12 (a) (5) (2005).
[38] See, 42 C.F.R. § 483.12 (a) (4) (i)
(2005).
[39] See,
[40] See, 42 U.S.C. § 1396r (c) (2) (2004).
[41] See, id; 42 C.F.R. § 483.12 (2005).
[42] See,
[43] See, In the Matter of the Involuntary Discharge or Transfer of J.S. by Ebeneezer Hall, 512 N.W.2d 604,610 (Minn. App. 1994) (the Minnesota Court of Appeals confirms that “a nursing facility proposing to transfer or discharge a resident must prove the supporting facts by a preponderance of the evidence”).
[44] In the Matter of the Involuntary Discharge of V.M., OAH Docket No. 54-0900-17184-2 at 6 (2006) (http://www.state.mn.us/ebranch/oah/aljBase/090017184.report.htm).
[45] Information Bulletin 94-1, Minnesota Dep’t of Health (NH-10 CBC4) (“Correct Notice Procedure”) (http://www.health.state.mn.us/divs/fpc/profinfo/ib94_1.htm).