Linda MowBray, president of the Kansas Health Care Association and Kansas Center for Assisted Living, offered a House committee financial, medical and legal objections to a bill creating a state law —a supplement to state regulations — requiring an appeals process for residents of assisted living facilities facing involuntarily discharge. (Kansas Reflector screen capture from Kansas Legislature YouTube channel)
TOPEKA — The Kansas adult assisted-living industry pushed back against legislation creating in state law requirements for informing residents in advance of involuntary discharge or transfer orders and establishing in statute the right of residents to appeal those decisions.
The House bill was developed with assistance from the Kansas Judicial Council amid evidence elderly people were subjected to gut-wrenching involuntary discharges without warning or justificiation. In some instances, facilities had residents admitted to a hospital and refused to take them back. Dumping vulnerable residents — people with dementia, behavioral challenges or viewed as difficult to be around — could have life-or-death consequences.
State long-term care ombudsman Camille Russell, who advocates for rights of Kansans in nursing facilities, long-term care units of hospitals, assisted living centers and other residential models, said Thursday during a House Judiciary Committee hearing it was important Kansans had appeal rights etched in state law so involuntary discharges from adult care homes could be independently reviewed.
She said discharges in violation of administrative regulations continued to be one of the most frequent complaints to the ombudsman’s office.
“There are many homes that rarely find reason to issue a notice of involuntary discharge. There are also facilities that are ‘serial offenders,’ some that fail to provide the required written notice at all, while others do not provide an appropriate reason or rationale,” Russell said.
‘Tip of the iceberg’
LeadingAge Kansas president Rachel Monger said the association of not-for-profit and faith-based aging services believed House Bill 2246 would improperly require residential facilities to care for clients while discharge appeals were pending. Administrative appeals could delay movement of residents to facilities properly equipped and staffed to meet their needs, she said.
“Forcing an assisted living facility to retain a resident whose needs it cannot meet has wide-ranging and seriously negative effects on the health and safety of residents and the continued affordability and operations of residential care settings,” Monger said.
Linda MowBray, president of the Kansas Health Care Association and Kansas Center for Assisted Living, said it would be a mistake to implement a law forcing state-licensed homes to retain or readmit a resident no longer viewed by administrators as a good fit for that facility.
“The amount of time given in HB 2246 for an appeal to happen is just the tip of the iceberg. Appeal after appeal could drag on for months. It would be irresponsible with the potential for grave consequences for a community to attempt to care for someone whose needs are clearly outside of the services they can provide,” MowBray said.
Shelley Gromer, vice president of Guest Home Estates with 99 residents scattered among six facilities in Caney, Chanute, Erie, Pittsburg and Garnett, said she operated facilities with capacities ranging from 11 to 25 residents. She said it would be unfair for the state to remove from operators the authority to determine who was an appropriate match in each of those locations.
“This could put our small homes out of business and cause problems for our staff and residents,” Gromer said.
The fine print
Under the proposed House bill, administrators at assisted living, residential healthcare, home plus or boarding care home facilities in Kansas would be required to provide residents written notice for an involuntary transfer or discharge at least 30 days before the scheduled move unless the resident had an urgent medical need or was a danger to others. The notice would have to be forwarded to the resident in person, placed in the individual’s record, sent to the resident’s representative and provided to the state’s long-term care ombudsman.
Discharging facilities would be required to fill out a form outlining reasons and supporting evidence for the involuntary removal. The document would include names and contact information, effective date of the transfer or discharge and a copy of the notice of appeal.
The administrator of the care facility would be obligated under the House bill to develop a discharge plan before taking that step.
An appeal would have to be filed on behalf of a resident within 15 days of receiving an ouster notice. That appeal could be sought by a representative of the resident, including the state’s long-term care ombudsman. A state administrative hearing would have to take place within 15 days of the appeal filing. The hearing officer would issue a decision within 10 days.
During the appellate process, the bill said, the resident would be allowed to remain in the facility or be permitted to resume residence at the facility.
A comparable system for emergency movement orders would be carved out with administrators required to notify the resident 48 hours prior to a transfer or discharge, with the secretary of the Kansas Department for Aging and Disability Services responsible for defining what constituted an emergency. An emergency eviction could be appealed within seven days of receiving notice. The hearing would be within 14 days of the appeal and hearing officers would have five days to rule.
The Kansas Judicial Council recommended a provision in the bill provide some amount of liability protection to facilities from lawsuits alleging negligence if the care facility didn’t deliver services to an appealing resident “outside the scope of the negotiated service agreement.”
Selective denial of rights
Alexandra English, director of Kansas Legal Services’ Elder Rights Project, participated on the Judicial Council’s advisory committee that explored the involuntary discharge issue. The recommendation on structure of an appeal process was drawn from concepts adopted in other states, she said.
The Kansas model drew from Alaska’s requirement assisted living facilities meet informally with a resident to discuss appropriateness of involuntary discharges before filing of an appeal, she said.
“Ultimately, a majority of the committee determined that House Bill 2246 was the best, most comprehensive plan that balanced the rights of residents to appeal involuntary discharges while also giving assisted living facilities the ability to keep residents safe and preserve their business interests,” English said.
English said Kansas was in need of a system better able to protect vulnerable residents in assisted living facilities. Existing regulations for assisted living businesses fell short of matching rights held by people in nursing homes or tenants of rental units. Homeowners facing foreclosure have broader rights than residents of assisted living units, she said.
“Kansas’ regulations require that the resident receive notice, but do not provide any sort of appeal process for residents of assisted living facilities,” she said. “Why should this one segment, of one of the most vulnerable populations, be excluded? Are their rights not as important as others?”
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