The Florida Senate

400.0255  Resident hearings of facility decisions to transfer or discharge.--

(1)  As used in this section, the term "discharge" or "transfer" means the movement of a resident to a bed outside the certified facility. "Discharge" or "transfer" does not refer to the movement of a resident to a bed within the same certified facility.

(2)  A resident of any Medicaid or Medicare certified facility may challenge a decision by the facility to discharge or transfer the resident.

(3)  At least 30 days prior to any proposed transfer or discharge, a facility must provide advance notice of the proposed transfer or discharge to the resident and, if known, to a family member or the resident's legal guardian or representative, except, in the following circumstances, the facility shall give notice as soon as practicable before the transfer or discharge:

(a)  The transfer or discharge is necessary for the resident's welfare and the resident's needs cannot be met in the facility, and the circumstances are documented in the resident's medical records by the resident's physician; or

(b)  The health or safety of other residents or facility employees would be endangered, and the circumstances are documented in the resident's medical records by the resident's physician or the medical director if the resident's physician is not available.

(4)  The notice required by subsection (3) must be in writing and must contain all information required by state and federal law, rules, or regulations applicable to Medicaid or Medicare cases. A copy of the notice must be placed in the resident's clinical record, and a copy must be transmitted to the resident's legal guardian or representative and to the local district ombudsman council.

(5)(a)  A resident is entitled to a fair hearing to challenge a facility's proposed transfer or discharge. The resident, or the resident's legal representative or designee, may request a hearing at any time within 90 days of the resident's receipt of the facility's notice of the proposed discharge or transfer.

(b)  If a resident requests a hearing within 10 days of receiving the notice from the facility, the request shall stay the proposed transfer or discharge pending a hearing decision. The facility may not take action, and the resident may remain in the facility, until the outcome of the initial fair hearing, which must be completed within 90 days of receipt of a request for a fair hearing.

(c)  If the resident fails to request a hearing within 10 days of receipt of the facility notice of the proposed discharge or transfer, the facility may transfer or discharge the resident after 30 days from the date the resident received the notice.

(6)  Notwithstanding paragraph (5)(b), an emergency discharge or transfer may be implemented as necessary pursuant to state or federal law during the period of time after the notice is given and before the time a hearing decision is rendered. Notice of an emergency discharge or transfer to the resident's legal guardian or representative must be by telephone or in person. This notice shall be given before the transfer, if possible, or as soon thereafter as practicable. The resident's file must be documented to show who was contacted, whether the contact was by telephone or in person, and the date and time of the contact. If the notice is not given in writing, written notice meeting the requirements of subsection (4) must be given the next working day.

(7)  The following persons must be present at all proceedings authorized under this section:

(a)  The resident, or the resident's legal representative or designee.

(b)  The facility administrator, or the facility's legal representative or designee.

A representative of the district long-term care ombudsman council may be present at all proceedings authorized by this section.

(8)  In any proceeding under this section, the following information concerning the parties shall be confidential and exempt from the provisions of s. 119.07(1):

(a)  Names and addresses.

(b)  Medical services provided.

(c)  Social and economic conditions or circumstances.

(d)  Evaluation of personal information.

(e)  Medical data, including diagnosis and past history of disease or disability.

(f)  Any information received verifying income eligibility and amount of medical assistance payments. Income information received from the Social Security Administration or the Internal Revenue Service must be safeguarded according to the requirements of the agency that furnished the data.

The exemption created by this subsection does not prohibit access to such information by a district long-term care ombudsman council upon request, by a reviewing court if such information is required to be part of the record upon subsequent review, or as specified in s. 24(a), Art. I of the State Constitution.

(9)(a)  The department's Office of Appeals Hearings shall conduct hearings under this section. The office shall notify the facility of a resident's request for a hearing.

(b)  The department shall, by rule, establish procedures to be used for fair hearings requested by residents. These procedures shall be equivalent to the procedures used for fair hearings for other Medicaid cases, chapter 10-2, part VI, Florida Administrative Code. The burden of proof must be clear and convincing evidence. A hearing decision must be rendered within 90 days of receipt of the request for hearing.

(10)  If the hearing decision is favorable to the resident who has been transferred or discharged, the resident must be readmitted to the facility's first available bed.

(11)  The decision of the hearing officer shall be final. Any aggrieved party may appeal the decision to the district court of appeal in the appellate district where the facility is located. Review procedures shall be conducted in accordance with the Florida Rules of Appellate Procedure.

(12)  The department may adopt rules necessary to implement the provisions of this section.

History.--s. 6, ch. 93-217; s. 4, ch. 95-407; s. 34, ch. 96-169; s. 227, ch. 96-406.