481—63.34 (135C) Involuntary discharge or transfer.
	 63.34(1) A facility shall not involuntarily discharge or transfer a resident from a facility except: for medical reasons; for the resident’s welfare or that of other residents; for nonpayment for the resident’s stay (as contained in the contract for the resident’s stay), and by reason of action pursuant to Iowa Code chapter 229. (I, II)
	  a.   	 “Medical reasons” for transfer or discharge are based on the resident’s needs and are determined and documented in the resident’s record by the attending physician. Transfer or discharge may be required to provide a different level of care. (II)
	  b.   	 “Welfare” of a resident or that of other residents refers to their social, emotional, or physical well-being. A resident might be transferred or discharged because the resident’s behavior poses a continuing threat to the resident (e.g., suicidal) or to the well-being of other residents or staff (e.g., the resident’s behavior is incompatible with their needs and rights). Evidence that the resident’s continued presence in the facility would adversely affect the resident’s own welfare or that of other residents shall be made by the administrator or designee and shall be in writing and shall include specific information to support this determination. (II)
	  c.   	 Involuntary transfer or discharge of a resident from a facility shall be preceded by a written notice to the resident or responsible party at least 30 days in advance of the proposed transfer or discharge. The 30-day requirement shall not apply in any of the following instances:
	 (1) 	 If an emergency transfer or discharge is mandated by the resident’s health care needs and is in accord with the written orders and medical justification of the attending physician. Emergency transfers or discharges may also be mandated to protect the health, safety, or well-being of other residents and staff from the resident being transferred. (II)
	 (2) 	 If the transfer or discharge is subsequently agreed to by the resident or the resident’s responsible party, and notification is given to the responsible party, physician, and the person or agency responsible for the resident’s placement, maintenance, and care in the facility. (II)
	  d.   	 The notice required by paragraph “c” shall contain all of the following information:
	 (1) 	 The stated reason for the proposed transfer or discharge. (II)
	 (2) 	 The effective date of the proposed transfer or discharge. (II)
	 (3) 	 A statement in not less than 12-point type (elite), which reads: “You have a right to appeal the facility’s decision to transfer or discharge you. If you think you should not have to leave this facility, you may request a hearing in writing or verbally with the Iowa state department of inspections and appeals (hereinafter referred to as “department”) within 7 days after receiving this notice. You have a right to be represented at the hearing by an attorney or any other individual of your choice. If you request a hearing, it will be held no later than 14 days after receipt of your request by the department and you will not be transferred prior to a final decision. Provision may be made for extension of the 14-day requirement upon request to the department of inspections and appeals designee in emergency circumstances. If you lose the hearing, you will not be transferred before the expiration of 30 days following receipt of the original notice of the discharge or transfer, or no sooner than 5 days following final decision of such hearing. To request a hearing or receive further information, call the department at (515)281-4115 or you may write to the department to the attention of: Administrator, Division of Health Facilities, Department of Inspections and Appeals, Lucas State Office Building, Des Moines, Iowa 50319-0083.” (II)
	  e.   	 A request for a hearing made under 63.34(1)“d”(3) shall stay a transfer or discharge pending a hearing or appeal decision. (II)
	  f.   	 The type of hearing shall be determined by a representative of the department. Notice of the date, time, and place of the hearing shall be sent by certified mail or delivered in person to the licensee, resident, responsible party, and Iowa department of elder affairs long-term care ombudsman of record not later than five full business days after receipt of the request. This notice shall also inform the licensee, resident or responsible party, that they have a right to appear at the hearing in person or be represented by their attorneys or other individual. The hearing shall be dismissed if neither party is present or represented at the hearing. If only one party appears or is represented, the hearing shall proceed with one party present. The Iowa department of elder affairs long-term care ombudsman shall have the right to appear at the hearing.
	  g.   	 The hearing shall be heard by a department of inspections and appeals designee pursuant to Iowa Code chapter 17A. (The hearing shall be public unless the resident or the resident’s representative requests in writing that it be closed.) The licensee or designee shall have the opportunity to present to the representative of the department any oral testimony or written materials to show by a preponderance of the evidence just cause why a transfer or discharge may be made. The resident and responsible party shall also have an opportunity to present to the representative of the department any oral testimony or written material to show just cause why a transfer or discharge should not be made. In a determination as to whether a transfer or discharge is authorized, the burden of proof rests on the party requesting the transfer or discharge.
	  h.   	 Based upon all testimony and materials submitted to the representative of the department, the representative shall issue, in accordance with Iowa Code chapter 17A, written findings of fact and conclusions of law and issue a decision and order in respect to the adverse action. This decision shall be mailed by certified mail to the licensee, resident, responsible party, and department of elder affairs long-term care ombudsman within 10 working days after the hearing has been concluded. The representative shall have the power to issue fines and citations against the facility in appropriate circumstances.
A request for review of a proposed decision in which the department is the final decision maker shall be made within 15 days of issuance of the proposed decision, unless otherwise provided by statute. Requests shall be mailed or delivered by either party to the Director, Department of Inspections and Appeals, Lucas State Office Building, Des Moines, Iowa 50319-0083. Failure to request review will preclude judicial review unless the department reviews a proposed decision upon its own motion within 15 days of the issuance of the decision.
	  i.   	 A copy of the notice required by paragraph “c” shall be personally delivered to the resident and a copy placed in the resident’s record. A copy shall also be transmitted to the department, the resident’s responsible party, physician, the person or agency responsible for the resident’s placement, maintenance, and care in the facility, and the department of elder affairs long-term care ombudsman.
	  j.   	 If nonpayment is the basis for involuntary transfer or discharge, the resident shall have the right to make full payment up to the date that the discharge or transfer is to be made and then shall have the right to remain in the facility. (II)
	  k.   	 The involuntary transfer or discharge shall be discussed with the resident, the resident’s responsible party, and the person or agency responsible for the resident’s placement, maintenance, and care in the facility within 48 hours after notice of discharge has been received. The explanation and discussion of the reasons for involuntary transfer or discharge shall be given by the facility administrator or other appropriate facility representative as the administrator’s designee. The content of the discussion and explanation shall be summarized in writing and shall include the names of the individuals involved in the discussions and made a part of the resident’s record. (II)
	  l.   	 The resident shall receive counseling services before (by the sending facility) and after (by the receiving facility) the involuntary transfer to minimize the possible adverse effects of the involuntary transfer. Counseling shall be documented in the resident’s record. (II)
	 (1) 	 Counseling shall be provided by a qualified individual who meets one of the following criteria:
	  1. 	 Has a bachelor’s or master’s degree in social work from an accredited college. (II)
	  2. 	 Is a graduate of an accredited four-year college and has had at least one year of full-time paid employment in a social work capacity with public or private agency. (II)
	  3. 	 Has been employed in a social work capacity for a minimum of four years in a public or private agency. (II)
	  4. 	 Is a licensed psychologist or psychiatrist. (II)
	  5. 	 Is any other person of the resident’s choice. (II)
	 (2) 	 The facility shall develop a plan to provide for the orderly and safe transfer or discharge of each resident to be discharged or transferred. (II)
	 (3) 	 The receiving health care facility of a resident involuntarily discharged or transferred shall immediately formulate and implement a plan of care which takes into account possible adverse effects the transfer may cause. (II)
	  m.   	 In the case of an emergency transfer or discharge as outlined in 63.34(1)“c”(1), the resident must still be given a written notice prior to or within 48 hours following transfer or discharge. A copy of this notice must be placed in the resident’s file and it must contain all the information required by 63.34(1)“d”(1) and (2). In addition, the notice must contain a statement in not less than 12-point type (elite), which reads: “You have a right to appeal the facility’s decision to transfer or discharge you on an emergency basis. If you think you should not have to leave this facility, you may request a hearing in writing or verbally with the Iowa state department of inspections and appeals within 7 days after receiving this notice. If you request a hearing, it will be held no later than 14 days after receipt of your request by the department. You may be transferred or discharged before the hearing is held or before a final decision is rendered. If you win the hearing, you have the right to be transferred back into the facility. To request a hearing or receive further information, call the department at (515)281-4115 or you may write to the department to the attention of: Administrator, Division of Health Facilities, Department of Inspections and Appeals, Lucas State Office Building, Des Moines, Iowa 50319-0083.” A hearing requested pursuant to this subrule shall be held in accordance with paragraphs “f,” “g,” and “h.”  (II)
	  n.   	 Residents shall not have the right to a hearing to contest an involuntary discharge or transfer resulting from the revocation of the facility’s license by the department of inspections and appeals. In the case of a facility voluntarily closing, a period of 30 days must be allowed for an orderly transfer of residents to other facilities.
	 63.34(2) Intrafacility transfer:
	  a.   	 Residents shall not be relocated from room to room within a licensed health care facility arbitrarily. (I, II) Involuntary relocation may occur only in the following situations and such situation shall be documented in the resident’s record.
	 (1) 	 Incompatibility with or disturbing to other roommates, as documented in the resident’s record.
	 (2) 	 For the welfare of the resident or other residents of the facility.
	 (3) 	 For medical, nursing or psychosocial reasons, as documented in the resident’s record, as judged by the attending physician, nurse or social worker in the case of a facility which groups residents by medical, nursing or psychosocial needs.
	 (4) 	 To allow a new admission to the facility which would otherwise not be possible due to separation of roommates by sex.
	 (5) 	 In the case of a resident whose source of payment was previously private, but who now is eligible for Title XIX assistance, the resident may be transferred from a private room to a semiprivate room or from one semiprivate room to another.
	 (6) 	 Reasonable and necessary administrative decisions regarding the use and functioning of the building.
	  b.   	 Unreasonable and unjustified reasons for changing a resident’s room without the concurrence of the resident, or responsible party include:
	 (1) 	 Change from private pay status to Title XIX, except as outlined in 63.34(2)“a”(5). (II)
	 (2) 	 As punishment or behavior modification (except as specified in 63.34(2)“a”(1). (II)
	 (3) 	 Discrimination on the basis of race or religion. (II)
	  c.   	 If intrafacility relocation is necessary for reasons outlined in paragraph “a,” the resident shall be notified at least 48 hours prior to the transfer and the reason therefor shall be explained. The responsible party shall be notified as soon as possible. Notification shall be documented in the resident’s record and signed by the resident or responsible party. (II)
	  d.   	 If emergency relocation is required to protect the safety or health of the resident or other residents, the notification requirements may be waived. The conditions of the emergency shall be documented. The family or responsible party shall be notified immediately or as soon as possible of the condition requiring emergency relocation and the notification shall be documented. (II)