10.07.09.11

.11 Involuntary Discharge or Transfer of a Resident.

A. In addition to the provisions of Regulation .10 of this chapter, a facility may not involuntarily discharge or transfer a resident unless, within 48 hours before the discharge or transfer, the facility has:

(1) Provided or obtained:

(a) A comprehensive medical assessment and evaluation of the resident, including a physical examination, that is documented in the resident's medical record;

(b) A post-discharge plan of care for the resident that is developed, if possible, with the participation of the resident's representative; and

(c) Written documentation from the resident's attending physician indicating that the transfer or discharge is in accordance with the post-discharge plan of care and is not contraindicated by the resident's medical condition; and

(2) Provided information to the resident concerning the resident's rights to make decisions concerning health care, including the right to:

(a) Accept or refuse medical treatment;

(b) Make an advance directive, including the right to make a living will and the right to appoint an agent to make health care decisions; and

(c) Revoke an advance directive.

B. With the exception of residents of a certified continuing care facility as set forth in §D of this regulation, at the time of transfer or discharge, the facility shall provide the resident and, when appropriate, the representative or interested family member with:

(1) A written statement of the medical assessment and evaluation and post-discharge plan of care required under §A of this regulation;

(2) A written statement itemizing the medications currently being taken by the resident;

(3) To the extent permitted under federal and State law, at least a 3-day supply of the medications currently being taken by the resident;

(4) Information necessary to assist the resident or the resident's representative in obtaining additional prescriptions for necessary medication through consultation with the resident's attending physician; and

(5) A written statement containing the date, time, method, mode, and destination of the resident's discharge.

C. A facility may not discharge or transfer a resident:

(1) Unless the resident or appropriate representative consented in writing to the discharge or transfer; or

(2) Except when the discharge or transfer:

(a) Is in accordance with a post-discharge plan of care developed under §A of this regulation;

(b) Is to a safe and secure environment where the resident will be under the care of a:

(i) Licensed, certified, or registered care provider; or

(ii) Person who has agreed in writing to provide a safe and secure environment.

D. A continuing care facility certified under Article 70B, Annotated Code of Maryland, is not subject to §B of this regulation if the:

(1) Facility transfers a resident to a lesser level of care within the same facility in accordance with a contract between the facility and the resident; and

(2) Transfer is approved by the resident's attending physician.

E. If the requirements of §§A—D of this regulation have been met, the resident's representative, in conjunction with the facility, shall cooperate and assist in the resident's discharge planning, including:

(1) Contacting, cooperating with, and assisting other health care facilities considering admitting the resident; and

(2) Cooperating with government agencies, including applying for Medical Assistance for the resident.

F. If requested by a person during the process of transferring or discharging a resident, or on its own initiative, the Office of the Attorney General may investigate whether an abuse of a resident's funds contributed to the decision to transfer or discharge the resident, and may make appropriate referrals of the matter to other government agencies.

G. The Secretary may impose a civil money penalty not to exceed $10,000 for each:

(1) Violation by a facility of its obligations under this regulation and Regulation .10 of this chapter; or

(2) Willfully or grossly negligent violation by a resident's representative of the representative's obligations under this regulation and Regulation .10 of this chapter.

H. If a civil money penalty is imposed under §G of this regulation, the facility or representative has the right to request a hearing on the proposed civil money penalty in accordance with State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland, and COMAR 10.01.04.

I. A resident, resident's representative, resident's attorney, or the Attorney General, on behalf of a resident who believes that an involuntary discharge or transfer that violates this regulation is imminent or has taken place, may request appropriate injunctive relief from the appropriate circuit court.