Increased federal oversight may be on the horizon for skilled nursing facility involuntary transfers and discharges. The Office of Inspector General (OIG) included in its 2019 Work Plan reviewing SNFs’ involuntary transfers and discharges, focusing on reviewing whether State agencies have effectively investigated and enforced proper transfer and discharge procedures. Now is the time for SNFs to review their involuntary transfer and discharge procedures to make sure they are in compliance with CMS regulations.

The 2019 OIG Work Plan announced a new “Involuntary Transfer and Discharge in Nursing Homes” Work Plan item. This issue is on the OIG’s radar because “discharge/eviction” was the most common complaint to the Long-Term Care Ombudsman Program. OIG also indicated that involuntary discharges and transfers were worth investigating because of their quantity, citing a CMS estimate that “as many as one-third of all residents in long-term care facilities are involuntarily discharged.”

OIG seems most concerned about lax or ineffective State enforcement; they plan to “determine the extent to which State long-term care ombudsman address involuntary transfers and discharges from nursing homes and the extent to which State survey agencies investigated and took enforcement actions against nursing homes for inappropriate involuntary transfers and discharges.” But SNFs themselves are not exempt from the increased federal scrutiny; OIG also intends to “examine the extent to which nursing homes meet CMS requirements for involuntary transfers and discharges.” OIG expects to issue its investigative report in 2019.

Although SNFs should be aware of the potential for direct federal investigation, the most important implication of this may be lighting a fire under State agencies. Knowing that their investigations and enforcement mechanisms are being closely watched, State ombudsman and enforcement agencies may strengthen their involuntary discharge and transfer enforcement activities to ensure that they are not perceived as being lax or ineffective. Given this potential for increased scrutiny and enforcement, SNFs should make sure they always follow CMS regulations before and during an involuntary transfer or discharge. See CMS State Operations Manual, Appendix PP, F622-F624. Dykema’s health care and litigation attorneys have experience assisting SNFs with involuntary transfers and discharges.