(a) The facility must permit each resident to remain in the facility and not transfer or discharge the resident from the long-term care facility unless at least 1 of the following criteria has been met:

(1) The transfer or discharge is both necessary for the resident’s welfare and the resident’s needs cannot be met in the facility with reasonable accommodations when assessed with due regard to the scope of the facility’s license.

(2) The discharge is appropriate because the resident’s health has improved sufficiently so the resident no longer needs the services provided by the facility.

(3) The transfer or discharge is appropriate because the safety of individuals in the facility is endangered by the clinical or behavioral status of the resident.

(4) The transfer or discharge is appropriate because the health of other individuals in the facility would otherwise be endangered.

(5) The resident has failed, after reasonable and appropriate notice, to pay for, or to have paid by Medicare, Medicaid, or third party, a stay at the facility leading to discharge provided that:

a. A resident who becomes eligible for Medicaid after admission to a facility may only be charged allowable charges under Medicaid.

b. A resident who has submitted the necessary paperwork for third-party payment may not be discharged if a final decision on the claim has not been issued.

(6) The facility ceases to operate.

(b) Documentation. —

Transfers or discharges under this section must be documented in the resident’s clinical record and must include all of the following:

(1) The basis for the transfer or discharge under subsection (a) of this section.

(2) In the case of a transfer or discharge under paragraph (a)(1) of this section, all of the following:

a. The specific needs that cannot be met in the facility.

b. The attempts made to meet those needs.

c. The services available at the receiving facility to meet those needs.

(3) The certification of the resident’s personal attending physician that transfer or discharge is necessary under paragraph (a)(1) or (a)(2) of this section.

(4) A physician certification that transfer or discharge is necessary under paragraph (a)(3) or (a)(4) of this section.

(c) Before a long-term care facility transfers or discharges a resident, the facility must issue a written notice of the transfer or discharge to the resident or resident’s authorized representative under § 1122 of this title and, if known, a family member or legal representative of the resident, whose content conforms to subsection (b) of this section.

(d) Timing of the notice of transfer or discharge. —

(1) Except as permitted under paragraph (d)(3) of this section, a notice of discharge must be issued by the long-term facility at least 30 days before the resident is transferred or discharged.

(2) A long-term care facility may not discharge a resident during the pendency of administrative proceedings implementing a resident’s appeal of a discharge.

(3) Notice must be issued as soon as practicable before transfer or discharge when 1 of the following standards is met:

a. An immediate transfer or discharge is required by the resident’s urgent medical needs supported by the certification required under subsection (b) of this section.

b. There is a significant and immediate threat to the health or safety of other individuals in the long-term care facility as documented under paragraph (b)(3) or (b)(4) of this section.

c. The resident was admitted solely on a respite basis not to exceed 14 days or as an emergency placement by the Department not to exceed 21 days.

(e) The written notice described in paragraph (d)(3) of this section must include all of the following in language comprehensible to the ordinary layperson subject to revision to meet known special language considerations of the recipient:

(1) A detailed individualized explanation of each reason for the transfer or discharge.

(2) The effective date of transfer or discharge.

(3) The location to which the resident is transferred or discharged.

(4) The time frame and procedure to appeal the action to the State.

(5) The name, address, and telephone number of the State Long-Term Care Ombudsperson and Division.

(6) The name, address, and telephone number of the protection and advocacy agency for facility residents with developmental disabilities or mental illness.

(f) In administrative and judicial proceedings implementing a resident’s appeal of a transfer or discharge, resident rights and protections conferred by applicable federal law must be considered.

(g) For any transfer or discharge authorized by subsection (a) of this section, the long-term care facility shall develop a plan with the participation of the resident and resident’s authorized representative under § 1122 of this title, if any, to assist with orientation and the safe and orderly transfer or discharge from the facility.

(h) (1) If a resident is transferred out of a long-term care facility to an acute care facility or other specialized treatment facility all of the following apply:

a. The long-term care facility must accept the resident back when the resident no longer needs acute or specialized care and there is space available in the facility.

b. If no space is available, the resident must be accepted into the next available bed.

(2) For purposes of this subsection, “specialized treatment facility” means a health-care setting including, settings licensed or certified pursuant under this chapter or Chapter 22, 50, or 51 of this title.

81 Del. Laws, c. 206, § 30; 70 Del. Laws, c. 186, § 1;