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medical director ensures that no patient is discharged or transferred from the facility

unless – (4) The facility has reassessed the patient and determined that the patient’s

behavior is disruptive and abusive to the extent that the delivery of care to the patient or

the ability of the facility to operate effectively is seriously impaired, in which case the

medical director ensures that the patient’s interdisciplinary team—

(i) Documents the reassessments, ongoing problems(s), and efforts made to resolve the

problem(s), and enters this documentation into the patient’s medical record;

(ii) Provides the patient and the local ESRD Network with a 30-day notice of the planned

discharge;

(iii) Obtains a written physician’s order that must be signed by both the medical director

and the patient’s attending physician concurring with the patient’s discharge or transfer

from the facility;

(iv) Contacts another facility, attempts to place the patient there, and documents that

effort; and

(v) Notifies the State survey agency of the involuntary transfer or discharge.

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(5) In the case of immediate severe threats to the health and safety of others, the facility

may utilize an abbreviated involuntary discharge procedure.

Interpretive Guidance § 494.180(f)(4)(i)-(v) and (5)

Patients should not be discharged for failure to comply with facility policy unless the violation

adversely affects clinic operations (e.g., violating facility rules for eating during dialysis should

not warrant involuntary discharge). Patients should not be discharged for shortened or missed

treatments unless this behavior has a significant adverse effect on other patients’ treatment

schedules. A facility may evaluate the patient (who shortens or misses treatments) for any

psychosocial factors that may contribute to shortening or missing treatments; for suitability to

home dialysis; or, as a last resort to avoid inconveniencing other patients, may alter the

patient’s treatment schedule or shorten treatment times for patients who persistently arrive late.

Patients should not be discharged for failure to reach facility-set goals for clinical outcomes.

CMS does not evaluate compliance by solely determining whether a patient or patients reached

the expected targets. Rather, compliance means that a plan of care has been developed by the

IDT, is individualized, addresses barriers to meeting the targets, and has been implemented and

revised as indicated.

Note: the above examples are intended to be informative and by no means are an exhaustive list

of behaviors that should warrant a facility to further evaluate the patient’s behavior rather than

to involuntarily discharge the patient.

In the event facility staff members believe the patient may have to be involuntarily discharged,

the IDT must reassess the patient with an intent to identify any potential action or plan that

could prevent the need to discharge or transfer the patient involuntarily. The reassessment

should focus on identifying the root causes of the disruptive or abusive behavior and result in a

plan of care aimed at addressing those causes and resolving unacceptable behavior.

Evidence must be on file to substantiate that the patient received notification at least 30 days

prior to involuntary discharge or transfer and that the ESRD Network was also notified at that

time. While the early notice to the State survey agency is not required, facilities may choose to

notify the patient, network and the State survey agency at the same time. A 30-day notice is not

required in the case of imminent severe threat to safety of other patients or staff. The State

survey agency and network would need to be notified immediately if the use of the abbreviated

involuntary discharge procedure is necessary.

There must be a written order in the patient’s medical record, signed by the attending physician,

and the medical director for the facility to involuntarily discharge or transfer a patient. If the

reason for discharge is the physician’s determination to no longer care for a particular patient

and there is no other physician on staff available or willing to accept the patient, generally the

state practice boards for physicians require the patient be given some notice to avoid a charge of

patient abandonment. The facility would need to follow this regulation as to reassessment, 30

day notice, attempts for placement, etc. during the physician’s period of notice to the patient.

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Because the goal of contacting another dialysis facility is for continuity of care, the HIPAA

Privacy Rule does not require patient consent to contact that other dialysis facility. However, it

does limit sharing of protected health information to medical records requested by the other

provider or for continuity of care purposes.

Good faith efforts should be made to find the closest facility to the patient’s residence that will

accept the patient in transfer. The applicable patient’s medical record must include evidence of

those placement efforts.

An “immediate severe threat” is considered to be a threat of physical harm. For example, if a

patient has a gun or a knife or is making credible threats of physical harm, this would be

considered an “immediate severe threat.” An angry verbal outburst or verbal abuse is usually

not considered to be an immediate severe threat. In instances of an immediate severe threat,

facility staff may utilize “abbreviated” involuntary discharge or transfer procedures. These

abbreviated procedures may include taking immediate protective actions, such as calling 911

and asking for police assistance. In this scenario, there may not be time or opportunity for

reassessment, intervention, or contact with another facility for possible transfer. After the

emergency is addressed and staff and other patients are safe, staff must notify the patient’s

physician and the medical director of these events, notify the State agency and ESRD Network of

the involuntary discharge, and document this contact and the exact nature of the “immediate

severe threat” in the applicable patient’s medical record.

At the time of publication of these rules (April 15, 2008, 73 FR 20369), each facility had received

a copy of an interactive program developed by the ESRD Networks on Decreasing Dialysis

Patient Provider Conflict (DPC) that addresses proactive techniques to resolve such issues

before progression to involuntary discharge. As part of the ESRD Network responsibilities and

the agreement between the facility and ESRD Network, strategies and mitigation steps have been

developed by the Networks to handle complex relationships between provider and patient, and

avoid involuntary discharges. ESRD facilities seeking more information on decreasing patient-provider conflicts and involuntary discharges can find information on the Network websites or

by contacting the ESRD Networks directly.