(a)(1) Whenever a facility decides to involuntarily discharge, transfer, or relocate a resident, that resident, his or her representative, or the Long-Term Care Ombudsman may contest the decision by mailing a written hearing request to the Mayor and notifying the administrator or facility staff of the request:

(A) Within 7 calendar days after receiving notice of a proposed discharge or transfer to another facility; or

(B) Within 5 calendar days after receiving notice of a proposed relocation within the facility.

(2) If the resident or resident’s representative mails the hearing request from the facility, the day he or she places it in the facility’s outgoing mail or gives it to a member of the facility staff for mailing shall be considered the date of mailing for purposes of the 7-day and 5-day time limits. In all other cases, the postmark date shall be considered the date of mailing.

(3) A timely hearing request shall stay the discharge, transfer, or relocation unless a condition set forth in § 44-1003.02(b)(1) and (2) develops in the interim.

(b) The Mayor shall hold a hearing at the Office of Administrative Hearings ("OAH") within 10 calendar days, and OAH shall render a decision within 21 calendar days, after a timely hearing request is received. If the resident is unable to travel to OAH due to a physical or mental disability, he or she shall be offered the opportunity to participate remotely through telephone or other means. The facility shall have the burden of proof unless the ground for the proposed discharge, transfer, or relocation is a prescribed change in the resident’s level of care, in which case the person(s) responsible for prescribing that change shall have the burden of proof and the resident shall have the right to challenge the level of care determination at the hearing. A hearing held under this section may not be used by the resident to litigate or relitigate Medicaid eligibility.

(c) If the Mayor finds that the existence of a ground listed in § 44-1003.01(a) has been proven by clear and convincing evidence, the resident shall not be:

(1) Discharged or transferred from the facility before the 22nd calendar day following his or her receipt of the notice required by § 44-1003.02(a) or the 5th calendar day following his or her notification of the hearing decision, whichever is later, unless a condition set forth in § 44-1003.02(b)(1) and (2) develops in the interim; or

(2) Relocated within the facility before the 8th calendar day following his or her receipt of the notice required by § 44-1003.02(a) or the 3rd calendar day following his or her notification of the hearing decision, whichever is later, unless a condition set forth in § 44-1003.02(b)(1) and (2) develops in the interim.

(Apr. 18, 1986, D.C. Law 6-108, § 303, 33 DCR 1510; Mar. 16, 1989, D.C. Law 7-218, § 602(c), 36 DCR 534; June 9, 2018, D.C. Law 22-112, § 3(b)(1), 65 DCR 4600.)

1981 Ed., § 32-1433.

This section is referenced in § 7-702.04 and § 44-1003.04.

Long-term care ombudsman program, ombudsman duties, see § 7-702.04.

Applicability of D.C. Law 22-112: § 7147 of D.C. Law 23-16 repealed § 4 of D.C. Law 22-112. Therefore the amendment of this section by D.C. Law 22-112 has been implemented.

Applicability of D.C. Law 22-112: § 4 of D.C. Law 22-112 provided that the change made to this section by § 3(b)(1) of D.C. Law 22-112 is subject to the inclusion of the law’s fiscal effect in an approved budget and financial plan. Therefore that amendment has not been implemented.

Delegation of authority pursuant to D.C. Law 6-108, see Mayor’s Order 86-129, August 8, 1986.

Delegation of authority pursuant to D.C. Law 6-108, “Nursing Home and Community Residence Facility Residents’ Protection Act of 1985.”, see Mayor’s Order 88-230, October 19, 1988.