SECTION 310:675-7-4.1. Resident admission and continued residency based on administration of antipsychotic drugs

(a)   Reasons for denial of admission or continued residency. No long-term care facility shall deny admission or continued residency to a person on the basis of the person's or his or her representative's refusal to the administration of antipsychotic drugs, unless:

(1)   The prescribing clinician or care facility can demonstrate that the resident's refusal would place the health and safety of the resident, the facility staff, other residents or visitors at risk.

(2)   The alleged risk shall be documented in detail and presented to the resident or the representative of the resident, to the State Department of Health and to the Long-Term Care Ombudsman; and shall inform the resident or the representative of the resident of the resident's right to appeal.

(b)   Procedures. Procedures for resident appeal are as follows:

(1)   Written documentation of the alleged risk associated with the administration of antipsychotic drugs shall be provided to the resident or representative of the resident, to the State Department of Health and to the Long-Term Care Ombudsman; and shall inform the resident or the representative of the resident of the resident's right to appeal the denial of admission or denial of continued residency to the State Department of Health. The documentation of the alleged risk shall include:

(A)   A description of all nonpharmacological or alternative care options attempted; and

(B)   Why all nonpharmacological or alternative care options attempted were unsuccessful; and

(C)   Why the prescribing clinician determined alternative treatments were not medically appropriate for the condition following a physical examination.

(2)   Procedures for antipsychotic drug refusal and the facility's notice of admission denial or continued residency are as follows:

(A)   If a resident or a resident's representative is aggrieved by the facility's decision to deny admission or continued residency regarding the refusal of antipsychotic drugs at 63 O.S. 1-881(E)(2) the resident or resident's representative may file within ten (10) days of notice a written request for a hearing with the Department by sending a letter to the Hearing Clerk, Oklahoma State Department of Health, 1000 NE Tenth Street, Oklahoma City, OK 73117.

(B)   The written notice shall include:

(i)   A full explanation of the reason for the denial of admission of residency or denial of continued residency;

(ii)   The date of the notice; and

(iii)   The date notice was given to the resident and the resident's representative.

(3)   Failure of the facility to give the notice as substantially specified shall result in an order without hearing from the Department denying the right of the facility to discharge or deny admission to the resident.

(4)   If a written request for a hearing is properly filed by an eligible aggrieved party, the Department shall convene a hearing within ten working days of receipt of the request. The request may be in the form of a letter or a formal request for hearing from the resident or resident's representative. In the event that the resident is unable to write, a verbal request made to the hearing clerk shall be sufficient. The Department shall reduce the verbal request to writing and send a copy to the resident. The request shall state the objection to the notice of denial of admission of residency or denial of continued residency and attach a copy of the notice from the facility.

(5)   During the pendency of the hearing, the facility shall not discharge or deny admission or readmission for the resident unless the discharge or admission denial was required by the Department or is an emergency situation. If the resident relocates from the facility but wants to be admitted or readmitted, the Department may proceed with the hearing and the facility shall be required to admit or readmit the resident to the first available bed in a semi-private room if the discharge is found not to meet the requirements of the Nursing Home Care Act and OAC 310:675.

(6)   The Department shall provide the Administrative Law Judge and the space for the hearing. The parties, including the resident and the facility, may be represented by counsel or may represent themselves.

(7)   The hearing shall be conducted at the Oklahoma State Department of Health building unless there is a request for the hearing to be held at the facility or at another place. Providing the hearing room in such a case shall be the responsibility of the parties. The Department shall maintain a record on the case as it does for any other individual proceeding.

(8)   The hearing shall be conducted in accordance with the Department's procedures, Chapter 2 of this Title. The Administrative Law Judge's order shall include findings of fact, conclusions of law and an order as to whether or not the transfer or discharge was according to law. If a facility receives federal funds for services, it shall also comply with the certification standards. The more restrictive rule toward the facility shall be applied.

(9)   If the Administrative Law Judge finds the notice of continued residency or denied admission was not according to law, the Department shall review, investigate and issue deficiencies as appropriate.

(10)   If the notice of continued residency or denied admission is according to law, the order shall give the facility the right to discharge or deny admission to the resident.

(11)   The scope of the hearing may include:

(A)   Inadequate notice;

(B)   Continued residency or admission denial based on reason not stated in the law;

(C)   Sufficiency of the evidence to support the continued residency or admission denial; or

(D)   The finding of emergency.

(12)   The Administrative Law Judge shall render a written decision within ten working days of the close of the record.

(13)   If the Administrative Law Judge sustains the facility, the facility may proceed with the discharge. If the Administrative Law Judge finds in favor of the resident, the facility shall withdraw its notice of intent to transfer, discharge or deny admission of the resident. The decision of the Administrative Law Judge shall be final and binding on all parties unless appealed under the Administrative Procedures Act.

[Source: Added at 37 Ok Reg 1448, eff 9-11-20]