801—10.43(35D) Rule enforcement—power to suspend and discharge members.

1. 10.43(1)  The commandant or designee shall, with the input and recommendation of the RCC, involuntarily discharge a member for any of the following reasons:

   1. a. The member has been diagnosed with a substance use disorder but continues to abuse alcohol or an illegal drug in violation of the member’s conditional or provisional agreement entered into at the time of admission or at any time thereafter, and all of the following conditions are met:

      1. (1) The member has been provided sufficient notice of any changes in the member’s collaborative care plan.

      2. (2) The member has been notified of the member’s commission of three offenses and has been given the opportunity to correct the behavior through either of the following options:

         1. 1. Being given the opportunity to receive the appropriate level of treatment in accordance with best practices for standards of care.

         2. 2. By having been placed on probation by IVH for a second offense.

            Notwithstanding the member meeting the criteria for discharge under paragraph 10.43(1)“a,” if the member has demonstrated progress toward the goals established in the member’s collaborative care plan, the RCC and the commandant or designee may exercise discretion regarding the discharge. Notwithstanding any provision to the contrary, the member may be immediately discharged under paragraph 10.43(1)“a” if the member’s actions or behavior jeopardizes the life or safety of other members or staff.

   2. b. The member refuses to utilize the resources available to address issues identified in the member’s collaborative care plan, and all of the following conditions are met:

      1. (1) The member has been provided sufficient notice of any changes in the member’s collaborative care plan.

      2. (2) The member has been notified of the member’s commission of three offenses and the member has been placed on probation by IVH for a second offense.

         Notwithstanding the member meeting the criteria for discharge under paragraph 10.43(1)“b,” if the member has demonstrated progress toward the goals established in the member’s collaborative care plan, the RCC and the commandant or designee may exercise discretion regarding the discharge. Notwithstanding any provision to the contrary, the member may be immediately discharged if the member’s actions or behavior jeopardizes the life or safety of other members or staff.

   3. c. The member no longer meets the requirements for residential or nursing level of care, as determined by the RCC or medical provider.
   4. d. The member requires a level of licensed care not provided at IVH.

2. 10.43(2)  Provisions for member following discharge from IVH.

   1. a. If a member is discharged under this rule, the discharge plan shall include placement in a suitable living situation which may include but is not limited to a transitional living program approved by the commission or a living program provided by DVA.
   2. b. If a member is involuntarily discharged under this rule, the commission shall, to the greatest extent possible, ensure against the member being homeless and ensure that the domicile to which the member is discharged is fit and habitable and offers a safe and clean environment which is free from health hazards and provides appropriate heating, ventilation and protection from the elements.

3. 10.43(3)  Discharge notice, including right to appeal. An involuntary discharge of a member under this rule shall be preceded by a written notice to the member. The notice shall state that, unless the discharge is an immediate discharge due to the member’s actions or behavior which jeopardizes the life or safety of other members or staff, the effective date of the discharge is 30 calendar days from the date of receipt of the discharge notice, and that the member has the right to appeal the discharge. In addition, the discharge notice shall contain:

   1. a. The stated reason for the proposed discharge or transfer.
   2. b. The actual effective date of the proposed discharge or transfer.

   3. c. A statement in not less than 12-point type which reads: “You have a right to appeal the facility’s decision to transfer or discharge you. If you think you should not have to leave this facility, you may request a hearing in writing or verbally with the Commission of Veterans Affairs (hereinafter referred to as “Commission”) within five (5) calendar days after receiving this notice. You have a right to be represented at the hearing by an attorney or any other individual of your choice at your own expense. If you request a hearing, it will be held, and a decision rendered within ten (10) calendar days of the filing of the appeal. Provision may be made for extension of the ten (10) day requirement upon request to the Commission designee. If you lose the hearing, you will not be discharged or transferred before the expiration of 30 days following receipt of the original notice of the discharge or transfer, or no sooner than five (5) days following final decision of such hearing. To request a hearing or receive further information, call the Commission or write to the Commission to the attention of:

      Chairperson, Commission of Veterans Affairs.”

4. 10.43(4)  Emergency discharge. In the case of an emergency transfer or discharge relating to a threat of imminent harm, the resident must still be given a written notice prior to or within 48 hours following transfer or discharge. A copy of this notice must be placed in the resident’s file, and it must contain all the information required by 10.43(3). In addition, the notice must contain a statement in not less than 12-point type (elite), which reads: “You have a right to appeal the facility’s decision to transfer or discharge you on an emergency basis. If you think you should not have to leave this facility, you may request a hearing in writing or verbally with the Commission of Veterans Affairs (hereinafter referred to as ‘Commission’) within 5 calendar days after receiving this notice. If you request a hearing, it will be held and a decision rendered within 10 calendar days of the filing of the appeal no later than 14 days after receipt of your request by the Commission. You may be transferred or discharged before the hearing is held or before a final decision is rendered. If you win the hearing, you have the right to be transferred back into the facility. To request a hearing or receive further information, you may call the Commission or write to the Commission to the attention of: Chairperson, Commission of Veterans Affairs.”

5. 10.43(5)  Appeal by member.

   1. a. If a member appeals the discharge under this rule, the member shall be provided with the information relating to the appeals process as specified in rule 801—10.47(35D).
   2. b. If a member appeals the discharge under this rule, the involuntary discharge appeal process in rule 801—10.47(35D) shall apply.
6. 10.43(6)  By the fourth Monday of each session of the Iowa general assembly, the commandant shall submit a report annually to the senate veterans affairs committee and the house veterans affairs committee specifying the number, circumstances and placement of each member involuntarily discharged from IVH under this rule during the previous calendar year.
7. 10.43(7)  Any involuntary discharge by the commandant or designee under this rule shall comply with the rules adopted by the commission and by the department of inspections and appeals in accordance with Iowa Code section 35D.15.

The commandant or designee shall administer and enforce all rules adopted by the commission, including rules of discipline and, subject to these rules, may immediately suspend the membership of and discharge any member from IVH for infraction of the rules when the commandant or designee determines that the health, safety or welfare of the members of IVH is in immediate danger and other reasonable alternatives have been exhausted. The suspension and discharge are temporary pending action by the commission. Judicial review of the action of the commission may be sought in accordance with Iowa Code chapter 17A.

[ARC 8014B, IAB 7/29/09, effective 7/10/09; ARC 8417B, IAB 12/30/09, effective 2/3/10; ARC 1157C, IAB 10/30/13, effective 12/4/13; see Delay note at end of chapter; ARC 2675C, IAB 8/17/16, effective 9/21/16; ARC 5800C, IAB 7/28/21, effective 9/1/21]