Tactics Skilled Nursing Facilities Can Use to Prevail in Discharge Appeal Hearings Before the New York Department of Health

Federal Law and the laws of most states, including New York, provide that facilities are permitted to discharge residents in the following circumstances: when the discharge is necessary for the resident’s welfare; the discharge is appropriate because the resident’s health improved such that facility services are not required; the health and safety of other individuals is threatened if the resident remains at the facility; the resident has failed to pay for the stay at the facility; and the facility discontinues its operation.  This article focuses on the discharge procedure for residents no longer requiring services of the facility due to their improved health, as this tends to be the area most frequently challenged.

In New York, residents believing discharge is improper can appeal to the Department of Health for an evidentiary hearing.  During the hearing, an administrative law judge will examine and weigh two factors: whether the resident’s health sufficiently improved and whether the discharge plan allows for safe and suitable accommodations on which the resident has had an opportunity to provide input.

Residents are often reluctant to leave skilled nursing facilities because, in many instances, the facilities have become their homes.  Dealing with the assimilation of alternative housing for the elderly who do not have family members or friends to take them in is a daunting process.  Naturally, when this matter is presented before an administrative law judge, sympathy is inevitable.  For this reason, even though it appears simple for a nursing home to show that the resident’s health improved sufficiently and that suitable and safe arrangements have been made for discharge, at a hearing, judges scrutinize the discharge process in an effort to protect vulnerable residents.

For discharge hearings, documentation is key to convincing the Department of Health that the discharges are appropriate.  For example, facilities must be able to show that, even if the residents’ health improved sufficiently, the residents can care for their health needs independently.  For example, in the case of a diabetic patient on insulin, the facility should document multiple instances in which the staff has taught the patient how to inject the medication and the patient’s demonstrated understanding and ability to do so.

Efforts of the facility to obtain suitable discharge accommodations are particularly scrutinized at the hearings.  The resident typically argues that the discharge accommodations are not satisfactory because they are not desirable to the resident. The reality is that facilities have limited options for placement in assisted living facilities or adult homes due to lengthy wait lists and limited space.   Facilities should document in the residents’ charts the efforts of social workers to apply to multiple facilities and denials of admission.  In a typical case, a resident argued that he was not given an opportunity to apply to assisted living facilities in Brooklyn and Manhattan.  The social workers of the facility were well aware that the facilities in those boroughs had no openings or lengthy wait lists.  However, they did not document their consideration of these facilities, making it seem as though the resident’s wishes were disregarded.  Although ultimately the judge ruled that the discharge was appropriate, it would have been less of an uphill battle at the hearing had the facility documented its efforts to contact and apply to the facilities the resident requested.

Frequently the resident is uncooperative in partaking in discussions regarding discharge.  Yet, when the facility issues a discharge notice, the resident challenges the discharge on the basis of not being given the opportunity to participate in discharge planning.  In these instances, it is important that the facility document the resident’s repeated lack of cooperation in the process.

The rule to follow for discharging residents on the basis of significantly improved health is to foresee the possibility of a hearing to challenge the improved health and the discharge process and to document thoroughly efforts to secure appropriate and safe conditions for the resident.

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