Breaking Up Is Hard To Do: Strategies For Success In Involuntary Discharge Proceedings

Generally, under New York law, residents of a skilled nursing facility have a right to remain in that facility so long as they choose to do so. However, this does not mean that skilled nursing facilities are left without any recourse to remove a resident. Department of Health regulations allow a resident to be discharged involuntarily under certain specific circumstances:

1. the transfer or discharge is necessary for the resident’s welfare and the resident’s needs cannot be met after reasonable attempts at accommodation in the facility;
2. the transfer or discharge is appropriate because the resident’s health has improved sufficiently so the resident no longer needs the services provided by the facility;
3. the health or safety of individuals in the facility is endangered; or
4. when the resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare, Medicaid or third-party insurance) a stay at the facility.

Importantly, satisfying these criteria is only the beginning of the process. In order to initiate an involuntary discharge, the facility must first: 1) serve the resident with a 30-day notice of discharge, specifically advising the resident of the reason for the discharge; 2) the effective date of the discharge; 3) where the resident will be transferred or discharged (whether to another skilled nursing facility or to the community); 4) the appeal rights available to the resident; and 5) contact information for resources available to the resident to enforce his or her right to remain at the facility, such as the Long Term Care Ombudsman. If the facility fails to serve proper notice on the resident, the discharge will not be permitted.

If the resident or their designated representative objects to the discharge notice, the facility may not discharge the resident unless the Department of Health determines that the proposed discharge is safe and appropriate. A hearing will take place before an Administrative Law Judge, where the facility and the resident will each have the right to be represented by an attorney, to present evidence, and to call and cross-examine witnesses in support of their positions. The facility will need to demonstrate that it has an appropriate basis for the discharge and establish that the environment the resident is going to will not be unsafe in light of his or her individual needs. Careful preparation for this hearing is absolutely essential to ensure the best chance of success.

Cona Elder Law’s experienced attorneys have successfully handled countless discharge proceedings on behalf of our health care facility clients. Contact us at 631.390.5000 or click here if we can help you with your discharge proceedings and/or to learn more about how our firm can help your facility preserve your bottom line and ensure your ability to continue to provide quality services to your nursing home residents.

This article was originally published on LeadingAge New York.