Administrative Law Judge (ALJ) James F. Horan - Case 1


In the Matter of Resident NB / Terrace Health Care Center, Inc.  
  Administrative Law Judge's Decision
Appeal from a Nursing Home Resident Discharge pursuant to Title 10 NYCRR 415.3(h)  

Before: Administrative Law Judge (ALJ) James F. Horan

For the Terrace Health Care Center (Facility): Jeffrey N. Sunshine, Esq.

For Resident NB (Appellant): Pro Se

The Appellant requested a hearing in this matter pursuant to Title 10 NYCRR § 415.3(h) to appeal the Facility's decision to discharge the Appellant. The Facility moved to discharge the Appellant on the grounds that the Appellant's conduct endangered the health or safety of individuals in the Center and that the Appellant failed after sufficient and appropriate notice to pay his share for his stay in the facility. After a two-day hearing in this matter, at which both parties presented witnesses and documentary evidence, I find that the Facility has established by substantial evidence that the Appellant presents a threat to the health and safety of the other residents and staff at the Facility due to the Appellant's assault on an employee and by setting a fire at the Facility. I find further that the Appellant failed to pay his share for his care at the Facility. I find the Appellant's discharge appropriate and I find at that the Facility has provided an appropriate Discharge Plan.

I. Background

Under Title 10 NYCRR § 415.3(h), a nursing home resident holds certain rights in regard to transfer or discharge. Title 10 NYCRR § 415.3(h)(1)(i)(a)(3) permits a resident to remain in a facility unless a Facility's interdisciplinary team determines that the resident's continued stay in the facility would endanger health or safety of individuals in the facility and no reasonable alternative would address the problem safely. Title 10 NYCRR § 415.3(h)(1)(i)(b) allows discharge if a resident has failed to pay, after reasonable and appropriate notice for his stay at the Facility. The resident may challenge the discharge in a hearing pursuant to § 415.3(h)(2).

The Facility provided a Discharge Notice [ALJ II] to the Appellant on May 25, 2004, citing as the grounds for the transfer health and safety of individuals and other residents in the facility and failure to pay. The Appellant then requested the hearing that took place at the Facility on June 24 and July 6, 2004. This ALJ attempted to tape record the June 24th hearing. The tape failed to record the hearing and left no record from testimony or arguments from the June 24th hearing. I advised the parties about the need to reconvene by letter on June 28, 2004 [ALJ III]. At the July 6th hearing, a stenographic reporter prepared a transcript of the proceeding. During the two hearing days the Facility presented as witnesses: Mr. Feldman, the Facility Administrator, Ms. Gentico, the Assistant Administrator, the Medical Director Dr. Donin, and two Social Workers, Mr. Santiago and Ms. Madden. The Resident testified and called two security officers as witnesses: Ms. Lozano and Mr. Perry. The Appellant called another Social Worker, Mr. Hendrix, on the first hearing day, but chose to forego any testimony by Mr. Hendrix on the second hearing day. Between the first and second days, I instructed the Facility by letter [ALJ III] to provide the Appellant with copies of the Appellant's medical chart not already in the hearing record, pursuant to § 415.3(h)(2)(i)(e) and I issued a subpoena for the re-appearance by Ms. Lozano, as she no longer works at the Facility. During the two hearing days I received into evidence four procedural exhibits that I designated ALJ I-IV, eight exhibits from the Appellant (Appellant A-H) and twenty-four exhibits from the Facility (Facility 1-24). The Appendix to this decision provides a list of the exhibits.

Under the hearing procedures at § 415.3(h)(2)(ii), the Facility bears the burden to prove a discharge necessary and appropriate. Under N.Y Administrative Procedure Act (APA) § 306(1), a decision in an administrative proceeding must be in accordance with substantial evidence. Substantial evidence means such relevant proof as a reasonable mind may accept as adequate to support conclusion or fact; less than preponderance of evidence, but more than mere surmise, conjecture or speculation and constituting a rational basis for decision, Stoker v. Tarantino, 101 A.d.2d 651, 475 N.Y.S.2d 562 (3rd Dept. 1984), appeal dismissed 63 N.Y.2d 649.

At the beginning of the hearing on June 24th, the Appellant requested a jury trial. I informed the Appellant that the Appellant held no right to a jury trial in the proceeding. Title 10 NYCRR § 415.3(h)(2) provides only for a presiding officer and no provision in APA Article 3 contains a provision allowing a party to an administrative proceeding a jury trial. Further, the requirements for jury trials under the Sixth and Seventh Amendments to the United States Constitution have no application to this proceeding as the proceeding constitutes neither a criminal trial nor a suit at common law.

On the first hearing day, the Resident also asked for appointed counsel. I informed the Resident that the Health Department did not provide counsel to litigants in administrative proceedings. Although APA § 501 permits a party appearing before an administrative agency the right to be accompanied, advised by and represented by counsel, the right to counsel in an administrative proceeding means only the right to hire one's own counsel, Goldberg v. Kelly, 397 U.S. 254 (1970). The Sixth Amendment requirements as to the right to counsel in a criminal proceeding have no application in administrative hearings, Rivera v. Blum, 98 Misc. 2d 1002, 420 N.Y.S.2d 304 (1978).

During the hearing, the Resident alleged that two documents in evidence contained forgeries of his signature [Facility 1, 12]. At the July 6th hearing, the Appellant requested that I submit the documents at issue to a handwriting expert. When I asked who would pay for the expert, the Appellant asserted that he should receive poor person status under the New York Civil Practice Law and Rules (CPLR). I ruled that the Department of Health would pay for no expert. Under CPLR § 1102, a Court may allow a litigant to proceed as a poor person and the Court may appoint counsel and waive certain court costs for the poor person, in the Court's discretion. The provisions in CPLR § 1102 have no application, however, to administrative proceedings (see 1983 Opinions of the Attorney General, Jan. 18). Even in Court proceedings that fall under CPLR § 1102, a government agency bears no responsibility to pay a poor person's expert witness fees, Carter v. County of Erie, 255 A.D.2d 984, 680 N.Y.S.2d 768 (4th Dept. 1998); leave to appeal denied 689 N.Y.S.2d 596. I ruled that I would make a determination on the forgery claim by comparing the signatures on the documents in dispute against signatures that the Appellant acknowledged (Appellant A, B, E, F). An administrative fact finder may determine a signature's authenticity by comparing signatures in documents, Matter of Terra v. Dept. of Health, 199 A.D.2d 577, 604 N.Y.S.2d 644 (3rd Dept. 1993).

Both parties also questioned what would happen when I rendered my decision. I indicated that my decision would mark the final determination by the Health Department and that any challenge to the decision would have to come in the Courts, such as a challenge in Bronx County Supreme Court pursuant to CPLR Article 78. The Appellant indicated that if the decision went against him, that he was giving verbal notice of his appeal. I indicated that verbal notice to the Health Department would be insufficient and that he would have to check with the Courts about how to commence any proceeding. At the end of the first hearing day, the Facility asked if any stay would apply to a discharge if I approved the discharge and the Discharge Plan. In effect, this proceeding acts as a stay on any discharge, until I issue a decision. If a decision approves the discharge and Discharge Plan, the proceeding ends with the decision and the discharge may proceed according to the discharge plan. I turn now to deciding the issues in the proceeding.

II. Failure To Pay

A. Findings of Fact

  1. The Appellant entered the Terrace Health Care Center Residential Health Care Facility in Bronx County on March 24, 2004 [Facility 11].
  2. The Appellant became eligible under the Medical Assistance Program in November 2003 [Facility 7].
  3. At the time the Appellant became eligible for Medical Assistance, the City of New York Medical Assistance Program informed the Appellant that the Appellant must contribute as his share for any care in a Residential Health Care Facility a Net Available Monthly Income (NAMI) that amounted to the Resident's monthly Social Security Benefits minus a Personal Incidental Allowance (PIA) that amounts to $50.00 [Facility 7].
  4. On May 3, 2004, Ms. Madden and Ms. Lai from the Facility approached the Appellant about endorsing over his Social Security Check to the Facility and the Appellant refused to endorse over the check [Facility 11].
  5. On or about May 31, 2004, the Appellant informed Mr. Hendrix that the Appellant refused to pay any money to the Facility [Facility 9].
  6. On the date of his admission to the Facility, the Appellant signed the Facility's Admission Agreement, in which he agreed to make the NAMI payments, but he refused to sign an Addendum to the Admission Agreement that would have arranged for direct NAMI payments to the Facility [Facility 12].

II. B. Conclusions

I conclude from the Exhibits that I cited in the above Findings and from testimony by Ms. Gentico and Ms. Madden that the Appellant received reasonable and appropriate notice about making his NAMI payment for his care, pursuant to Title 10 NYCRR § 415.3(b). I find that the Appellant refused to pay his share toward his care and refused to cooperate with the Facility by signing over his Social Security check [Facility 8]. The Appellant continued to refuse to make payment up until the end of the first hearing day, at which time the Appellant learned that failure to pay constituted a sufficient reason standing alone to discharge the Appellant. The Appellant then indicated he would set up a payment plan. The Facility refused to accept the offer to set up the payment plan. I conclude that the Appellant received an adequate opportunity to pay his NAMI share prior to the hearing day and I hold that such refusal, standing alone provides grounds for the Appellant's discharge from the Facility.

I find the Appellant's offer to set up a payment plan lacked credibility. If the Appellant actually intended to make payment he could have signed over the Social Security check in the Facility's possession [Facility 8]. I conclude that the Appellant mentioned the payment plan only to delay his discharge. The Appellant also claimed that the Facility forged his signature on Facility 12. I take that claim, in part, as a challenge about receiving adequate notice about the discharge. I compared the signatures that the Appellant allegedly made on Facility 12 against the signature examples that the Appellant identified as his signature on Appellant F. I find those signatures similar and I reject the Appellant's forgery claim. I note that Ms. Madden witnessed the signatures on Facility 12 and that Ms. Madden indicated A refused to sign @ at any point in Facility 12 at which the Appellant refused to sign. The Appellant challenged Ms. Madden's credibility because Ms. Madden failed to remember a letter that the Appellant presented at the July 6th hearing concerning rehabilitation visits. Ms. Madden denied seeing the letter and then indicated she may have seen the letter but failed to remember it. The Appellant accused Ms. Madden of perjury and offered a tape [Appellant H] that the Appellant claimed as proof that Ms. Madden committed perjury. I allowed the Appellant to play the tape at the hearing. The tape consisted mainly of the Appellant yelling at Ms. Madden. The only conclusion that I drew from the tape was that the Appellant was quite angry at the time he made the tape.

III. Danger To Health And Safety

A. Findings of Fact

  1. On May 11, 2004 at 11:45 p.m., smoke alarms went off at the Facility and staff found a fire on the Sixth Floor [Facility 19].
  2. The Resident lived on the Sixth Floor at that time [Facility 19].
  3. The items on fire included a shirt that belonged to the Appellant's roommate Resident D.M. [Facilitty 19].
  4. Staff put out the fire before the Fire Department of the City of New York (FDNY) arrived [Facility 19].
  5. White alcohol swabs with red writing were among the items at the fire scene [Facility 19].
  6. The Facility uses a different brand of alcohol swabs than the white swabs with red writing [Facility 19].
  7. A search at the Facility found white swabs with red writing among the Appellant's possessions [Facility 19].
  8. A search in a number of other resident rooms at the Facility found no such swabs in any other resident's possession [Testimony by Mr. Feldman, July 7, 2004].
  9. The Appellant had returned to the Facility on May 11, 2004 after treatment at Bronx Lebanon Hospital [Facility 19].
  10. Bronx Lebanon Hospital uses white alcohol swabs with red writing [Facility 19].
  11. On May 21, 2004, the Appellant received a package [Testimony by the Appellant, and Mr. Perry, July 6, 2004].
  12. Facility staff members Courtney O'Sullivan and Antonio Santiago confronted the Appellant and indicated that they needed to search the package [Appellant G].
  13. The Appellant refused to open the package [Appellant G].
  14. When Ms. O'Sullivan reached for the package, the Appellant stood from his wheelchair, went over Ms. Sullivan's back and seized the package [Appellant G, testimony by Mr. Santiago and Ms. Lozano, July 6, 2004].
  15. In reaching over Ms. O'Sullivan, the Respondent made violent contact with Ms. O'Sullivan's face and shoulder [Testimony by Mr. Santiago and Ms. Lozano, July 6, 2004].
  16. Following the incident, a medical examination revealed a fresh abrasion on Ms. O'Sullivan's face, shoulder pain and limited range of motion in the shoulder [Testimony by Dr. Donin, July 6, 2004].
  17. Following the incident, the New York City Police Department arrested the Appellant and the Appellant faces criminal charges [ALJ II].
  18. Since the incident, an Order of Protection applies barring the Appellant from contact with Ms. O'Sullivan. [ALJ II].

III.B. Conclusions

I conclude from substantial evidence in the record that the Appellant started the fire on May 11, 2004 and that the Appellant committed abusive conduct toward Ms. O'Sullivan on May 21, 2004, that resulted in Ms. O'Sullivan's injury. I conclude that the incidents demonstrate that the Appellant's continued stay in the Facility would endanger the health and/or safety of others in the Facility. Since the fire and the abusive conduct the Facility has placed the Appellant under one-on-one security, with a guard assigned to the Appellant alone. Mr. Feldman indicated that the daily cost for such security exceeds the daily reimbursement that the Facility receives for the Appellant's care and the Appellant challenges such restrictions as unconstitutional. I conclude that no reasonable alternative to discharge exists that would safely address this problem and that the Facility can discharge the Appellant due to health and safety concerns pursuant to Title 10 NYCRR § 415.3(h)(1)(a)(i)(3).

I conclude from Mr. Feldman's testimony and the circumstantial evidence in Facility 19 that the Appellant started the fire on May 11, 2004. No one saw the Appellant set the fire and the Appellant denied setting the fire. I reject the Appellant's testimony. I find that the Appellant alone possessed the swabs that accelerated the fire, that he had access to the roommate's clothing that burned in the fire and that the fire started on the same floor as the Appellant lived. Ms. Gentico also testified that the Appellant had made threats to damage the Facility. An FDNY investigation resulted in no criminal charge against the Appellant, but the investigation also indicated that the Appellant was arrested for setting a fire at another health care facility. The Appellant admitted that prior arrest during the July 6th hearing, but pointed out that he was never convicted for arson and that he faces no criminal charges from the May 11th fire. I find that the circumstantial evidence in this case provides substantial evidence to identify the Appellant as the person who caused the fire.

I conclude from the testimony by Mr. Santiago and from Ms. Lozano's report, in evidence as Appellant G, that the Appellant committed abusive conduct that resulted in injury to Ms. O'Sullivan. Ms. Lozano testified at the June 24th hearing that no assault occurred on May 11th, but she changed that testimony at the July 6th hearing. Her report corroborated her testimony on July 6th. Dr. Donin also provided corroboration for Mr. Santiago's testimony, by testifying to the injuries on Ms. O'Sullivan soon after the incident. The Appellant denied committing assault, but he argued that Ms. O'Sullivan had no right to inspect the package the Appellant received on May 21st. I took that argument as the Appellant's claim that he was entitled to do what he had to do to prevent Ms. O'Sullivan from inspecting the package. I reject the Respondent's testimony.

The Appellant pointed out that Ms. O'Sullivan failed to testify at the proceeding. The Facility indicated that they failed to call Ms. O'Sullivan because she no longer works at the Facility. The Facility also made no request that I issue a subpoena for Ms. O'Sullivan. The failure to call a witness whom a party would naturally be expected to call can provide sufficient basis for a trier of fact to draw an adverse inference (see Prince, Richardson, On Evidence, § 3-140 [Farrell 1995]). I draw no adverse inference from Ms. O'Sullivan's failure to testify. An Order of Protection prevented the Appellant from coming in close proximity to Ms. O'Sullivan. The Appellant would have been unable legally to be in the hearing room for Ms. O'Sullivan's testimony, and I saw no way how I could have accepted factual testimony in the Appellant's absence.

Having found that two grounds exist for the Appellant's Discharge from the Facility, I now turn to the Discharge Plan.

IV. Discharge Plan

A. Findings of Fact

  1. The Appellant is a 49 year old male who suffers from Diabetes and Osteomyelitis and faces amputation of both feet [Facility 23].
  2. The Appellant has gangrene on both feet [Testimony by Dr. Donin, July 7th].
  3. The Appellant resists care at the Facility and currently refuses to have an intravenous line removed from his arm, even though no medical reason remains for the line and the line constitutes a risk for infection [Testimony by Dr. Donin, July 6, 2004, testimony by the Appellant, July 6, 2004].
  4. The Appellant can receive the same type of care that the Facility can provide at out-patient facilities [Testimony by Dr. Donin, July 7th; Facility 21].
  5. The Facility plans to discharge the Appellant to the New York City Shelter System, with prescriptions, and to arrange appointments for the Appellant's out-patient care [Testimony by Dr. Donin, July 6, 2004 ; Facility 21].

IV.B. Conclusions

I conclude from the testimony by Dr. Donin and by the documentation that Dr. Donin provided from the Appellant's chart, that the Facility's Medical Director has signed off on the Discharge Plan and that the Discharge Plan will provide appropriate care for the Appellant, if the Appellant will accept that care. The Appellant argued that the testimony by Dr. Donin showed that discharge would be detrimental to the Appellant's health. I disagree with the Appellant's characterization of Dr. Donin's testimony and I wonder what testimony the Appellant heard. The Appellant criticized his care at the Facility and indicated his unwillingness to be there. He expressed the intent, however, to leave on his own terms, when he can find an apartment. I find that the Respondent cites no credible medical reason to prevent his discharge under the Discharge Plan the Facility has identified. The discharge may proceed according to the Discharge Plan and to the provisions in § 415.3(h). I find that the Facility has complied with all procedures in § 415.3(h) to this point.


NOW; after considering the request for Hearing, the testimony and the documents in evidence, I issue the following Order:

  1. I approve the Facility's decision to discharge the Resident under the Discharge Plan that the Facility has identified.
  2. The Facility may proceed with implementing the Discharge Plan upon receiving this Decision.
  3. The Appellant will receive a copy of this Decision, but the Facility should also include a copy of the Decision in any paperwork the Facility provides to the Appellant at the time of discharge.

Dated: Troy, New York
July 8, 2004


James F. Horan
Administrative Law Judge



ALJ Notice of Hearing
ALJ II Discharge Notice
ALJ III June 28th Letter to Parties
ALJ IV Lozano Subpoena
Appellant A Letter to Bronx Administrative Law Judge 5/22/04
Appellant B Freedom of Information/Medical Records Request
Appellant C Request for Injunction
Appellant D Letter to Bronx Administrative Law Judge
Appellant E Behavior Contract (same as Facility 16, contained in Facility 18)
Appellant F Handwriting Samples
Appellant G Lozano Report
Appellant H Tape
Facility 1 Criminal Conviction Background Check
Facility 2 Criminal Record Report/ Southern District of New York
Facility 3 First Check Criminal Record
Facility 4 Criminal Court Order of Protection/Subpoena
Facility 5 Criminal Court Domestic Violence Complaint
Facility 6 Vacancy Availability Notice
Facility 7 Medical Assistance-Net Available Monthly Income
Facility 8 Check Photocopy
Facility 9 Dentico E-Mail 5/3/04
Facility 10 Discharge Appeal Request
Facility 11 Package Concerning NAMI
Facility 12 Admission Agreement;
Facility 13 Terrace Health Care Administration
Facility 14 Center Policy and Procedures
Facility 15 Package Inspection Policy
Facility 16 Behavior Contract (same as Appellant E, contained in Facility 18)
Facility 17 Inappropriate Behavior
Facility 18 Directions to Center
Facility 19 Fire Incident Information
Facility 20 Social Services Notes Synopsis
Facility 21 Chart Entry 6/23/04
Facility 22 Nurses Notes
Facility 23 Records from Phelps Memorial Hospital
Facility 24 Subsequent Treatment Records 6/28/04-7/06/04