Administrative Law Judge (ALJ) James F. Horan - Case 2


In the Matter of Resident RR / Rutland Nursing Home  
  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 Rutland Nursing Home (Facility): Suanne Linder Chiacchiaro, Esq.
For Resident RR (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 condition has improved sufficiently so that he no longer requires care in a nursing home. The Facility proposes discharge to a shelter that the City of New York operates. The Appellant challenges both the grounds for the discharge and the proposed discharge plan. After a hearing in this matter, at which both parties offered testimony and documentary evidence, I find that the Facility has established by substantial evidence that the Appellant's condition has improved sufficiently so that he no longer requires nursing home care. I find the Appellant's discharge appropriate and I find that the Facility has provided an appropriate Discharge Plan with the transfer to a City shelter that can accept an applicant in a wheelchair.

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)(2) allows involuntary discharge if a resident's health has improved sufficiently so that the resident no longer requires the services that the facility provides. The resident may challenge the discharge in a hearing pursuant to § 415.3(h)(2). In effect, this proceeding acts as a stay on any discharge, until the decision on the discharge appeal. 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.

The Facility provided a Discharge Notice [Exhibit I] to the Appellant on June 13, 2006. As grounds for the discharge, the Discharge Notice stated that the Appellant no longer requires services in a skilled nursing facility. The Appellant then requested the hearing that took place at the State Department of Health's Regional Office at 90 Church Street in New York City on July 13 and July 28, 2006. Following the hearing, on August 8, 2006, I advised the parties that the record contained no documentation from a physician approving the discharge and discharge plan. I indicated that I would leave the record open for the Facility to submit physician documentation and further I would leave the record open concerning information about possible surgery on the Appellant for a hip replacement. The Facility submitted the physician documentation and an update on the Appellant's hip in a packet that the ALJ received on August 21, 2006 [Facility Exhibit J and K]. A stenographic reporter prepared a transcript of the proceeding, pages 1-127.

At the hearing, the Facility presented as witnesses: the Facility's Associate Administrator, Michelle Edwards, the Director of Social Work, Vashti Calvert and Clinical Nurse Manager Karl Young. The Appellant testified himself and presented no further witnesses. The Facility and the Appellant presented the following documents that I received into the record:

ALJ I Notice of Hearing
Facility A Nursing Rehabilitation Attendance Sheets
Facility B Parole Papers
Facility C Rehabilitation Notes
Facility D Discharge Summary
Facility E Weekly Assessments
Facility F Medication Sheets
Facility G Psycho-Social Assessment
Facility H Brookdale Hospital Radiology Report
Facility I New York City Shelter Application (Submitted by fax transmission 7/31/06)
Facility J Physician and Interdisciplinary Team Notes (Received in the mail 8/21/06)
Facility K Letter concerning the Appellant's latest medical visits (Received with Ex. J)
Appellant 1 Requisition
Appellant 2 Clinic Appointment 7/14/06
Appellant 3 Clinic Appointment 6/23/06

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 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.

II. Findings of Fact

The matters in brackets following the findings reflect testimony from pages in the transcript [T] or exhibits in evidence [Ex] on which I relied in making the findings. If contradictory information appears elsewhere in the record, I considered that information and rejected it.

  1. The Appellant entered the Facility in Kings County in November 2005 for rehabilitation after a hip injury [T 39-40].
  2. Prior to the hip injury and hospitalization for that injury, the Appellant resided in a shelter [T 42].
  3. The Appellant is on parole from a criminal conviction [Ex B].
  4. The Appellant's parole requires that the Appellant participate in substance abuse treatment and anti-aggression/anti-violence counseling [T 44].
  5. The Facility provides neither substance abuse treatment nor anti-aggression/anti-violence counseling [T 76].
  6. The Appellant's treating physician at the Facility, Dr. Tawfik, has determined that the Appellant no longer requires skilled nursing care [Ex J].
  7. The Facility proposes to transfer the Appellant to the New York City Bellevue Shelter [T 72-73, 83: ALJ I ].
  8. A caseworker at the City shelter would be able to assist the Appellant with scheduling treatment appointments, medical appointments and with transportation [T 100].
  9. The Appellant requires hip replacement surgery [Ex K, T 83].
  10. The Appellant no longer receives therapy at the Facility [T 47, 52-55].
  11. The Appellant depends on a wheelchair [T 55, 78]
  12. The Appellant's parole status makes the Appellant ineligible for New York City assisted housing [T 80-81].
  13. The Appellant can perform the activities of daily living without assistance [T 91].

III. Conclusions

I conclude from the Exhibits and the testimony that I cited that the Appellant received reasonable and appropriate notice about this discharge, pursuant to Title 10 NYCRR § 415.3(b). I find as appropriate the Facility = s determination to discharge the Appellant, because the Appellant = s condition has improved sufficiently that he no longer requires nursing home care. I find that the Facility has proposed an appropriate discharge plan to a City shelter that will accept a client in a wheelchair.

The Appellant challenged the shelter discharge in part due to his belief that a shelter will not accept a client in a wheelchair. If the Appellant is correct, then the Facility will have to devise a new discharge plan and the Appellant will remain in the Facility pending my approval of such a new plan. The Appellant indicated that he would leave the Facility voluntarily at the time he requires transfer to a general hospital for hip replacement surgery and then undertake post -surgery rehabilitation at a setting other than the Facility [T 115-116]. If the Facility is unable to discharge the Resident to a City shelter due to the Appellant = s dependence on the wheelchair, then in the alternative, the Facility may discharge the Respondent at the time the Respondent must transfer to a general hospital for the hip replacement surgery.


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 as soon as placement in compliance with the discharge plan becomes available.
  3. If the Facility is unable to find the Appellant placement in a shelter, the Facility may discharge the Appellant at such time as the Appellant transfers to a general hospital for hip replacement surgery.

Dated: Troy, New York
August 23, 2006


James F. Horan
Administrative Law Judge