Administrative Law Judge (ALJ) James F. Horan - Case 4


In the Matter of Resident RV / Hudson Pointe at Riverdale Center for Nursing and Rehabilitation  
  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 Hudson Point (Facility): Amy Schwartz, Facility Social Worker
For Resident RV (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 the Appellant's apartment. The Appellant indicated his willingness to return to his apartment, but only after he has resolved complaints over what the Appellant characterizes as inaccuracies in his medical record at the Facility. After a hearing in this matter, at which both parties offered testimony and documentary evidence, the ALJ finds 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 and the ALJ finds the discharge to the Appellant's apartment safe and appropriate. The ALJ finds further that the Appellant's complaints about his medical record at the Facility constitute no ground to delay the Appellant's discharge. The ALJ refers the Appellant's complaint about the medical record to the Department of Health's Access to Patient Information Program.

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 ALJ I] to the Appellant on September 20, 2007. 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 Facility in Bronx County on October 5, 2008. At the hearing, the Facility presented as witnesses: Lila Dogim, M.D., the Medical Director at the Facility; Barbara Blatt, of the Facility's Physical Therapy Department and Silvio Abreo, an aide at the Facility who provides care to the Appellant. The Appellant testified on his own behalf. The parties presented the following documents that I received into the record:

ALJ I Notice of Hearing
Facility 1 Attending Physician's Statement
Facility 2 Medicaid Application
Appellant A Appellant's Statement
Appellant B Request for Hearing Record (post hearing)
Appellant C Request for Information (post hearing)

The Appellant submitted the documents in the record as Exhibits B and C, by facsimile transmission following the hearing. This decision will attach all exhibits from the record. The record in the proceeding also included the transcript of the proceeding. At the date the ALJ signed this report, the ALJ still had not received the written copy of the hearing transcript, so to expedite the decision, the ALJ relied on a copy of the transcript, pages 1-64, that the ALJ received from the reporting service by electronic mail.

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 on July 6, 2007 for rehabilitation [T 34].
  2. The Appellant was unable to walk for sometime prior to admission due to bilateral knee contractures that prevented the Appellant from standing [T 34].
  3. After two weeks in rehabilitation, the Appellant was independent in all transfers, had increased his muscle strength and was independent in all activities of daily living [T 35].
  4. The Appellant reached all goals in rehabilitation and has reached a plateau that resulted in his discharge from therapy [T 35-36].
  5. The Appellant's treating physician at the Facility has determined that the Appellant requires no services provided by a residential healthcare facility, is medically stable and is able to transfer independently [Ex. 1].
  6. The Appellant has returned to his apartment on several occasions during his stay at the Facility [Ex. 12, 42].
  7. The Appellant's apartment is wheelchair accessible and contains "grab bars" in the bathroom [T 43].
  8. The Facility has arranged for visiting nursing services for the Appellant after he returns to his apartment [T. 12].

III. Conclusions

The ALJ concludes from the Exhibits and the testimony that the Appellant received reasonable and appropriate notice about this discharge, pursuant to Title 10 NYCRR § 415.3(b). The ALJ finds 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. The Appellant indicated that he would like to go back to physical therapy, but the ALJ finds that the Facility has demonstrated that the Respondent has reached a plateau in rehabilitation.

The Appellant indicated that he was ready to return to his apartment, but only after the Appellant resolves complaints against the Facility concerning his medical records [T 8-10, 34]. The Appellant indicated he wanted the records corrected or destroyed [T 49-50]. The ALJ finds the Appellant's complaints failed to provide a ground to delay his discharge, because the Appellant no longer requires services in a nursing home. The ALJ advised the Appellant further that under New York Public Health Law § 18(8) (McKinney Supp. 2007), if a patient disputes information in a medical record, the patient may submit a statement noting the dispute, but no procedure exists for changing or destroying the disputed records. The ALJ also called the Appellant's dispute to the attention of Howard Baumgartner at the Department of Health's Access to Patient Information Program. The ALJ also directs the Facility to continue to provide the Appellant with copies of his record up to and including his discharge, so he may continue to dispute any information in the record.

After the ALJ advised the Appellant, on the record, that the Appellant's dispute over the record presented no valid reason to delay the discharge, the ALJ asked the Appellant how much time he might need to prepare to return home. The Appellant ignored that question and returned to discussing his medical record [T 46]. The ALJ then advised all parties that October 22, 2007 would become the discharge date.


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

  1. The ALJ finds that appropriate grounds exist for the Facility to discharge the Appellant and that the Facility has provided a safe and appropriate discharge plan.
  2. The Facility may proceed with the discharge no sooner than October 22, 2007.
  3. The ALJ refers the Appellant's medical record complaints to the Department of Health's Access to Patient Information Program.
  4. The Facility will provide the Appellant with copies of his Facility medical record up to the date of discharge.

Dated: Troy, New York
October 16, 2007


James F. Horan
Administrative Law Judge