Submitted by Bria Lewis, Esq., Staff Attorney
Recently, CELJ represented a client who was discharged from a nursing home to a local hospital with a transfer/discharge notice stating that the facility would not be able to take our client back. At the discharge hearing before the NYS Department of Health, the facility was unable to demonstrate why the hospital was an appropriate discharge, why the facility failed to engage in alternative discharge planning for the client, and why they sought instead to send the client to the hospital. The Administrative Law Judge ruled in our client’s favor and ordered the nursing home readmit our client as soon as the next bed becomes available.
This case came to CELJ through our MedLaw Partnership of WNY, a collaboration with local hospitals that addresses health-harming civil legal issues facing patients, such as unlawful evictions, unsafe living conditions, lack of income or insurance based on improper denial of benefits, and lack of advance directives, among many others.
There are a few scenarios when a resident staying in a nursing home may be transferred to a hospital. One reason may be that the resident has emergent care needs that require medical attention. Another reason may be that the nursing home feels that the residents’ clinical or behavioral status endangers the health and/or safety of other individuals in the facility. Regardless of the reason, state and federal regulations require that nursing home residents who are temporarily hospitalized be allowed to return to the facility following hospitalization. However, sometimes a nursing home will refuse to accept a resident back after they have been hospitalized, even when the resident wants to return and is not in need of acute care. This is known as an involuntary discharge to a hospital, or “hospital dump” and violates resident rights laws.
Once a nursing home admits a resident, regardless whether for short-term rehabilitation or long-term care, it cannot simply transfer the resident to a hospital and refuse to readmit them. Residents have rights and nursing homes are required to determine their capacity and capability to care for the resident before they are admitted. It is the nursing home’s legal responsibility to ensure it is staffed appropriately to meet each admitted resident’s physical, mental, and psychosocial needs. Furthermore, when a nursing home initiates a transfer or discharge of a resident from their facility, it is their responsibility to provide an appropriate discharge plan. A hospital is not a permanent and/or appropriate discharge location.
When a nursing home refuses to readmit a resident, and that resident wants to return to the same nursing home, the resident has the right to appeal the facility’s determination. If the appeal is successful, the resident has the right to return to the first available bed at the nursing home that originally sent them over to the hospital. The first step to filing an appeal is to contact the NYS Department of Health at 1-888-201-4563 or by email email@example.com. The resident can choose to be represented by an attorney, however an attorney will not be automatically appointed.
*If the resident does not wish to return to the nursing home, the resident should work with the hospital discharge planning team on viable and safe alternatives; such as: return to the community with long-term services and supports, an adult care facility, or different nursing home. See our hospital discharge guide for more information. It is important to note, however, if the resident has no acute care needs, there may be hospital charges accruing that insurance may not cover for each day the resident remains hospitalized.
If you are a resident or family member of a resident who has been “discharged” to a hospital and informed your nursing home will not readmit you, the Center for Elder Law & Justice is available to help. Please call our office at (716) 853-3087 to learn more about your rights as a resident in a nursing home and for potential legal representation.
The above content is to be used for informational purposes only and is subject to change at any time. This information does not constitute legal advice and does not create an attorney-client relationship.