THE DISCHARGE OR TRANSFER OF A RESIDENT FROM A NURSING HOME
by Mark A. Krohn, Partner
Jacobowitz & Gubits, LLP
In New York both federal and state laws exist to prevent the unreasonable discharge of patients from a Nursing Home or other skilled nursing facility. According to law the facility must allow a resident to remain unless:
- The health or safety of others is threatened;
- The transfer or discharge is necessary to meet the resident’s needs and same cannot be met by the facility;
- The patient has not paid for services despite being able to do so. For failure to pay, such transfer or discharge is permissible only if: (a) a charge is not in dispute; (b) no appeal of a denial of benefits is pending; or (c) the funds for payment are available, but the resident refuses to cooperate with the facility in obtaining them;
- The patient’s health has improved so that services are no longer needed; and
- The facility ceases its operations.
The law applies to all residents, regardless of source of payment. Before any transfer takes place, the resident and his or her designated representative must be notified in writing of the planned move and the reasons therefore. The resident must be given thirty days’ notice unless the health or safety of persons in the facility will be endangered. The resident may appeal any proposed transfer or discharge to the NYS Department of Health. The right to an on-site hearing prior to transfer exists provided the request for a hearing is made within fifteen days of the notice. At the discharge hearing the nursing home has the burden of showing that the transfer is necessary and that the discharge plan is appropriate. The skilled nursing facility must prepare the resident for the transfer or discharge so that adverse effects can be minimized.
Although the federal statutes and regulations are designed to protect the rights of residents, they do not provide for a civil private right of action for violations of the law. However, New York Law provides a private right of action to residents for damages resulting from a violation by a nursing home of any contract or federal or state law. Attorneys’ fees may be awarded to the successful plaintiff, and punitive damages (designed to punish) may be awarded when the conduct was willful or reckless.
The NYS Department of Health is charged with investigating complaints filed under the Nursing Home Patient Abuse Reporting Law. Professionals working in a skilled nursing facility are required to report instances of abuse, neglect, and mistreatment. Non-professionals may report suspected instances of abuse, neglect, and mistreatment.
If you or a loved one needs the help of a New York lawyer with experience in handling disputes concerning wrongful transfer, discharge or abuse, our knowledgeable and skilled attorneys will offer you compassion, understanding, and sound counsel to guide you through the investigation of your loved ones residency and further legal action if negligence is found.