Administrative Law Judge (ALJ) James F. Horan - Case 3

STATE OF NEW YORK : DEPARTMENT OF HEALTH

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: Nixon Peabody, LLP
1100 Clinton Square
Rochester, NY 14604-1792
BY: Richard T. Yarmel, Esq.
 
For Resident RR: Mental Hygiene Legal Services
120 Schermerhorn Street, Room 402
Brooklyn, NY 11201
BY: Melissa Lee, Esq.
 
For Kings County Hospital Center
New York City Health and Hospitals Corporation:		 McAloon & Friedman, P.C.
123 William Street
New York, NY 10038-3804
BY: David Bohrer, Esq.

Resident RR (Appellant) requested a hearing in this matter pursuant to Title 10 of the Official Compilation of Codes, Rules and Regulations of the State of New York (NYCRR) § 415.3(h) to appeal the Rutland Nursing Home's (Rutland) decision to discharge the Appellant involuntarily to the psychiatric emergency room at Kings County Hospital Center (Center). Rutland asserted that the Appellant presents as an imminent danger to the safety of other persons following an incident on October 30, 2007 during which the Appellant destroyed property, claimed to hear voices and threatened to harm staff if the Appellant did not receive medication. The Appellant and the Center argued that Rutland "dumped" the Appellant at the Center, that Rutland failed to follow proper procedures for a resident discharge and that an evaluation at the Center determined that the Appellant presents no imminent danger to other persons. After a hearing in this matter, the ALJ finds that the Facility failed to prove that the Appellant's conduct presents an imminent danger. The Facility must re-admit the Appellant immediately.

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)(c)(ii)(b) permits a resident to remain in a facility unless a resident's physician determines that the resident's continued stay in the facility would endanger the health or safety of individuals in the facility and no reasonable alternative would address the problem safely.

Rutland issued a Discharge Notice [ALJ I] to the Appellant on November 1, 2007, citing as the grounds for the transfer imminent danger to others. On November 1, 2007, the Appellant was at the Center following a transfer for involuntary care and treatment under New York Mental Hygiene Law (MHL) § 9.27 (McKinney 2007). The Department of Health's Case Resolution Bureau received a request for a hearing to challenge the discharge on November 15, 2007. The hearing took place at the Center on November 20, 2007 and continued by telephone on November 21, 2007. During the hearing, Rutland presented as witnesses Mary Anne Rose, Rutland's Vice- President for long-term care; Michele Edwards, the Associate Administrator; Gemma Moore, R.N., the Director of Nursing Services; Karl Young, R.N., the Nurse Manager on the unit in Rutland where the Appellant resides and Joseph Culbert, Rutland's Director of Security. The Appellant testified on his own behalf. The Center presented as witnesses, Joseph Charlot, M.D., the Medical Director at the Psychiatric Emergency Room at the Center; Antoinette Little, R.N., the Head Nurse at the Psychiatric Emergency Room and Maureen Dervan, the Social Work Supervisor for the Comprehensive Psychiatric Emergency Program (CPEP) at the Center. Those witnesses all testified on November 20th. At the hearing's continuation on November 21, 2007, Alice Ostrowski, from the Case Resolution Bureau testified. Ms. Ostrowski, the ALJ and a hearing reporter were present at the Bureau of Adjudication Office in Troy, New York. Counsel for Rutland, the Appellant and the Center participated in the hearing by telephone conference call. Ms. Moore and Ms. Rose from Rutland were also on the conference call.

The ALJ received the following exhibits into the hearing record:
ALJ I Notice of Hearing
ALJ II Center Patient Record for Appellant
Rutland A Notice of Discharge
Rutland B Facsimile Transmission – Yarmel to Lee
Rutland C Interdisciplinary Form 9/20/07
Rutland D Interdisciplinary Form 10/20/07
Rutland E Facsimile Transmission – Moore to Ostrowski 11/3/07
Rutland F Center Patient Discharge Report
Rutland G Interdisciplinary Form 10/13/07
Rutland H Psychiatric Report 8/15/07
Rutland I Moore Memorandum of Conversation
Rutland J Photographs – 10/30/07
Appellant 1 Medication Sheet

The Center submitted ALJ II, the Appellant's medical record from the Center, following the hearing. The Exhibit was broken down into two parts: the old chart and present chart. References to ALJ II will specify whether the evidence at issue appears in the old or present chart.

The evidence from the hearing also included the transcripts from the November 20th (pages 1-178) and November 21st (pages 1-35). Any reference to pages from the transcript will note the hearing day and page (e.g. Day 2, page 10). The transcript from November 20th contains several obvious errors beginning at about Day 1, page 58. From that point the word "operating" keeps appearing inappropriately throughout the transcript, merged with other words. At Day 1, page 58, lines 24-25, the transcript reads:

"… that happened and I told her that at that pointoperating, Mr. Rodriquez was a danger…"

The ALJ assumes that the word "operating" does not belong in that sentence and that such errors in the transcript resulted from some malfunction with the court reporter's equipment. Due to the expedited nature of this proceeding, time did not permit the ALJ to return the transcript to the reporting service or ask counsel for the parties to review the transcript and submit a list of errors prior to the time the ALJ issued this Decision. The ALJ ignored the word "operating" in the transcript when writing this decision. The ALJ will forward the transcript to the parties, under separate cover, at the time this decision is served, to allow each counsel the opportunity to submit a list of errors.

Under the hearing procedures at Title 10 NYCRR § 415.3(h)(2)(ii), the Facility bears the burden to prove a discharge necessary and appropriate. Under New York Administrative Procedure Act (SAPA) § 306(1)(McKinney 2007), 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 items that appear in brackets following the findings of fact indicate exhibits in evidence and/or testimony from the transcript that support the finding of fact. In instances in which the cited testimony or exhibit contradicts other testimony or exhibits from the hearing, the ALJ considered that other testimony or exhibit and rejected it.

  1. Rutland operates a 538 resident skilled nursing facility in Kings County [Day 1, page 10].
  2. Rutland is associated with Kingsbrook Jewish Medical Center (Kingsbrook) and psychiatric staff at Kingsbrook provide psychiatric consultations for residents at Rutland [Day 1, page 23; Rutland E].
  3. The Appellant entered Rutland from Brookdale Hospital on November 3, 2005, following hip surgery [Rutland E].
  4. The Appellant suffers from a seizure disorder, sleep disorder and has a history of hip dislocation and hip reduction [Rutland E].
  5. The Appellant is wheelchair bound and experiences pain from past injuries to his hip and leg [Day 1, page 128].
  6. The Appellant receives large doses of morphine sulfate for pain and has become substance dependent on the pain medication [Day 1, pages 128, 132; Appellant 1].
  7. The Appellant becomes agitated and abusive due to any delay in receiving his pain medication [Day 1, pages 25, 36, 52, 128, 133, 137, 161; Rutland C and D].
  8. The Appellant receives no psychiatric medications [Day 1, page 133].
  9. On October 30, 2007, at approximately 5:30 a.m., the Appellant approached the 8th Floor Nurse's Station at Rutland to receive medication [Rutland E].
  10. When the nurse on duty informed the Appellant it was not time for his medication, the Appellant started cursing and then threw items off the counter of the Nurse's Station, threatened to hurt the nurse and stated that he heard voices [Day 1, pages 96-97; Rutland E].
  11. The Appellant hurt no one at that time and had never hurt anyone previously at Rutland [Day 1, pages 20, 103].
  12. The incident on October 30th represented the first time that the Appellant ever caused property damage at Rutland [Day 1, page 25].
  13. Rutland then transferred the Appellant to the Center for involuntary care and treatment, upon the certification of Conrado Lota, Jr., M.D. and the affidavit of Karl Young, R.N., that as a result of mental illness, the Appellant posed a substantial risk of harm to himself and others [ALJ II, present chart, and Rutland E].
  14. The Center returned the Appellant to Rutland at 6:30 p.m. on October 30th, but Rutland refused to accept the Appellant without a psychiatric evaluation and treatment plan [Day 1, page 55].
  15. After a conversation on October 31, 2007, between Nancy Talavera, M.D., the Chief of Psychiatry at Kingsbrook, and Dr. Charlot at the Center, the Center agreed to hold and observe the Appellant for a few more days [Day 1, pages 57, 135].
  16. Rutland agreed to re-admit the Appellant following the additional observation at the Center, if the Appellant exhibited no behavior that indicated he presented a danger to others [Day 1, pages 57-58; Rutland E].
  17. On November 1, 2007, Gemma Moore, R.N., the Director of Nursing at Rutland and Joseph Cutler, the Director of Security at Rutland, appeared at the Center to provide a Notice of Discharge to the Appellant [Rutland I].
  18. Staff at the Center refused to allow the Rutland staff to provide the Appellant with the Notice of Discharge [Rutland I].
  19. The Appellant has remained at the Psychiatric Emergency Room at the Center since November 1st [ALJ II, recent chart].
  20. The Appellant has caused no problems at the Center [Day 1, pages 135, 161, 171].
  21. The Center has determined that the Appellant poses no imminent danger to himself or others and has determined that the Appellant does not qualify for inpatient psychiatric admission [Day 1, page 128].
  22. The Appellant's medical condition and recurring pain require that the Appellant continue to receive care in a nursing home [Day 1, pages 171-172]

Conclusions

The Appellant and the Center both argued that the Appellant failed to receive appropriate notice about the proceeding. The ALJ holds that the Appellant received adequate notice. The attorney for Rutland provided the Notice of Discharge to the Appellant's attorney by facsimile transmission, so the Appellant received appropriate notice concerning the date, time and purpose of the hearing, prior to the hearing [Rutland B]. The ALJ finds that both the Appellant and the Center were aware on the hearing date that Rutland had discharged the Appellant on imminent danger grounds and both the Appellant and the Center were prepared to proceed and offer evidence and were prepared to challenge the evidence that Rutland offered.

The Center participated in this hearing as a third party. The regulations at 10 NYCRR § 415.3(h) contemplate a hearing between only two parties, the nursing home and the resident, and those regulations and the provisions on administrative hearings in SAPA Article 3 contain no provision on third party intervention. New York Courts have, however, recognized the right to third party intervention in administrative proceedings even without statutory or regulatory provisions for intervention, Village of Pleasantville v. Lisa's Cocktail Lounge, 37 A.D.2d 848 (2nd Dept. 1971). Standing for such intervention exists whenever a governmental action would adversely affect a party, Matter of Dairylea Co-op v. Walkley, 38 NY2d 6 (1975). The ALJ finds standing for the Center to participate in this matter due to the Center's interest in returning the Appellant to a nursing home for continuing care. The decision in this hearing will affect that interest. The ALJ notes further that neither Rutland nor the Appellant objected to the Center's participation in the hearing and that the Center's witnesses and Exhibit ALJ II provided valuable evidence concerning the Appellant's current condition and diagnosis.

The ALJ concludes that Rutland has failed to prove an appropriate ground for discharging the Appellant from the Facility, because Rutland failed to follow proper procedures for a discharge under 10 NYCRR §415.3 (415 Discharge), the transfer to the Center pursuant to MHL § 9.27 (9.27 Transfer) was an inappropriate discharge plan and the evidence at the hearing fails to demonstrate that the Appellant presents an imminent danger to others.

To discharge a resident for imminent danger, a nursing home resident's physician must approve the transfer and the discharge plan [10 NYCRR § 415.3(h)(1)(i)(c)(ii)(b)]. Rutland concedes that no physician participated in decision to discharge the Appellant [Day 1, page 91]. Rutland argued that the facility would have taken the Appellant back after the additional observation at the Center, but the Department of Health's Case Resolution Bureau instructed Rutland to discharge the Appellant [Day 1, pages 58, 60]. Ms. Ostrowski from the Case Resolution Bureau testified that she gave no such instruction to Rutland and that she lacks the authority to provide such instructions [Day 2, pages 7-8, 13]. Rutland conceded that the facility received nothing in writing from the Department of Health instructing Rutland to discharge the Appellant [Day 1, page 64]. The ALJ finds that no provisions in the regulations pertaining to 415 Discharges provide the Case Resolution Bureau with authority to instruct a facility to discharge a resident for imminent danger. Under the regulations, a resident's physician must make the determination that a resident presents an imminent danger and that no reasonable alternative to discharge exists [10 NYCRR § 415.3(h)(1)(i)(c)(ii)(b)]. No physician made such a determination in this case. Dr. Lota certified the Appellant for a 9.27 Transfer to the Center, but only for observation and treatment on October 30th. Dr. Telavera from Kingsbrook contacted the Center on October 31st to arrange for the additional observation only, rather than to arrange for the Center to take the Appellant under a 415 Discharge.

The Center also fails to constitute a proper discharge location. Dr. Charlot testified that the Psychiatric Emergency Room at the Center usually retains a person for up seventy-two hours for observation and that the Appellant did not qualify for inpatient psychiatric admission [Day 1, pages 126, 128]. The Center received the Appellant only for observation and possible treatment under a 9.27 Transfer on October 30th and the Center attempted to return the Appellant to Rutland on the same day [Rutland E]. The Center agreed to retain the Appellant for additional observation the following day, but only for a short time, with the anticipation that Rutland would re-admit the Appellant [Day 1, page 135]. Ms. Dervan from the Center testified that the Appellant continues to require nursing home care [Day 1, page 172]. The Center's Psychiatric Emergency Room does not provide nursing home care and the Center never agreed to receive the Appellant under a 415 Discharge.

The Facility also failed to prove that the Appellant presents an imminent danger to others and that no alternative to discharge exists. The only physician to testify at the hearing, Dr. Charlot, testified that the Appellant presents no imminent danger to others, that his behavior results from a dependence on pain killers and that the Appellant's claim to hear voices constituted drug-seeking behavior rather a symptom of psychosis [Day 1, pages 128, 143-144]. Dr. Charlot and Nurse Little from the Center also testified that the Appellant engaged in no behavior at the Center that raised concerns that the Appellant constitutes a danger to others [Day 1, pages 128, 135, 161]. The Appellant's conduct on October 30th clearly provided Rutland with grounds for the 9.27 Transfer to the Center, but the Center found no grounds on that date for involuntary care or treatment and the Center has noted no further destructive behavior by the Appellant from October 30th to the present. Rutland must re-admit the Appellant.

ORDER

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

  1. The ALJ overturns the involuntary discharge.
  2. The ALJ directs the Facility to re-admit the Appellant immediately.

Dated: Troy, New York
November 30, 2007

_________________________________

James F. Horan
Administrative Law Judge