How to Represent Yourself at an Administrative Hearing to Appeal Nursing Facility Discharge
What are Administrative Hearings?
Administrative hearings are referred to as "informal" because they do not follow the strict procedural rules of a court. However, there will be rules as to how the hearing is to proceed.
The hearing will be presided over by a hearing officer, called an administrative law judge (ALJ). The hearing officer is not part of a court. Hearing officers are specially trained employees of the Office of Administrative Hearings Branch.
How to Prepare for An Administrative Hearing:
- Read your written notice of adverse action very carefully. You have a right to a written notice, so if you did not receive a written notice, ask for one right away. If the notice is not issued or does not contain all the information it should, you can request that the action be stopped because of defective notice. The regulations require that notice of the transfer or discharge and the reasons for the relocation must be sent to the resident and, if known, a family member or legal representative of the resident, in writing. Notice must be given in a language and manner they understand;
- The notice should be issued 30 days in advance unless:
- the resident has urgent medical needs;
- the resident's health improves so that they no longer need to be in a facility allowing a more immediate transfer;
- the health or safety of others in the facility is endangered; or
- the resident has not lived at the facility for 30 days.
- The notice must contain certain information:
- The reason for transfer or discharge;
- The effective date of transfer or discharge;
- The location to which the resident is transferred or discharged;
- A statement that the resident has the right to appeal the action to the cabinet;
- The name, address and telephone number of the state long-term care ombudsman; and
- For nursing facility residents with developmental disabilities, or who are mentally ill, the mailing address and telephone number of the Department of Public Advocacy.
- You have 15 days from the date of the receipt of the notice to appeal the discharge. Be sure to file your request for an appeal on time.
- Keep a copy of everything you send. Consider sending correspondence via certified mail with a return receipt.
- You should be contacted within a few days after your request and given a time, date and location for your hearing. The hearing should be held within 30 days. You may request that the hearing be held at a convenient location for you. You will also be asked if you will accept a telephonic hearing or if you prefer a face to face hearing. Most persons representing themselves will do better in a face to face hearing. You will also be asked if you wish to have the hearing transcribed at your expense. You may need a copy of the hearing if you choose to appeal the decision in court. However, in that case your attorney should be able to obtain a copy of the tape recording of the hearing and have it transcribed later.
- Make note of the name of the hearing officer who is assigned to your case. There should be an address and phone number provided. If you have questions you can usually contact the hearing officer whose name appears on the notice of hearing that you received. You will not be allowed to present any arguments, however, until the day of the hearing.
- Be sure you understand the reason for the transfer or discharge. There are only certain reasons for which a resident can be transferred or discharged. A resident has the right to reside in the facility unless:
- The transfer or discharge is necessary for the resident's welfare and the resident's needs cannot be met in the facility; or
- The transfer or discharge is appropriate because the resident's health has improved sufficiently so the resident no longer needs the services provided by the facility; or
- The safety of individuals in the facility is endangered; or
- The health of individuals in the facility would otherwise be endangered; or
- The resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare, Medicaid or state supplementation) a stay at the facility; or
- The facility ceases to operate.
- Make a written request to the facility for your medical records. The facility must furnish you a copy within 48 hours of this request. The first copy should be free. The nurses notes, the resident assessment (MDS), the care plan, and the physicians documentation will be particularly helpful. You will also want to request any copies of incident reports. These are not part of the medical record and you will need to identify them in your request.
- If the health care provider refuses to give you records that will support your case, you can ask the hearing officer to issue a subpoena ordering the health care provider to give you the records. You can request a subpoena in writing from the hearing officer. This request should contain the names of the parties involved, the docket number (this number will appear on all correspondence you receive from the hearing officer), a list or description of the documents(s) needed and the reason the subpoena is needed. Because there are certain requirements in serving the subpoena, you should request the subpoena well in advance of your hearing.
- Carefully plan your argument, outlining your reasons why the discharge is not valid. Consider what written documents, and testimonies you want to present to prove your case. For instance, did another agency, such as the division of long term care who regulates nursing homes, investigate circumstances that effect the residents situation? If so, you would want to request that copies of those agencies investigation be included in the evidence presented.
- If the discharge is because the resident's needs cannot be met in the facility, there must be documentation to support this in the resident's chart by the resident's personal doctor. If the discharge is because the resident is a danger to others, then the chart must contain documentation to that effect by a doctor.
- Review the regulations for operations and services of nursing homes (902 KAR 20:048. Operation and services; nursing homes, Operation and services; personal care homes. The following issues should be considered: was there a service that the facility was required to provide but didn't which would have solved the problem? Did the facility fail to have adequate staff available?
- You may be asked to submit in advance of the hearing a list of the names of those you plan to have testify. You have a right to ask for a list of the nursing home's witnesses as well. You may present witnesses who can testify to their personal knowledge of your situation. You can ask the judge to issue a subpoena to those whom you want to testify. You may also request that any witnesses be allowed to appear by telephone. These requests need to be submitted in writing.
- The nursing home resident who is being discharged has a right to attend the hearing. If the resident wants to attend, you may request that the hearing be located in a place where this is possible. If the resident will appear and testify in a way that supports your argument, you may want to encourage them to be there. However, if the resident is going to appear or behave in a way that will reinforce what the facility says, you will not want them at the hearing.
- Sometimes, one or both parties may request that a hearing be rescheduled. The hearing officer will make a decision as to whether there is a good reason for the delay. If you will not be able to appear at the time and place scheduled for the hearing, you should ask the hearing officer to reschedule the hearing at a later date or to allow you to appear by telephone rather than in person. Requests for postponement should be submitted in writing usually fifteen (15) days prior to the hearing.
- When the day for the hearing arrives, take the following items with you:
- Any written documentation supporting your arguments.
- Any correspondence between you and the facility
- Any other evidence which supports your claim
- A written list of points that you wish to make
- A written list of any questions you want to ask the facility representative who will testify on behalf of the facility
- Paper and pen so you may take notes
- At the hearing the facility has to show that they had a legal right to take the action they took. The facility must be represented by an attorney.
- The hearing officer will guide you through the proceeding. You should ask that the facility go first and present their reasons for taking the action. You should make notes of any points you want to question. Then you will be allowed to present your argument that the reasons they give for the action are invalid as well as the evidence that supports your position. You and your witnesses can be questioned (cross-examined) after you have finished speaking. Both sides will have an opportunity to speak at the end. At that point, you will be able to provide a summary of the reasons and the evidence that explain why you should win.
- The hearing officer will be deciding whether the facility had a legal reason to discharge the resident and followed the proper procedure for doing so. If the hearing officer decides the facility did not have legal cause to discharge he can order the facility to readmit the resident. The hearing officer can make a decision the day of the hearing, however, usually the hearing officer will write a decision and you receive it in the mail a few weeks later. The hearing officer must make a decision within 60 days of the hearing.
- If you do not win the hearing, the hearing officer's decision will include information about your further rights to appeal, which usually includes the right to obtain judicial review in court. You will need a lawyer if you choose to request a judicial review.
Information provided by Kentucky Legal Aid and the Barren River Long Term Care Ombudsman Program.
McCreary County man sues nursing home and state for violation of rights
(McCreary County, KY) Elmus Campbell, an 84-year old resident of a nursing home in Pine Knot, Kentucky, filed a lawsuit on November 9, 2007, for damages against the nursing home and its parent company and for damages and injunctive relief against Kentucky state officials after he was evicted from his nursing home in violation of his nursing home rights under Kentucky law.
The lawsuit, filed in Franklin Circuit Court (Civil Action No. 07-CI-1816), names as defendants EPI Healthcare, LLC, d/b/a McCreary County Health and Rehabilitation Center (”McCreary”) (the nursing home), EPI Corporation (its parent company), Robert H. Loeffler (the president of EPI Corporation), Mark Birdwhistell (Secretary of Kentucky’s Cabinet for Health and Family Services) and Steven D. Davis (Inspector General of the Cabinet for Health and Family Services). The Cabinet for Health and Family Services, through the Inspector General, is responsible for licensing, inspecting and regulating all long-term care facilities in Kentucky, and for enforcing the rights of nursing home residents.
Kentucky law requires that nursing homes give residents advance written notice of discharge and notice of appeal rights. In addition, for Medicaid eligible individuals, Kentucky regulations require that nursing homes hold a bed for a hospitalized resident for up to fourteen days and readmit a resident whose hospitalization exceeds the bed hold period to the first available bed. Mr. Campbell was transferred to a hospital on August 25, 2007 without any notice of transfer or discharge. Two days later, the nursing home refused to readmit him and refused to readmit him for 52 days, in spite of an Administrative Law Judge’s ruling that summarily reversed the discharge and found the nursing home had violated Mr. Campbell’s rights. The Office of Inspector General failed to issue a citation, impose monetary penalties or institute injunctive proceedings in court to enforce compliance.
Mr. Campbell seeks actual and punitive damages against McCreary, its parent corporation and its president Robert H. Loeffler for violating his nursing home rights under Kentucky law. Mr. Campbell also seeks injunctive relief against the Cabinet and the Office of Inspector General to require them to issue a citation and impose maximum penalties against McCreary for each day that they illegally refused to readmit him. EPI Corporaion is the largest provider of nursing home care in Kentucky. It owns and operates approximately 22 nursing facilities with over 2,000 beds.
For more information contact: Anne Marie Regan, Kentucky Equal Justice Center, 502-584-0349. For a copy of the complaint click here: Campbell nursing home complaint.doc.
Reviewed August 2009