Nursing Home Resident Not Entitled to Hearing on Readmission After Hospitalization

Nursing homes have almost unlimited authority to refuse to readmit a resident following a hospitalization.  This was demonstrated  recently in an Illinois appeals court case which ruled that a nursing home resident who entered a hospital while waiting for a hearing on an involuntary discharge, was not entitled to a hearing when the nursing home refused to readmit him. Gruby v. Department of Public Health (Ill. Ct. App., 2nd Dist, No. 14-MR-0354, March 26, 2015).

Marvin Gruby was a resident of Manorcare Highland Park nursing home. The nursing home issued him a discharge notice, claiming that Mr. Gruby threatened the safety of individuals in the nursing home. Mr. Gruby requested a hearing as was his right under state law. Before the hearing could take place, however, Mr. Gruby entered the hospital for a scheduled procedure. The nursing home notified Mr. Gruby that he would not be able to return to the facility after his hospitalization and it withdrew the notice of discharge.

Mr. Gruby argued that he was entitled to a hearing on the discharge. The administrative law judge determined that a hearing was no longer necessary and closed the case. Mr. Gruby appealed to court. The court ruled that the controversy became moot when the nursing home withdrew the notice of discharge. Mr. Gruby appealed, arguing that he was still a resident of the nursing home while he was in the hospital. Under federal regulations, if a nursing home resident enters a hospital for 10 days or less, the nursing home may not refuse to readmit the resident on the basis of his or her Medicaid status.

The Illinois Court of Appeals affirmed the administrative law judge's decision, holding that under federal nursing home law, Mr. Gruby is not entitled to a hearing for being denied readmission to the nursing home. According to the court, Mr. Gruby did not remain a resident of the nursing home once he was admitted to the hospital because the 10-day bed hold requirement applies only to the Medicaid provisions. The court rules that when the nursing home withdrew its notice of discharge, there was no longer a need for a hearing. The nursing home, in effect, is permitted to circumvent the resident's rights by simply refusing readmission of the the resident, so long as the refusal is not because of the resident's Medicaid status.  

For the full text of this decision, click here. 

Long Term Care Facilities Must Recognize and Respect Same Sex Marriages Under Proposed Rule

Long-term care facilities are required to recognize certain same-sex marriages in order to participate in Medicare and Medicaid under a recently proposed rule.

The rule would also apply to hospices and other types of providers and suppliers. The 26-page rule and policy statement was drafted in response to the 2013 United States v. Windsor Supreme Court ruling, which struck down portions of the Defense of Marriage Act and paved the way for gay married couples to be recognized under federal law.

Among the conditions of participation related to long-term care is a section on resident rights, including rights to communicate with and have access to people “inside and outside a facility.” A proposed addition to this section would specify that a same-sex spouse has the same rights as opposite-gender spouses, if the same-sex marriage was valid in the jurisdiction where it took place.

A proposed revision for hospices would ensure that a same-sex spouse can make the decision to terminate care for an incapacitated person.

“Our goal is to provide equal treatment to spouses, regardless of their sex, whenever the marriage was valid in the jurisdiction in which it was entered into, without regard to whether the marriage is also recognized in the state of residence or the jurisdiction in which the healthcare provider or supplier is located,” the Centers for Medicare & Medicaid Services writes in the proposed rule.

The proposed rule is available here. It is scheduled for publication in the Federal Register. Comments can be submitted through Feb. 10.