By:  Jay J. Sangerman and Jerome T. Levy  © 2001

Notwithstanding the extensive criticisms broadcasted by politicians of the trend towards increased governmental regulation of our daily activities, the current decade is replete with examples of augmented controls by federal, state and municipal agencies. Of particular note is the emphasis on the supervision of health and medical services, Medicare, Medicaid, the disability programs arising from the Americans with Disabilities Act, and other health services. In the case of hospital services, the mushrooming of governmental participation in the lives of patients is most apparent because such activity is compelled primarily by the fiscal necessity to control costs payable by the government. As a result, governmental action, where applicable to hospital discharge and post-hospital agendas, provides the opportunity for the employment of attorneys to steer patients through a maze of complex regulations (often unintelligible to the patient) and to insure the patient or his or her family or personal representative that appropriate care after departure from the hospital has been obtained. This is of particular importance in the discharge process applicable to elderly patients.

With the imposition of this system, hospitals taking Medicare patients were required to develop a discharge process which would accomplish discharge within the DRG time limit and to appoint a department, staff or outside agency to administer such process.

A discharge planning procedure would include the following:

 a) a determination of the DRG for the specific case;

  • b) an evaluation of the post-hospital requirements of the patient: Is homecare necessary? Is nursing home placement needed?;
  • c) if a nursing home is indicated, steps to place the patient would have to be undertaken; and
  • d) if homecare is directed, preparation for adequate care at home.
  • The evaluation and performance of the process became the responsibility of the discharge department or hospital representative.
  • Hospital discharge departments which are often adjuncts of social work departments, therefore, assumed critical importance to both the hospital and the patient. The discharge planners undertook new tactics and began forging new relationships to assist their employers in meeting the goals of speedy discharge of patients whose course of treatment had been concluded. Under the new scheme, hospital discharge planning coordinators were required to have screening procedures for patients requiring post-discharge services and to develop a procedure manual. A major objective of the new regulations was to ensure the continuity of care to facilitate more effective utilization of non-institutional settings for post-hospital patients. Additionally, it was anticipated that the new regulations would help reduce the number of days a patient spent in hospital post-acute care. However, the New York State Health Department built in safeguards to prevent the premature discharge of patients. The Department stated: "No patient who requires continuing healthcare services in accordance with the patient's discharge plan may be discharged until such services are secured or determined by the hospital to be reasonably available to the patient."

    The need for prompt discharge placed new burdens on both families and providers of care, including pressure (i) on physicians who no longer enjoy real autonomy in determining patient care and the duration of a patient's stay in the hospital, (ii) on the hospital nursing staff which becomes restricted in the recuperative care it can give to the patient because of the shortened hospital stay and (iii) on the patients' families as well as most significantly on the patient her/himself. Release of a beloved relative, typically an aged parent, from the hospital may create an unanticipated trauma for the whole family. The family must quickly arrange for care of the patient. Tasks such as arranging for homecare workers, or long-term, care placement in a nursing home or other facility, often are put off by families or, at the least, are faced with apprehension. The emphasis on speedy discharge from the hospital has eliminated the cushion of time during which patient's families could adjust to these new realities for their loved ones. The hospital discharge planner is trained by education and experience to deal with these situations, yet because of the fiscal imperatives on the planner, there can be conflict between the desires of the hospital and the patient (or patient's family).

    This Article will survey briefly the role of attorneys in two hospital-related phases: (i) discharge from a hospital upon completion of acute care; and (ii) proper post-hospital placement and/or services where continued care is required. This Article will not describe each detail of relevant activity but will summarize the overall work in which attorneys are called upon to participate in hospital discharge planning.


    Legal Aspects of Hospital Discharge Process

    Potential legal problems in -post-acute care for the hospital patient will be observed in (i) the development of a hospital discharge plan; (ii) the period of waiting for post-hospital placement and services; and (iii) the appeals process should the patient or family disagree with the hospital's discharge plan. The New York State Health Department's regulations, found at volume 10 of the New York State Compilation of Codes, Rules and Regulations ("NYCRR"), provide that hospitals are required to have a Discharge Planning Coordinator with prescribed professional and educational credentials who is responsible for supervision and operation of the hospital's discharge planning program. The discharge staff must have available current information concerning homecare, institutional healthcare providers and alternative opportunities for the patient's care.

    Under the regulations, the hospital is to make an early identification of patients who are expected to require post-hospital care planning and services. Upon admission, the patient must be apprized of her/his rights to receive a written Discharge Notice and Discharge Plan before s/he is discharged. The hospital must inform the patient that the hospital may not discharge her/him until requisite services set forth in the Discharge Plan are secured. The Discharge Plan must describe the patient's needs for future healthcare and set forth the arrangements the hospital is making for such needs after discharge.

    The Regulations indicate that the hospital must enlist the participation of the patient and her/his family or patient representative in decisions regarding post-hospital care, including the selection of residential healthcare facilities. The patient and the family can be involved in the selection of long-term. care facilities, but cannot unreasonably reject the placement of the patient. New York State requires that the patient accept the first available bed. However, understandably, families often select one particular nursing facility which has a reputation for being the "best" in the family's geographical area and demand that the patient not be discharged until s/he can be placed in that facility. Such facilities often have long waiting lists. Alternatively, the patient's condition may be inappropriate for placement in such facility. This is particularly so in circumstances where the family wishes to place the patient in a rehabilitative facility, but the patient's medical condition indicates that the patient's potential for rehabilitation is minimal or nonexistent. Furthermore, many patients who are to be placed into a nursing home are Alzheimer's patients. Not all nursing homes, however, have Alzheimer's units or are equipped to handle the particular problems of the ambulatory Alzheimer patient.

    Awaiting Placement

    In order to deal with the common situation of having no placement yet available for a patient whose requirement for acute-level. care has ceased, there has developed what is referred to as "alternate level of care" ("ALC") status while the patient is still in the hospital. When a patient no longer needs acute hospital care, the facility, if unable to discharge the patient, may place the patient in an area of the hospital which has been designated to care for ALC patients. Reimbursement to a hospital for a Medicare or Medicaid patient on ALC status is less than that for an acute care patient. Medicare will continue to reimburse the hospital for a patient who will receive skilled nursing care and is awaiting a nursing home bed, even though hospital-type services may cease in such cases. Medicare, however, will not reimburse a patient awaiting placement for custodial care in a nursing home or who will return home with homecare services. Similarly, Medicaid will reimburse the hospital while the patient is awaiting placement into a nursing home or homecare, so long as the patient would be Medicaid eligible in the nursing facility. Thus, a patient, who would be ineligible for Medicaid in a nursing home due to excess resources or subject to a Medicaid penalty period as a result of asset transfers, would not be eligible for hospital reimbursement of nursing home-type care.

    Medicare requires that the hospital contact at least three nursing homes at least twice a week. New York State Medicaid requires that the hospital process five active applications for nursing home care within a fifty mile radius (the discharge area) from the hospital. The hospital must contact three different facilities at least once each week and must make a good faith effort to place the patient in a skilled nursing facility ("SNF"). If the hospital cannot demonstrate a good faith effort, Medicare will not cover the additional days in the hospital. Additionally, Medicare will not pay for the patient's hospital stay while awaiting nursing home placement when the Utilization Review Committee or the Peer Review Organization ("PRO") approved (i) less than three consecutive days of stay as acute hospital care and (ii) when it had been determined that the patient requires care at a lower level than that of acute hospital or post-hospital SNF care. If the hospital has been unsuccessful in locating a nursing home bed for a Medicaid patient within the fifty mile radius within sixty days, the local social services district may direct that the patient be placed in a facility outside the discharge area.

    Under the Medicare regulations, when the patient is about to be placed on ALC, the hospital must issue a Hospital Issuance of Non-coverage Notice ("HINN") stating that in the hospital's determination, the patient is no longer receiving medical care covered by Medicare. The HINN letter will not order the patient to leave the hospital but will indicate instead that if the patient continues to stay, he or she will be responsible to pay for services provided as of the third calendar day after the receipt of the notice. The notice must state whether the notice is issued with the agreement of the patient's physician or the PRO.

    The hospital has an incentive to issue a HINN letter because if it erroneously informs the beneficiary that the care will be covered, the hospital may have to absorb the cost of the care it provides. On the other hand, the hospital can feel safe from financial liability if it erroneously determines that Medicare will deny coverage. If the patient does not receive a HINN letter, the hospital may not charge the patient for the time during which the patient was no longer receiving hospital-level. care. If the patient refuses an available bed in a nursing facility, the hospital can issue a HINN letter notifying the patient that Medicare will no longer reimburse the hospital for the patient's continued stay. The patient is liable for the portion of the hospital stay beyond the Medicare two day grace period after the HINN letter is issued which means that the patient cannot be charged until the third day following the notice.

    Similarly with Medicaid, the hospital will be reimbursed for the patient's stay while on ALC if the patient is Medicaid eligible for nursing home care. This means that if the patient is awaiting placement into a nursing home and will be Medicaid eligible upon admission, then Medicaid will pay while awaiting admission. If the patient is returning home on Medicaid homecare and would have been Medicaid eligible for nursing home care, then Medicaid will pay during the time it takes to put a homecare plan into effect. When the hospital finds a placement within a fifty mile radius, but the facility is not one which the patient would prefer, the patient should accept placement in the facility with the understanding that when a bed becomes available in the facility of choice, s/he can be considered for transfer if s/he still desires transfer and her/his medical condition continues to require the level of care. If the hospital has been unable to locate a facility within 60 days, then the New York State Department of Health Area Office Medicaid Professional staff may direct the hospital to look beyond the fifty mile radius.

    Patient's Right to Appeal

    The patient and family can seek a reconsideration of the issuance of the HINN letter and the Discharge Plan. There is no fiscal penalty to the patient, or to the hospital, for the reconsideration and the hospital cannot request payment until noon the day after the date the patient receives a negative decision. The patient must notify the hospital prior to noon of the discharge day that s/he is requesting a reconsideration of the hospital's or the PRO's determination. The reconsideration will go before the PRO, which reviews all HINN letters for appropriateness of discharge. Thereafter, the patient will receive a determination from the PRO within three working days. If the PRO approves the continued hospital stay, the additional days will be covered by Medicare. However, if the PRO disapproves, then the patient will be responsible for the hospital costs beginning the third calendar day after receipt of the initial determination of non-coverage., even if the PRO decision is not made until after the three days. The request for redetermination will enable the patient to continue with the appeal process through the administrative channels so long as certain financial thresholds are met.

    The Attorney's Role in the Hospital Discharge Process

    Attorney involvement in the hospital discharge process for the elderly is a new area of legal practice untapped for the most part by the legal community. And yet, the growth in the elderly population makes hospital discharge planning for the elderly an opportunity to significantly expand an attorney's practice. With the anticipated increase in the elderly population, the number of potential clients who may require legal services during the hospital discharge process will increase substantially. Unfortunately, attorneys often shy away from the major impact s/he can have upon the entire hospital discharge process, especially for the elderly.

    The attorney's active participation in the hospital discharge process for the elderly can be extraordinarily beneficial to the client. Families or patients should contact attorneys when they feel that the hospital may not be observing their rights during this very pressured, trying and traumatic time. A patient or a family may object to the discharge options chosen by the hospital's professional staff. The family may also feel that the choice of nursing home is inappropriate, or may protest placement of a patient in a nursing home because of a belief that homecare is more appropriate. The attorney's role involves active participation in the development of a post-hospitalization plan of care, whether that care be in a nursing home or back in the home environment with homecare services provided. The attorney representing the patient should work with the hospital to advance the family's discharge plan and to support the patient and family. When appropriate, the attorney should point out to the family that it may not be in the patient's best health interest __ both physically and mentally __ to remain in the hospital and the attorney then should clarify to the patient and/or family the hospital's role. The attorney should explain to the patient and the family that the hospital is technically required to discharge the patient into the first available nursing home when nursing home placement is sought. At times there may be a conflict among family members, as well as a conflict between the family's best interests on the one hand, and the patient's best interest (and desires) on the other hand. This role calls for the attorney to be well acquainted with the patient's legal rights and to make full use of persuasive powers. The attorney should also inform clients of their rights in the hospital discharge process and the limitations placed upon such rights by federal and state laws and regulations. When there are irreconcilable disagreements between the patient and/or family and the hospital, then the attorney should vigorously pursue the appeals process.

    Generally, the attorney's role in an effective and efficient hospital discharge plan requires an interdisciplinary approach. It involves interacting with physicians in the determination that hospitalization is no longer required, social workers, hospital discharge personnel, the nursing home admissions' office or the homecare agency, and often a community-based, geriatric care manager (a social worker trained in geriatrics) who can assist in facilitating the discharge process and in reducing the psychological and emotional trauma confronting the patient and family. By a proper interplay between the attorney and the professionals of various disciplines, the client's desires (which are hopefully in the patient's best interests) for a particular discharge plan often can be accomplished.

    The lawyer's role in the discharge process should vary depending upon the circumstances. Where there is no question that discharge is appropriate, but that the family would prefer a certain nursing home, the lawyer can be an important facilitator and negotiator with the hospital discharge department. By taking a low-key, approach, explaining the reasons for the family's choice of nursing home, the hospital discharge department may, if reasonably possible, delay a response to the first nursing home ready to accept the patient, thereby giving the patient the opportunity to receive a favorable response from the preferred nursing home. In her/his discussions with the hospital staff, the lawyer should acknowledge that s/he understands the regulations regarding the acceptance of the first available nursing home bed and that the family may not oppose admission into another nursing home, but that the family would appreciate additional time to seek acceptance in the "preferred" nursing home.

    The attorney, where appropriate, can assure the hospital that s/he reviewed the patient's assets (as revealed by the family), including transfers, and that, in the attorney's opinion, there are no anticipated problems with Medicaid eligibility, should Medicaid be an issue. It is additionally helpful for the attorney to assist the responsible hospital department in completing the Medicaid application and compiling the necessary information. Where there are issues of disagreement between the hospital Medicaid designee and the attorney regarding Medicaid rules and procedures and should the attorney reasonably believe that the hospital is incorrect, the attorney can assist the hospital Medicaid designee by explaining the Medicaid regulations and procedures as he/she understands them. In appropriate circumstances, the attorney should give the hospital a written analysis supported by relevant documents from the New York State Department of Social Services and available written court decisions or fair hearing decisions. By working cooperatively with the hospital discharge planner and hospital Medicaid designee, the attorney will have the opportunity to be of enormous assistance to the client, including accomplishing the patient's and the family's desired discharge plan.

    There are other occasions when the attorney, rather than negotiating, must take a strong stand. When the client feels that the plan is inappropriate or that the hospital is hastening the discharge, the attorney can advise reconsideration and/or appeal of the discharge plan. There may be circumstances when the attorney will notify the hospital that the client will not cooperate with the discharge plan unless certain matters are included in the plan. The attorney should demand a copy of the written discharge plan, if it was not already given to the patient or the patient's family. The attorney should, when necessary, notify the hospital of the regulations governing the issuance of a specific discharge plan. The attorney may notify the discharge planner that the patient has money of his own, but the family will not make the money available unless and until certain discharge options are attempted. In taking this latter approach, the attorney should inform the family that the hospital could bring on a conservatorship proceeding to reach the funds for payment to the hospital and ultimately to the nursing home. Where the client is being reasonable in his/her demands and the hospital is being unreasonable or uncooperative, such a hard approach may act to facilitate a reasonable discharge plan. The reverse is also true. The client (who may be the patient or the patient's family) may insist on an unreasonable discharge plan, e.g., taking the patient home merely in order to avoid spending money, even though adequate homecare services cannot __ or will not __ be provided because the client refuses to use the patient's money for such services and the client is either not Medicaid eligible or Medicaid determines that homecare services are inappropriate for the patient. The attorney, in representing such a client, must consider his/her own ethical and moral position in a continued representation which could place the patient in physical jeopardy.

    One of the major roles that an attorney can assume at this point is that of a facilitator and negotiator. The attorney may be able to point out to the hospital and/or the client special circumstances that exist in a particular case. Often, an attorney may bring the dispassionate objectivity of an outsider which a family member, even an articulate or professional son or daughter, cannot bring to the emotionally charged situation. The attorney's role should be to approach the situation in a low-key. matter-of-fact basis without exacerbating the tensions that may exist between the family and the hospital staff.


    a. Nursing Home Placement:

           include hospitals, adult homes, domiciliary care facilities, and private placements by individuals or families who have determined that the patient can no longer live alone.

    The nursing home, like the hospital, is very heavily regulated, and out of necessity tends to respond to the desire of the regulators. The Omnibus Budget Conciliation Act of 1987 (OBRA '87) made many changes in nursing home regulations which are only now being implemented. Under regulations promulgated by New York State pursuant to the mandate of OBRA '87, care planning became a major focus in nursing homes.

    At present, in New York, a patient assessment form called the PRI (Patient Review Instrument) is used by the nursing homes to determine medical suitability of the individual for placement. Upon admission, the facility is required to create a resident assessment, which results from a "comprehensive accurate standard reproducible assessment of each resident's functional capacity." Based on the results of this assessment, the facility is required to develop and maintain a comprehensive plan of care which must be individualized to meet the need of each resident.

    As part of the admissions process, nursing homes also are required to discuss with patients, and their families, the delicate, but necessary, issues of consent to or withholding of life-prolonging treatment as well as withdrawal of such treatment. A nursing home is obligated to advise the patient of the Health Care Proxy law, and must have forms available for use of the patient if desired. With respect to removal of life-sustaining devices, including feeding mechanisms, the nursing home is required to advise patients upon admission of its policy concerning such devices. A facility is not prevented from having a policy barring removal of such devices. However, in order for the facility to refuse to disconnect life support, the facility must advise the patient of the policy in advance of admission. If the patient or the patient's representative determines that they do not wish to remain in a facility which refuses to remove life support, they may seek admission elsewhere. Alternatively, the patient can be moved to a hospital where life-support. may be terminated in accordance with Public Health Law Art. 29_C.

    b. Home Healthcare Services:

    As an alternative to nursing home placement, a patient discharged from the hospital may be found suitable for home healthcare. There are three basic kinds of homecare programs in the State of New York: certified home health agencies (CHHA),, licensed homecare agencies (LHCA) and long-term home healthcare programs (LTHHCP). The difference in these programs is largely in how billing is handled and eligibility for participation in Medicare and Medicaid. The kinds of care provided are similar, and the programs may provide adequate care for a patient unless special needs are present.

    One area which is receiving increasing attention from lawyers is the Medicare coverage of homecare agency services. Medicare provides homecare benefits to those who meet the program's definition of homebound, are under the care of a physician, and are in need of either part-time or intermittent skilled nursing or therapy services. However, the qualification for the Medicare program has traditionally been difficult to access for patients requiring homecare services. Lawyers recently have been making progress in advising patients and their physicians as to the information required by Medicare for a determination of eligibility. Information concerning both appropriate diagnosis and rehabilitative potential are necessary. The attorney should assist the physician, the hospital discharge planner and the community geriatric care manager in shaping forms and narrative reports to insure that an eligible patient will receive Medicare reimbursement for homecare.

    Long-term home healthcare programs are slowly becoming an integral part of the geriatric medical continuum. These programs are operated by residential healthcare agencies. Originally proposed by Senator Tarky Lombardi in 1975, they have become a valuable source of care in the communities where they have been organized. In addition, the program is appropriate where a patient presently can be cared for at home, but in the foreseeable future, anticipated deterioration will require the patient's placement in a nursing home. When this occurs, the staff of the nursing home which will ultimately receive the patient will have access to the administrative records and caregivers of the long-term home healthcare program which has been caring for the patient, allowing for a maximization and continuity of quality care for the patient.

    The Attorney's Role in Post-Hospital Care

    The attorney can be extraordinarily helpful in expediting nursing home admissions by means of assistance to the nursing home in the Medicaid application process. In certain situations, the nursing home will take the lawyer's representation that the lawyer reviewed and analyzed the prospective resident's financial data as given to the lawyer and that the resident should not have significant problems with the Medicaid application due to transfers. A lawyer's letter setting forth the prospective resident's assets __ and the spouse's assets __ together with an analysis of the Medicaid issues can facilitate the patient's admission into a nursing home. It is best when the attorney assumes a non-adversarial posture in the admission's process. The attorney may also utilize the assistance of a geriatric care manager in helping the family assist the nursing home through the admission's process.

    When working with the geriatric care manager, the lawyer must insist that the geriatric care manager (with the permission of the client) report to the attorney prior to any actions which could affect the Medicaid application or admission into the nursing home. Ideally, the lawyer should supervise the geriatric care manager, in consultation with the client, and plan the overall method for a smooth, efficient nursing home admissions process.

    The attorney also may wish to utilize the services of the professional geriatric care manager in order to avoid being directly involved in the nursing home admissions process. In certain circumstances, when a call is made by an attorney seeking admission for a patient, the admissions personnel at the nursing home may become apprehensive. A geriatric care manager making such a call may not cause the same reaction. It must be remembered that nursing homes attempt to avoid what they consider to be "troublesome patients." Accordingly, in attempting to arrange admission to a nursing home, it is important to present the patient in such a way as to maximize the desire of the nursing home to admit such patient.

    The patient or the patient's family (personal representative) will be asked to sign a nursing home contract. Just as an attorney would advise for a client signing any contract, the attorney should advise the client to take the nursing home contract seriously. The contract should be reviewed by the attorney for the client's legal liability to the nursing home and the nursing home's responsibility to the patient. The attorney should tell the client that under both federal and New York State law, the nursing home may not require a third party guarantee. If the client does not have the opportunity to review the contract prior to day of admission, the attorney should tell the client to have the nursing home facsimile the contract and any documents that need to be signed to the attorney for review. The attorney should be prepared to review the contract and discuss its terms with the nursing home admissions office. The day of admission to the nursing home is filled with mixed emotions and the client requires the lawyer's support so as not to be intimidated by the admissions process and the execution of agreements without a full understanding.


    Attorneys have the opportunity to participate in a relatively new area of service to clients, namely, the direct involvement in the application of the hospital discharge process to the elderly. Attorneys also can serve the client in achieving appropriate post-hospital placement. Attorneys have a unique function to play in the entire discharge process, whether it be that of conciliator or that of enforcer of restraints upon hospitals, nursing homes and other post-discharge. healthcare agencies. It is an area of practice that can be highly rewarding both for the patient, as well as the lawyer.


    Reprinted with permission from the: New York State Bar Journal, February, 1993, Vol. 65, No. 2 published by the New York State Bar Association, One Elk Street, Albany, New York 12207.


Jay J. Sangerman, PLLC
60 East 42nd Street - Suite 650
New York, New York 10165
Telephone (212) 922-0711
Facsimile (212) 922-0709

4115 NW 60th Circle
Boca Raton, Florida  33496

Jay J. Sangerman & Associates
Lanidex Executive Center
100 Misty Lane
Parsippany, New Jersey 07054
(973) 739-9055