Complaint When Seeking Injunctive Relief to Allow Nursing Facility Resident to Return to Facility from Hospital Template Developed by Justice in Aging. Can be adapted for use in states other than Kentucky __________________; Plaintiff, vs. [NURSING FACILITY]; Defendant. _____________________________ | | | | | | | | | Case No. Complaint for: 1) Violation of Kentucky Consumer Protection Act 2) Breach of Contract as ThirdParty Beneficiary of Contract Between Defendant and Medicaid Program 3) Intentional Infliction of Emotional Distress 4) Negligent Infliction of Emotional Distress ______________ INTRODUCTION 1. Plaintiff [XXX YYY] lives in a nursing facility operated by Defendant [ZZZZZZZ]. Defendant illegally evicted Plaintiff from his/her home by cynically refusing to allow Plaintiff to return to the nursing facility after a hospitalization. Defendant’s actions violate both Kentucky law and federal nursing facility law and endanger Plaintiff’s health and safety. Through this action, Plaintiff requests injunctive relief enabling him/her to return to his/her home in the nursing facility, along with appropriate monetary damages. PARTIES 2. Plaintiff [XXX YYY] is a ___ year-old resident of Kentucky. He/she brings this action through his/her [agent/guardian/etc. AAA BBBB]. 3. Defendant [ZZZZ] is a Kentucky corporation that operates [CCC] nursing facility. FEDERAL AND STATE NURSING FACILITY LAW 4. The Commonwealth of Kentucky licenses nursing homes, which are defined as: “establishments with permanent facilities that include inpatient beds. Services provided include medical services, and continuous nursing services. Patients in a nursing home facility require inpatient care but do not currently require inpatient hospital services, and have a variety of medical conditions.” 902 K.A.R. § 20:048(2). 5. In order to be eligible for reimbursement from Medicare or Medicaid programs, a nursing home must be certified for participation by those programs. The federal statutory requirements for certification are set forth in Title 42 of the United States Code, sections 1395i-3 (for Medicare certification) and 1396r (for Medicaid certification); these two sections are virtually identical. Federal regulations at 42 C.F.R. §§ 483.1- 483.95 apply to facilities certified for Medicare, Medicaid, or both. 6. Federal regulations use the term “nursing facility” to apply to certified facilities, as does the Commonwealth of Kentucky. 42 C.F.R. § 483.5; 907 K.A.R. § 1.022(1)(10). This complaint likewise uses the term “nursing facility” for facilities that are licensed by Kentucky as nursing homes and are approved for Medicare and/or Medicaid certification as nursing facilities. 7. Under Kentucky policy, if a nursing facility resident is hospitalized, the Medicaid program will pay to hold or “reserve” the resident’s bed in a nursing facility for up to 14 days. 907 K.A.R. § 1:022(9). 8. In a complementary provision, federal nursing facility law offers protections to ensure that hospitalized nursing facility residents are able to return to their nursing facility after the hospitalization, even if their hospitalization exceeds a bed hold’s duration. Specifically, a hospitalized resident has the right to return to the next available bed in the facility if the resident’s hospitalization has exceeded the duration of the bed hold under state Medicaid law, the resident needs nursing facility services, and the resident would be returning to the nursing facility under Medicaid or Medicare reimbursement. If the resident’s previous room in the facility is available, she has the right to return to that exact room. These rights are not limited to a particular duration of hospitalization; for example, the right to return would apply even if the resident had been hospitalized for one month or one year. U.S.C. § 1396r(c)(2)(D)(iii); 42 C.F.R. § 483.15(e)(1). 9. In accord, a nursing facility cannot evade federal nursing facility eviction protections by refusing to allow a resident to return from a hospitalization. Whenever a hospitalized resident has a right to return but the facility claims that the resident is not appropriate to return to the facility, “the facility must comply with the [regulation’s protections against eviction] as they apply to discharges.” 42 C.F.R. § 483.15(e)(1)(ii). In other words, the facility cannot perform a self-help eviction by refusing to let the resident return. Instead, the facility must allow the resident to return and, if