Court reinstates suits by patients nursing homes refused to readmit

by Bob Egelko

The Ninth U.S. Circuit Court of Appeals ruled on a case involving nursing home patients.

Photo: Justin Sullivan / TNS

Federal law requires California to act against nursing homes that practice “patient dumping,” the act of sending low-income patients to medical or mental hospitals and refusing to take them back, a federal appeals court ruled Thursday.

The Ninth U.S. Circuit Court of Appeals in San Francisco reinstated lawsuits by three patients — one of whom has died — and an advocacy group against state health officials. The state held hearings and found that the patients’ former nursing homes wrongly refused to readmit them, but took no enforcement action, the court said.

The ruling cited a 1987 federal law that allows nursing homes receiving federal Medicaid funds to transfer or discharge patients only for specified reasons, such as an improvement in their condition or dangers they pose to others in the home.

“Congress could not have intended (the law) to create meaningless show trials that allow nursing homes to persist in improper transfers and discharges,” Judge Marsha Berzon said in the ruling, which reversed a federal judge’s dismissal of the suit. She noted that the law authorizes a state to cut off Medicaid, known as Medi-Cal in California, funding to a nursing home, and even to seek closure of the home, if its management wrongfully refuses to readmit a patient.

“This is a human tragedy happening to a lot of people,” said Matthew Borden, lawyer for the former nursing home patients. “We hope the state will take its job seriously,” protecting the patients and avoiding unneeded Medi-Cal costs of hospital care, he said.

California’s Department of Health Care Services declined to comment on the ruling. A lawyer for an organization of nursing homes that supported the state’s position in the case disputed the existence of what he called “a purported ‘dumping’ epidemic.”

“Our experience has been that the vast majority of discharges relate to residents who are well enough to return home, present needs that cannot be appropriately served in the (nursing home) in which they reside or present behaviors that place other residents and staff at risk,” said Mark Reagan, attorney for the California Association of Health Facilities.

One plaintiff, Bruce Anderson, who suffers from dementia, had spent more than four years at a Sacramento nursing home before he was sent to a hospital with pneumonia in 2015, his lawyers said in court filings. Borden said the home refused to readmit him, and he wound up spending more than a year in the hospital, mostly sedated. He now lives in a nursing home in Berkeley.

Robert Austin suffered a stroke in 2009 and spent six years at another Sacramento nursing home, which then sent him to a hospital and refused to take him back, his lawyers said. He is now in a Los Angeles nursing home.

The third plaintiff, John Wilson, suffered from amyotrophic lateral sclerosis or ALS and was unable to walk or talk. He was sent from a nursing home in Camarillo (Ventura County) to a hospital with pneumonia in 2015 and was denied readmission after treatment, his lawyers said. He later died.

In each case, the court said, state health officials found that the nursing homes had no legal basis for refusing to readmit the patients, but also decided that they had no authority to require readmission. When the patients sued the state, U.S. District Judge Haywood Gilliam of Oakland said the federal law did not authorize such lawsuits.

But Berzon said the 1987 federal law “created a right benefiting nursing home residents,” who can go to court to enforce that right. She said the plaintiffs and their families would need to amend their suit to specify shortcomings in California’s procedures, but then could return to court.

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Court reinstates suits by patients nursing homes refused to readmit