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.
For most of the almost four months she stayed at a Springfield
nursing home, Susan West says she was so fearful of retaliation from the
staff that she communicated with friends and family only by text
message.
“I avoided phone calls as much as I could,” said West, 56, a former resident of Lewis Memorial Christian Village, 3400 W. Washington St. “I didn’t want anyone to get any more information than they already had.”
West
and local advocates for residents of long-term care facilities who
looked into and validated her concerns said she suffered and complained
for months about not getting proper care at the 171-bed, not-for-profit
Lewis Memorial before she was immediately discharged against her will in
early January.
Officials from Lewis Memorial and its parent organization, Lincoln-based Christian Horizons, didn’t return phone calls seeking comment last week on West’s case.
Statewide patient advocates say improper involuntary discharges are the top complaint filed against nursing homes.
The advocates will push again this year to enact stricter legislation that
guards against improper discharges affecting patients such as West,
according to Jamie Freschi, Illinois’ long-term care ombudsman.
The legislation, introduced in the General Assembly last year, didn’t receive a vote of the full House or Senate.
Nursing
homes and assisted-living centers in Illinois are allowed to discharge
people against their will for reasons that include mental and physical
health, behavior and lack of payment.
Long-term care facilities
are required by federal law to give 30 days’ notice before evicting
someone. That time period allows residents, their families and advocates
such as ombudsmen the opportunity to trigger appeals that can lead to
hearings decided by a third party, Freschi said.
But notice often
isn’t given, leaving nursing home residents stranded in hospitals while
nursing homes immediately evict them or give no reason or inadequate
reasons for not taking them back, she said.
Long-term care facilities also sometimes pressure residents and their
families to leave by making vague statements that a facility isn’t
equipped to care for a resident any longer, she said. In those cases,
ombudsmen aren’t notified so there’s no chance to educate residents and
their relatives about their rights, she said.
A bill expected to
be introduced in the next few weeks will again include language to “give
voice to our most vulnerable population” when nursing homes and
assisted-living centers want to evict people they view as bothersome or
difficult to care for, Freschi said.
“The legislation updates the
Illinois Nursing Home Act to reflect the newly revised federal nursing
home regulations in relationship with involuntary transfers and
discharges,” she said. “The legislation also closes loopholes that
currently allow facilities to circumvent regulations making it far too
easy to be non-compliant.”
Last year, officials from the nursing home industry opposed the legislation,
which would have put into place new monetary penalties when nursing
homes fail to give the required 30-day notice for an involuntary
discharge.
The proposal could have resulted in $370 million in
additional annual fines against nursing homes for a problem that exists,
but is being overblown by advocates of the legislation, according to
Matt Hartman, vice president of public policy for the nursing home
industry’s Illinois Health Care Association.
Freschi
said she doesn’t know whether the association’s estimate of additional
fines is accurate, but the fines always could be avoided.
“My simple answer is, ‘Be compliant,’” she said.
No. 1 complaint
In a state where more than 100,000 people live in long-term care facilities, complaints about improper involuntary discharges that are filed with the state’s network of government-funded regional ombudsmen are the No. 1 complaint.
There were 911 such complaints received by ombudsmen in the fiscal year ending June 30, Freschi said.
Many
cases go unreported, said Freschi, who is based in Springfield and
previously was the Springfield area’s regional ombudsman.
“Residents
and family members are scared, confused and frankly baffled by the
current system that clearly provides an advantage to facilities,” she
said.
The legislation would have set up a mechanism for
more-rigorously enforcing new staffing rules that were phased in between
2010 and 2014 “to assure basic needs are met and proper care is
delivered,” Freschi said.
“Quite possibly, if basic needs are met, many of the problems with improper discharges would be resolved,” she said.
Hartman said the Illinois Health Care Association likely will oppose the legislation again.
Last year’s proposed legislation was unnecessary and would have
actually increased requiring staffing levels beyond those required in
existing law, Hartman said. Freschi disagreed with that contention.
Involuntary discharges represent less than 1 percent of all discharges, Hartman said.
The
bill to be filed will make it clear that the Illinois Department of
Public Health has authority from the federal government to require that
nursing homes readmit patients if a discharge is deemed unjustified
after a hearing, Freschi said.
Like House Bill 3392 and Senate Bill 1624,
which failed to progress in the General Assembly, the expected
legislation also will give long-term care ombudsmen more authority to
advocate on behalf of individuals, Freschi said.
Public Health took a neutral stance on the bills last year, agency spokeswoman Melaney Arnold said.
Prime example
Susan West’s case is a prime example of improper discharge, Freschi said.
Jizmagian said West is “very vocal and very competent” but was punished for her willingness to speak out about substandard care.
Jizmagian
added that her office has noticed a “drastic increase” in complaints
about the care of residents at Lewis Memorial, which has a one-star overall rating out of five stars on Medicare.gov’s Nursing Home Compare website.
West,
a widowed mother of two grown children and three grandchildren — all of
whom are in Texas — said she grew up in Danville and worked as a
hospital clerical worker in Texas before returning to Illinois in search
of better health care in 2017.
Among a range of health problems, West has a swelling condition called lymphedema and a non-healing wound on her left foot.
After
stays at an Urbana hospital, a Mattoon nursing home and a short time at
home — she has an apartment in Springfield — West became an inpatient
for several weeks at Memorial Medical Center, where she received care
for a skin infection known as cellulitis.
She was discharged in
mid-September from Memorial to Lewis Memorial, a facility she wasn’t
able to visit but was willing to accept her.
West began receiving rehabilitation services and said she initially had no problems with the care at Lewis.
After a few weeks, however, mistakes began “piling up” related to chronic understaffing, she said.
“The first time you complain about something, that’s it,” she said. “It got so retaliatory.”
The
state public health department found that a nursing assistant was wrong
to throw out a mini-refrigerator full of home-cooked, nutritious food
provided by a friend in November, according to an IDPH inspection
report.
The nursing assistant contended the food was attracting roaches, the report said.
State
officials also said Lewis’ staff failed to provide pressure-relieving
boots on West’s feet to prevent ulcers and put her at risk of a
urinary-tract infection by the way they handled a urinary catheter and
collection bag.
None of the findings was severe enough to prompt a fine, according to the state.
Jizmagian
said state regulators haven’t yet ruled on additional complaints from
her office and West related to the involuntary discharge and a Dec. 12
incident in which West was injured.
Two nursing assistants allegedly improperly operated a lift to
transfer West from her bed to a wheelchair, Jizmagian said. West, who
can’t stand because of the sore on her left foot, said she fell onto the
wheelchair, and a part of the lift machine hit her head.
West
said she was brought to the hospital at her request and later released
but still has headaches and soreness in her left arm, all related to the
fall.
West said she missed several appointments with her
wound-care doctor because Lewis’ staff failed to get her ready in time
to leave and make it to the doctor’s office.
When she complained
about the situation, she said the staff several times got her out of her
bed and let her sit in her wheelchair for hours — which was unnecessary
and contrary to doctors’ orders that her legs be elevated — all to
ensure she wouldn’t miss doctor’s appointments.
She said she was
discharged in early January in a phone call she received while at
Memorial — where she again was treated for cellulitis.
According
to West, Lewis Memorial’s business manager told her that she was “not
welcome back” because of a $27,000 bill for part of her stay at Lewis
that hadn’t been paid.
West said the outstanding bill was part of a
dispute between the nursing home and her insurance provider, the
Veterans Health Administration’s Civilian Health and Medical Program.
She receives the coverage as the surviving spouse of a disabled former
Marine and Vietnam veteran.
West later was admitted to a Carlinville nursing home, where she
currently receives care. She said she was relieved at first that she
wasn’t returning to Lewis.
“I didn’t feel safe there,” she said.
But she said Lewis and other facilities should be punished for treating residents unfairly.
The
resulting confusion associated with the immediate eviction led to her
being brought to a nursing home that is about an hour’s drive from
Springfield, she said.
The distance makes it harder for her to
receive regular wound-care visits from her Springfield doctor and
face-to-face meetings with the friend who has power of attorney over her
health care, she said.
“This has moved me away from everyone I know and my support system,” West said. “It makes it really hard.”
The mother of a 22-year-old woman who was discharged from a Maryland hospital and left to fend for herself in freezing cold weather at a bus stop
is speaking out to correct misconceptions about her daughter. The
mother, who asked to be identified only as Cheryl, says she wants to
"correct the misinformation that's out there" because her daughter,
Rebecca, "was humiliated" by the incident.
"There are people who
are saying that my daughter is a drug addict, my daughter's a
prostitute, that she's deaf," Cheryl told CBS News. "She's not deaf, not
a prostitute, not a drug addict. My daughter has mental illness."
The case gained national attention when a bystander captured cellphone video
of hospital workers leaving Rebecca on a downtown Baltimore street
wearing only her flimsy hospital gown and socks in 30-degree weather.
"My
daughter was disposed of. She literally was disposed of. It's
disgusting, heartbreaking, horrifying," Cheryl continued. "And if it's
all of those things for me, I want people to know how does Rebecca feel?
This was done to her. She was on the street with her body exposed.
There was no human dignity at all."
For the safety of her family, Cheryl chose not to disclose their last name to CBS News.
According
to Cheryl, Rebecca was diagnosed with mental illness — bipolar
schizoaffective disorder — when she was 16 years old, and also has
Asperger's syndrome, a form of autism. Rebecca lived in a residential
youth program called Pathways from the time she turned 18 until
Christmas Eve, when she was discharged for not taking her medication.
"She has to be on meds, otherwise she has psychosis," Cheryl said. "She will have, uh, a manic episode."
Cheryl
says she has been trying to get legal guardianship of her adult
daughter to gain control of her medication, housing and Social Security.
But because of HIPAA patient privacy laws, she says doctors will not
speak with her.
"This is a byproduct of what the mental health system is," she said. "I cannot get any help for my daughter."
Last month, Rebecca stopped reaching out to her family members so
Cheryl tried to file a missing persons report with police. During the
process, authorities notified her that Rebecca had been admitted to a
hospital in Baltimore.
Cheryl says she came across the disturbing
video while scrolling through Facebook. At first, she didn't even
realize that the woman in the clip was her daughter.
"I didn't
even know that it was my daughter initially," she said. "As he got close
enough, I saw it was her and I got hysterical because in that moment,
it was sheer fear that my daughter was going to die. I still haven't
watched all of the video."
Cheryl says she tried to contact the
hospital and was told to reach out to their media relations department
about the incident by email.
"The hospital wasn't being helpful. I
called the security department (and) they laughed at me. When I told
them, 'That's my daughter in the video and I just need to find out if
she's in the hospital,' they laughed at me," Cheryl said. "Every person
that I talked to at the hospital either hung up on me or told me to
email the hospital, and that everyone was going to tell me the same
thing."
The video of Rebecca went viral earlier this week on
social media. It shows four University of Maryland Medical Center
security guards wheeling her to a bus stop in her hospital gown. She can
be heard crying out after they walk away.
"It's obvious with
looking at the video — even someone who doesn't know her, someone who
doesn't know anything about mental illness — it was very apparent that
she was having some sort of medical issue," Cheryl continued. "You could
see she has a large lump on her forehead and her face was bloody. So,
there was a medical issue. She was incoherent. A blind person, Hellen
Keller, could see that my daughter was in need of medical attention."
Imamu Baraka,
the man who recorded the video, called 911 and medics wound up taking
Rebecca back to the same hospital. Cheryl says she has since been
transferred to a different facility where she is receiving treatment.
"What
was in that video was no empathy for a sick young woman, and, um, it
was just so callous and heartless how they put her out there in the
cold, exposed, and didn't know her history, didn't know her background,"
Cheryl said. "And I don't think they ever really cared because they
weren't looking at her like a human being."
The University of
Maryland Medical Center apologized Thursday and promised a thorough
investigation. In a written statement, the hospital states that they
"share the shock and disappointment of many who have viewed the video.
In the end, we clearly failed to fulfill our mission with this
patient."
"We feel comfortable in the statement that what you saw
in that video is not a process that would occur with any frequency at
all," said Dr. Mohan Suntha, president and CEO of the University of
Maryland Medical Center.
Cheryl told CBS News that Suntha claimed
that he has tried to reach out to her but couldn't get in contact with
her. As of Thursday night she said she had yet to hear anything from
him.
"This was a hospital that has a psychiatric unit. They should
know how to deal with mental health patients without dumping them out
on the street in the cold, naked," she said. "They're supposed to be
able to deal with mental health issues, and if they don't know how to
deal with mental health issues, then they should close their doors."
