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California Nursing Homes Accused of Dumping

     SAN FRANCISCO (CN) - California lets nursing homes forcibly dump Medi-Cal residents into hospitals to clear bed space for far more lucrative Medicare patients, then refuse to re-admit the dumped patients, which is illegal, elderly people claim in court.

Lead plaintiff Bruce Anderson and California Advocates for Nursing Home Reform filed the federal complaint Monday against the California Department of Health and Human Services and its Secretary Diana Dooley.

All three elderly individual plaintiffs say they were dumped into hospitals, then denied readmission to a nursing home, in violation of the Nursing Home Reform Act. In addition to their own injuries, they say, nursing home resident-dumping across the state has cost California taxpayers more than $70 million.

"California nursing facilities often dump Medi-Cal residents by refusing to allow them to return home after they have been temporarily hospitalized," the complaint states. "Facilities do this to increase revenues and make space for more lucrative Medicare and private pay residents."

Skilled nursing homes get an average of $190 per day for a Medi-Cal resident - someone whose ability to pay "comes exclusively from Medi-Cal." Patients with Medicaid and Medicare benefits, however, and those with private insurance, can pay the nursing homes more than $500 a day. This gives homes "a strong financial motivation to get rid of" Medi-Cal residents and replace them with more lucrative clients.

Nursing homes have "similar incentives for residents who require substantial amounts of care," as the homes are paid a flat rate from Medi-Cal. So they dump long-term residents into hospitals for short-term care, then refuse to take them back when the hospital discharges them - which is illegal, the patients say.

"(F)ederal law protects against hospital dumping. For over 10 years now, however, the State of California has been in violation of federal law. The result is that residents are forcibly removed from their homes, their familiar surroundings, friends and caregivers and warehoused in hospitals. This practice has a devastating impact on residents, including

plaintiffs, and has cost California residents tens of millions of dollars," according to the complaint.

Federal law prohibits patient dumping by requiring states to establish a hearing process for readmission of nursing home residents who have been temporarily hospitalized. The states must "promptly ... provide for admission or readmission of an individual to a facility if the hearing decision is favorable to the applicant or beneficiary," the complaint states, citing 42 C.F.R. § 431.246(a).

Anderson et al. say California violates this law: It will give dumped patients a hearing, "but will not enforce its own decisions."

All three plaintiffs say they had hearings and won the right to readmission, but because of the state's "shell game of inaction," none have been able to return.

"Plaintiff Anderson has been confined in a hospital bed and chemically restrained with mind-numbing drugs for almost five months. He is not sick. He can walk and could be socializing instead of living in isolation."

He won his readmission hearing in July, and the Department of Health Care Services ordered the Norwood Pines skilled nursing facility to readmit him, he says. But the state refuses to enforce the DHCS order. So despite the state order, "Mr. Anderson has been warehoused at Sutter General Hospital, where he is generally confined to a bed, is receiving large doses of antipsychotic drugs, is far from his family and is not engaging in any therapeutic or social activities."

Plaintiffs John Wilson and Robert Austin also won readmission hearings, in June and May, but the state will not enforce those orders either. Both have been "warehoused" in hospitals despite the state orders.

Austin says he "grew so demoralized from being warehoused in a hospital with no possibility of escape, he accepted a temporary transfer to a facility 400 miles from his nearest family member."

Hospital stays cost $1,800 a day: nine times the $190 cost of a Medi-Cal nursing home bed. So Wilson alone, who won the right to be re-admitted 136 days before the lawsuit was filed, has been warehoused needlessly in a hospital at a cost to taxpayers of $218,960.

There are thousands more like him "who have been dumped in hospitals across the state," he says. "Many never even exercise their right to a federally mandated readmission hearing because ... the process is futile."

The federal Center for Medicare and Medicaid warned California in a May 2012 letter that it must "promptly take corrective actions" to enforce its readmission orders, but that too was futile, according to the complaint.

The senior citizens cite a 2008 memo from the California Department of Public Health, "stating that it was not obligated to enforce the decisions of hearing officers relating to appeals of evictions by nursing home residents."

Since neither state agency will enforce the readmission orders, no one does.

The nonprofit plaintiff cites several responses to its inquiries, in which the state said it "has no authority to enforce its own orders."

The plaintiffs seek declaratory judgment that the state is violating the Nursing Home Reform Act, an injunction, and costs.

They are represented by Matthew Borden with Braunhagey & Borden.

A California Department of Health and Human Services spokesman declined to comment on pending litigation.

It's not the nonprofit's first go-round with California. It sued the state in Sacramento Superior Court in 2013, claiming "Owners and investors in the nursing home industry have purposely and increasingly created more complexity and layers in their corporate and ownership structure so that they can avoid scrutiny and responsibility," and the state let them get away with it.

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