California Public Health Agency Can’t Duck Federal Lawsuit

OAKLAND, Calif. (CN) — A federal judge ruled Wednesday that California’s byzantine public health bureaucracy must face a lawsuit by elderly Medi-Cal patients claiming it fails to enforce laws prohibiting nursing homes from dumping them into hospitals to free up space for more profitable residents.

Bruce Anderson languished for over a year in Sutter General Hospital after he was sent there by Norwood Pines Care Center. Anderson’s traumatic brain injury and resulting behavioral issues put him at greater risk for falls. Anthony Chicotel, an attorney with California Advocates for Nursing Home Reform, said Norwood Pines saw an opportunity to unload him.

“Bruce literally just sat in bed. He never went outside. He was drugged and it was a really sad situation,” Chicotel said in a phone interview Wednesday evening.

Though Anderson appealed his involuntary hospital transfer under the Nursing Home Reform Act and won, the state refuses to enforce its own readmission orders, creating a system that incentivizes nursing homes to break the law and ignore hearing decisions without consequences.

Anderson was finally sent to a nursing home, but only after Chicotel asked a friend who works in nursing home administration to accept him.

Anderson was one of three men who sued the California Health Department in 2015 alongside California Advocates for Nursing Home Reform.

On Wednesday, U.S. District Judge Haywood Gilliam ruled that Anderson and his co-plaintiffs had alleged a concrete injury and could proceed with their lawsuit, which has been stuck in legal limbo while the Ninth Circuit sorted out whether they had the right to sue.

Last year, the appellate court sent the case back to Gilliam, who dismissed it in 2016, overturning his decision that the Federal Nursing Home Reform Act does not give individuals the right to sue states for failing to enforce the law.

Attorney Matthew Borden of Braun Hagey & Borden, who represents the three patients and CANHR, said Wednesday that Gilliam’s order recognized the “Kafkaesque nightmare” his clients have been through.

“I have clients who are actually worse off having gone and availed themselves of the process they have the right under federal law to use to get readmitted after they’ve been unjustly kicked out,” Borden said. “That piece of paper is worth nothing because of the way the state has orchestrated itself. I think the ruling today is good because it vindicates our legal theory that the processes that the state has are just simply not effective. They’re tantamount to nothing.”

Essentially, the California California Department of Health Care Services says that once it issues an order for nursing home readmission, it no longer has jurisdiction and “has no authority to enforce its own orders.”

For Borden and his clients, the red tape is maddening.

“This is an easy problem to solve. All you have to do is commit to enforcing the orders. It’s just that they don’t want to enforce these orders,” Borden said, listing a half-dozen ways the state could intervene; by cutting of Midi-Cal funding or imposing fines that eliminate the financial incentive for nursing facilities to dump their neediest patients.

Chicotel said he believes that most of the time, nursing homes initiate hospital transfers for legitimate medical reasons, though he has seen some cases of transfers made for phony reasons.

“But once they’re in the hospital, they see their opportunity to permanently get rid of them,” he said.

Chicotel said he would hope that even if Gilliam dismissed the case again, that health and human services secretary Mark Gahly would want to resolve the issue.

“I would think the people who run these state agencies, Dr. Gahly in particular, would see this is a terrible outcome for nursing home residents and want to do something regardless,” Chicotel said.

While he is happy about Gilliam’s ruling, he knows the case faces a tough slog through the court system.

“We went to state multiple times and tried to work with them to find solutions and were basically told to get lost,” Chicotel said. “We’ve wasted four plus years on this litigation when the solutions are pretty simple. I’m hoping the state doesn’t want to wait that long. I’m hopeful the new leadership will be more amenable.”

Borden said plaintiff John Wilson, who had ALS, died while the case was on appeal. Plaintiff Robert Austin has accepted a temporary transfer to a nursing home, but it is located 400 miles away from his sister.

“He would very much like to return back to the Sacramento area to the facility near his sister,” Borden said. “There are a whole litany of people who could step in as additional plaintiffs because it’s a recurring story. It’s happening over and over again. Which is why we’re trying to get the state to do something or take the case to trial and get a judgment against them where there’s an injunction.”

California Advocates for Nursing Home Reform is exploring the option of legislation in 2020 that could force the state into compliance sooner.

A California’s Health and Human Services Agency spokesperson said in an email the agency doesn’t comment on pending litigation.

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