Judge Dismisses Nursing Home Dumping Suit

SAN FRANCISCO (CN) — A federal judge dismissed a lawsuit claiming California lets nursing homes illegally dump Medi-Cal patients, costing the state $70 million.
Lead plaintiff Bruce Anderson and California Advocates for Nursing Home Reform sued the state last November for failing to enforce rulings that require nursing homes to re-admit low-income residents.
U.S. District Judge Haywood Gilliam ruled Tuesday that the Federal Nursing Home Reform Act does not give individuals the right to sue states for failing to enforce the law. Because of that, the judge dismissed the complaint with prejudice, finding any amendments would be futile.
“We were obviously disappointed,” plaintiffs’ attorney Matthew Borden said. “It means devastation and heartbreak for hundreds of families.”
The decision allows the state to continue administering a “meaningless” process – holding hearings and issuing decisions that it refuses to enforce, Borden said.
Anderson and two other elderly plaintiffs say they were dumped into hospitals and denied readmission to a nursing home in violation of the Nursing Home Reform Act.
Federal law requires states establish a hearing process to re-admit nursing home residents who are temporarily hospitalized, but the state will not enforce the outcome of those hearings.
The lack of enforcement has allowed nursing homes to maximize profits at the expense of vulnerable seniors and taxpayers, according to the lawsuit.
“It’s costing California taxpayers,” Borden said. “It’s depriving a person of all meaningful contact and therapy and leaving them in a hospital when they’re not sick.”
Hospital stays for Medi-Cal patients cost about $1,800 per day compared to an average $190 per day for stays at a skilled nursing home facility.
The state could easily enforce its decisions by refusing to pay nursing homes that fail to comply with its orders, Borden added.
The entry of private equity into the nursing home industry and increasing pressure to deliver returns to shareholders has led facilities to dump not only Medi-Cal patients, but also other “undesirable ones,” according to Borden.
Residents who need more care, like those who get up, walk around and need to be watched more carefully, require more staff than a docile, bed-ridden patient, Borden said.
“Every time you provide nursing care for someone, they want to hire as few staff as possible,” Borden said. “People can become undesirable if they require a lot of care.”
The California Legislature enacted laws in the 1990s to regulate private ownership of nursing homes, but the state was sued in 2013 for failing to adequately review ownership changes to corporations that operate skilled nursing care facilities.
A spokesman for the state Department of Health and Human Services, run by defendant Secretary Diana Dooley, had no immediate comment on why the state has failed to enforce its hearing decisions.
Borden, of BraunHagey & Borden in San Francisco, said his clients are likely to appeal the ruling.

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