'Dumped' Nursing Home Patients Score Win For Enforcement

By Emma Cueto | July 28, 2019, 8:02 PM EDT

Robert Austin appeared to have the law on his side after he was allegedly dumped by his onetime nursing home.

In May 2015, the California Department of Health Care Service determined that Austin, who had lost brain function after a stroke six years earlier, should be allowed to move back into his nursing home after a stint in the hospital, adding that the nursing home did not have a good reason to hospitalize him to begin with.

But the nursing home refused to readmit Austin anyway, and the state never enforced its order.

Austin and two other men who had found themselves in similar situations sued the state of California, arguing that it was required to take action when its orders weren't upheld — and this month, the Ninth Circuit Court of Appeals agreed, saying that under the Federal Nursing Home Reform Act, patients have not only a right to hearings but for the results of those hearing to means something.

"In light of [the law's] focus on inadequate nursing homes, Congress could not have intended FNHRA to create meaningless show trials that allow nursing homes to persist in improper transfers and discharges," the decision said.

Matt Borden, an attorney for Austin and the other plaintiffs, told Law360 that the decision was a major win and would hopefully have a big impact on patients in California nursing homes, where he said situations like Austin's — known as "dumping" — happen regularly.

"Each person who gets dumped and their families are undergoing a terrible hardship," he said. "That's the human side of the story. The legal side of the story ... [is] rights have to mean something."

The FNHRA was passed in 1987 to protect nursing home residents from neglect and abuse. In addition to establishing standards for the services provided to residents, it also made it illegal for nursing homes to involuntarily discharge residents, barring a few exceptions such as if the facility could not provide adequate care or if allowing them to stay would threaten the health and safety of others.

Regardless of the law, many remain concerned that nursing homes do discharge patients improperly.

According to the suit, nursing homes in California commonly try to get rid of patients with insurance through the California Medicaid program, commonly called Medi-Cal, because these patients typically bring in less money than people with Medicare or private insurance.

While exact numbers on dumping cases are elusive, a December 2017 memo from the Department of Health and Human Services to state regulators said that facility-initiated discharges were the subject of more complaints than any other to the department's long-term care ombudsman program.

The memo noted that such discharges can be traumatic or dangerous for residents, uprooting them from familiar settings and sometimes forcing them to move far from friends and family. That was the case for Austin, whose sister reluctantly arranged for him to live in a facility 400 miles away in order to prevent him from languishing in a hospital bed unnecessarily.

However, others dispute that nursing homes are routinely illegally dumping patients.

In a brief filed in Austin's Ninth Circuit case, the California Association of Health Facilities, an industry group representing over 1,000 care facilities, said that nursing homes are required to make complicated decisions that balance the rights and needs of individuals, facility staff, and the resident community as a whole.

In fact, the brief argued that a facility was right not to readmit one of Austin's co-plaintiffs, John Wilson, after he was treated at the hospital for pneumonia. Although the initial hearing found that Wilson should have been readmitted, the group said, a later appeal determined that the center would not have been able to care for him properly because it did not have an attending physician.

"We disagree with the narrative advanced by the plaintiffs as to a purported 'dumping' epidemic," Mark Reagan, at attorney with the CAHF, told Law360.

"Our experience has been that the vast majority of the transfers or discharges relate to residents who are well enough to return home, present needs that cannot be appropriately served in the SNF in which they reside or present behaviors that place other residents and staff at risk for their safety," Reagan said.

The DHHS memo also said that while financial incentives appear to be the basis for many involuntary discharges, the most commonly reported reason for the discharge was behavioral, mental or emotional issues.

The California Health and Human Services Agency did not respond to a request for comment.

In its brief before the Ninth Circuit, the agency defended its practices, saying they have been approved by federal regulators. It also said patients are able to pursue their own remedies by suing facilities that refuse to readmit them.

Regardless of how common the phenomenon might be, however, the Ninth Circuit ruled that residents who are affected have a right for hearing orders to be enforced.

The order still might not mean immediate changes to the California system; although Austin and his fellow plaintiffs won recognition of the right to enforcement, they still have to return to the trial court to prove that the state's current enforcement system is, in fact, inadequate.

Borden said he is optimistic about the case and about the odds that Gov. Gavin Newsom, who was sworn in this year, will take action against nursing homes that discharge patients in violation of the FNHRA.

And whatever mechanisms the administration might choose would hopefully be calibrated to overcome the financial incentive to toss patients in favor of more lucrative residents, Borden said.

"I'm hopeful that our new administration is going to take their duties to protect these people seriously," he said.

--Editing by Brian Baresch.

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