Lawsuit claims California fails to correct nursing home misconduct

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A consumer advocacy group has sued California’s Health and Human Services Agency for its alleged failure to prevent nursing homes from illegally refusing to readmit Medi-Cal residents who were sent away to receive hospital care.

The California Advocates for Nursing Home Reform, which this week filed the lawsuit along with three nursing home residents, alleges that as many as half of the state's nursing facilities are engaged in this practice.

The plaintiffs claim that nursing homes refuse readmission to some Medi-Cal residents who need temporary care in a hospital as a way to open up beds for higher paying private-pay or Medicare residents. The plaintiffs characterize this practice as "patient dumping." They claim it's cost California taxpayers more than $70 million during the past ten years because many people are forced to stay in hospitals, which charge Medi-Cal many times more than do nursing facilities. 

When a Medi-Cal enrollee who lives in a nursing home is transferred to a hospital for temporary care and then refused readmission to his nursing facility, federal law requires the opportunity for an appeal hearing, according to the lawsuit, which adds that states are also required to enforce the hearing decisions. The complaint cites a 2012 letter from the federal Centers for Medicare & Medicaid Services that explains those legal obligations to California's Department of Public Health.

While California's Department of Health Care Services does conduct hearings in such cases, plaintiffs say, they contends the state does not provide residents with "their right to an administrative procedure for prompt readmission if they are successful." 

Public records indicate there have been about 500 appeals of nursing homes' refusals to readmit residents over the past decade, says Tony Chicotel, staff attorney for California Advocates for Nursing Home Reform. About 90 percent are decided "in favor of the appellant," he says.

Chicotel believes many other Medi-Cal enrollees who could request a hearing don't take that step, based on his organization's conversations with hospital discharge personnel and family members.

"One of the problems is they don't even know they have a right to a hearing," Chicotel says. "We have a lot of reason to think this is just the tip of the iceberg."

A spokeperson for California's Health and Human Services Agency says the department is unable to comment on pending litigation.

The California Association of Health Facilities - the trade association that represents nursing homes statewide -  denies that nursing homes and assisted-living facilities are illegally refusing to readmit residents who receive hospital care.   

"No one has been 'dumped,'"  Deborah Pacyna, the organizations director of public affairs writes in an email to KPCC. "We strongly reject any notion that patient admissions or discharges are tied to payment sources. Most of our patients – 66 percent – are already on Medi-Cal which barely covers the cost of 24 hour care."

The three nursing home plaintiffs named in the lawsuit filed in federal court in San Francisco are all Medi-Cal enrollees.  Each was refused readmission to a nursing facility after receiving temporary hospital care; each won a readmission order after a hearing but has not been allowed to return, the suit says. Two of the three have been forced to remain in hospitals since June and July, respectively. One has moved to a new nursing facility "hundreds of miles away from his family," according to the complaint.