They were ‘dumped’ from Sacramento-area care homes. Appeals court says they can sue the state

Jul. 23--A federal appeals court sided with former nursing home residents -- including two who were housed in Sacramento-area facilities -- allowing them to proceed with a lawsuit challenging California regulators for failing to crack down on patient dumping by care facilities.

The July 18 opinion by the 9th U.S. Circuit Court of Appeals in San Francisco allows the residents' lawsuit against the state's Department of Health Care Services and Department of Health and Human Services to go forward. The ruling overturns an earlier San Francisco federal court decision that dismissed the residents' suit.

"The impact of this (ruling) is that the state is going to do something," said plaintiffs' attorney Matthew Borden, who argued the case. "I'm hopeful that now that we've had a change in administration that Gov. (Gavin) Newsom and Attorney General (Xavier) Becerra will take the Ninth seriously and help these people."

Plaintiffs Bruce Anderson, Robert Austin and John Wilson, who is now deceased, were all former residents of certified nursing homes. Anderson and Austin were at Sacramento-area facilities, Borden said. Attorneys argued the facilities illegally refused to readmit them after they were sent to hospitals for care -- the practice commonly referred to as "dumping."

Attorneys for the three residents and the advocacy group California Advocates for Nursing Home Reform had argued the care homes targeted the residents because they were on Medi-Cal, and not Medicare or private insurance, which pay more compensation to the care homes.

The result: "(N)ursing homes have a strong financial incentive to engage in 'dumping' if Medi-Cal is paying for the resident's stay,'" U.S. 9th Circuit Court Judge Marsha S. Berzon wrote in her 29-page opinion, citing attorneys.

Bruce Anderson had spent four years at a Sacramento-area care facility before he was moved out in May 2015. Anderson lived in a hospital for more than a year before he was discharged, attorney Borden said. He is now in a Berkeley care facility.

Robert Austin suffered a stroke in 2009 and spent six years in a Sacramento-area facility before he was transferred to a hospital in 2015. He is now in Los Angeles.

Austin had been making progress at his Sacramento care home before he was sent away to the hospital where his condition regressed, Borden said.

John Wilson, who was diagnosed with amyotrophic lateral sclerosis, also known as Lou Gehrig's disease, was admitted to a Ventura County nursing home in 2013, Borden said. Two years later, he was sent to a hospital and later died.

State regulators failed to act after the patients won their appeals to be readmitted to the facilities, plaintiffs' attorneys argued.

But California authorities had argued its regulatory authority went only as far as the appeals process and that it was powerless to implement any decision reached on appeal.

Judge Berzon scoffed at the state's assertion in siding with the care home residents.

Berzon wrote that residents' appeals rights are contained in a state's bag of nursing home enforcement tools and allowed residents to obtain relief.

Nursing home reforms enacted in the 1980s to protect residents' rights, Berzon said, were put in place to address broad concerns that government regulation remains unsatisfactory and "allows too many marginal and substandard nursing homes to continue in operation."

"In light of this focus on inadequate nursing homes, Congress could not have intended to create meaningless show trials that allow nursing homes to persist in improper transfers and discharges," Berzon wrote.

State Department of Health Care Services officials declined to comment on the 9th Circuit's decision, citing ongoing litigation.

But plaintiffs' attorney Borden, who argued the case before the three-member panel of Berzon, 9th Circuit Judge Michelle T. Friedland and court designate U.S. District Court Judge Kathleen Cardone of Texas' Western District, said the court's opinion should send a message to the Governor's Office.

"My message to Newsom is to listen. Listen to the 9th Circuit. Listen to what these people need," Borden said. "It's an underhand pitch. He should be able to knock it out of the park."

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