Matthew Borden, Esq. (SBN: 214323) borden@braunhagev.com J. Noah Hagey, Esq. (SBN: 262331) hagev@braimhagev.com BRAUNHAGEY & BORDEN LLP 220 Sansome Street, Second Floor San Francisco, CA 94104 Telephone: (415) 599-0210 Facsimile: (415)276-1808 FILED Superior Court Of Califoriiia, 10/02/2017 Deputy Castt Numbtir: Kelly Bagby (pro hac vice submitted herewith) AARP FOUNDATION LITIGATION kbagbv@aarp.org 601 E Street, NW Washington, D.C. 20049 Telephone: (202) 434-2103 34-2017-0022005^ Attomeys for Plaintiffs 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SACRAMENTO 13 Case No. 14 GLORIA SINGLE, CALIFORNIA LONG TERM CARE OMBUDSMAN ASSOCIATION, COMPLAINT FOR VIOLATIONS OF 15 PATIENT'S RIGHTS, CALIFORNIA Plaintiffs, HEALTH AND SAFETY CODE § 1430(b); 16 UNLAWFUL BUSINESS PRACTICES, CALIFORNIA BUSINESS & 17 PROFESSIONS CODE §§ 17200, etseq.; CATHEDRAL PIONEER CHURCH HOMES II, DECLARATORY R E L I E F 18 CONGREGATIONAL CHURCH RETIREMENT COMMUNITY, BIXBY KNOLLS TOWERS, 19 INC., GOLD COUNTRY HEALTH CENTER, MAYFLOWER GARDENS HEALTH 20 FACILITIES, INC., STOCKTON CONGREGATIONAL HOMES, INC., 21 FOUNDATION PROPERTY MANAGEMENT, INC., RHF MANAGEMENT, INC., AND RHF 22 FOUNDATION, 23 Defendants. 24 25 26 27 28 1 COMPLAINT Case No 5 PQ I Plaintiffs Gloria Single, by and through her Power of Attomey Aubrey Jones and Califomia 2 Long Term Care Ombudsman Association allege as follows: 3 4 INTRODUCTION 1. Plaintiffs bring this action to enjoin Defendants' illegal practice of dumping 5 vulnerable nursing facility residents into hospitals. 6 2. To maximize profit through decreased staffing, vmscmpulous nursing facilities try to 7 illegally evict the residents who are the neediest of staff time and require the greatest levels of care. 8 One such method is hospital dumping, in which the facility gives away the resident's bed when the 9 resident is temporarily hospitalized and refiises to readmit the resident after she is medically 10 cleared to retum home. 11 3. Hospital dumping violates state and federal law, which requires facilities to hold 12 open the beds of residents who have been temporarily hospitalized. 13 4. Plaintiff Gloria Single is 82 years old. She suffers from pulmonary disease, chronic 14 pain, fainting and dementia and requires long-term skilled nursing ceire. She lives at a skilled 15 nursing facility called Pioneer House. 16 5. Pioneer House is run by a national entity called Retirement Housing Foundation 17 ("RHF"). According to its website, RHF is a "faith-based" organization, rooted in the ideals of the 18 United Church of Christ. RHF's website also claims that part of RHF's "concem for the whole 19 person includes residents, their families and staff and RHF strives to be fair in all relationships." 20 See htti3://www.rhf org/mission-vision-philosophy/. 21 6. Defendants dumped Ms. Single into a hospital on March 23, 2017, and refused to 22 readmit her once the hospital cleared her to return home. After a hearing before the Califomia 23 Department of Health Care Services ("DHCS"), the State issued a seven-page Order requiring that 24 "Pioneer House must immediately readmit Gloria Single to the first available bed." 25 7. Defendants continue to flout the State's Order and still refiise to readmit Ms. Single. 26 As a result, Ms. Single is spending what may be the last days of her life separated from her 27 husband, who continues to live at Pioneer House. Each day this occurs. Defendants are imposing 28 irreparable and cmel injury on Ms. Single and her family. 2 COMPLAINT Case No I 8. Plaintiff Califomia Long Term Care Ombudsman Association is a public interest 2 organization dedicated to protecting the rights of nursing home residents, including their rights to 3 readmission. It has taken the extreme measure of bringing this case because nursing facilities, such 4 as Pioneer House, routinely ignore State Readmission Orders because the State refuses to enforce 5 them itself. As a result, the only remedy for dumping victims, such as Ms. Single, is to seek 6 redress from the Court. 7 9. Accordingly, Plaintiffs respectfully seek an injunction requiring Defendants to 8 readmit Ms. Single, to stop dumping vulnerable residents, to comply with the readmission and 9 discharge laws and to obey DHCS readmission Orders. Plaintiffs also seek statutory damages for 10 each day Defendants have violated and continue to violate the law. II 12 PARTIES 10. Plaintiff Gloria Single was, at all relevant tunes, a resident of Pioneer House, 13 located at 415 P Street, Sacramento, CA 95814 in Sacramento County, and thus a "resident" under 14 Health and Safety Code § 1430. 15 11. Plaintiff Califomia Long Term Care Ombudsman Association ("CLTCOA") is a 16 membership organization made up of local Long-Term Care Ombudsman Programs, their staff, 17 certified volunteers and program supporters. The Local Ombudsman Programs that comprise 18 CLTCOA are established pursuant to 42 U.S.C. § 3058g, which requires States to create an 19 Ombudsman program to, inter alia, "identify, investigate, and resolve complaints" by residents 20 which "relate to action, inaction, or decisions, that may adversely affect the health, safety, welfare, 21 or rights of the residents," to "provide services to assist the residents in protecting the health, 22 safety, welfare, and rights of the residents" and to "analyze, comment on, and monitor the 23 development and implementation of Federal, State, and local laws, regulations, and other 24 govemmental policies and actions, that pertain to the health, safety, welfare, and rights of the 25 residents, with respect to the adequacy of long-term care facilities and services in the State." Since 26 1979, CLTCOA's membership has been actively helping residents, including Plaintiff Single, 27 obtain readmission to their homes after temporary hospitalization. 28 Case No. COMPLAINT I 12. Defendants are all part of the same commonly owned and operated chain of assisted 2 living and skilled nursing facilities that is held in an impenetrable labyrinth of legal entities 3 designed to hide money and evade legal and tax obligations. 4 13. Defendant Cathedral Pioneer Church Homes II, d/b/a Pioneer House ("Pioneer 5 House") is a skilled nursing facility as defined in Health & Safety Code § 1250(c), and is therefore 6 subject to Health & Safety Code § 1430(b). Pioneer House is located at 415 P Street, Sacramento, 7 Califomia 95814. According to its website, "Pioneer House is part of Retirement Housing 8 Foundation, a national, non-profit organization." Pioneer House has admitted in public filings 9 under penalty of perjury that Defendant Retirement Housing Foundation ("RHF Foundation") is its 10 "parent organization," that it has paid RHF Foundation hundreds of thousands of dollars in related11 party fees for "support services" every year, that it has paid Defendant Retirement Property 12 Management ("RHF Property") over a hundred thousand dollars a year in "related party 13 transactions," and that the other facilities named as Defendants herein are "commonly owned and 14 controlled." In papers filed under penalty of perjury with the govemment. Pioneer House lists its 15 mailing address as 911 N. Studebaker Road, Long Beach, CA 90815, which is also the address for 16 Defendants RHF Foundation, RHF Management Inc. ("RHF Management"), and RHF Property. 17 14. Defendant Congregational Church Retirement Community, d/b/a Aubum Ravine 18 Terrace ("Aubum Ravine Terrace") is a skilled nursing facility as defined in Health & Safety Code 19 § 1250(c), and is therefore subject to Health & Safety Code § 1430(b). Aubum Ravine Terrace is 20 located at 750 Aubum Ravine Road, Aubum, Califomia 95603-3820 and is part of the same 21 commonly owned and managed chain as Pioneer House and the other facilities named herein. 22 Aubum Ravine Terrace has admitted in public filings under penalty of perjury that RHF is its 23 "parent organization," that it pays RHF Foundation hundreds of thousands of dollars in related24 party fees for "support services" every year, that it has paid Defendant Retirement Property 25 Management over a hundred thousand dollars a year in related party transactions, and that the other 26 facilities named as Defendants herein are "commonly owned and controlled." Aubum Ravine 27 Terrace Usts its mailing address as 911 N. Studebaker Road, Long Beach, CA 90815, which is also 28 the address for Defendant RHF. 4 COMPLAINT Case No I 15. Defendant Bixby Knolls Towers, Inc. ("Bixby Knolls Towers") is a skilled nursing 2 facility as defined in Health & Safety Code § 1250(c), and is therefore subject to Health & Safety 3 Code § 1430(b). Bixby Knolls Towers is located at 3737 Atlantic Avenue, Long Beach, Califomia 4 90807 and is part of the same commonly ovmed and managed chain as the other Defendant 5 facilities named herein. Bixby Knolls Towers has admitted in public filings under penalty of 6 perjury that RHF is its "parent organization," that it pays RHF hundreds of thousands of dollars in 7 related-pEirty management fees every year, that it has paid Defendant Retirement Property 8 Management over a hundred thousand dollars a year in related party transactions, and that the other 9 facilities named as Defendants herein are "commonly owned and controlled." Bixby Knolls 10 Towers lists its mailing address as 911 N. Studebaker Road, Long Beach, CA 90815, which is also 11 the address for Defendant RHF. 12 16. Defendant Gold Country Health Center ("Gold Country") is a skilled nursing 13 facility as defined in Health & Safety Code § 1250(c), and is therefore subject to Health & Safety 14 Code § 1430(b). Gold Country is located at 6041 Golden Center Court, Placerville, Califomia 15 95667 and is part of the same commonly owned and managed chain as the other Defendant 16 facilities named herein. Gold Country has admitted in public filings under penalty of perjury that 17 RHF is its "parent organization," that it pays RHF hundreds of thousands of dollars in related-party 18 management fees every year, that it has paid Defendant Retirement Property Management over a 19 hundred thousand dollars a year in related party transactions, and that the other facilities named as 20 Defendants herein are "commonly owned and controlled." Gold Country lists its mailing address 21 as 911 N. Studebaker Road, Long Beach, CA 90815, which is also the address for Defendant RHF. 22 17. Defendant Mayflower Gardens Health Facilities, Inc. d/b/a Mayflower Gardens 23 Convalescent Hospital ("Mayflower") is a skilled nursing facility as defined in Health 8c Safety 24 Code § 1250(c), and is therefore subject to Health & Safety Code § 1430(b). Mayflower is located 25 at 6570 West Avenue L-12, Lancaster, Califomia 93536 and is part of the same commonly owned 26 and managed chain as the other Defendant facilities named herein. Mayflower has admitted in 27 public filings under penalty of perjury that RHF is its "parent organization," that it pays RHF 28 hundreds of thousands of dollars in related-party management fees every year, that it has paid 5 COMPLAINT Case No I Defendant Retirement Property Management over a hundred thousand dollars a year in related 2 party transactions, and that the other facilities named as Defendants herein are "commonly owned 3 and controlled." Mayflower lists its mailing address as 911 N. Studebaker Road, Long Beach, CA 4 90815, which is also the address for Defendant RHF. 5 18. Defendant Stockton Congregational Homes, Inc. d/b/a Plymouth Square ("Plymouth 6 Square") is a skilled nursing facility as defined in Health & Safety Code § 1250(c), and is therefore 7 subject to Health & Safety Code § 1430(b). Plymouth Square is located at 1319 N. Madison Street, 8 Stockton, Califomia 95202 and is part of the same commonly owned and managed chain as the 9 other Defendant facilities named herein. Plymouth Square has admitted in public filings under 10 penalty of perjury that RHF is its "parent organization," that it pays RHF hundreds of thousands of 11 dollars in related-party management fees every year, that it has paid Defendant Retirement Property 12 Management over a hundred thousand dollars a year in related party transactions, and that the other 13 facilities named as Defendants herein are "commonly owned and controlled." Plymouth Square 14 lists its mailing address as 911 N. Studebaker Road, Long Beach, CA 90815, which is also the 15 address for Defendant RHF. 16 19: Defendant facilities have interlocking officers and directors, including Laveme R. 17 Joseph, Darryl M. Sexton, Frank G. Jahrling, John E. Trinka, S.M. Simington, Christina E. Potter, 18 Deborah Stouff, John Bauman, and Raymond East. According to RHF's website, these same 19 individuals are also Officers and Directors of RHF. 20 20. Defendant RHF Management, Inc. ("RHF Management") is a Califomia corporation 21 located at 911 Studebaker Road in Long Beach, Califomia. Its CEO is Laveme R. Joseph, who is 22 the CEO of RHF Foundation and also serves as an officer and director for some of the facility 23 Defendants. The other Officers and Directors also serve as Officers and Directors for RHF 24 Foundation and the facility Defendants. On information and belief, RHF is the management 25 company that manages Pioneer House and all the other nursing facilities in Defendants' chain. 26 According to its website, the services RHF provides include "management supervision & financial 27 management" and "corporate-compliance maintenance." 28 Case No. COMPLAINT I 21. Defendant Foundation Property Management, Inc. ("RHF Property") is a Califomia 2 Corporation located at 911 Studebaker Road in Long Beach, Califomia. Its CEO is Laveme R. 3 Joseph, who is the CEO of RHF Foundation and also serves as an officer and director for some of 4 the facility Defendants. The other Officers and Directors also serve as Officers and Directors for 5 RHF Foundation and the facility Defendants. On information and belief, RHF ovms the real 6 property on which Pioneer House sits and all the other real property used by Defendants' chain of 7 nursing facilities. 8 22. Defendant RHF Foundation purports to be a non-profit corporation. Its Officers and 9 Directors include the same individuals that serve as Officers and Directors of the Defendant 10 facilities, including, without limitation Laveme R. Joseph, Raymond East, Christina E. Potter, 11 Darryl M. Sexton, Frank G. Jahrling, John Bauman, Deborah Stouff, and Stewart M. Simington. 12 23. The tme names and/or capacities, whether corporate, individual, associate, or 13 otherwise of DOES I through 10, inclusive, are unknown to Plaintiffs, who have therefore sued 14 them by their fictitious names. When their tme names and/or capacities are ascertained. Plaintiffs 15 will seek leave to amend this Complaint by inserting their tme names and/or capacities. 16 24. Each of the Defendants, including DOES I to 10, was the agent, servant and 17 employee of all of the remaining Defendants and in doing the things herein alleged was acting 18 within the course and scope of such agency or employment and with the consent and permission of 19 the remaining Defendants; and were operating together for a single, unified purpose. 20 25. Plaintiffs are informed and believe and thereon allege that DOES 1 to 10 were 21 responsible in some manner for the events and happenings set forth herein. It shall be deemed that 22 whenever and wherever in this Complaint any Defendant, whether specifically named or not, is the 23 subject of any charging allegation, that DOES 1 to 10 are likewise the subject of that charging 24 allegation. 25 26 .JURISDICTION AND VENUE 26. The Court has jurisdiction over this action pursuant to Health and Safety Code § 27 1430 which allows enforcement in any court of competent jurisdiction. The Califomia Superior 28 Court has jurisdiction over this action pursuant to Califomia Constitution Article VI § 10, which 7 COMPLAINT Case No 1 grants the Superior Court "original jurisdiction in all cases except those given by statute to other 2 trial courts." The statutes under which this action is brought do not grant jurisdiction to any other 3 trial court. 4 27. Venue is proper herein pursuant to Code of Civil Procedure §§ 395 and 395.5 5 because one or more of the violations alleged in this Complaint arose in the County of Sacramento. 6 7 FACTS 28. Ms. Single was admitted as a resident at Pioneer House in November 2016. Her 8 husband also resides there. 9 29. On March 23, 2017, Defendants involuntarily hospitalized Ms. Single at Sutter 10 Medical Center, a general acute care hospital. The same day, the hospital cleared Ms. Single to 11 retum home. Thereafter, Defendants refused to readmit her. 12 30. The hospital invited Defendants to assess Ms. Single to see if she could retum home. 13 Defendants, however, refused to do so. 14 31. By discharging Ms. Single in this manner. Defendants circumvented the legal 15 process for evicting nursing home residents, which would have accorded Ms. Single numerous 16 substantive and procedural rights, including the right to remain at home while she challenged any 17 decision to discharge her, and the right to have an ombudsman fi-om CLTCOA advocate for her and 18 help explain her rights and choices. 19 32. Left with no other choice, on May 17, 2017, Ms. Single invoked her right to a 20 hearing before the Califomia Department of Health Care Services on whether Defendants were 21 required to readmit her. 22 33. On May 24, 2017, a hearing was held before the Califomia Department of Health 23 Care Services ("DHCS"). The hearing was attended by Ms. Single and Pioneer House. At the 24 hearing. Pioneer House was represented by counsel and presented sworn testimony and evidence. 25 Ms. Single was not represented by counsel. 26 34. After the hearing, the State mled in Ms. Single's favor and issued a seven-page 27 Order holding: "Pioneer House must immediately readmit Gloria Single to thefirstavailable bed." 28 A tme and correct copy of the State's Order is attached as Exhibit 1. 8 COMPLAINT Case No. I 35. Despite the State's Order requiring readmission. Defendants continue to refuse to 2 readmit Ms. Single. 3 36. As a result, Ms. Single is separated from her husband. Each day she is separated 4 from her husband, she suffers brutal and irreparable harm, especially given the deteriorating 5 condition of both of their health. 6 37. Following Defendants' refusal to readmit her, Ms. Single was imprisoned in a 7 hospital for around three months. During that time, she received no activities or stimulation other 8 than television, and stopped talking as a result. In addition to injuring Ms. Single, Defendants' 9 conduct needlessly squandered valuable tax dollars on confining Ms. Single to a hospital bed. 10 II 38. Because she was unable to endure living in a hospital, Ms. Single eventually agreed to placement at a different nursing facility - until such time she can retum home. She still wants to 12 retum to living at Pioneer House so she can be with her husband, and so that her son can visit her 13 more easily. 14 39. Because she was confined to a hospital bed for so long instead of walking around at 15 her home, Ms. Single may have permanently lost her ability to walk. 16 CAUSES OF ACTION 17 First Cause of Action Violation of California Health and Safety Code § 1430(b) 18 19 20 21 22 23 24 25 26 27 40. Plaintiffs incorporate the previous paragraphs as though fully set forth herein. 41. Health & Safety Code § 1430(b) states that "[a] current or former resident or patient ofa skilled nursing facility, as defined in subdivision (c) of Section 1250 . . . may bring a civil action against the licensee of a facility who violates any of the rights of the resident or patient as set forth in the Patient Bill of Rights in Section 72527 of Title 22 of the Califomia Code of Regulations ("C.C.R."), or any other right provided for by federal or state law or regulation. The suit shall be brought in a court of competent jurisdiction. The licensee shall be liable for the acts of the licensee's employees. The licensee shall be liable for up to five hundred dollars ($500), and for costs and attomey fees, and may be enjoined from permitting the violation to continue ...." 28 Case No COMPLAINT 1 42. By failing to provide a timely bed-hold notice. Defendants violated Ms. Single's 2 right to such notice under 42 U.S.C. § l396r(c)(2)(D)(ii), which requires skilled nursing facilities to 3 issue a bed-hold notice to any resident who is hospitalized prior to or contemporaneously with the 4 hospitalization. 5 43. Defendemts violated Ms. Single's statutory rights by refiising to readmit her after she 6 informed Defendants of her desire to retum and was medically cleared to do so. 22 CCR. § 7 72520(a); Health & Safety Code § 1599.79; 42 U.S.C. § 1396r(c)(2)(D)(iii). 8 44. Defendants effected a transfer or discharge of Ms. Single without following any of 9 the legal requirements for doing so, e.g., providing 30-days' notice, helping find her a new place to 10 live, £uid making sure that she is properly prepared and oriented. 11 45. Defendants are refusing to comply with a lawful order by the Califomia Department 12 of Health Care Services. 13 46. Defendants' refusal to readmit Ms. Single resulted in her being deprived of the 14 rights as a nursing facility resident to "be fully informed by a physician of [...] her total health 15 status" and was not afforded the opportunity to participate on an immediate and ongoing basis in 16 the total plan of care," in violation of Ms. Single's federal and state rights. 22 CCR. § 17 72527(a)(3). 42 C.F.R. § 483.l0(c)(iv), (c)(v) and (c)(3). 18 47. Defendants' refusal to readmit Ms. Single resulted in her being deprived of the 19 rights as a nursing facility resident to "receive all information that is material to an individual 20 patient's decision conceming whether to accept or refiise any proposed treatment or procedure." 22 21 CCR. § 72527(a)(4). 22 48. Defendants' discharge of Ms. Single and their refusal to readmit her resulted in her 23 being deprived of the rights as a nursing facility resident to "be transferred or discharged only for 24 medical reasons, or the patient's welfare or that ofother patients or for nonpayment for her stay." 25 22 CCR. § 72527(a)(6). 26 49. Defendants' discharge of Ms. Single and their refusal to readmit her resulted ih her 27 being deprived of the rights as a nursing facility resident to "be encouraged and assisted throughout 28 the period of her stay to exercise rights as a patient and a citizen, and to this end voice grievances 10 COMPLAINT CaseNo. I and recommend changes in policies and services to facility staff and/or outside representatives of 2 the patient's choice, freefi-omrestraint, interference, discrimination or reprisal." 22 CCR. § 3 72527(a)(7); 42 C.F.R. § 483.10(b)(1). 4 50. Defendants' discharge of Ms. Single and their refusal to readmit her resulted in her 5 being deprived of the rights as a nursing facility resident to "be free from mental and physical 6 abuse." 22 CCR. § 72527(a)(l0). 7 51. Defendants' discharge of Ms. Single and theu refusal to readmit and reunite her 8 with her husband resulted in her being deprived of the rights as a nursing facility resident to "meet 9 with others and participate in activities of social, religious and community groups." 22 CCR. § 10 72527(a)(15). 11 52. Defendants' illegal treatment of Ms. Single violates 22 CCR. § 72527(a)(l2), 12 which requires all nursing home residents "to be treated with consideration, respect and full 13 recognition of dignity and individuality 14 53. 42 C.F.R. § 483.10(a)(3). Defendants' discharge of Ms. Single and their refusal to readmit and reunite her 15 with her husband resulted in her being deprived of the rights as a nursing facility resident to "be 16 assured privacy for visits by the patient's spouse." 22 CCR. § 72527(a)(17). 17 Second Cause of Action Violation of California Business & Professions Code §§ 17200 etseq. 18 19 20 21 22 54. Plaintiffs incorporate the previous paragraphs as though fully set forth herein. 55. Defendants' conduct alleged herein is unlawful, fraudulent and/or unfair. 56. Ms. Single has lost money or property as a result of Defendants' unlawful, fraudulent and/or unfair conduct. Third Cause of Action Declaratory Relief 23 24 57. Plaintiffs incorporate the previous paragraphs as though fully set forth herein. 25 58. Through the facts alleged above, an actual and justiciable controversy exists 26 between the parties as to, inter alia, whether failure to follow a lawful readmission order by DHCS 27 violates a resident's rights, whether any time a facility fails to follow the bed hold requirements, it 28 violates a resident's rights, and whether Defendants violated Ms. Single's other rights as identified 11 COMPLAINT Case No. I above. 2 59. A declaration by this Court will be useful in resolving the rights and obligations of 3 the parties. 4 PRAYER FOR RELIEF 5 WHEREFORE, Plaintiffs pray for judgment against Defendants as follows: 6 A. A preliminary and permanent injunction, enjoining Defendants, and each of them, 7 and theu contractors, agents, servants and employees and all persons acting under in concert with 8 or for them from: 9 (1) Refusing to readmit Ms. Single; 10 (2) Violating the bed-hold requirement; 11 (3) Refusing to comply with readmission Orders issued by the Califomia 12 Department of Healthcare Services; 13 (4) Discharging any residents without a legally valid reason and without 14 following all of the procedures required by law; 15 (5) Taking any action in retaliation against Ms. Single, including, but not limited 16 to, discharge or transfer from Pioneer House; 17 B. A preliminary and permanent injunction, enjoining Defendants, and each of them, 18 and their contractors, agents, servants and employees and all persons acting under in concert with 19 or for them to adopt procedures to prevent recurring violations of the laws goveming the 20 readmission and discharge of residents; 21 C. Appointment of a monitor to ensure compliance with all injunctive relief issued by 22 the Court; 23 D. Damages in the statutory amount of Five-Hundred Dollars ($500.00) for each 24 violation of Ms. Single's statutory rights, for each day that Defendants continuingly and wrongfiilly 25 refiise Ms. Single's readmission and for each of her rights that Defendants have violated; 26 E. Declaratory relief, including a declaration that a facility's failure to comply with a 27 lawful readmission order by DHCS and failure to comply with the bed hold requirement both 28 violate a resident's rights under § 1430(b); 12 COMPLAINT CaseNo. 1 F. Costs of suit herein incurred; 2 G. Attomey's fees; and H. All such other and further relief as the Court may deem just, proper, and equitable. 3 4 5 6 Dated: October 2, 2017 BRAUNHAGEY & BORDEN LLP 7 By: Matthew Borden 8 9 10 11 12 By: Attomeys for Plaintiffs Gloria Single and Califomia Long Term Care Ombudsman Association 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 COMPLAINT CaseNo. DEMAND FOR JURY TRIAL 1 2 Plaintiffs hereby demand a jury trial of all claims and causes of action triable before a jury. 3 4 Dated: October 2, 2017 Respectfully submitted, 5 BRAUNHAGEY & BORDEN LLP 6 7 By: Matthew Borden 8 9 10 Attomeys for Plaintiffs Gloria Single and Califomia Long Term Care Ombudsman Association 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 COMPLAINT CaseNo. EXHIBIT 1 DHCS State of California—Health and Human Services Agency Department of Health Care Services EDMUND G. BROWN JR. Governor JENNIFER KENT Director May 24, 2017 Gloria Single - Patient c/o Aubrey Jones - Appellant 2944 Loyola Drive Davis, CA 95618 IN THE MATTER OF THE REFUSAL TO READMIT OF GLORIA SINGLE APPEAL NUMBER 17-1251 Dear Ms. Single, Enclosed is a copy of the refusal to readmit appeal decision in this matter, which was executed on behalf of the Department of Health Care Services. This decision constitutes the Final Decision and Order of the Department. Sincerely, 'KD(^~U^ U.J Gary Diffenderffer, Chief Sacramento Section il Administrative Appeals Enclosure cc: Robert Godfrey - Administrator Pioneer House 415 P Street Sacramento, CA 95814 See Next Page OFFICE OF ADMINISTRATIVE HEARINGS AND APPEALS 1029 J Street, Suite 200, Sacramento, CA 95814 Telephone: (916) 322-5603 Facsimile (916) 440-5105 internet Address: )/m!:&.MA£a.cig\i Single, Gloria Page 2 cc: Continued from Previous Page Department of Public Health Center for Health Care Quality 165 Capitol Avenue Sacramento, CA 95814 CDPH CHCQ TDA RTR@CDPH.CA.GOV Department of Public Health Office of Legal Services 1415 L Street, Suite 500 Sacramento, CA 95814 CDPHLeqalRTR@cdph.ca.qov 1 2 3 4 BEFORE THE STATE OF CALIFORNIA 5 DEPARTIVIENT OF HEALTH CARE SERVICES 6 OFFICE OF ADMINISTRATIVE HEARINGS AND APPEALS 7 8 9 In the Matter ofthe Refusal to Readmit: Gloria Single - Patient REFUSAL TO READMIT APPEAL NO. 17-1251 10 c/o Aubrey Jones - Appellant il DECISION AND ORDER 2944 Loyola Drive Davis, CA 95618 12 13 SUMMARY 14 On March 23, 2017, Pioneer House (a long-term care skilled nursing facility, 15 hereinafter referred to as Facility) advised Sutter Medical Center (a general acute care 16 hospital, hereinafter referred to as GACH) that it could not readmit Gloria Single 17 (hereinafter referred to as Resident) following her treatment at the GACH. 18 On April 26, 2017, Aubrey Jones (Resident's son, hereinafter referred to as 19 Appellant) filed an appeal with this office, on Resident's behalf, to assert Resident's 20 right to readmission pursuant to California Health and Safety Code (CHSC), 21 §1599.1(h)(1). 22 PRESENTATION AT HEARING 23 The hearing convened at 12:00 p.m. on Wednesday, May 17, 2017, atthe 24 GACH. Participants of the hearing are a matter of record. 25 All testimony was taken under oath and the proceedings were digitally recorded. 26 /// 27 /// Documentation and evidence, presented at the hearing, established the following: 4 Resident is a female Medi-Cal beneficiary, 82 years of age, initially admitted to 5 Facility on November 17, 2016. Resident's diagnosis includes chronic obstruction 6 pulmonary disease; Alzheimer's disease; dementia; and a history of concussion and 7 syncope. She suffers from chronic pain and depressive disorders. 8 Resident has recent history of increased agitation and anxiety. II 9 10 1! 12 The following summarizes Facility's arguments, related to its decision to refuse Resident's readmission: Facility recounted details, leading up to Resident's transfer to the GACH. Facility 13 stated that, on March 23, 2017, Resident became extremely agitated in the small dining 14 room, where staff and other residents were present, including Resident's spouse. 15 Resident began yelling and throwing plastic utensils. This behavior incited fear in other 16 residents and staff and 9-1-1 was called. Resident exhibited physically aggressive 17 behavior toward the responding police officers. Resident was transferred to the GACH, 18 with police oversight under Welfare and Institutions Code, § 5150; involuntary 19 detention.^ 20 21 Facility acknowledged that the GACH requested readmission from Facility, later the same day. Facility informed the GACH that it could not readmit Resident. Facility 22 added that Appellant concurred with Facility's determination that Resident needs a 23 different setting. Facility provided Appellant with the names of other SNFs, which are 24 better equipped to address residents with behavioral symptoms. 25 Facility presented testimony and documentation associated with its contention 26 that Resident's behavioral needs cannot be met in that her primary need is a mental 27 Detention of mentally disordered person for evaluation and treatment. -2- 1 health issue; she has no skilled nursing needs; she poses a risk to others; and is 2 independent with her ADLs. Facility cited two conditions, unique to its facility, which hinder its ability to meet 3 4 Resident's needs. One, Facility is very small, with a population of only 49 residents, 5 limiting areas in which Resident can be redirected to. Second, Resident's spouse 6 resides at Facility and is a trigger for Resident's agitation. Resident is engrossed in her 7 spouse and his activities, in a controlling manner, as well as in interactions that others 8 have with her spouse. Resident interferes with her spouse's meals. Since Resident's 9 transfer, her spouse has had a positive weight gain. He is more relaxed and verbalized 10 appreciation that Resident was no longer at Facility. 11 Facility testified that it received clinical documentation from the GACH, on or 12 about April 17, 2017, which indicated that Resident has had episodes of agitation while 13 hospitalized. Facility again notified the GACH that it cannot readmit Resident. 14 Prior to this hearing. Facility attempted to assess Resident at the GACH and 15 observed Resident in a private room; curled in a fetal position and somnolent. In 16 Facility's opinion, Resident appeared overmedicated, which is not allowed in a skilled 17 nursing facility (SNF). The GACH declined to allow Facility to review Resident's clinical 18 record; hence, it was unable to perform a thorough assessment. 19 Facility presented an order from Resident's attending physician (MD), dated 20 March 17, 2017, wherein he prescribed Depakote sprinkles for her mood disorder after 21 Resident became verbally aggressive toward her spouse. MD documented, on May 16, 22 2017, that Resident has no psychiatric condition, which would provide a basis for 23 administering antipsychotic medications to Resident; as such, psychotropic medications 24 are noi recommended. MD wrote that the presence of Resident's spouse triggers the 25 majority of her behavior problems. Based upon these reasons, MD opined, Facility 26 cannot meet Resident's needs. 27 /// -3- 1 III 2 Appellant pointed out that Resident has been at the GACH for eight weeks, J without activities or stimuli, except to watch television. She has stopped talking. 4 Appellant characterized Facility's refusal to readmit as "patient dumping," which is both 5 unfair and cruel treatment against a resident with dementia. 6 7 Appellant agreed to search for alternate placement; however, none ofthe locations that Facility referred him to accepted Resident. Other SNFs either have no 8 beds or have a lengthy waiting list. Appellant provided a list of one-dozen SNFs in 9 10 11 Sacramento and Yolo counties, which he has contacted. Appellant presented a photo of Resident and her spouse interacting, and stated his belief that keeping the two together is the right thing to do. 12 13 IV The GACH testified that they assessed Resident and she does not have acute 14 care needs for hospitalization; however, Resident was admitted due to Facility's refusal 15 to allow her back. 16 The GACH sent Facility clinical notes, on April 17, 2017, and invited Facility to 17 assess Resident; however, Facility did not accept this offer. The GACH acknowledged 18 that it later denied Facility access to Resident's chart, as Facility had made no 19 arrangements to review her records and Facility's request was not associated with an 20 actual intent to readmit Resident. The GACH pointed out that hospitals typically share 21 information with a receiving facility for the purpose of continuity of care. Such sharing of 22 information is exempted from privacy requirements; however, no such exemption 23 applied at that point and access to Resident's chart would have first required 24 authorization from Appellant. 25 The GACH described two incidences where Resident exhibited increased 26 agitation, as well as her current medication regimen, which includes Zyprexa, Seroquel 27 Risperdal, and Aricept. The GACH also pursued other SNFs known for accepting 1 2 3 4 5 residents with behavioral issues; however, there were no admission offers. ANALYSIS AND CONCLUSIONS I have reviewed the testimony and documents presented at the hearing. I Title 22, California Code of Regulations (22, CCR.) § 72520, et seq. provides that 6 upon transferring a patient to a hospital, a SNF must inform the resident or their 7 responsible party, in writing, of their right to exercise a bed-hold of seven days. This 8 notice is required each time a resident is hospitalized. A facility that fails to issue this 9 notice, must offer the resident readmission to the first available bed. Equivalent 10 notification and policy requirements are also contained in Title 42 Code of Federal 11 12 Regulations (42 CFR) § 483.15(d)(1) and (d)(2). I considered Appellant's testimony that Facility did not provide him with a written 13 notice, outlining Facility's bed-hold and readmission policies, at the time of Resident 14 transfer. A bed-hold offer was made verbally. Facility failed to rebut this testimony with 15 evidence of a written bed-hold and readmission policy notice. 16 Resident was evaluated by the GACH and determined to have no acute care 17 need. Accordingly, the GACH requested that Facility readmit Resident, during her bed18 hold period; however. Facility refused to accept Resident due to the behavioral 19 problems that precipitated her transfer and are further discussed in Section II below. 20 21 I noted that the purpose for Resident's hospitalization was to be evaluated. This evaluation was completed in the GACH's emergency department and Resident was 22 determined not to have a need for acute care hospitalization, nor did she qualify for 23 24 25 acute psychiatric hospitalization (diagnoses is not a mental illness). Therefore, I find that Facility failed to meet these bed-hold and notification requirements and the remedy to offer readmission to the first available bed applies. 26 27 According to 42 CFR § 483.15(e)(1), a facility must establish and follow a written policy permitting residents to return to their previous bed, if available, after the bed-hold 2 period, or to the first available bed ifthe resident's bed is no longer available. When a 3 facility determines that a resident cannot return, it must comply with the provisions 4 outlined under 42 CFR § 483.15(c). Facility presented no exception to this federal 5 requirement. 6 Due to Facility's refusal to readmit Resident, her hospitalization has now 7 exceeded the bed-hold period. I considered Facility's arguments and the challenges 8 that her behavioral problems present, in view of her hypersensitivity surrounding 9 interactions with her spouse. The key principles that SNFs must employ are to use an 10 individual approach to the problem, including staffing; caregiver training; modification to 11 the physical environment; and other factors that may lessen a resident's distress. In 12 response to Facility's argument concerning Resident's current medication regimen, I 13 agree that Facility will need to follow recommended guidelines in place concerning the 14 necessary documentation, monitoring, and assessment of residents who are admitted 15 from a hospital to a SNF on psychotropic medications, including, the potential for 16 gradual dose reduction. 17 When interventions have failed and a SNF determines that a resident's needs 18 cannot be met, the regulations provide a remedy for SNFs to perform person-centered 19 discharge planning in order to identify an alternate location, which can meet the 20 resident's needs. In such cases, a SNF must also identify the sen/ices at the receiving 21 facility that can meet the specific need(s).2 22 In this case. Facility failed to provide Resident with the due process that is 23 required at the time Facility determined that she couid not be readmitted, as outlined 24 under 42 CFR § 483.15(c), which include but are not limited to, issuing a written notice 25 indicating the reason for the refusal. Refusing to readmit a resident after hospitalization 26 is an inappropriate means to transact the permanent discharge of a resident. 27 • 42 CFR §§ 483.21 et seq. and 483.l5(c)(2)(i)(B) This tribunal finds Facility's refusal is cleariy a transfer/discharge within the 1 2 meaning of this federal law and it is not exempt from the next bed requirement (St. Jotin 3 of God Retirement Care Center v. Department, supra, 2 Cal. App 5^ at P. 653). 4 Therefore, I find that Facility failed to meet these readmission requirements. 5 SUMMARY OF FINDINGS 6 Facility failed to comply with 42 CFR § 483.15 pertaining to the transfer and 7 readmission of Resident as follows: 8 • 9 ® Failed to readmit Resident during her bed-hold period; and 10 » Failed to issue a written bed-hold notice, upon transfer; Failed to readmit Resident to the first available bed. 11 DECISION AND ORDER 12 The appeal is GRANTED. Pioneer House must immediately readmit Gloria 13 Single to the first available bed, upon receipt ofthe clinical records that Sutter Medical 14 Center routinely provides to the receiving facility. 15 This is the FINAL DECISION AND ORDER ofthe Department. No further 16 administrative remedies are available. ^ 17 18 19 .C:^7,'^^^Z^. jcJ-^^yJ^ LYNN M. HEISLER Hearing Officer 512412017 Date 20 21 22 23 24 25 26 27 If. upon readmission, Facility can support that any ofthe six reasons for the involuntary transfer of Resident, it may issue a transfer nolice. However, this nolice and Facility documentation must contain all the required elements lo support that tlie transfer or discharge is appropriate in accordance with Title 42 CFR §§ 483.15 and 483.21. CiViL DROP BOX 251/OCT--2 PH 3:56 G t; S S C C 0 U R T H 0 'J S E SUPERiOR COURT OF CALIFORNIA oi•;AMcr.'TO C0UNTY