St. John of God Ret. & Care Ctr. v. Dep't of Health Care Servs. Office

• Decision Date: 17 August 2016
• Docket Number: B265488
• Citation: 206 Cal.Rptr.3d 406,2 Cal.App.5th 638
• Court: California Court of Appeals Court of Appeals
• Parties: ST. JOHN OF GOD RETIREMENT & CARE CENTER, Plaintiff and Appellant, v. DEPARTMENT OF HEALTH CARE SERVICES OFFICE, Defendant and Respondent; Gloria Glover–Woods, Intervenor and Respondent.

2 Cal.App.5th 638

206 Cal.Rptr.3d 406

ST. JOHN OF GOD RETIREMENT & CARE CENTER, Plaintiff and Appellant

v. DEPARTMENT OF HEALTH CARE SERVICES OFFICE, Defendant and Respondent;Gloria Glover–Woods, Intervenor and Respondent.

B265488

Court of Appeal, Second District, Division 4, California.

Filed August 17, 2016

Foley & Mansfield, Noelle M. Natoli–Duffy, M. Amadea Groseclose and Melanie A. Ayerh, Los Angeles, for Plaintiff and Appellant.

Kevin P. Kane & Associates, Inc., and Kevin P. Kane, Los Angeles; BraunHagey & Borden and Matthew Borden, San Francisco, for Intervenor and Respondent.

WILLHITE, J.

Gloria Glover Woods was a resident of St. John of God Retirement & Care Center (St. John), a skilled nursing facility in Los Angeles, who elected hospice care through a provider under contract to the facility. When Ms. Woods experienced a psychotic episode, the hospice provider directed that she be transferred from St. John to an acute care hospital for evaluation and treatment. When her treatment was concluded, St. John refused to readmit her to the first available bed under 42 Federal Code of Regulations, section 483.12 (section 483.12), which governs the requirements for a skilled nursing facility's involuntary transfer or discharge of a resident. After an administrative hearing, the Department of Health Care Services (DHCS) ordered St. John to readmit Ms. Woods. The superior court denied St. John's petition for writ of administrative mandate seeking to vacate the order, and St. John appeals.

We conclude that in light of developments during the pendency of the appeal, the order requiring Ms. Woods' readmission is now moot. However, because there is a separate civil lawsuit between the parties in which the issue is likely to arise again, we exercise our discretion to decide whether section 483.12 exempts a skilled nursing facility from the readmission requirement (§ 483.12, subd. (b)(3)) when the transfer to an acute care hospital from which the resident is returning was ordered by the resident's hospice care provider rather than the facility itself. We conclude that section 483.12 contains no such exemption. Thus, to the extent St. John contends that its refusal to readmit Ms. Woods did not constitute an involuntary transfer because she was returning from an acute hospitalization ordered by her hospice care provider, and that therefore St. John was not bound by the involuntary transfer requirements of section 483.12, subdivisions (a)(2) (identification of a justifying circumstance), (a)(3) (documentation of the justifying circumstance), and (a)(7) (preparation and orientation for a safe and orderly transfer, including giving notice of the effective date of the transfer or discharge and the new resident location (subds. (a)(6)(ii) and (iii)), St. John is mistaken. We also reject St. John's contention that readmitting Ms. Woods and thereafter discharging her after complying with section 483.12's requirements would have subjected St. John to liability under Health and Safety Code section 1432.

We decline to resolve any other issues raised by the parties, as the resolution of those issues (to the extent they might arise again) is better suited to the separate civil litigation. Because the DHCS order directing readmission is moot, we reverse the trial court's order denying the writ of administrative mandate solely for purpose of remanding the case with directions to dismiss the administrative mandate proceeding as moot.¹

BACKGROUND

We summarize the proceedings prior to the filing of the notice of appeal. We leave to our Discussion section later developments regarding the issue of mootness.

Admission to St. John

On September 19, 2013, Ms. Woods (then 72) was admitted to St. John. Based on records from her former hospice facility in Georgia, St. John admitted her with a diagnosis of amyloidosis, hypertension, anxiety, hypothyroidism, and psychosis.

Ms. Woods' daughter, Mikko Boutte–Evans, informed St. John that Ms. Woods was terminally ill and wanted to be with her mother, who also was a resident at St. John. According to Norma Bullen, Director of Nursing at St. John, she admitted Ms. Woods, despite the diagnosis of psychosis, because she saw no records suggesting that Ms. Woods manifested psychotic behavior, and because “when you are dying, you're dying, and how much more can she be a potential danger to staff and to the other residents.” Ms. Bullen placed Ms. Woods in the same room with her mother.

Hospice Care

On December 10, 2013, St. Liz Hospice, Inc. (St. Liz) evaluated Ms. Woods. Pursuant to her authority as Ms. Woods' Durable Power of Attorney, Ms. Boutte–Evans executed documents consenting to Ms. Woods receiving hospice care from St. Liz while residing at St. John, including an acknowledgement that “Inpatient Care will be provided by St. Liz Hospice, Inc. for pain control, symptom management, and management of psycho-social problems related to my terminal illness. I understand that this care will be provided at a facility contracted with St. Liz Hospice, Inc. [referring to St. John].” She also acknowledged that St. Liz would arrange any hospital outpatient treatment that might be required, and that “[h]ospitalization may be required for certain procedures or care, and these will be arranged through a contracted facility of the hospice.”

Hospitalization

Until March 2014, Ms. Woods was cooperative while residing at St. John, though at times she seemed confused. However, beginning in March 2014, she began displaying threatening and disruptive behavior, which included (according to Ms. Bullen) choking two nurses, trying to strike another, and throwing a snow globe at yet another (it broke against the wall). For the safety of other residents, Ms. Woods was transferred to a single room.

In April 2014, an evaluator from the California Department of Health Care Services performed a mental health evaluation on Ms. Woods—a level II Preadmission Screening and Resident Review (PASRR). In the course of the evaluation, Ms. Woods reported that she had been raped at St. John. When St. John asked Ms. Boutte–Evans about the report, she said that she had heard about it from Ms. Woods' mother (Ms. Boutte–Evans' grandmother), and that Ms. Woods was hallucinating.

On April 10, 2014, based on Ms. Woods' behavior and rape report, the St. Liz attending physician ordered Ms. Woods transferred to Brotman Medical Center (Hospital) for a psychiatric evaluation and management of her condition.

Refusal of Readmission

On April 21, 2014, St. John received an inquiry from the Hospital about readmitting Ms. Woods. St. John refused readmission on the ground that it could not provide the specialized services recommended in Ms. Woods' PASRR level II evaluation, which included a behavior modification program to reduce incidents of aggression and yelling, individual psychotherapy, and mental health rehabilitation activities.

Ombudsman Appeal

On April 30, 2014, a representative of the Office of California State Long–Term Care Ombudsman (Ombudsman) filed an appeal and complaint on Ms. Woods' behalf with the Department of Health Care Services Hearing and Appeals Unit. The complaint alleged that St. John's refusal to readmit Ms. Woods constituted an improper discharge from the facility. The complaint also alleged that St. John failed to honor the seven-day bed hold required by California law.

Administrative Hearing

On May 6, 2014, the ombudsman's appeal went to an administrative hearing before a DHCS hearing officer with the Office of Administrative Hearings and Appeals Transfer/Discharge and Refusal to Readmit Unit. Present at the hearing on behalf of Ms. Woods were Ms. Woods herself, the ombudsman, and Ms. Boutte–Evans. Present on behalf of St. John were J.P. Cosico (St. John's Administrator), Norma Bullen (Director of Nursing), Catherine Penlocky (RN Supervisor), and Dao Truong (the caseworker). Also present was Dr. Pontaya Fahardee (Ms. Woods' treating psychiatrist at the Hospital).

Neither side was represented by counsel, and the hearing was informal. Although the participants' testimony was given under oath and subject to cross-examination, the hearing officer conducted much of the questioning and the testimony was elicited in conversational form.² The hearing officer also received documentary evidence.

On May 13, 2014, the hearing officer issued her written Decision and Order. She reasoned that St. John failed to comply with its duty under section 483.12, subdivision (b), and Title 22, California Code of Regulations, section 72520, subdivision (b), (section 72520 ) to give written notice of Ms. Woods' right to a seven-day bed hold under California law. Nonetheless, the evidence showed that St. John did, in fact, keep the bed open for that period. Also, the bed hold requirement does not apply if the facility is notified in writing that the patient's stay will exceed seven days. Because Ms. Woods' stay ultimately exceeded seven days, and because St. John held a bed open for seven days, the hearing officer deemed the failure to give notice of the required seven-day bed-hold moot.

However, the hearing officer concluded that St. John violated the next-available-bed requirement of federal law. Section 483.12, subdivision (b)(3), requires a skilled nursing facility to establish and follow a policy that permits a resident whose acute hospitalization exceeds the State bed-hold period to be readmitted to the first available bed if the resident requires the facility's services and is Medicare eligible. The hearing officer concluded that St. John's refusal to readmit Ms. Woods to the first available bed when informed by the Hospital she was ready for transfer constituted an improper, involuntary transfer or discharge under federal law.

The hearing officer reasoned: “In general, a facility should readmit a resident pending the resolution of the transfer/discharge process and initiate a more permanent move after it identifies a more appropriate facility. [¶] While this tribunal...