ST. JOHN OF GOD RETIREMENT & CARE CENTER, Plaintiff and Appellant, v. STATE DEPARTMENT OF HEALTH CARE SERVICES, Defendant and Respondent; GLORIA GLOVER-WOODS, Intervener and Respondent.
No. B265488
Second Dist., Div. Four.
Aug. 17, 2016
6 Cal. App. 5th 638
Counsel
Kevin P. Kane & Associates, Kevin P. Kane; BraunHagey & Borden and Matthew Borden for Intervener and Respondent.
Opinion
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
We conclude that in light of developments during the pendency of the appeal, the order requiring Ms. Woods’s 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 part 483.12 exempts a skilled nursing facility from the readmission requirement (
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 part 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’s 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.
On December 10, 2013, St. Liz Hospice, Inc. (St. Liz), evaluated Ms. Woods. Pursuant to her authority as holder of Ms. Woods’s 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 State 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’s mother (Ms. Boutte-Evans’s grandmother), and that Ms. Woods was hallucinating.
On April 10, 2014, based on Ms. Woods’s 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’s PASRR level II evaluation, which included a behavior modification program
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’s behalf with the State 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’s 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.
However, the hearing officer concluded that St. John violated the next-available-bed requirement of federal law. Part 483.12(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 is mindful of the challenges that resident’s care may present, a SNF [skilled nursing facility] may not use hospitalization as a mechanism to circumvent the aforementioned involuntary transfer/discharge requirements. Hospitalization is for the purpose of evaluation and treatment of an acute condition. Resident is no longer in need of acute psychiatric or medical treatment and return to facility ... is appropriate, as supported by the federal regulations. [¶] If facility believes that a transfer/discharge is necessary for resident’s welfare or that her behavior jeopardizes the safety of herself or others, then the regulations provide a remedy under 42 C.F.R. section 483.12, subdivision (a) et seq., which sets forth a number of requirements, including proper discharge planning. [¶] [F]acility failed to support that it complied with this requirement.”
On this reasoning, the hearing officer concluded that St. John improperly refused to readmit Ms. Woods, and ordered that St. John “MUST immediately offer to readmit [her] to the first available female bed in a semi-private room.”
“(f) Each party may be represented by counsel.
“(g) The ALJ is bound by all applicable statutes and regulations and may neither waive them nor rule them invalid.”
St. John filed a petition for writ of administrative mandate in the superior court seeking to overturn the hearing officer’s ruling. The State Department of Health Care Services, whose hearing officer conducted the administrative hearing, declined to participate in the matter. The superior court granted Ms. Woods’s motion to intervene in the writ proceeding, and also granted permission to file a separate civil complaint in intervention alleging various causes of action, including breach of contract and financial abuse of an elder. In the civil case (Glover-Woods v. St. John of God Retirement & Care Center (L.A. Super. Ct., No. BC556147)), among other allegations, Ms. Woods relies in part on St. John’s alleged failure to comply with the requirements for an involuntary transfer under part 483.12(a) et seq., and incorporated an attached copy of the hearing officer’s decision. The superior court stayed action on the civil complaint in intervention pending determination of the petition for writ of administrative mandate.3
In its briefing in support of its petition for writ of administrative mandate in the trial court, St. John argued that the hearing officer erred in concluding that it violated part 483.12. In relevant part, St. John noted that although Ms. Woods resided at St. John, the order to transfer her to the Hospital was made by St. Liz, thereby, according to St. John, absolving St. John of its duty to readmit. St. John also argued that even if it was responsible for the transfer, the hearing officer abused her discretion in ordering that Ms. Woods be re-admitted, because St. John could not meet her specialized psychiatric needs (see
Following hearing, the trial court issued a lengthy minute order denying St. John’s petition, and St. John appeals.
DISCUSSION
I. Mootness
St. John contends that events subsequent to the filing of the appeal render the order requiring that Ms. Woods be offered the first available bed moot. The contention depends on facts outside the record on appeal, but which are conceded by Ms. Woods.
On these conceded facts, the specific order issued by the hearing officer—that St. John “immediately offer to readmit [Ms. Woods] to the first available female bed in a semi-private room“—is moot. ” ‘It is well settled that an appellate court will decide only actual controversies and that a live appeal may be rendered moot by events occurring after the notice of appeal was filed. We will not render opinions on moot questions or abstract propositions, or declare principles of law which cannot affect the matter at issue on appeal.’ [Citations.] [¶] The general rule regarding mootness, however, is tempered by the court’s discretionary authority to decide moot issues.” (Building a Better Redondo, Inc. v. City of Redondo Beach (2012) 203 Cal.App.4th 852, 866-867.)
Here, the record demonstrates that Ms. Woods’s motivating reason for wishing to reside at St. John was to be near her mother, who also resided there. As Ms. Woods now concedes, her mother has passed away, and Ms. Woods no longer wishes to return. Ms. Woods no longer lives in California, but rather in New Jersey at her daughter’s home. Given these facts, the order to offer readmittance can provide no effective relief, because Ms. Woods will not accept readmittance.
However, even “if an appeal is technically moot, [when] ‘there may be a recurrence of the same controversy between the parties and the parties have fully litigated the issues,’ a reviewing court may in its discretion reach
II. First Available Bed Requirement—Right of Return
A. Relevant Provisions
In construing the meaning of part 483.12 (a Medicare administrative regulation), we use the same rules applicable to the interpretation of statutes. ” ‘Hence, this court should attempt to ascertain the intent of the regulating agency. [Citation.] Further, in construing a regulation, we may consider other regulations which may shed light on the meaning of the regulation at issue. [Citation.] Indeed, similar regulations should be construed in light of one another, and similar phrases in each would be given like meanings. [Citation.]’ ” (Goleta Valley Community Hospital v. Department of Health Services (1983) 149 Cal.App.3d 1124, 1129.)
In order to place the issue we shall decide in proper context, we must begin by summarizing the relevant provisions: part 483.12, which governs a skilled nursing facility’s involuntary transfer or discharge of a resident;
1. Transfer and Discharge
Part 483.12(a)(1) defines the terms “[t]ransfer and discharge.” It provides: “Transfer and discharge includes movement of a resident to a bed outside of
2. Resident’s Right to Remain in the Facility
Part 483.12(a)(2) governs the requirements for an involuntary transfer or discharge, meaning one in which the facility transfers or discharges a resident under circumstances that overcome the resident’s right to remain in the facility. It provides, as here relevant: “The facility must permit each resident to remain in the facility, and not transfer or discharge the resident from the facility unless—[¶] (i) The transfer or discharge is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility; [¶] . . . [or] [¶] (iii) The safety of individuals in the facility is endangered.”4
3. Documentation for Transfer or Discharge
Part 483.12(a)(3) specifies the documentary procedure necessary for a facility to implement such a transfer or discharge of a resident: “When the facility transfers or discharges a resident under any of the circumstances specified in paragraphs (a)(2)(i) through (v) of this section, the resident’s clinical record must be documented. The documentation must be made by—[¶] (i) The resident’s physician when transfer or discharge is necessary under paragraph (a)(2)(i) or paragraph (a)(2)(ii) of this section; and [¶] (ii) A physician when transfer or discharge is necessary under paragraph (a)(2)(iv) of this section.”
4. Transfer and Discharge Planning
Part 483.12(a)(7) requires, in substance, that the facility provide a plan for transfer or discharge: “Orientation for transfer or discharge. A facility must
5. Notice of State Bed-hold Policy and Readmission
Part 483.12 has several notice provisions applicable to transfers and discharges. We mention only some as potentially relevant to our issue.
Under part 483.12(a)(4): “Before a facility transfers or discharges a resident, the facility must—[¶] (i) Notify the resident and, if known, a family member or legal representative of the resident of the transfer or discharge and the reasons for the move in writing and in a language and manner they understand. [¶] (ii) Record the reasons in the resident’s clinical record; and [¶] (iii) Include in the notice the items described in paragraph (a)(6) of this section.” The items in subdivision (a)(6) include “[t]he effective date of transfer or discharge” (
Generally, this notice must be given at least 30 days before the transfer or discharge. (
Part 483.12(b)(1) provides an additional pretransfer notice requirement, applicable when “a nursing facility transfers a resident to a hospital or allows a resident to go on therapeutic leave.” That notice “must provide written
Finally for our purposes, when a facility transfers a resident, part 483.12(b)(2) provides the notice requirement that must occur at the time of transfer. It provides: “At the time of transfer of a resident for hospitalization or therapeutic leave, a nursing facility must provide to the resident and a family member or legal representative written notice which specifies the duration of the bed-hold policy described in paragraph (b)(1) of this section.” The reference to “paragraph (b)(1) of this section” refers to subdivision (b)(1)(i), “[t]he duration of the bed-hold policy under the State plan, if any, during which the resident is permitted to return and resume residence in the nursing facility.”
6. California Bed-hold Policy
California’s bed-hold policy is contained in section 72520, which provides, as here relevant: “If a patient of a skilled nursing facility is transferred to a general acute care hospital as defined in Section 1250(a) of the Health and Safety Code, the skilled nursing facility shall afford the patient a bed hold of seven (7) days, which may be exercised by the patient or the patient’s representative.” (
7. Return After Transfer
When the state bed-hold period has expired, part 483.12(b)(3) provides a transferred resident with a right to return to the facility, to the next available bed. It states: “Permitting resident to return to facility. A nursing facility must establish and follow a written policy under which a resident, whose hospitalization or therapeutic leave exceeds the bed-hold period under the State plan, is readmitted to the facility immediately upon the first availability of a bed in
8. Refusal to Readmit
After a transfer for treatment in an acute care hospital, if a facility refuses to readmit a resident under part 483.12(b)(3), the refusal is tantamount to an involuntary transfer.
9. Summary
As relevant to the issue we are deciding, the plain meaning of these provisions makes clear that when a skilled nursing facility involuntarily transfers or discharges a resident because of circumstances described in part 483.12(a)(2)(i) (for the resident’s welfare and whose needs the facility cannot meet) or part 483.12(a)(2)(iii) (for the safety of persons at the facility), the following requirements apply. First, the facility must identify the appropriate reason for transfer or discharge as specified in part 483.12(a)(2). Second, it must comply with the documentation requirements of part 483.12(a)(3). Third, as applicable to the case, it must comply with the notice provisions of part 483.12(a)(4), (a)(5), (a)(6), (b)(1), and (b)(2). Fourth, it must provide the resident with “sufficient preparation and orientation ... to ensure a safe and orderly transfer or discharge from the facility” as required by part 483.12(a)(7), including giving notice of the effective date of the transfer or discharge and the location to which the resident will be transferred or discharged (
St. John contends that it was not bound by part 483.12 (in particular, the requirements of notice before or at the time of that transfer, the bed-hold period, readmission after the state bed-hold period expired, and transfer planning). The reason: Ms. Woods’s hospice care provider, St. Liz, ordered her transfer to the Hospital, rather than St. John.
As best we understand it, St. John’s logic is as follows. The language of part 483.12 provides that the justification for an involuntary transfer under part 483.12(a)(2) and the documentation required under part 483.12(a)(3) apply only if the facility “transfers” the resident.7 Thus, St. John asserts, the other part 483.12 requirements also apply only if the facility “transfers” the resident. Although Ms. Woods resided at St. John, she had elected St. Liz as her hospice provider under
We disagree. There is no doubt that Ms. Woods’s relocation from St. John to the Hospital was a transfer under part 483.12(a)(1)—it was a “movement of a resident to a bed outside of the certified facility.” St. John asserts that St. Liz was responsible for the transfer, but St. John does not state, or even imply, that St. Liz was responsible for complying with the requirements of part 483.12. The reason is obvious. St. Liz was not the skilled nursing facility where Ms. Woods resided, and thus St. Liz was not covered by part 483.12. Under St. John’s logic, part 483.12 simply did not apply.
St. John summarily asserts, without explanation, that if it had prepared a discharge plan in connection with its refusal to readmit Ms. Woods, it would have violated both its contract with St. Liz and
But St. John fails to explain the purported conflict. Part 483.12 required St. John to identify a justifying circumstance for refusing to readmit Ms. Woods under part 483.12(a)(2), to document it under subdivision (a)(3), and to provide preparation and orientation for a safe and orderly transfer under part 483.12(a)(7), including determining the effective date of transfer or discharge and the location to which Ms. Woods would be sent (
St. John also contends that if it readmitted Ms. Woods, and then complied with the requirements of part 483.12 to transfer or discharge her, including preparation of a discharge plan, it would have violated
St. John’s contention that it would violate
Although St. John does not fully develop the argument, it appears that St. John is contending that if it had readmitted Ms. Woods, complied with the discharge requirements of part 483.12, and then discharged Ms. Woods, all within 180 days of the Ombudsman’s complaint, it would be presumed to be in violation of
Thus, St. John’s concern about being found in violation of
Thus, for all of the foregoing reasons, we conclude that part 483.12 does not exempt a skilled nursing facility from the readmission requirement (
DISPOSITION
The order denying the petition for writ of administrative mandate is reversed solely on the ground that the DHCS order for Ms. Woods’s readmission to St. John is moot. (See Giles, supra, 100 Cal.App.4th at
Epstein, P. J., and Collins, J., concurred.
Notes
“Administrative hearings under this subpart are conducted as follows:
“(a) The administrative hearing is conducted by an ALJ appointed under
“(b) The parties may introduce all relevant evidence on the issues stated in the applicant’s request for hearing or on other issues determined by the ALJ during the proceeding. The application in question and all amendments and exhibits must be made part of the hearing record.
“(c) Technical rules of evidence, including the Federal Rules of Evidence, do not apply to hearings conducted under this subpart, but the ALJ may apply rules designed to assure production of the most credible evidence available, including allowing the cross-examination of witnesses.
“(d) Each party may examine all documents and other evidence offered or accepted for the record, and may have the opportunity to refute facts and arguments advanced on either side of the issues.
“(e) A transcript must be made of the oral evidence unless the parties agree otherwise.
“Transfer and discharge requirements. The facility must permit each resident to remain in the facility, and not transfer or discharge the resident from the facility unless—
“(i) The transfer or discharge is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility;
“(ii) The transfer or discharge is appropriate because the resident’s health has improved sufficiently so the resident no longer needs the services provided by the facility;
“(iii) The safety of individuals in the facility is endangered;
“(iv) The health of individuals in the facility would otherwise be endangered;
“(v) The resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare or Medicaid) a stay at the facility. For a resident who becomes eligible for Medicaid after admission to a facility, the facility may charge a resident only allowable charges under Medicaid; or
“(vi) The facility ceases to operate.”
“(6) Contents of the notice. The written notice specified in paragraph (a)(4) of this section must include the following:
“(i) The reason for transfer or discharge;
“(ii) The effective date of transfer or discharge;
“(iii) The location to which the resident is transferred or discharged;
“(iv) A statement that the resident has the right to appeal the action to the State;
“(v) The name, address and telephone number of the State long term care ombudsman;
“(vi) For nursing facility residents with developmental disabilities, the mailing address and telephone number of the agency responsible for the protection and advocacy of developmentally disabled individuals established under Part C of the Developmental Disabilities Assistance and Bill of Rights Act; and
“(vii) For nursing facility residents who are mentally ill, the mailing address and telephone number of the agency responsible for the protection and advocacy of mentally ill individuals established under the Protection and Advocacy for Mentally Ill Individuals Act.”