Anderson v. Dooley

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BRUCE ANDERSON, et al., Case No. 15-cv-05120-HSG 8 Plaintiffs, ORDER AND NOTICE OF INVITATION TO FILE AMICUS 9 v. CURIAE BRIEF 10 DIANA DOOLEY, et al., Re: Dkt. No. 99 11 Defendants. 12 13 This case challenges the legality under federal law of California’s process for nursing 14 home residents to appeal transfer and discharge decisions. Plaintiffs’ 42 U.S.C. § 1983 claim is 15 based on alleged violations by the State of California of the Federal Nursing Home Reform Act 16 (“FNHRA”)—namely 42 U.S.C. §§ 1395i-3(e)(3), 1396r(e)(3) and relevant implementing 17 regulations, especially 42 C.F.R. § 431.246. See Dkt. No. 35 (“FAC”) ¶ 66. The United States 18 Center for Medicare and Medicaid Services (“CMS”) is the federal agency charged with 19 promulgating the regulations at issue. Both Plaintiffs and Defendant contend that CMS supports 20 their position in this litigation. See FAC ¶ 8 (“Over 10 years ago, the United States Center for 21 Medicare & Medicaid Services (‘CMS’), the federal agency Congress tasked with administering 22 the Medicaid Act, told the State that its procedures had to provide for prompt readmission for 23 residents who prevailed at their federally-mandated hearings. More than seven years ago, CMS 24 expressly told the State that its failure to enforce DHCS decisions violated the law. . . .”); Dkt. No. 25 100 (“[T]he clearest expression of CMS’s perspective is already in the record, in the form of 26 CMS’s approval of, as consistent with the requirements of federal law, California’s State Medicaid 27 Plan (State Plan) readmission hearing processes and enforcement.”). 1 acceptance or criticism of California’s nursing home readmission process, the Court believes that 2 it would be helpful to hear directly from CMS, or from the Department of Health and Human 3 Services (“HHS”) Office of General Counsel, regarding Plaintiffs’ claims and the parties’ 4 litigation positions before ruling on Defendant’s currently pending motion for summary judgment. 5 The Court is interested in the following topics and invites CMS to address them, as well as 6 any other relevant issue, as fulsomely as possible: 7 1. Given the holding by the Ninth Circuit that “[t]he right to an appeal under 8 FNHRA…includes within it provision for some state-provided process capable of 9 providing relief,” Anderson v. Ghaly, 930 F.3d 1066, 1075 (9th Cir. 2019), does 10 CMS believe that the process provided by California to wrongfully discharged or 11 transferred nursing home residents is sufficient to provide relief under FNHRA and 12 its implementing regulations? 13 2. Does CMS believe that FNHRA and its implementing regulations require that 14 California provide an administrative procedure to enforce a successful appeal of a 15 transfer or discharge decision and ensure readmission? 16 3. Does CMS believe that a private right of action for wrongfully transferred or 17 discharged nursing home residents under Cal. Health & Safety Code § 1430(b) is 18 sufficient to ensure the right to a meaningful appeal under FNHRA? 19 4. If Plaintiffs’ allegations are true that no nursing home residents have successfully 20 pursued a private right of action, FAC ¶ 9, does CMS believe that would make any 21 remedy provided through a private right of action insufficient, particularly in light 22 of 42 C.F.R. 430.35(c), which provides that “[a] question of noncompliance in 23 practice may arise from the State’s failure to actually comply with a Federal 24 requirement, regardless of whether the plan itself complies with that requirement”? 25 5. If Plaintiffs’ allegations are true that the California Department of Health Care 26 Services (“DHCS”) will not enforce its own decisions and the California 27 Department of Public Health takes the position that it is not bound by DHCS 1 CMS’s view? 2 6. If CMS believes California’s process is insufficient in any of the above regards, 3 why has CMS not sought to withhold federal funds to remediate the failure in 4 accordance with 42 C.F.R. § 430.35? 5 7. Would CMS be willing to voluntarily participate in a magistrate judge settlement 6 conference in this matter if the parties are ordered to do so? 7 Neither party objects to the Court seeking the input of CMS on the issues raised by this 8 case. See Dkt. No. 100; Dkt. No. 101. Accordingly, the Court INVITES CMS, or the HHS 9 || Office of General Counsel, to file an amicus curiae brief on the Court’s docket by May 21, 2021. 10 || The Court will provide notice of this invitation to the CMS Regional Office. The Court also 11 accepts Defendant’s offer to reach out to the HHS Office of General Counsel regarding this 12 invitation. If CMS, or the HHS Office of General Counsel, submits an amicus curiae brief, both 13 parties will be given an opportunity to respond through supplemental briefing. 14 The Clerk is DIRECTED to serve this Order and Notice of Invitation to File Amicus Brief 3 15 on the CMS Regional Office: a 16 Office of the Regional Administrator 90 7th Street, Suite #5-300 (W) San Francisco, CA 94103-6706 19 Email: ROSFOORA @cms.hhs.gov 20 Fax: 415-437-8004 21 All proceedings in this case will be STAYED until May 21, 2021 pending a response by 22 || CMS. The May 25, 2021 pretrial conference and the June 14, 2021 trial are VACATED. 23 24 IT IS SO ORDERED. 25 || Dated: 3/30/2021 26 Appr 3 Mb) HAYWOOD S. GILLIAM, JR. 27 United States District Judge 28