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Paschall v. Dist. of Columbia Dep't of Health

April 7, 2005

SAMUEL PASCHALL, PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF HEALTH, RESPONDENT,
THE WASHINGTON HOME, INTERVENOR.



The opinion of the court was delivered by: Farrell, Associate Judge

On Petition for Review of an Order of the District of Columbia Department of Health

Argued February 2, 2005

Petitioner Samuel Paschall (hereafter Paschall or petitioner) was discharged as a patient from The Washington Home (TWH or the Home) upon written notice that the discharge was necessary to protect him or other residents of the facility from injury. An Administrative Law Judge (ALJ) in the Office of Adjudication and Hearings of the District of Columbia Department of Health (DOH) subsequently ruled that the discharge notice failed to comply with federal and District of Columbia law. On a motion to clarify and reconsider filed by petitioner, however, the ALJ ruled further that he lacked authority to order Paschall's readmission to TWH - that such an order could be issued only by a judge of the Superior Court upon request for equitable relief made in that court. On this petition for review, the main issue we decide is whether this ruling by the ALJ was correct. We hold that it was not, and so we reverse the denial of the motion to clarify and reconsider, and remand for further proceedings.

I.

TWH is a Medicaid-and Medicare-certified nursing facility in the District of Columbia. Paschall, then 72 years old, was admitted to the Home in June of 2003 as a Medicaid patient, residing in the Alzheimer's Unit. Progress notes from TWH's doctors reveal that his "medical condition and symptoms" were being closely monitored because "he was becoming increasingly difficult to handle." On October 6, 2003, Paschall was transferred to Walter Reed Army Hospital after complaining of abdominal pain. On October 20, while he was at Walter Reed, the Home issued a written Advance Notice of Discharge informing him and his daughter (his legal representative) that "discharge is essential to safeguard you [Paschall] or other residents from physical or emotional injury," which "is documented in your clinical record by a physician."

On October 28, through counsel, Paschall submitted a motion to DOH asking it to quash the notice of discharge because it was facially deficient on multiple grounds, including that TWH had failed to provide him with the advance 30 days notice for a transfer or discharge required by federal and local law or an explanation of why such notice was excused in the circumstances; and that the notice of discharge failed to provide the location to which he would be moved, as also required by law. In the event the motion to quash was denied, Paschall further requested a hearing pursuant to D.C. Code § 44-1003.03 (b) (2001) at which to challenge the basis for the discharge. TWH responded to the motion.

On November 7, 2003, while Paschall continued to be treated at Walter Reed, ALJ Poindexter ruled that the Advance Notice had failed to comply with controlling federal regulations. The ALJ assumed, without deciding, "that sufficiently emergent conditions existed in [Paschall's] case that would warrant an exception to the usual, 30-day advance notice timing requirement set forth in 42 C.F.R. § 483.12 (a)(5)," but ruled that this did not excuse compliance with "the substantive components of the notice" requirement, and specifically that the notice given Paschall had failed to provide the location to which he was to be discharged, as required by 42 C.F.R. §§ 483.12 (a)(4)(iii) and 483.12 (a)(6)(iii). The ALJ accordingly ruled that TWH could not discharge Paschall based upon that notice, but was free to issue a new one in compliance with the law, whereupon Paschall could again "request[] a hearing to challenge any such attempt to discharge."

A week later, Paschall's attorney moved for "clarification and reconsideration" of the November 7 order, asserting that despite it he had not been readmitted to TWH "because his bed was no longer available and no other Medicaid long-term beds were open." Although Paschall had since been relocated from Walter Reed to a nursing facility in Maryland, he requested an order requiring TWH to inform him in writing of his "right to return to the first such bed that becomes available" and to place him "at the top of its waiting list for a Medicaid long-term care bed." Following receipt of TWH's response, the ALJ issued an order stating that he had "no reason to doubt . . . [TWH's] representation that, upon issuance of the Final Order [invalidating the discharge notice], affirmative initial efforts were promptly made to readmit [Paschall] to the Facility, despite there being no long-term care beds available," and that he could also "appreciate [Paschall's] uncertainty and, perhaps, anxiety as to those inchoate efforts on the part of [TWH] and, as a result, his representative's decision that another facility in Maryland might be the best care alternative - at least for the short term." The ALJ concluded, however:

That being said, this administrative court is simply without the jurisdictional authority to compel any further action in this matter. The Act specifically reserves equity jurisdiction in such cases to the Superior Court of the District of Columbia. D.C. Official Code §§ 44-1001.01 (4) and 44-1004.01. As such, to the extent that the Superior Court determines that [TWH's] efforts to readmit [Paschall] have been inadequate as a matter of law, and that specific actions are required on the part of [TWH] going forward, the Superior Court has been expressly empowered by the D.C. Council to provide such relief to [Paschall]. This administrative court has not been so empowered and, as a result, cannot grant the equitable relief requested by [Paschall]. [Footnotes omitted.]

In a word, as DOH recognizes in its brief to this court, the ALJ concluded "that he lacked authority to direct Mr. Paschall's readmission to the Home" (Br. for DOH at 6).

Paschall filed this petition for review of that decision pursuant to D.C. Code §§ 44-1003.13 and 2-510 (2001).*fn1

II.

TWH filed no cross-petition for review of the ALJ's November 7, 2003 decision invalidating the discharge notice. It nevertheless argues (in a footnote of its brief) that the ALJ's reliance on 42 C.F.R. § 483.12 (b) to invalidate the notice was improper because it was "contrary to Congressional intent and existing precedent" (Br. for TWH at 7 n.6). Specifically, the Home argues that Title XIX of the Social Security Act, the federal statute on which 42 C.F.R. § 483.12 (b) is based, does not grant individuals a private right of action enforceable against private nursing homes, citing, inter alia, Nichols v. St. Luke Ctr. of Hyde Park, 800 F. Supp. 1564, 1568 (S.D. Ohio 1992). That argument is unavailing here even if we assume, without deciding, that TWH has not waived it by not petitioning for review of the November 7 order. Title 22 DCMR § 3200.1 (2004) provides that "[e]ach nursing facility [in the District] shall comply with . . . the requirements of 42 C.F.R. Part 483, Subpart B, Sections 483.1 to 483.75; Subpart D, Sections 483.150 to 483.158; and Subpart E, Section 483.200 to 483.206, all of which shall constitute licensing standards for nursing facilities in the District of Columbia." This rule, adopted in 2001 pursuant to the Mayor's authority under D.C. Code § 44-504 (a), thus expressly incorporates the discharge provisions of 42 C.F.R. Part 483, Subpart B (including § 483.12 (b)) into District of Columbia law, made enforceable by the discharge protections of D.C. Code § 44-1001.01 et seq. (the Nursing Home and Community Residence Facility Residents' Protection Act of 1985). So whether or not federal law would independently allow petitioner to challenge his discharge by TWH administratively is an issue we need not decide.

Turning to whether the ALJ correctly ruled that only a Superior Court judge can order the remedy of readmission, we are met with DOH's threshold contention that the issue is moot because all that petitioner sought from the ALJ was a declaration of the "right" to be readmitted to TWH "at some indefinite point in the future" (Br. for DOH at 11), and even now he does not express a desire to be readmitted. In response, Paschall does not really dispute that the issue may not be a "live" one as to him; instead he points, without contradiction, to a succession of orders that DOH has issued in the wake of the ALJ's ruling in this case that continue to assert the lack of authority of an ALJ to order readmission.*fn2 Although it is possible, as DOH rejoins, that one or more of these orders will come before us in the case of a discharged resident actively seeking readmission to a nursing facility, we conclude that the merits of the issue may and should be decided now. We have chosen before "to rule in spite of valid mootness concerns" in cases that "involve[] overarching issues important to the resolution of an entire class ...


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