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Frosh can seek relief for nursing-home residents, court says

Judge Sally D. Adkins , Court of Special Appeals. art supplied.

Judge Sally D. Adkins , Court of Special Appeals. art supplied.

ANNAPOLIS – Maryland’s attorney general can seek a court order blocking the involuntary discharge of nursing-home residents so long as the state can identify one resident whose statutory protection against such eviction has allegedly been violated, the state’s top court unanimously ruled Tuesday.

The Court of Appeals’ 7-0 decision reversed a lower court ruling that Maryland law permits the attorney general to seek injunctive relief for a single, specified resident but not for a group of unnamed residents. The high court held that the General Assembly intended the law – the Patient’s Bill of Rights – to be read broadly to protect a vulnerable population.

The ruling permits Attorney General Brian E. Frosh to pursue relief against a nursing-facilities operator that has allegedly discharged residents illegally for failure to pay.

“The Legislature authorized the attorney general to seek injunctive relief to carry out its goals of preventing unlawful involuntary discharges or transfers that threaten residents’ health and safety,” Judge Sally D. Adkins wrote for the court. “Broad relief, including the ability to act on behalf of multiple residents and to enjoin company practices that violate the Patient’s Bill of Rights, is consistent with the Legislature’s intent, particularly if, as the state alleges here, a facility’s conduct affects hundreds of residents.”

Frosh praised the ruling Wednesday.

Attorney General Brian Frosh.

Attorney General Brian Frosh. (The Daily Record / Maximilian Franz)

“The courts’ decision reaffirms that the attorney general has a significant role in ensuring the safety, and promoting the basic rights of elderly, frail and vulnerable people residing in Maryland nursing homes,” Frosh said in a statement. “Patient dumping is not acceptable. This decision recognizes that the law gives us enforcement tools to stop it.”

Frosh alleges that Neiswanger Management Services LLC, which operates four Maryland nursing facilities, has discharged more than 1,000 residents for failure to pay or to arrange payment through a public or private insurer. Frosh’s complaint in Montgomery County Circuit Court alleges that Neiswanger “strives to discharge each resident of its nursing homes at the precise point in time when the resident can be replaced by someone else with a more favorable public health insurance profile.”

The attorney general claims Neiswanger has discharged residents to homeless shelters or “sham assisted living facilities” whose operators who exploit the residents’ public benefits. Neiswanger denies the allegations.

In pursuit of these claims, Frosh has sought a court order barring Neiswanger from discharging residents who fail to pay, except in limited circumstances, or who are eligible for public insurance, unless they fail to cooperate in the payment-application process. The order would also bar Neiswanger from discharging residents to a homeless shelter or unlicensed assisted living facility.

Neiswanger, through counsel, fought Frosh’s request for the broad court order covering multiple residents, saying the patient’s rights provision of the state Health-General Article limits the attorney general’s authority to representation of individual residents. Specifically, Section 19.345.3(c) of the article provides legal claims to “a resident, resident’s agent, or resident’s attorney, or the attorney general on behalf of the resident,” not residents, argued Neiswanger, which operates the New Annapolis, NMS Silver Spring, NMS Springbrook and NMS Hyattsville nursing facilities.

The company’s argument won in the circuit court, which rejected Frosh’s request for the broad court order.

The attorney general then appealed directly to the Court of Appeals, which said the circuit court’s narrow reading of the law is “inconsistent with legislative goals and would impede enforcement of the Patient’s Bill of Rights.”

Section 19.345.3(c) enables the attorney general to “bring suit on behalf of multiple unnamed residents who have been subjected to, or await, imminent, unlawful involuntary discharges, provided that at least one individual’s statutory rights have been violated,” Adkins wrote.

Neiswanger’s attorney, Sara M. Lord, declined to comment on the decision. Lord is with Arnall Golden Gregory LLP in Washington, D.C.

The Court of Appeals rendered its decision in State of Maryland v. Neiswanger Management Services LLC, No. 28, September Term 2017.

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