Legal Aid sues Md. over care of patients

Moving some on Medicaid to nursing homes at issue

March 06, 2009|By Kelly Brewington | Kelly Brewington,

The Legal Aid Bureau sued the state yesterday to try to stop it from moving low-income patients on ventilators out of chronic care hospitals and into nursing homes.

The suit, filed in Baltimore Circuit Court, argues that the state Health Department didn't follow legal requirements in 2006 when it altered guidelines for patients' eligibility for government-funded hospital care. It maintains that the state is enforcing the rule only to save money in the Medicaid program amid a serious budget crunch.

And, it says, some patients who have been moved to nursing homes have gotten worse - and three have died as a result of the shift.

"Their goal was to save money, plain and simple," said Jennifer Goldberg, a Legal Aid lawyer. "Of course, everyone wants patients to get the best quality care in a setting that is appropriate and that is cost-effective," she said. "But if it is hurting people, that's where the problem comes in."

State officials say only patients who are stable and show no evidence of needing special services are being moved - and they deny that anyone has died as a result of the policy. Specialized hospitals are intended only to stabilize patients, not keep them indefinitely, said John G. Folkemer, a deputy health secretary.

"Once they are stabilized, they should either be discharged home or to a nursing home," he said. "What has happened is we have some of these people who have been here years and years, and just sort of warehoused. And the hospitals do not appear to be making an attempt to have a suitable placement for them."

Folkemer said no deaths were brought on by the moves. While three people have died since transferring to a nursing home, six have died during about the same period while at hospitals.

"This is the most fragile population - certainly there will be deaths," he said. "But there is absolutely no evidence that people have died because they moved to a nursing home."

In addition, Folkemer said that the department's 2006 decision was a clarification of existing policies, not a change. He said the department was following requirements to do monthly reviews of patients' services to determine if they are still eligible for them.

"Yes, it would save money, but this is actually something we have started doing before we were trying to identify the savings," Folkemer said.

Last fall, the health department hired a doctor to review patient cases and found half of the state's 200 Medicaid patients on ventilators did not need specialized care. Patients' families were notified and were given 10 days to appeal before an administrative court judge.

So far, 38 patients have been moved and 56 have appealed. Another 18 are moving to nursing homes, Folkemer said.

Dr. William Greenough, who heads the ventilator rehabilitation unit at Johns Hopkins' Bayview Medical Center, strongly opposes what the state is doing. He said one of his patients died within two days of being moved from his hospital to a nursing home. So far, 12 of his 39 patients have received letters from the state and he is fighting to keep them at the unit.

"It is against my medical ethics to allow this to happen, unless I have better evidence that this is safe for them," he said.

Greenough said many patients are so frail they will likely end up back in emergency rooms or intensive care units, costing the state more in the long term. "From an insurance point of view, a dead patient doesn't cost any money," he said.

Quincy Thomas, 74, is a patient Greenough believes should stay at the unit. Thomas, who is named in the lawsuit, was admitted in 2004 because of complications from a neuromuscular disorder. Two years ago, she became unable to walk, talk or feed herself and doctors diagnosed her with ALS, or Lou Gehrig's disease.

Today, she communicates by blinking -- once for yes, twice for no. When her children ask if she wants the breathing machine shut off, she blinks twice.

"I think it is reprehensible that they would try to save money at the expense of the most vulnerable of us," said Kirk Fancher, Thomas' son-in-law. "These are people who worked their whole lives and paid into the system."

Folkemer said he would not comment on individual patients.

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