Attorneys make arguments in Grady dialysis case [UPDATE]

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Attorneys representing the Grady Health System and anonymous patients who use the Grady Health System Outpatient Dialysis Clinic appeared before Fulton County Superior Court Judge Ural Glanville Wednesday to argue for and against upholding a temporary restraining order that is keeping the clinic open.

Bernard Taylor, an attorney with Alston & Bird who has represented Grady in other cases over the last 20 years, argued plaintiffs have not presented sufficient evidence to support their case and asked for a dismissal.

“Is there a constitutional right to care for this class of patients in Georgia? The answer to that question is no,” Taylor argued.

Lindsay Jones, an Atlanta attorney who currently represents the Metro Atlanta Task Force for the Homeless in a suit against the City of Atlanta, argued the patients have a constitutional right to medical care.

“The government has a legitimate interest in how it finances the hospital and how it maintains the hospital,” he said. “Due process compels us to look at that interest.”

The Grady Memorial Hospital Corporation (GMHC), the private, non-profit board that handles the day-to-day operations of the system, had planned to close the clinic on Sept. 20.

Judge Glanville’s Sept. 16 temporary restraining order kept the clinic open and required Grady to stop inducing patients to seek treatment elsewhere and to notify all patients in writing of their right to continue using Grady’s dialysis services.

Taylor argued that neither state law nor state officials compelled Grady to close the clinic because the GMHC is not a “state actor.”

“There is no nexus between the state and Grady in regard to shutting down the clinic,” he said.

Rather, Taylor argued, Grady decided to close the clinic because it is on track to lose $4 million this year, a heavy burden for a hospital facing a $33 million operating deficit.

“Grady has to make sure we get down that deficit so that we can continue our mission” of helping the poor and uninsured, he said.

The GMHC voted Sept. 14 to enter into a two-year contract with Fresenius Medical Care to provide outpatient dialysis services for many of the clinic’s 96 patients.

Jones acknowledged the financial strain the clinic places on the system but argued “we cannot put a price tag on life.”

“There’s been no procedure to determine if what’s being done right now is the only thing that can be done,” Jones said.

But Jones’ overall argument hinged not on whether or not Grady should close the clinic but whether Grady is ensuring each patient is properly transitioned into alternate care.

“They [GMHC] have a right to shut down their clinic but they can’t do it in a way that jeopardizes people’s lives.”

About half of the clinic patients are undocumented, uninsured immigrants who would otherwise have a hard time obtaining private insurance or some government plan like Medicaid.

Grady officials said last week they had been working with these patients since July, urging them to move to a state that provides emergency Medicaid services for undocumented immigrants, return to their country of origin, or otherwise try to receive dialysis care through an emergency room.

Denise Williams, senior vice president for Grady operations, said the system sent out specialized packages in the appropriate language to each dialysis patient, informing each of their options and a list of private providers in their area.

Williams said Grady is helping patients who choose to leave the state or country with apartment rental, moving, airline, and passport assistance. In some cases, Williams said Grady has agreed to pay for dialysis care for patients who leave for a certain period.

“Grady has committed to work with these patients,” Taylor said Monday. “If people are at risk of death, then I’m not going to run away from that. Grady is doing everything to avoid that situation.”

Yet patient advocates argue there is no mechanism in place to track those patients and contend there are still many who have not been taken care of.

“I have people here who will tell you they have been left behind,” Jones said.

He claimed some patients did not receive any financial assistance and others were not aware they could receive financial assistance if they relocated.

Grady provided a list of 11 states that they said have emergency Medicaid assistance. The Atlanta Journal-Constitution contacted at least three of these – New Jersey, North Carolina, and Virginia – and found out that they, like Georgia, have residency requirements for Medicaid.

Grady officials could not explain the discrepancy and said the list came from an outside consultant, whom they would not name to the AJC.

Dorothy Leone-Glasser, a leader with a group called Grady Advocates for Responsible Care, told APN there are between 23 and 30 patients who are undocumented, have visas, or some kind of residency who say they have nowhere to go.

Leone-Glasser told APN these patients have been able to go to Grady and receive dialysis treatment this week. But patients are still being induced to seek other options, she said.

“Give us the space to interrogate, to let [Grady] verify what is being alleged in the media,” Jones said.

Jones asked the court to continue the restraining order for another 90 days, keeping the clinic open and giving patients a chance to receive treatment while seeking other options. He estimated keeping the clinic open another 90 days would cost Grady $500,000.

“If our public is denied due process, I tell you that through however long that decision lasts, that will be greater than $500,000,” he said.

After nearly 90 minutes of arguments, Glanville asked the attorneys if they had met privately to seek a mutual agreement. While they had not, both Taylor and Jones were open to the idea and recessed for 45 minutes to begin those discussions.

After the recess, Glanville reconvened the court and urged the parties to continue negotiating for the rest of the day.

Glanville said he is prepared to issue a formal ruling “in a day or two” and is willing to include any and all agreements the parties may come to in that ruling.

 UPDATE 7:34 p.m.: Just got off the phone with Grady Advocates for Responsible Care’s Dorothy Leone-Glasser, who said negotiations between the two parties has wrapped up for the day without an agreement. She predicts there will be an agreement “tomorrow or Friday,” which is the same time table Judge Glanville put on a potential ruling he might issue

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