Nursing Home Scrutiny Lagging

California’s health department has sharply cut enforcement of laws aimed at protecting the state’s 100,000 elderly nursing home residents, even as complaints about the quality of care rise.

The Department of Health Services issued 36% fewer citations for state health and safety violations last year than the average number in the previous four years, an analysis of state records shows. The total amount of fines fell 36% from the average of the previous three years, after new, larger fines were authorized.

Meanwhile, complaints rose 23% from the average of the previous four years.

The violations, some of which have led to deaths, involve an array of issues, including the wrong medication given to patients, neglect leading to falls and broken hips, and failure to prevent infections from festering.

“I have turned in very serious complaints that have come back as ‘unsubstantiated,’ ” said Kathy Badrak, who as Santa Barbara County’s long-term care ombudsman defends the interests of nursing home residents in her county.

By the time the state health department “is able to go out and investigate, the resident no longer is living there, the bruises are gone and [inspectors] are not able to substantiate the complaint,” she said.

State Health Department officials concede they have reduced enforcement of the tough state nursing home laws that took effect in recent years. Instead, the department has stressed enforcement of a parallel set of federal rules, which are less strict on such issues as staff-to-patient ratios and the reporting of elder abuse. Federal violations generally result in smaller fines.

The reason, the officials said, is that state budget cuts have left them without enough inspectors to enforce both sets of rules.

The federal rules take priority because the federal government contracts with the state to enforce federal rules. If the state enforces them, it gets federal money. If not, Washington can withhold funds.

Last year, almost half the $111-million budget of the health department’s Licensing and Certification Division, which oversees nursing homes, came from Washington.

“No one likes it,” Brenda Klutz, head of the division, said of the enforcement shift. “It is not how we would design a system that is supposed to be protecting vulnerable populations.

“When we had our staff reduced, it took away our flexibility to do the things we need to do under state law,” she said.

Sandra Shewry, director of the state health department, said in an interview that she was searching for the best way to oversee the state’s roughly 1,350 nursing homes and that she doesn’t believe the shift in focus has hurt enforcement.

“We are doing the absolute best job we can to assure the safety of nursing home residents, and we’re doing that today by looking at how to make best use of both state and federal enforcement options,” Shewry said.

“Our commitment is to protect residents of nursing homes. We do that with whatever resources we have.”

The change comes as the first baby boomers near retirement age and their parents become more frail. The number of Californians 65 and older, now 3.5 million, is expected to double in 20 years. The federal government estimates that 43% of all people in that age group will spend time in nursing homes.

Last year, the state received 15,512 complaints against nursing homes, up from 9,650 in 2000.

In some instances, authorities found, nursing home workers’ acts led to premature deaths.

Alberto Perez, 87, died before anyone investigated the complaint filed by his family.

Within days of his placement in a Petaluma nursing home in February, his daughter, Beverly Cole, noticed a small nick on his foot. Fearing that the wound would become infected, she and her two sisters urged the staff to pay close attention.

“You go home, and you wonder,” said another daughter, Velvet Perez. “Are they really taking care of him? It wears you down.”

In May, seeing that the wound was worsening, the sisters lodged a complaint with the state health department, first by phone and then in writing.

By June 8, the sisters said, the wound was 5 inches across. Their father was sent to a hospital, where doctors amputated his leg.

Perez died June 27 of multiple causes, including widespread infection. The sisters say they have heard nothing from the health department about their complaint. The investigation is pending.

The state now has 443 nursing home inspectors, down from a high of 557 in 2001, when the state had pumped more money into nursing home enforcement, said Klutz.

As the number of inspectors has dipped, citations have decreased at a faster rate. There were, for example, 5% fewer inspectors last year than in 2000. But citations fell 34% during those four years, from 709 to 464.

A veteran inspector, who spoke on condition of anonymity for fear of retribution, said the relaxation of the rules was disturbing.

“We don’t have a chance to dig,” said the Northern California inspector, noting that inspection staff must divide their time among hospices, home healthcare providers, adult day-care centers and nursing homes.

Complaints about poor care are often placed on a “back burner” as inspectors focus on federal requirements -- which the inspector called “very weak.”

“I think it stinks,” the inspector said. “Imagine you’re the son or daughter and you make a complaint, and three months later someone calls you back? I feel badly complaints aren’t answered.”

Shewry said the department had the authority to deemphasize state rules and that the change was not carried out in “secret.” But legislators responsible for overseeing the department said they were unaware of the shift.

“I was not notified,” said state Sen. Elaine Alquist (D-Santa Clara), chairwoman of a subcommittee on aging and long-term care. Alquist called it “more than a little intriguing” that she did not learn about the change until she held an oversight hearing on July 20.

“It’s terrible that the Department of Health Services is cutting back on services, which is tantamount to creating environments where people are dying. Some things you don’t cut to save a buck.”

Five years ago, California officials promised a major reform in nursing home care. Then-Gov. Gray Davis announced an “Aging With Dignity” initiative and pumped an extra $242 million into nursing home care, increasing the amounts paid to the facilities under the state’s Medi-Cal program.

Also that year, Davis signed legislation to increase the time that nurses spend caring for patients -- something not in federal law -- and directed nursing homes to improve workers’ training and pay. The state promised closer oversight; finance department records show that 100 inspectors were added.

Last year, Gov. Arnold Schwarzenegger signed a bill expected to boost state spending on nursing homes by $200 million.

Under the new laws, inspectors are required to respond within 24 hours of receiving a complaint involving allegations of “imminent serious bodily harm” to a nursing home resident. They must answer less-serious complaints within 10 days.

Inspectors can issue three levels of citations that carry fines ranging from $1,000 (less in some cases) to $100,000. The state levied $2.3 million in fines last year, down from an average of $3.66 million for each of the preceding three years.

Klutz said the health department often failed to meet the state requirement that inspectors respond to complaints within 10 days because the state does not have enough inspectors. She said the lag in investigations often meant that complaints could not be verified.

State health director Shewry said that although state inspectors were charged with reporting violations to the federal government, they didn’t have the authority to impose federal fines.

In 2004, federal fines levied against California nursing homes amounted to $735,252, according to the U.S. Department of Health and Human Services. That was above 2003 and 2002 levels but below the $1.24 million levied in 2001.

“We have stopped enforcing state law, which is shameful -- and we don’t issue federal fines,” said Patricia McGinnis, executive director of California Advocates for Nursing Home Reform.

“It is not an enforcement system. It doesn’t enforce anything.”

“There is never a speedy punishment under the federal system,” said Charlene Harrington, professor of sociology and nursing at UC San Francisco. “That is why the state Legislature enacted all the legislation -- so you could have speedier action and stronger penalties.”

Nationwide, as in California, citations against nursing homes have fallen. Facilities in California generally have been viewed as better than those in other states, in part because the state has its own regulatory system.

Industry leaders say the drop in citations reflects improvements in care.

“There is a sense that people are improving on their care,” said James Gomez, director of the California Assn. of Health Facilities, the main nursing home lobby group in Sacramento.

“We’ve had better staffing. We’ve had better stability.... I’m encouraged that this profession is going in the right direction,” he said.

“Nonsense,” Harrington said.

A recent study she co-wrote found that 31% of nursing homes failed to meet the state law requiring them to provide 3.2 hours a day of nursing care to each resident, though that level of compliance was an improvement from previous years. There is no corresponding federal requirement.

Even when the state does act, some critics contend, fines amount to little more than a slap.

In 2003, Emma Cannon, 84, moved into Victoria Care Center in Ventura to be with her husband, Jack, a resident who has Alzheimer’s disease. At the time, she had some medical problems, but for the most part, she could care for herself.

Soon after her arrival, however, the staff made a mistake.

For 12 days in January 2004, she was given more than twice the proper dose of a blood-thinning medication. Lightheaded from the drug, she fell, injuring her arm and head. She was taken to a hospital and remained in an intensive care unit for a week, receiving blood transfusions.

“She looked like she was in a car accident,” said her granddaughter, Debbie Wreesman, 41, of Santa Paula.

Cannon never fully recovered. On Aug. 25, she died.

Ventura County’s long-term care ombudsman had filed a complaint with the state on Cannon’s behalf in February 2004. According to a health department document, the inspector did not conduct interviews about the case until that July, and it wasn’t until September that the department acted -- giving the facility the least severe citation and an $800 fine.

Wreesman was taken aback.

“A fine to me is something that should hurt so you don’t make the same mistake again,” she said.

Victoria Care Center is owned by Ensign Group of Mission Viejo. Ensign spokesman Greg Stapley declined to discuss the citation but said Ensign was working hard to improve care.

Pointing to the drop in state citations, Stapley added, “It’s proof we’re getting better.”

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(BEGIN TEXT OF INFOBOX)

Nursing home regulation

Although complaints against California nursing homes have increased in recent years, citations and fines issued by state inspectors decreased significantly in 2004 and through the first quarter of this year.

*--* Complaints State State fines citations assessed (In millions) 2000 9,650 709 $2.8 2001 10,301 773 3.9 2002 14,946 720 3.6 2003 15,613 708 3.5 2004 15,512 464 2.3 2005* 4,445 87 0.6

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* First quarter

Source: State Department of Health Services