Nursing Home Regulators Fight Uphill Battle

Even the full arsenal of government sanctions could not close Corbin Convalescent Hospital in Reseda.

Over four years, county inspectors wrote more than 100 pages about deficiencies at the 157-bed nursing home. Their reports alleged that some residents were not receiving their medicine and that others were not getting rehabilitation services ordered by their doctors.

They alleged that residents had been waiting weeks for a wheelchair, a pair of glasses or someone who could speak their language. Several had experienced dramatic weight loss and their physicians had not been notified. They were eating foods such as ground turkey gizzards and pureed zucchini mixed with stewed rhubarb in a heavy, funny-smelling syrup.

Last year, such deficiencies caused Corbin to receive one of the largest fines ever imposed on a nursing home in Los Angeles County. They led to criminal charges against two officials of the companies that own the nursing home. Finally, in July, the county Department of Health Services moved to deny Corbin’s corporate owners a license to continue operating the facility.

Yet Corbin is still in full operation.

To those on the front line of nursing home regulation, that fact is evidence that, despite years of hearings and promises of reform, they continue to fight an uphill battle in trying to improve conditions.

First of two parts. Corbin’s ability to continue operations has “demoralized all the inspectors in the state,” said Ralph Lopez, head of Los Angeles County’s health facilities division. Corbin had little difficulty deflecting the county’s effort to close it. The nursing home’s operators went to court and won a new inspection, less than two months after the rejection. During the new inspection, which health officials assumed the home’s management had anticipated and prepared for, inspectors spotted only a minimal number of violations. The license was issued.

Robert J. Gerst, a Los Angeles attorney who represents Corbin, said the home’s survival should not be used as an example of a failed regulatory system. Corbin is an excellent nursing facility, he said, that has been the victim of regulators who are “overly zealous in order to respond to political pressure and . . . media attention.”

In Los Angeles County, there are 387 nursing homes with 38,000 residents. Most nursing homes are full or nearly full, leaving dissatisfied patients, especially those on government aid, with nowhere else to go.

That many live in poor environments has been voluminously documented by a succession of state commissions since 1970.

The latest study of the problem, conducted in 1982 by the Commission on California State Government Organization and Economy--the so-called Little Hoover Commission--led to a report describing “cases of neglect, physical and sexual abuse, and the frustration of dealing with the state’s ‘bureaucracy of hope.’ ”

State inspectors each year find that about 360 of California’s 1,200 nursing homes have deficiencies that endanger the health, safety or security of residents.

Those hearings prompted a flurry of proposals in the Legislature to toughen sanctions against bad nursing homes, but most of the bills that passed were vetoed last year by Gov. George Deukmejian. Many have been reintroduced this year.

Regulators involved in the Corbin case say the apparatus to police nursing homes remains largely ineffective. Both they and the extensive hearing records list a series of fundamental problems:

Inadequate inspections. County health officials say they do not have enough inspectors to make the needed rounds of nursing homes, or even all those required by law. As a result, little is known about most homes except that which comes to light during annual inspections. Almost half the mandated follow-up inspections are not being completed. Besides, inspections that are supposed to be a surprise often can be anticipated by the nursing homes.

Shrinking fines. When nursing homes are fined under the state’s administrative system, the penalty usually is small and can be reduced dramatically if paid promptly. Many citations that are contested are routinely dropped by the state attorney general because of a lack of manpower.

Infrequent prosecutions. Although inspectors often report dangerous conditions at nursing homes in Los Angeles County, the odds of an operator being prosecuted are low. The county district attorney’s office has a nursing home abuse unit, but it went three years without filing a case.

No profit in quality. Some officials of the nursing home industry suggest that there is little incentive for homes to provide quality care, since they reap little financial benefit for their efforts. Medi-Cal, which pays the bills for more than 70% of the nursing home patients in California, allots just $39 a day to larger facilities and $42 to smaller homes, regardless of the patient’s condition.

“Where can you stay for $39?” asked Joseph Gentilcore, regional director of the California Assn. of Health Facilities, the lobbying group of the nursing home industry. “The Slick Six Motel?”

To stretch the dollar, many nursing homes, including Corbin, employ minimum-wage workers who have little or no experience. Most of them do not speak English.

Even the programs set up to directly help consumers are not always helpful.

Delay on Referral List The county has a Nursing Home Information and Referral Service, providing families and hospitals with names of nursing homes that meet minimum care standards. But, for more than a month after Corbin had been fined $66,000 (later reduced to $24,000) for repeatedly violating health regulations, the Reseda nursing home remained on the referral list.

County officials could not explain why it took so long to drop Corbin from the list.

“The nature of the system is to discourage good care,” said Ed Feldman, the Los Angeles deputy district attorney who headed the county’s nursing home abuse section for almost nine years.

Gerst, who in addition to representing Corbin is general counsel for the California Assn. of Health Facilities, said that if the regulators are frustrated, it is their own fault. Gerst and nursing home industry officials say Los Angeles County’s health facilities division, which has gained the reputation of running the most aggressive nursing home inspection program in the state, has gone overboard in trying to appease consumer groups and others demanding a crackdown on nursing home problems.

Bias Charged

Gerst said the charges against Corbin stem from “surveyor bias.”

The inspection of nursing homes in California is the responsibility of the state’s Department of Health Services, but Los Angeles County has contracted with the state to perform that duty itself.

To Lopez, head of the health facilities division, the nursing home industry is the Goliath. It has the wealth, the lobbyists and the attorneys to give it many advantages over the county. Employees in Lopez’s department say they read the industry’s newsletter to help keep track of changes in laws that affect their inspection duties.

Yet, after listing the industry’s advantages, Lopez concluded: “Our biggest problem is fighting our own system.”

Los Angeles County seeks more revocations and refers more cases for prosecution than any other area in the state. Lopez’s office has introduced new ways to police nursing homes--arranging with the coroner, for example, to be informed of deaths in nursing homes. But Lopez acknowledged that his office is woefully shy of meeting its potential.

Staff Reduced Four years ago, Lopez had a staff of 126. Today he has a staff of 93. Of those, 34 are full-time nursing home inspectors. Besides the annual inspections of nursing homes, which can take two inspectors up to a week, they check out more than 1,600 complaints a year, Lopez said.

Lopez said the staff cannot do all inspections required under state law. Inspectors are supposed to return to nursing homes after the yearly visit to check whether deficiencies have been corrected but 40% to 50% of the follow-ups are not made, he said.

Even when the staff manages to devote extra energy to a bad nursing home, Lopez said, the effort can seem futile. He had one case in mind.

Corbin Convalescent Hospital is a nondescript one-story building hardly noticed by motorists who travel up and down Corbin Avenue every day. But it is no mom-and-pop operation.

In February, 1980, the management of Corbin was taken over by the Summit Care Corp. and Summit Health Ltd., both part of a health care conglomerate with hospitals and nursing facilities in several states. When ranked by number of beds in 1983, Summit Care, with 4,359, was the 12th-largest nursing home provider in the country, an industry analyst said.

In 1980 alone, deficiencies at Corbin noted by inspectors took 50 pages to record, the start of a pattern that would extend over four years.

The thick inspection files allege that Corbin allowed some patients to lay in feces and urine and did not provide care needed to prevent bedsores. Physicians’ orders were not always followed and nasal feedings were sometimes administered in a way that endangered a patient’s health, the files said.

Over the years, the home received nine A citations, given for deficiencies that pose an imminent danger of death or serious harm to residents and carrying fines up to $5,000. Corbin also received 23 B citations, those given for conditions having a “direct or immediate relationship to the health, safety or security” of residents and carrying fines up to $250. Fines can be tripled if deficiencies are repeated.

Charlene Stewart, who heads the licensing and certification division of the state’s Department of Health Services, said about 30% of California’s nursing homes annually have violations serious enough to merit A or B citations. But only about 12% of the citations are of the more serious A variety, she said.

Nursing homes, including Corbin, rarely pay the full amount of the fines levied. Some are reduced when the institutions agree to pay promptly; others are rescinded if deficiencies are corrected.

Many Fines Cut Besides, fines regularly are cut at hearings the nursing homes can request to contest citations. Statewide figures show that in 1983, hearing officers reduced fines from $537,800 to $246,570.

Lopez argued that nursing homes won many decisions because of a manpower advantage--the homes are represented by attorneys at the hearings while the county, until last year, sent only the inspector who wrote the citation. But, to members of the nursing home industry, these figures indicate that too many unfair citations were issued in the first place.

In Corbin’s case, a hearing officer cut the $66,000 fine when he dismissed one citation and combined seven others into one. The state auditor general’s office--asked to review the matter by Assemblyman Gray Davis (D-Sherman Oaks)--said the hearing officer had reduced the fine too much. The opinion had no effect on the penalty.

Health officials say Corbin is by no means the worst nursing home in Los Angeles or California. At Casa Blanca Convalescent Homes Inc. in San Diego, for instance, inspectors found maggots in a patient’s vagina, moldy food was pureed and served, a patient suffered from a bedsore that exposed the spine and a young patient died after being scalded.

Inspectors sometimes find such deficiencies even though a nursing home’s management may know when an inspection is coming. The Little Hoover Commission report noted that the timing of annual inspections was predictable and that “facilities can be on their best behavior when inspectors arrive.”

Spokesmen for the nursing home industry say that, although nursing homes sometimes can estimate the timing of an inspection, the knowledge is of little help. The staff, they note, cannot cure a patient’s bedsore overnight.

First Step For the government’s nursing home regulators, the inspection is only the first--and perhaps easiest--part of the policing. There are only vague guidelines to help them determine when to seek sanctions available to them--usually fines but also, in the worst cases, civil or criminal prosecution or revocation of a license.

Mike McSkane, supervisor of the county health department’s Valley office, said the Corbin case presented a problem because the home’s performance seesawed over the years. Inspectors would find violations on one visit, but during the follow-up visit the home would look better. By the next inspection, the home would have reverted to its old ways, he said.

Should officials, McSkane asked, “give them another chance, (then) give them another chance? At what point do you pull the plug? I don’t know. It’s a judgment call.”

Evidence Crucial The accumulation of evidence over an extended time is crucial if a prosecutor hopes to bring a criminal case against a nursing home’s management.

Nursing home officials can be charged with misdemeanors for either willfully or repeatedly violating the state’s health and safety code. But proving that someone willfully violated the law is virtually impossible unless the violation is something as overt as chaining fire exits, said Deputy City Atty. Gary Rowse, who prosecutes nursing home cases within the city limits.

Thus prosecutors prefer trying to show that a home repeatedly violated the law. But Rowse said courts generally require that, as proof of repeated violations, inspectors find duplicate deficiencies within a one-year period, making even that legal remedy useless if inspectors visit a home only once a year.

The county health department sent eight potential criminal cases to the city attorney in 1983. One was rejected but the rest are still on hold. Rowse said that he can spend only 10% of his time on nursing home cases and that he handles two or three prosecutions a year. One of those last year was against Corbin officials.

Accused in Municipal Court of allowing the facility to repeatedly mistreat patients and violate state health codes were William L. Pierpoint, 46, president and chief executive officer of Summit Health, and Thomas Konig, 38, president of Summit Care. No trial date has been set for the executives, who have declined to discuss the case.

The district attorney’s office, which handles nursing home cases in the rest of the county, as well as all manslaughter cases stemming from deaths in nursing homes, has not been as active. Until charges were filed against a South Gate nursing home last month, no nursing home case had been filed for three years, said Deputy Dist. Atty. Ed Feldman.

Files Blamed Feldman, who headed the nursing home unit until recently moving to another job in the district attorney’s office, blamed the non-activity on health department files, which he said often lacked evidence admissible in court. He said inspectors, for instance, might complain that a nursing home allowed a resident to develop bedsores but not produce records showing that the home had failed to turn the resident to prevent the sores.

There is a need for more inspectors who have the “abilities to accumulate evidence that sticks in court,” he said.

Nursing home operators who do end up in court hardly have to worry about incarceration. There is only one known case of a Los Angeles nursing home official being sentenced to jail for negligent care. That man, Daniel H. Farris, who cried at his sentencing in 1983 while clutching a Bible, disappeared before serving his 40 days.

Suit Filed William Holman, a deputy district attorney in San Diego, was the first prosecutor to try another approach to combat poor nursing home conditions. He sued under civil statutes outlawing unfair business practices.

His target, the Casa Blanca nursing home chain, was fined $167,500.

Holman’s victory, upheld by an appellate court last summer, was bittersweet. Although the case demonstrated a new tool for prosecutors, it tied Holman up for four years. And, while he was battling the chain, it grew from nine homes to 35. The nursing home’s lobbyists also ushered through the Legislature a bill preventing a key type of evidence he had used--parts of inspection reports--from being introduced in future civil cases.

Responsibility for disciplining nursing homes also falls on the state attorney general’s office in Sacramento. Part of its job is pursuing citations into Superior Court when, after administrative hearings, they still are contested by nursing home operators.

Citations Dropped In practice, however, the state often has dropped citations rather than defend them. Assistant Atty. Gen. Tom Warriner said the office routinely has not pressed B citations if there is no fine involved and the nursing home has corrected the problem.

The result, said Victor Arkin, the long-term care manager for Los Angeles County’s health facilities program, is that the citations cannot be used later in a court case against a home.

The attorney general also is responsible for handling the most severe sanction against a nursing home. When a health department recommends that a home’s license be revoked, the attorney general reviews the evidence and decides whether to proceed. The matter then goes before an administrative hearing judge, who makes a recommendation to the state’s health facilities director--the person with authority to revoke the license.

In 1983, Los Angeles County referred 10 cases to the attorney general in which it recommended a nursing home’s license be revoked. There has been no response, Arkin said. Warriner said lengthy delays are caused by inadequate data from local health investigators.

One case sent to Sacramento for consideration--in October, 1983--was that of Corbin. Soon after, however, county officials thought they were handed a way to close the home without state help.

Last January, Corbin’s owners were in the process of a corporate reorganization that would include listing its license in a new name, Summit Care-California. The county ruled that the changes should be handled as though Corbin were a facility applying for a license for the first time. Corbin was ordered to apply for a temporary license, then pass inspections before a permanent license would be issued.

48 Deficiencies A June inspection uncovered 48 deficiencies, including failure to put 106 incontinent residents on a bowel and bladder retraining program. The county denied the home that permanent license and health officials prepared to transfer Corbin’s residents to other facilities.

The county’s victory, however, was short-lived. Corbin sued in Superior Court, charging that the health department had violated its own policies during the shutdown effort. Inspectors were required to visit Corbin within 30 days of the expiration of the temporary license, meaning in August.

Judge Norman Epstein ruled that the June inspection had, indeed, been two months premature. He ordered that the nursing home be given another chance. Accordingly, Corbin was inspected again in October--and passed.

The nursing home’s attorneys have argued from the start that Corbin is a good facility that was made a scapegoat to appease groups wanting to make an issue of nursing home conditions.

“There is no doubt in my mind, the decision . . . not to renew the license was a political decision,” said Gerst, whose Century City law firm of Weissburg and Aronson also represents many other nursing homes in California.

“The facilities are intimidated by the department’s surveyors more than you or the public have any idea.”

Gerst said Epstein’s ruling is proof that Corbin can only receive justice in the courts. The pending criminal case, which is based on violations spotted by inspectors, will also prove to be unfounded, he said.

County officials do not dispute Gerst’s suggestion that they thought Corbin deserved special treatment. Lopez said that Summit might not be running the nursing home today if his office had more inspectors. He has asked the state to fund an in-depth review team to concentrate on the worst 10% of nursing homes. Inspectors would continually drop in on the targeted homes to gather enough evidence to make legal cases stick.

“Look at Corbin,” Lopez said. “It would have been nice to go in there every other week for . . . four to five months. You throw this all in the face of any judge and say, ‘We want them out right now.’ ”

The Little Hoover Commission report, published in August, 1983, said “The ‘system’ for licensing nursing homes and monitoring conditions in these facilities has lacked the strength necessary to eliminate the most severe problems. . . . More could be done to protect the 105,000 frail and elderly individuals living in California’s 1,200 nursing homes.”

Plethora of Proposals The findings generated a plethora of legislative proposals.

Last week, Democratic Floor Leader Mike Roos of Los Angeles and GOP Assembly Leader Pat Nolan of Glendale introduced a nursing home bill including many of the provisions Deukmejian vetoed. The governor has said he is likely to sign the bill if it remains in its present form.

But even new measures that intended to improve the policing of nursing homes can exacerbate old problems.

A state law that took effect Jan. 1 requires health inspectors to investigate within 10 days any complaint received by phone against a nursing home. Previously the inspectors were expected to investigate only written complaints.

Lopez said he does not have enough inspectors to obey the new law. “We’re not following up on all call-in complaints,” he said.

Monday: Families’ experiences.