Videotapes of Nursing Home Checks Used in Crackdown

The television offers the image of an old man, bedridden, silent, eyes in motion. A health inspector is telling the nurse that the patient needs to be bathed, then they debate whether he is being turned properly to avert bed sores.

Then the inspector asks the man a question: “How do you like it here?”

The old man weakly flails his arms and makes a soft roar.

Videotapes of inspections--graphic images of open sores, residents lying in their own excrement--have become a powerful tool in an escalating controversial campaign against abuses in nursing homes by Los Angeles County health inspectors and prosecutors.

Last Wednesday, a crowded hearing of the Senate subcommittee on aging in Washington, researching problems in long-term care, fell silent during a screening of the grim videotapes taken by county authorities in surprise inspections last year.

Although the majority of the 389 nursing homes in Los Angeles County provide clean quarters and competent care, about 10% chronically endanger the health of patients, health officials say. The ongoing crackdown on nursing homes, combining health inspectors and prosecutors to develop criminal evidence, has an immediate aim: to put the operators of the worst nursing homes behind bars.

The aggressive tactics have stirred debate between authorities and the embattled long-term care industry, which maintains that new, tougher laws have already improved conditions. Authorities believe that the use of videotapes may be unprecedented, but nursing home operators say the cameras pose a potential threat to patients’ privacy.

“Once we identify the heavy hitters--and they are generally known to the regulatory agencies--we’ll put together a major prosecution with the idea that they’re going to jail and we won’t take a plea for anything less,” said Dist. Atty. Ira Reiner, who refused to name nursing homes that may be targeted. “If we get a 90-day sentence, it will really send shock waves through the industry.”

No nursing home operator in California has ever been jailed for such violations, authorities say.

Reiner said the worst nursing home operators “should be thought of as slumlords, not health care providers.” The district attorney asserted that just as jail sentences for slumlords indirectly “sent a message” to other landlords and improved living conditions for many people, the same would hold true for nursing homes, which house about 40,000 residents in the county.

But even before the threats of jail, industry representatives say shock waves have been reverberating through the nursing home business since early 1985. The enactment of a sweeping nursing home law, which mandated stricter inspections, increased fines and provided the option of jail sentences, has already had a dramatic impact on the industry statewide, they say.

California’s nursing homes were assessed fines totaling $5.3 million in 1985, compared to $1.4 million the year before, according to a recent report by the state health department. Over the same period, the number of citations for violations of state standards rose from 1,271 to 1,962.

Nursing home operators complain that health agents are often inconsistent in their inspections. They say the images of legitimate facilities often suffer because of the horror stories found elsewhere.

Long-term care “is a difficult business. It’s not pretty and it’s not fun,” said Peggy Dudder, a legislative advocate for the California Assn. of Health Facilities. “It’s a fine line between a regulatory offense and where that crosses over into criminal activity. . . . If they had been consistently enforcing along the way, none of us would have had to suffer through this period.”

Jack Markovitz, a past vice president of the association and owner of the Fountain Gardens Convalescent Home in Watts, is the son of parents who operated care facilities. “Better care for patients and better recognition for nursing home employees has become a way of life for me,” Markovitz said.

He suggested that Reiner is trying to exploit the issue.

“It kind of smacks of political sensationalism,” Markovitz said. “Given the fact that there is ongoing regulation, the need to make somebody a case example hardly seems justified.”

State and federal agencies regulate the industry, using fines, annual license reviews and denial of MediCal and Medicaid funds. “People can be and have been put out of business,” Markovitz said.

While many in the industry perceive threats of jail as extreme, Reiner said such prosecution is necessary to buttress the administrative procedures.

The goal, Reiner said, is to eliminate profiteering by operators who provide the minimum care at minimum expense to generate the most income from patients, who are often treated “like vegetable pods.”

“Fines are often seen merely as a cost of doing business,” he said. “The threat of jail is a very effective deterrent for those who don’t think of themselves as common criminals.”

The use of video equipment started in August when Deputy Dist. Atty. Leland Harris, the lead nursing home prosecutor, took along his home video camera on an inspection.

Ralph Lopez, chief of the county health facilities division, told the Senate hearing that the tapes will educate judges and other officials who “don’t really see and know what’s going on” about conditions at the worst nursing homes.

“Once you have everything on tape, there isn’t a lot to argue about,” Reiner said. “The beauty is that cases never have to go to trial to be settled.”

Video equipment is now on order for inspectors.

Examiners using video cameras may “violate the dignity or individuality of the patient,” Markovitz said. “Sometimes this does occur because of over-zealousness or inexperience or insensitivity.”

Industry representatives tried to address the use of photographic equipment in pending nursing home legislation, but the district attorney’s office claimed that the conditions would have, in effect, required advance notice to patients and thus eliminated unannounced surveys.

In its original form, Assembly Bill 3580 stipulated that “duly authorized officers, employees, or agents of state conducting an inspection . . . shall request and receive consent of the affected patient or patients prior to taking photographs or video recordings of those persons unless the consent would delay or disrupt the conduct of the investigation.”

After lobbying from the district attorney’s office, that was changed to: “Patients shall be treated with consideration, respect, and full recognition of dignity during the course of the investigation or inspection.”

Nursing home operators said they believe that inspectors should gain permission from patients to use videotape, or from legal guardians if the patient is unable to reason or communicate because of their health conditions. Those guidelines seem appropriate, Reiner said.

But Deputy Dist. Atty. Harris, disagreeing with his boss, said videotapes should be taken--even over a patient’s objections--whenever the images are necessary to build a case. “The public interest would demand the documentation of substandard care. . . . It’s just viewing what the surveyor views--as they are entitled by law to inspect.”

Far from violating the dignity of patients, the videos “have the effect of humanizing patients,” Harris said.

Often, when evidence is presented verbally, Harris said, “the patient takes on the character of an it. When you use videotape, you see him or her and you talk about he or she. It’s very dramatic.”