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Nursing Home Accord Stirs Confusion Among States : Health: Officials in other parts of the country wonder how U.S.-California deal on guidelines for acute-care residents will affect them.

TIMES STAFF WRITER

A bitter dispute between California and federal health officials over nursing home reforms has set off a wave of confusion across the country.

Irate consumer groups are charging that last week’s agreement resolving the feud in California will gut enforcement of the reforms in California as well as disrupt significant progress that has been made in improving patient care in other states.

“I’m getting calls from other states that had been struggling to do what they were supposed to do,” said Elma Holder, executive director of the National Citizens’ Coalition for Nursing Home Reform. “This agreement is beginning to unravel everything that’s been put into place.”

The new nursing home law, which the rest of the country has been implementing since Oct. 1, requires increased nursing personnel, reduction in the use of restraints and drugs to tranquilize patients, and more freedom of choice and independence for residents.

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Federal health officials insisted that the agreement they reached with California on Tuesday has been misunderstood. They said it merely paves the way for California to implement the new law and there should be no impact on other states.

“This will not have a substantive effect on any state, but I’m not surprised there are questions,” said Louis B. Hays, associate administrator of operations for the U.S. Health Care Financing Administration.

Beth Klitch, chief of medical services in Ohio and vice president of a national group of health officials, said after reading the agreement that it will “absolutely” affect other states. “I’m alarmed . . . it suggests a rather abrupt about-face.”

The agreement capped a heated public dispute between California and top federal officials over the new law’s “interpretive guidelines,” which detail how state surveyors should inspect nursing homes. Gov. Pete Wilson attacked the guidelines as illegal, costly and unnecessary.

After appealing directly to President Bush, the governor claimed victory Tuesday when federal health officials agreed to notify all states that they plan to “review and revise” the guidelines in a way that makes clear that they are not mandatory.

Consumer advocates say this move severely undermines the law’s enforcement mechanism. “Without good surveyor guidelines, the best standards of care are impotent to protect residents from poor care practices,” Holder said.

“What they’re now saying to the surveyors is, ‘Here are the guidelines but you’re free to disregard them. Just put them in your briefcase, but don’t use them,’ ” said Toby Edelman, an attorney with the National Senior Citizens Law Center.

Hays countered that the guidelines will still be used by surveyors but that they will be revised in minor ways--for example, changing the word “must” to “may,” where necessary. “They should be used as a guide for further inquiry,” he said. Klitch, vice president of the national Assn. of Health Facility Survey Agencies, said she thinks the law’s enforcement process may well have been “gutted.” Among other things, she said, unscrupulous nursing home operators have now been given “a large window of opportunity” to fight citations.

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Holder accused federal health officials of backing away from the guidelines at a time when many states--which initially had balked at the cost of implementing the guidelines--had finally accepted and gotten used to them.

In New Mexico, Sue Morris, chief of licensing for the health department, said that surveyors and nursing home operators alike are feeling “very comfortable” with the new rules but that she is “very concerned about how we are to proceed” in light of the “new directions” from Washington.

In Vermont, Patrick Flood, the health department’s director of licensing, praised the guidelines that have helped his surveyors enforce the law. “I find them nothing but helpful. I don’t know what you’d do without them. They help the surveyors ask the right questions and look at the right things.”

Many state health officials said that nursing home operators also have come to like the guidelines because they specify what care is required and how it will be evaluated during inspections.

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In Vermont, New Hampshire, and Washington state, health officials said that the law--far from increasing paperwork as Gov. Wilson has argued--actually has improved patient care significantly.

They point to tremendous benefits that have come from the new law’s curbs on the physical and chemical restraints of patients.

“Our facilities report that there has not been an increase in severity or frequency of falls or incidents; that there has been a profound improvement in quality of life for these residents; that mobility programs have been instituted which served to increase physical functioning; that the morale of the staff has increased to a significant degree, and that families visit their relatives in the nursing home more often,” according to Vivienne Wisdom, executive director of the New Hampshire Health Care Assn., which represents the state’s nursing homes. “We could not possibly support a step backward after we have proven that this new approach benefits our residents.”

Flood said that in Vermont “between 30% to 40% of the patients in our nursing homes used to be in physical restraints. In less than a year, we’ve reduced that 5% to 10%.”

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In California, 65% of all nursing home patients are placed in physical restraints or drugged, according to the National Senior Citizens Law Center. The new law would force alternative forms of treatment for many of those patients.

Hays said that during private discussions with California health officials about the law, they complained that the interpretive guidelines on physical restraints and psychoactive drugs were overly restrictive. The law simply states that nursing homes should not restrain patients for purposes of discipline or convenience. The two-page interpretive guidelines also say that a nursing home “must have evidence” of consulting with occupational and physical therapists before applying restraints.

Similarly, the law bans “significant medication errors.” The nine-page interpretive guidelines give lengthy examples of what should constitute a wrong dosage for specific medications and conclude by detailing for surveyors “when to write a deficiency for medication errors.”

Hays said that this is the sort of guideline that will probably have to be revised.

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The prospect of this type of revision has prompted patient care advocates to launch a letter-writing campaign expressing their dismay and “sense of betrayal.”

“We find it disgraceful and intolerable that the Health Care Financing Administration has signed an agreement with the state of California permitting and even encouraging an individual state to dictate how the national nursing home reform law will be implemented,” Holder wrote to Louis Sullivan, secretary of the Department of Health and Human Services.

“The law reflects a public policy for which citizens have been fighting for years. We want quality of care, quality of life and residents rights for residents of nursing homes in every state. Now with the stroke of her pen, Dr. (Gail) Wilensky (HCFA administrator) has promised California special privileges to turn all of our efforts around, leaving everyone else hostage to California’s whims.”

Wisdom, from New Hampshire, said: “All states have had the same amount of time and opportunity to phase in (the reforms) during the last three years. Obviously, some like New Hampshire took it seriously while others like California ignored it.”

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Wilson contends that he will be saving “millions of dollars” for taxpayers in California and other states by refusing to implement interpretive guidelines that will do little more than increase paperwork without improving patient care.

Although California has complained more forcefully than any other state about the new law, some of it’s provisions have proved irksome for other states. One such provision requires that states pay half the cost of the reforms, while the federal government provides matching dollars.

Across the country, state officials have been at odds with nursing industry officials over how much it will cost to implement the reforms. In many cases, final figures are not available, but California officials who have queried other states say that some are spending just a few cents more per patient per day while others are spending several dollars.

Nowhere has the gap between the state’s cost estimate and the industry’s been as big as in California. Here, state officials have estimated that reforms will cost an average of about $1 per patient per day, while the industry estimates $17.

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The industry’s estimate has been criticized by consumer groups and state officials. David Helmsin, spokesman for the California Assn. of Health Facilities, which represents 900 nursing homes, defended the higher cost by explaining that California’s nursing home patients tend to be more expensive to treat because they are sicker. He also said that state inspectors are tougher than in other states.

Moreover, Helmsin said that comparisons between California and other states are specious because California’s Medicaid reimbursement system is not comparable with any other state’s.

Times staff writer Irene Wielawski contributed to this story.


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