Rights for the Elderly : California tries to duck nursing home rules

Sacramento and Washington have teamed up to produce a theater of the absurd on the subject of new federal regulations covering nursing homes.

The plot is fairly devious. Sacramento gets to claim it has wiggled out of new rules that govern nursing home operations across the nation.

Washington’s role is not to make too much in public of the fact that it agreed only to let Sacramento ignore some bureaucratic guidelines for imposing nursing care reforms, not the reforms themselves. The only reason Washington is on the stage at all is because it pays--through the program known in California as Medi-Cal--half the cost of maintaining 70,000 elderly patients in nursing homes. The state pays the other half.

What the new regulations ask is radical change. Patients will be helped to live at the highest possible levels of mental and physical health. That means hiring new therapists to work with patients rather than confining them with bed railings, straps or drugs, as is too often the case now.

Patients in California nursing homes will not find this state-federal public relations game amusing, any more than do 44 other states that are already operating under the new rules. What worries them is that California is dodging its responsibility to respect the rights of people too old or too ill to care for themselves.

Just how much more expensive California nursing care will be under the new regulations is a matter of dispute, but providers are sticking with an estimate of $440 million or more, with the state paying half.

A bill for $220 million in a state that already faces a $10-billion budget deficit with no prospect of an upturn in the economy clearly accounts for Gov. Pete Wilson’s angry response to federal nursing home inspectors being sent into his state.

How do things like this happen?

One part of the explanation involves the evolution of the reforms. Congress said, as part of an omnibus budget bill in 1987, that the nation needs better rules for nursing homes, so it directed some experts to write them.

The second reason is that state government ignored for two years or more the 1987 budget act under which experts started filling in details of nursing home reform.

By the time Sacramento moved, it was too late. Nursing home associations nationwide had worked with officials of the U.S. Health Care Financing Administration on the new regulations and signed off on them. Only six states, including California, have yet to implement the rules.

In a decision circulated late last month, U.S. District Judge Edward J. Garcia in Oakland said he is bewildered by Sacramento’s claim that it can ignore the law.

Two nursing home patients had asked Garcia to order the state to obey the law, and California said in its brief that it had a law of its own to improve the quality of nursing home care. It said the new federal rules change the focus but not the substance of nursing home law.

Garcia’s decision addressed only the question of whether to make the state obey the law. Addressing the merits of the case will require a full trial. But the judge said it looked to him as if the plaintiffs probably would win on the merits as well.

Whether the state law, sponsored last year by state Sen. Henry J. Mello (D-Watsonville), would have produced improvements comparable to those of the 1987 federal act is something that may never be known. It would have added about $100 million to nursing care expenditures, instead of the $220 million that the federal law may require. And state negotiators came up with an amendment to the bill saying that the state law would expire if California agreed to comply with the federal law. It did so last month to avoid being in contempt of court.

In principle, when Washington raises standards, it should raise the money, too. In practice, 1987 was the year to bring that up. Ironically Wilson, then a U.S. senator, supported the reforms.

Besides, in principle and practice, the welfare of older people in nursing homes cannot be neglected.