In Questionable Health

When nursing home inspectors toured Port Bay Care Center last April, they saw elderly and ill residents lying helpless in fetid rooms, mismedicated, underfed, dehydrated and suffering a multitude of indignities. Later, poring over the home’s medical records, they found devastating consequences of neglect.

In the previous three months, a resident had died of massive dehydration 45 minutes after being taken to a hospital emergency room. Another man found unconscious was hospitalized with acute dehydration, kidney failure, infection and pneumonia; he too died. A woman hospitalized with fever, pneumonia and a urinary tract infection also had died after the home failed to provide proper care.

By law, California regulators can declare a nursing home’s conditions “an immediate jeopardy to residents.” They can impose a $25,000 penalty for each death caused by a home’s lack of care. They can go to court to have an outside manager appointed or have the home’s license revoked. Medicare and Medi-Cal funds--amounting to as much as 70% of a home’s income--can be cut off in 23 days.

But at Port Bay, inspectors did none of that.

Instead, they approved more Medicare beds, asked the administrator to prepare a plan of correction and gave the facility six months to improve conditions or lose funds.

“What we saw at the time we did not feel constituted immediate jeopardy,” said Jacqueline Lincer, head of the district office of the state Department of Health Services. “Looking back, maybe we should have done more.”

Last September, Port Bay fell by its own weight, declaring bankruptcy and closing its doors. Regulators say it was one of the worst homes in the state, although a dramatic exception in a county where the majority of 89 licensed nursing homes provide quality care.

But critics say that Port Bay stands as stark evidence that California’s enforcement of nursing home standards, as well as lax laws, allow the most troubled homes to stay open despite providing care that is at best mediocre, and at worst deadly.

According to a Times review of inspection reports, lawsuits, medical records and death certificates from the past two years, Orange County nursing homes that repeatedly break the rules usually draw light punishments from a regulatory system that frequently pulls punches and permits lengthy appeals. For example:

* Fines are often sharply reduced or dropped. First-time fines for neglect are automatically waived under state law; other fines are cut 50% if paid within 15 days. Of the $141,000 assessed against Orange County homes in 1996, only a third was paid.

* Eighteen Orange County homes were cited for poor care last year. Half were threatened with a loss of Medicare funds, but only three had funds actually cut off.

* At those 18 cited homes, 12 questionable nursing home deaths were noted by regulators in the past two years. Only one resulted in the maximum $25,000 fine. Officials said the others did not warrant a high fine, or, as happened at Port Bay, that they did not have the resources to thoroughly investigate whether patient care was a contributing factor.

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Eight days after inspectors left Port Bay last spring, Donna Joyce, 48, was admitted, recovering from cancer surgery. Within two weeks, she was dead after being hospitalized with dehydration and infection, according to medical and state records. The home was fined $1,000 for Joyce’s dehydration.

“Families think it’s God’s will when their ailing relative dies in a place like this. Well, it’s not God’s will, it’s negligence,” said her sister, Denise Joyce, a licensed nurse.

Ronald Millett, Port Bay’s administrator last April, told The Times he does not believe the facility caused the deaths inspectors noted there, but acknowledged that there were problems with infection control, dehydration prevention and other nursing services.

“I really honestly don’t feel any of these patients died because of neglect,” he said. “There are things we could have done to better monitor or assess their needs.”

Millett has a new job now, as administrator at Harbor Health Care in Fullerton, Orange County’s largest nursing home.

*

More than 7,500 people live in the county’s 89 nursing homes, and they are much more difficult to care for than in years past, experts say. Many are older and sicker. Others are younger people who have been moved out of hospitals after receiving treatment as a result of AIDS, gunshot wounds or long-term illness. It costs $3,500 to $10,000 a month for private care, so the lifeblood of 85 of the county’s homes is government subsidies. The other four accept only privately funded patients.

California’s nursing home system, which receives more than $800 million a year from the federal Medicare program and $2 billion more from the state Medi-Cal program, has drawn so much criticism that the General Accounting Office is investigating whether flawed laws and lax enforcement have allowed dehydration, malnutrition, bedsores and falls to persist.

At the state level, Assemblyman Martin Gallegos (D-Baldwin Park) has repeatedly introduced legislation to beef up penalties--with little luck, because of the powerful nursing home industry lobby, he and advocates for the elderly say.

“The industry likes the current system because there’s no teeth in it,” Gallegos said. “They get hit with a fine, negotiate, and it just goes away. There’s no incentive to improve.”

Some state health officials admit the system is weak, but others say it is fine as is, and have blocked Gallegos’ efforts.

“There are some excellent facilities, and many never get a citation or even a complaint . . . but we really need a way of focusing on the roller-coaster facilities,” said Brenda Klutz, who heads enforcement for the state. But her bosses have opposed Gallegos’ latest bill.

Lincer, the state’s top enforcer in Orange County, said there are 10 to 15 “marginal providers” here that slide in and out of compliance.

Nursing home industry officials, however, say there are so many state and federal rules that it is impossible to always be in compliance. They say the enforcement system already saddles administrators with 900 regulations that they must obey daily.

“It’s easy pickings for regulators to pluck out something,” said Gary Macomber, executive vice president of the California Assn. of Health Facilities, which represents 950 of the state’s 1,250 nursing homes.

All sides agree that the quality of nursing home care has improved markedly in the past two decades. They credit increased public awareness and new state and federal laws.

“There was a time when you walked into a nursing home, and you physically gagged,” said Rochelle Woolery of the Long-Term Care Ombudsman in Orange County, a resident advocacy group set up by the State Department of Aging. “They were filthy. They were dark. They were dingy. They were depressing. They aren’t anymore.

“Now, some of the places look like they’re right out of Better Homes and Gardens,” Woolery said. “But don’t let that fool you.”

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At Windsor Gardens Convalescent Center in Anaheim, there are half a dozen landscaped patios, one with a fountain adorned with cherubs.

When Ora Lee Winfree entered Windsor Gardens in July 1996 as a dementia patient, she was an energetic 86-year-old who “loved to walk,” her family said.

In her brief four months there, she lost weight, caught pneumonia and became so dehydrated that her legs curled against her weak frame and could not be straightened, a painful condition known as contractures.

State records show that the home knew about Winfree’s malnutrition but allegedly did not act on a dietitian’s recommendation to change her diet.

Most upsetting to her family was that her decline occurred while inspectors were in and out of the nursing home, scrutinizing it to protect people like her from neglect. In June 1996, inspectors found residents with untreated rashes and weight loss, cold food and scalding showers. In July, the month Winfree arrived, they found nurses who weren’t checking blood sugar levels of diabetics. In September, they were back again, detailing medication mistakes, unexplained injuries and residents restrained unnecessarily. Tucked deep in that report was a reference to a woman with “a steady gait” on admission who just two months later couldn’t stand or walk on her own. It was Winfree, according to her family’s lawyer.

Each time, state inspectors gave the Anaheim nursing home a chance to clean up its act. Each time the facility failed, records show. Finally, in early November, regulators cut Windsor’s Medicare and Medi-Cal contracts.

On Nov. 15, 11 days after funds were cut, paramedics took the unresponsive Winfree to a nearby hospital, records show.

When her daughter, Frankie Manchester, saw her in the hospital, she said, “I almost threw up. She looked like little more than a vegetable.”

Winfree never recognized her family again, her daughter said, and died six months later at another home. Her family has sued Windsor Gardens and its parent company, West Hollywood-based Windsor Healthcare Management Inc., alleging neglect, abuse and wrongful death.

Regulators fined Windsor Gardens $1,000 for allowing Winfree to become malnourished. The penalty was waived by state health officials--even though inspectors had documented other nutritional problems at the facility for months--because the citation was the first of its kind against the home in 13 months.

“It absolutely infuriates me,” Manchester said. “They didn’t have to pay a dime.”

Windsor Gardens administrator Roger Kerr said he could not comment because of the lawsuit.

The automatic waiver of Windsor Gardens’ fine illustrates what critics call a prime weakness in the convoluted state and federal laws governing nursing home care.

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Under state law, inspectors can write a $1,000 citation when a home harms a resident, but the fine is waived if it is the home’s first such offense in a year.

A $10,000 citation may be written for harm serious enough that it could cause death, and a $25,000 fine can be levied when regulators determine that a facility does cause a death, but home operators who pay within 15 days receive half off.

Of the fines that remain, most are not paid for years, if at all, as nursing homes challenge them in court.

“Eighty percent of the citations are [$1,000] citations,” said Pat McGinnis, who heads California Advocates for Nursing Home Reform in San Francisco. “We see deaths, we see terrible abuse, we see nurses smacking residents across the face.”

Orange County regulators issued a $25,000 citation once in the past two years--at Windsor Gardens. On Aug. 30, 1996, a nurse there found 77-year-old Eugene Ellestad on the floor bleeding from his left temple--his third fall in a week, records state. She put him back in bed with an ice pack on his head. By morning he was in a coma. He died five days later from the head injury, according to his death certificate.

Nursing home officials said they provided adequate care and challenged the penalty, which was reduced a year later to $10,000 by a judge. Still, Windsor Healthcare Management has paid nothing, and may appeal further, said Loraine Wiencek, a regional administrator for the company.

Besides citations, state regulators may revoke a home’s license. Regulators say that process takes as long as three years. Instead, they try to prod owners into compliance by threatening to cut federal funds. Nursing homes that rate poorly on annual federal surveys may lose their right to admit new Medicare and Medi-Cal residents or be terminated from the program.

Irvine attorney Keith Wisbaum, who specializes in litigation against nursing homes, said the system is weak because administrators know approximately when inspectors will be arriving for annual surveys and can put their homes in order.

“The radar isn’t on the other 11 months of the year, so they can do whatever they want,” he said.

But cutting funds can also take months, and even when they are cut, the owners quickly win new government approvals. Three months after Windsor Gardens’ Medicare contract was revoked, the parent company applied for and, after passing two inspections, received a new one from the federal Health Care Financing Administration in San Francisco, which disburses Medicare funds in the Western states. Since then, inspectors have continued to find problems.

At Port Bay, regulators slashed Medicare funding four times from 1990 to 1997. Each time, the facility quickly gained new approvals and new funds.

Federal regulators may impose daily fines, but here too, facilities that pay promptly get 35% discounts.

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Federal fines have been levied against Lake Forest Nursing Center in Lake Forest. When inspectors surveyed the home in October 1996, according to their report, they found two women restrained in locked wheelchairs, sobbing hysterically in a darkened room. A 96-year-old woman was struggling in her bed against a restraint that was improperly knotted to the bed frame and for which there was no doctor’s order.

In room after room, records show, inspectors found residents in distress. They described a woman pleading for medication to relieve pain from a putrid, infected foot. The medical chart that corresponded with her bed was for a resident who had left the facility. Another resident’s oxygen tank was empty, her intravenous fluid line crimped and blocked.

Inspectors declared a “failure of all systems relating to health care delivery,” and fined the home more than $80,000.

On Nov. 8, 1996--four days before Lake Forest Nursing Center was scheduled to lose its Medicare contract--inspectors returned and found only minor problems. They rescinded the action and renewed Lake Forest’s Medicare funding for another year.

But 1997 records show continued problems at the home. By last May, officials had received so many telephone complaints that they conducted a surprise inspection. They found such poor care that they imposed $250-a-day penalties, which the facility was required to pay immediately.

Since then, inspectors have fined the home more than $12,000 for a number of violations, including failure to monitor a resident with a serious head injury. The home was required to pay only $5,000 after receiving discounts and waivers.

Robert John Garber, appointed executive director in March by the nursing home’s parent company, Life Care Centers of America in Cleveland, Tenn., said the company is committed to good care.

Garber and Francis X. Rogers, Life Care’s regional vice president, said in a written statement that the response to the October 1996 survey “was to invest significantly in Lake Forest by creating a new California-based corporate structure in 1997 that did not exist in the previous year.”

Problems noted by inspectors in May were less severe than those seven months earlier, the management statement said.

Scores of other incidents of poor care were documented at the 18 homes cited by inspectors and reviewed by The Times.

Residents were reported underfed at 10 homes--including one where they were served scoops of condensed pea soup as a vegetable. At seven facilities, staff members improperly administered insulin to diabetic residents. Preventable bedsores at 13 homes contributed to deaths in at least two cases. Five facilities had problems with repeated falls, at least one of which resulted in a death.

*

Some state legislators are concerned. Under Gallegos’ latest bill, which has cleared the Assembly and awaits a vote in the Senate, nursing homes no longer would get the 50% discount for paying promptly or a waiver for first-time $1,000 fines. The maximum fine for a death would rise to $37,500.

Similar bills have been defeated in past years, though. Critics note that the influential nursing home industry lobby has contributed at least $140,000 to Gov. Pete Wilson since 1995, and thousands more to key legislators. The Gallegos bill has already lost much of its punch in amendments after objections from the legislative committee, from the Department of Health Services, and the possible threat of a veto from Wilson. A citation for a death initially would have carried a $100,000 fine.

Health Services Deputy Director Charleen Milburn told Gallegos in July that the department opposed the bill because “there is no evidence that the existing fine structure is ineffective.”

Enforcement head Klutz says the Department of Health Services hopes to implement its own plan this year that would move faster against repeat offenders, including speeded-up license revocation. Also, one serious complaint or citation would trigger a federal inspection.

Industry spokesman Macomber contends that the Gallegos bill would “make a bad system worse.”

“To say we’re going to solve it by doubling the penalties is like saying we’re going to beat them over the head twice with a 2-by-4 instead of once,” he said.

The industry is promoting its own bill, sponsored by Assemblyman Fred Aguiar (R-Chino). It would create a pilot program to do away with annual federal surveys.

Instead, nursing homes would be certified through private accreditation, much as the Illinois-based Joint Commission on Accreditation of Health Care Organizations does for hospitals. That system could not take effect, though, unless the federal government allowed it. Agency officials say that is unlikely.

Lincer said that such a system would dismantle oversight.

“You see how often we’re in these buildings, and the Joint Commission is going to come in every three years with their standards?” she asked. “No.”

Janet Wilson can be reached at (714) 966-7847. Her e-mail address is janet.wilson@latimes.com