Who Will Protect the Residents?

As the budget woes of California grab daily headlines, and the Governor’s May revised budget estimates a $38.2 billion budget gap, legislators and policy makers are scrambling for ways to save money. Large cuts in Medi-Cal benefits and rates are still on the table (see page 30 for details). Going unnoticed, however, are the current and proposed reductions in oversight and enforcement for long term care facilities in California.

DHS/Licensing and Certification

The quality of enforcement at L&C has been deteriorating for years. Rather than being a pro-active consumer protection agency, the current L&C will often wait until a facility has closed and residents have died and then issue numerous citations that will never be paid. While the Department continues their quarterly meetings with the nursing home industry, meetings with advocates have been consistently cancelled. Take a look at the following:

Complaints

Approximately 11,373 complaints about nursing homes were filed in 2002. The average consumer must wait 7 months or longer for DHS to complete its investigation and send a final report to the complainant, if the complainant receives one at all. Over 66% of the complaints are found to be “unsubstantiated” – not because there was not a legitimate complaint – but by the time the investigation is initiated, witnesses are gone, documents are missing or the resident is dead.

Deficiencies

20,492 deficiencies were issued against California nursing homes in 2002. Many of these deficiencies caused actual harm to the residents, but only 619 citations were issued – less than half the number that were issued in 1995.

Public Policy

The DHS/L&C has failed to implement laws that were passed years ago that would assist consumers in choosing facilities and that would protect their rights at admission.

• Admission Agreement: The standardized admission agreement, which became law in 1997 and was mandated to become effective by 1/1/00, has not yet been implemented. Bowing to the concerns of the nursing home industry, which has insisted on including illegal arbitration clauses in the admission agreement, the regulation package has now been delayed for over 3 years.
• Medi-Cal Intent to Withdraw: Since 1989 the Department has been required to notify the ombudsman program monthly as to which facilities have filed a notice of intent to withdraw from the Medi-Cal program. This information is required to be made available to the public and noted in the facility files available in each district office.
  Unfortunately, none of this information is made available to the public, and few consumers know that, if they are admitted after a facility has filed an intent to withdraw, the facility can evict them if they spend all of their assets and apply for Medi-Cal.
• Ownership Information: Ownership information on nursing homes is required to be made available to the public upon request, made available in the public file of the facility, and included in the department’s information system. The District Offices refuse to release this information to the public, and the information included in the current DHS ACLAIMS system is usually out of date, inaccurate or incomplete. Neither DHS nor the public knows who really owns nursing homes in California.

Department of Social Services/Community Care Licensing

Under current law, the Department of Social Services is required to conduct annual surveys of adoption agencies, foster care agencies, group homes, adult residential care facilities, and residential care facilities for the elderly. The current budget proposes elimination of the annual survey of these facilities and to “prioritize inspections of high-risk facilities.”

Of course, the problem is that there is no way of identifying a “high-risk” facility if there is no inspection of the facility. With 6,300 RCFEs in California, who will protect our residents?

Protecting Residents’ Rights

Clearly, the only segment that benefits from the current lack of enforcement and oversight is the long term care industry. Meanwhile the assisted living industry and the nursing home industry continue their political propaganda campaign to diminish the rights of residents to sue for abuse and neglect in their facilities. With limited oversight of nursing homes and virtually no oversight of residential care facilities, how convenient for the industry if residents lose the only remedy they have – the right to sue for abuse.

For more information on the industry’s attack on residents’ rights, see CANHR’s “Residents’ Rights Protection Campaign.”