WHAT HAPPENED TO ENFORCEMENT IN CALIFORNIA?
Nursing Home Residents at Risk

From the Fall 2005 Edition of "The CANHR Advocate"

California’s enforcement system for nursing homes, under the auspices of the Department of Health Services’ Licensing and Certification Unit, has a long and checkered history. Numerous studies, reports and reviews since the 1970s have found inadequacies in enforcement and failure to respond to consumer complaints.

As recently as July 2003, a federal General Accounting Office (GAO) study found that that California was among those states that showed a marked decline in the issuance of serious deficiencies. The number of actual harm or serious jeopardy deficiencies issued against California nursing homes declined almost 20% in a one-year period. While it would be comforting to think that this decline could be attributed to better quality of care, the GAO study indicated that this decline was actually due to the understatement of actual harm deficiencies.

The Department of Health Services, Licensing and Certification Program (L&C) is responsible for licensing nursing homes, for completing annual surveys, investigating complaints and, through its enforcement efforts, ensuring compliance with state and federal laws and regulations. The state has a wide variety of state and federal enforcement tools to choose from. For facilities that participate in the Medicare or Medicaid programs, the state can recommend a variety of federal enforcement remedies, in addition to state sanctions. Since over 80% of California nursing homes participate in Medicare and/or the Medicaid programs, most facilities are subject to federal, as well as, state sanctions.

State enforcement tools include a system of deficiencies, citations and penalties, bans on admissions, placing the facility in receivership, temporary manager or even suspension or revocation of the facility’s license. Because the state rarely utilizes the temporary manager or receivership option, the citation and civil monetary penalty system remains the primary state tool for state enforcement.

Citations: The Department issued fewer citations and assessed fewer civil monetary penalties in 2004 than in the history of the citation system in California. Only 484 citations with a total of $2,457,500 in civil monetary penalties were assessed against nursing facilities in 2004. With numerous opportunities for facilities to appeal, less than 50% of these fines will ever be collected.

Federal Deficiencies and Remedies: The Department can issue state or federal deficiencies against a facility, depending on the violation. Although the number of federal deficiencies has risen to over 19,078 in 2004 from 13, 557 in 2003, most of these deficiencies do not reflect the seriousness of the violations and, thus, few federal remedies are imposed. In fact, the number of federal remedies, including bans on admissions and federal civil monetary penalties has decreased dramatically over the past few years.

State Deficiencies: Having a menu of state and federal remedies helps ensure compliance with federal laws as well as compliance with many state laws unique to California, such as elder abuse laws and staffing requirements. Unfortunately, the Department has decided that they will no longer enforce state laws pertaining to nursing homes. This is reflected in the sharp drop in the number of state deficiencies issued in 2004 - from over 4,000 state deficiencies in 2003 to less than a 1,000 in 2004 - and in the Department’s decision to test a “pilot” project in the San Jose and Alameda County District Offices. Under this pilot project, state surveyors are only examining compliance with federal laws.

What this illegal change in protocol means for the nursing home consumer is that violations of state laws are not enforced; state deficiencies, citations, and penalties are not issued. Consumers are denied due process, and nursing home residents are denied the hard fought rights and protections under state law enacted by California legislators over the past twenty years.

California’s Complaint Response System: Perhaps nowhere is the failure of enforcement reflected more than in the response to consumer complaints. The timely and comprehensive investigation of consumer complaints is essential to any adequate enforcement system and can provide a far better picture of the overall care in a facility than one annual survey.

In 2004, nearly 14,000 complaints were filed against nursing homes in California.

As a result of the Department’s failures, thousands of complainants did not receive timely notice of the status of their complaints; few received notice of their right to accompany the surveyor; and the majority of complaint investigations were delayed well beyond the 24 hour or 10 day timeline. As a result, 75% of the complaints were found to be “unsubstantiated.” Evidence is missing, staff is gone, witnesses are unavailable, and even the resident is sometimes deceased by the time the Department completes its investigation. Complainants are even denied the right to an appeal required by state law.

California’s DHS Licensing & Certification Division is the only consumer protection agency for nursing home residents with the power to enforce the law. When they fail in their mission, when they fail to respond to complaints, when they deny due process to complainants - they fail the residents of nursing homes in California and place their health and safety at risk.

What Can Be Done

Over the next year, CANHR and other advocacy groups will be pressuring our legislators to be proactive for a change.

We will be asking them to hold hearings and support policy efforts and legislation that will hold DHS Licensing and Certification accountable for the lack of oversight and to force them to provide California’s nursing home residents with the protections they deserve and that, as taxpayers, they fund.

We will be asking you to send your complaints -- not just to Licensing and Certification or the ombudsman -- but also to your state Legislator. Clearly they need to be educated about the consequences of this massive failure of California’s enforcement system.