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There is no excuse for nursing home abuse.. Unless you’re in California


In late February 2012, the HHS Office of Inspection General released a report identifying the problems with the Department of Public Health’s survey system, which is charged with inspecting California’s 1,150 nursing homes and certifying their compliance with federal and state laws. The report found that the Department of Public Health, Licensing and Certification Division, in its surveys of facilities, understated deficiency ratings, did not ensure the adequacy of plans of corrections and did not verify corrections in compliance with federal law.

The report also said that in 77 percent of cases requiring corrective-action plans, California inspectors accepted plans that did not meet federal standards requiring detailed explanations, and inspectors did not verify that homes corrected problems in 4 of 9 surveys. In those four cases, inspectors determined that the homes were in compliance with federal requirements without making a follow-up visit or seeking evidence of changes.

The inspector general’s office also highlighted another “noncompliant” practice by California nursing home inspectors. The report says that California’s 1996 Medicaid plan calls for a follow-up inspection in all cases that require a nursing home to craft a corrective-action plan. But they found that California inspectors conduct follow-up inspections only in cases they deem serious or in cases that involve a financial penalty against the home.

These failings, according to the report, result in inaccurate information on the Nursing Home Compare site and “could have contributed to deficiencies that recurred three or more times from 2006 through 2008.”

This OIG report is only the latest indictment of a bureaucracy that long ago surrendered its mission as a consumer protection agency. A September 21, 2011 OIG report found that California, as “a standard practice,” does not evaluate compliance with federal nursing home standards when it investigates complaints and facility reported incidents. In its response, the California Department of Public Health (CDPH) rejected the OIG’s recommendation that it reverse this practice, citing lack of federal funding as an excuse for its policies.

The August 25, 2011 response signed by Kathleen Billingsley of CDPH states: “Historically over the last three years, CDPH has investigated approximately twenty-two percent of complaints/ER’s received using the federal process due to the limited funds awarded to California under the grant.”

According to table 3 of the CDPH response, CDPH received a total of 57,456 complaints and entity reports involving nursing homes during those three years (2008 - 2010). Since only 22 percent of them were investigated under the federal system, CDPH failed to determine compliance with 44,816 complaints and entity reports involving nursing homes during this period.

We take no comfort from California’s claim that its state investigation process is the equal of the federal system. The CDPH letter acknowledges that the state complaint investigation process averages about 10 hours less than federal complaint investigations (23.5 hours for the federal process versus 13.7 hours for the state process). California nursing home residents are not well-served by the drive-by type complaint investigations that commonly take place.

Although California law provides for potentially strong citations under the state process, the vast majority of complaints – nearly 75% - are not substantiated. When complaints are substantiated, the state usually issues only minor deficiencies even for cases of serious abuse and neglect. Overall, the state’s complaint investigation system is notoriously ineffective. It is hard to imagine the impact of CDPH training its 600 surveyors to routinely ignore federal standards during complaint investigations.

Nursing home residents and their families often cannot get their complaints investigated under the federal system even when they make them directly to surveyors during annual federal inspections. Surveyors often direct residents and families who raise complaints during annual/standard surveys to file complaints with DPH district offices. When they do so, the complaints are investigated under the state system, if at all. The chronic circumvention by CDPH officials charged with enforcing federal standards has seriously eroded public confidence in its integrity.

This approach also corrupts the purpose of Nursing Home Compare. How can Nursing Home Compare serve any useful purpose if tens of thousands of complaints and entity reports never make it into the system?

The misinformation coming out of California also skews any examination of nursing home complaint and deficiency trends nationally. The most recent example is the April 2011 GAO report: Nursing Homes - More Reliable Data and Consistent Guidance Would Improve CMS Oversight of State Complaint Investigations, which can be found at,
http://www.gao.gov/new.items/d11280.pdf

That report claims California had only 858 complaints in 2009, one of the lowest rates in the nation. California actually had 5,388 complaints and 13,543 facility reported incidents during that period (see Table 3 in the Appendix to the OIG report). If the real numbers were used, California had the 2nd highest number of complaints in the nation and probably by far the highest number of entity reported incidents.

This is not the first time California has defied its agreement to enforce federal nursing home standards. In the case of Valdivia v CDHS, the U.S. District Court for the Eastern District of California issued an order in October 1992 that required California to enforce the federal Nursing Home Reform Act. One of its terms is to investigate compliance with federal procedures.

Strong federal action is needed to ensure that California nursing home residents receive the full protections of federal law when they are subjected to abuse, neglect or mistreatment.