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"Nursing home inspections on trial"

San Jose Mercury News

Judge is Expected to Rule on Lawsuit

By Barbara Feder Ostrov
The Mercury News
Tues, Sept. 12, 2006

When Julie Fudge’s mother died under suspicious circumstances at a Saratoga nursing home, it took more than 10 months for her to get an answer why.

This morning, Fudge will be waiting in a San Francisco courtroom to see whether a judge will force state health inspectors to move far more quickly in future investigations.

In October, the watchdog group California Advocates for Nursing Home Reform sued the California Department of Health Services on behalf of Fudge and others for what it calls the agency’s pervasive and egregious failure to quickly investigate complaints.

State law requires inspectors to investigate complaints of neglect or maltreatment within 10 working days. But in the first half of 2006, the Department of Health Services investigated fewer than half of complaints within that time, a dramatic decline since 2003, when the agency managed to investigate 71 percent of complaints on time.

Delays can endanger residents because memories fade, evidence is lost and nursing homes providing poor care are not sanctioned, advocates say. Complaints alleging imminent harm to a resident require an even faster response: 24 hours.

Although San Francisco Superior Court Judge Peter Busch recently ordered the two sides to reach an agreement, the watchdogs and state inspectors remain far apart. The watchdog group demands quick action, but the agency says it cannot comply with the law until mid–2007 because it has too few inspectors.

Today, the judge will hear arguments from both sides and may issue an order that spells out the conditions under which the department must start obeying the law.

"We’re in a very untenable position," said Kathy Billingsley, the state official who oversees nursing home inspections. Although complaints declined 29 percent from a high of 8,170 in 2002 to 5,807 in 2005, the agency’s roster of inspectors also declined, from 536 in 2001 to 390 currently.

Billingsley said her inspectors are swamped with licensing work they must do under contract for the federal government that is separate from complaint investigations; if it’s not completed, the state agency stands to lose $56 million in federal money this year.

We are very anxious to comply" with both federal and state mandates, she said. State health officials have long complained that budget cuts left them with too few inspectors to do the job, although the Department of Health Services recently got a $20 million boost in part to hire new inspectors.

A frustrated Pat McGinnis, founder of the advocacy group, accused the state agency of dragging its feet.

"They’re still making excuses," McGinnis said. "This has been going on for so long. It’s absolutely frustrating and it’s jeopardizing the lives of people in nursing homes in California."

For years, the watchdog group has received complaints from families of nursing home patients that state investigations drag on for weeks or months, McGinnis said.

Fudge is among them.

Her 93–year–old mother, who suffered from dementia, vascular disease and bouts of pneumonia, had been living at a Saratoga nursing home for six years. During one visit in April 2004, Fudge alleges, her mother’s oxygen levels had fallen dangerously, and a nurse had not made the appropriate checks or given her breathing treatments. Her mother fell into a coma and died six days later.

"It’s not that I expected that she was going to live forever, but I didn’t think she was going to go right then, and it wasn’t a good way to go," said Fudge, 67.

Fudge, who lives in Los Gatos, complained to the Department of Health Services, but said she was put off by inspectors who said they were overworked. She did not get an official response until more than 10 months after she filed her complaint.

It was only then that she learned that department inspectors had visited the nursing home 16 days after her complaint, six days later than the law allows. Her complaint was not substantiated.

The process was a sham. I’d been spinning my wheels for nothing," Fudge said. "You think you’re protected but you’re not."

Another plaintiff, Patricia Bryant of San Jose, said a nurse at a Los Gatos nursing home failed to treat a pressure wound on her 85–year–old mother’s coccyx, and falsified records. The neglect led to a severe infection that killed her mother, she said. But the Department of Health Services did not visit the nursing home until seven weeks later, although it eventually cited the facility for the poor care Bryant’s mother received.

"It would be nice if the judge would force DHS to respond in a timely manner," Bryant said. "A lapse in time is everything."

San Francisco Superior Court case CPF–05505749 is scheduled to be heard by San Francisco Superior Court Judge Peter Busch at 9:30 a.m. today at 400 McAllister St., Department 301, San Francisco.