"Let Us Now Praise Tough Cookies"
Who, in the populist tradition, fight for the rights
By Matt Smith
Published: September 20, 2006
Pat McGinnis, founder of the SOMA nonprofit California Advocates for Nursing Home Reform (CANHR), is in my view of a kind in spirit to Gov. Ann Richards, who died last week.
McGinnis’ warm manners, self–possessed grasp of statehouse sausage making, and plainspoken wont for profanity when mentioning her political foes, makes me pity the fools who oppose her in defending old and disabled nursing home residents.
In other words, she’s an outdated throwback to the intermittent heydays enjoyed by tough–minded Liberal populism. I’m thinking of Ann–Richards–and–Jim–Hightower–Texas, or Pat–Brown–and–Jesse–Unruh–California, or Lyndon–Johnson–America, when the idea of creating a just society coexisted in the popular mind with pressing toward modernity.
McGinnis decided to create her organization in 1983 as a counterweight to the Nursing Home Industry, whose lobbyists had incrementally advanced its ability to boost profits by scrimping on elder care. Since then, McGinnis has struggled against a different idea of modernism. California’s 1960s populist era had spawned laws and policies designed to protect the helpless and needy, including a system of licensing, routine inspection, and punishment of wrongdoers among nursing homes. This was important because the worst homes could be charnel houses of death by bedsores, by beatings, by asphyxiations, and other preventable maladies.
Then the creeping late–century Orange Countyization of California brought us Proposition 13, George Deukmejian, Pete Wilson, Arnold Schwarzenegger, and a common belief that regulation and taxation were dragging the Golden State backward in time. In concert, California’s under–funded, unmotivated regulatory agencies seemed to freeze in amber, and cease carrying out their duties.
On the last full day of Richards’ life, however, a judge’s ruling yanked California an inch or two back toward a more humane–minded vision.
State records had shown that in the vast majority of cases state regulators failed to investigate nursing home complaints within 10 days, as required by law. In response to a lawsuit by CANHR, San Francisco Superior Court Judge Peter Busch announced last Tuesday an impending order requiring state regulators to respond to complaints by nursing home residents in a timely manner.
"People die, the abuse continues, the neglect continues, and it essentially turns out they don’t have any enforcement system at all. You have a complaint that something happens to your mother, and the response has been over the last few years, I’m sorry, we don’t have enough people, and we’ll respond to the complaints" 12 to 15 months from now, McGinnis said. "It’s really pitiful you have to resort to lawsuits to get the state to comply with laws that protect people."
The judge’s ruling certainly isn’t enough to resurrect the ghost of progressive eras past. But it’s encouraging to think a tough–minded defense of the rights of less fortunate people still has a chance to prevail.
Marian Rodgers, an English graduate of Mills College, spent her life teaching elementary school in New York and Los Angeles before spending her final days starved for oxygen under suspicious circumstances in a Saratoga nursing home, lapsing into a coma and dying in April 2004 at age 93.
After she died, Rodgers’ daughter, Julie Fudge, filed an official complaint with the state because she believed the on–duty nurse had failed to provide her mother with needed supplemental oxygen.
"I told them in writing of that, and told them I needed to hear soon. But when I talked with one of the investigators, she said I’m working on cases from 1995.’ I was flabbergasted at that. I said, "This does involve a death." She said she’d get to it whenever her supervisor told her she could," Fudge said.
California law requires licensing inspectors to inquire into complaints of neglect or abuse within 10 working days. But so far this year, state inspectors have met that standard less than half of the time.
In Fudge’s case, it wasn’t until 10 months after she filed her complaint that she got an official response. The nurse denied Fudge’s version of events. As a result, the complaint was deemed impossible to prove.
CANHR attorney Michael Connors told me extensive delays, such as in Fudge’s case, can make an investigation a waste of time. Memories and evidence can disappear, and nursing homes can begin to operate on the assumption that they will not be sanctioned for patient abuse.
"I know other people living at that facility that I really care about, and I don’t want to see them suffering this kind of neglect or abuse," said Fudge, who signed on as a plaintiff in CANHR’s suit.
Filed last year, the lawsuit demanded that the California Department of Health Services comply with the 10–day investigation law.
The California Department of Health Services has said it doesn’t have the personnel for timely investigations. This year Gov. Schwarzenegger approved $20 million toward adding staff for this purpose. But Department attorneys continued to argue in San Francisco last week that diverting inspectors to respond more quickly to complaints was impossible, because of other duties required of Health Services employees.
Judge Busch was unmoved.
"The Department has to get on this, and has to get on it quickly, and has to comply with the law," Busch said during a Sept. 12 hearing.
The ruling’s merely a step toward truly protecting defenseless patients from abuse or neglect. Even in the unlikely event that complaints of abuse or neglect result in fines, it’s typical for nursing homes to simply not pay them, yet continue operating as licensed facilities anyway.
Nonetheless, "It was significant. I’m really happy to see this. It was interesting to see that one of the nursing home industry spokesman’s comments was that they were happy, too," said McGinnis, before breaking into sarcasm–inflected laughter. "I’d never heard the nursing home industry ever praise anything that came out in favor of consumers. Maybe it’s a new day."
If only that were true.
The November 1994 night Ann Richards lost her Texas governor’s seat to George W. Bush, I was alone in a Houston hotel that had served as a gathering point for his supporters. It was a beautiful hotel, the sort of place that piles 16 pillows on your bed and tops them with a fresh cookie. It was my 30th birthday. I can’t remember exactly why I was in Houston other than I had to write wire–service stories about some business conference. But I do vividly recall watching the smiling, drunken, campaign–button–festooned Bush–victory revelers spill out of elevators, talk animatedly in the lobby, and otherwise foul the place with foreboding. I hadn’t followed Richards’ career closely. But my imagination sometimes visited an idea of her governorship as part of an America that pleased me. Bill Clinton was president, after the first near–decade of my voting life had been dampened by Reagan years. During the post–Reagan, pre–Gingrich moment, giddiness had reached a point where some people even entertained the idea that liberal Southern populists such as Richards or Hightower might be poised for the heights of political authority.
The stroll past crowds of bright red vote–Bush faces and the elevator ride up to my room was my trip back to reality.
During the week of Richards’ death, however, it was heartening to revisit those vainglorious days, listening to McGinnis revel in her organization’s victory in a San Francisco court room.
Back when McGinnis founded CANHR, "there was no organization that spoke for people in nursing homes. Things were pretty much controlled by the nursing home industry," she said. "Not that things aren’t quite controlled right now. But at least the patients’ side is being heard a bit more."
Now there’s a wonderfully modern, throwback idea.