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"Judge kills nursing home suit"

Original source:
Sacramento Bee

State’s failure to draft regulations on staffing means woman’s case can"t proceed, he says.

By Jim Sanders –
Published 12:00 am PST Sunday, December 9, 2007

Hazel Adams’ lawsuit alleging understaffing in numerous Sacramento–area nursing homes got tossed out recently for an odd reason: The state’s failure to honor its own law.

A Sacramento Superior Court judge ruled that the state passed a law eight years ago, then ignored a key portion of it, placing courts in an untenable position for evaluating staffing.

Judge Loren E. McMaster blasted state health officials for failing to comply with a mandate that they write regulations relating to minimum–staffing requirements in nursing homes.

Without such a yardstick, he concluded, courts are in no position to determine whether a skilled nursing facility is meeting the law’s standard of 3.2 nursing hours per patient day.

"State departments do a grave disservice to the general public when, as here, they fail to comply with statutes directing that they take action," McMaster wrote last month in a ruling similar to that of a Los Angeles appellate court in a separate suit against nearly two dozen nursing homes.

Suanne Buggy, spokeswoman for the state Department of Public Health, said the public is not being shortchanged and the agency does not agree that a regulation is needed.

The staffing standard is specific, written guidelines exist to measure compliance, and regulators are enforcing the law, Buggy said.

"We see this statute as being clear and self–implementing," she said.

McMaster wrote that he cannot order the state to act because it was not a party in the suit. But departments are not above the law and should not "pick and choose" which statutes to obey, he added.

Statistics are not readily available on how many, if any, nursing homes are cited and fined annually for understaffing.

In an audit of 248 nursing homes this year, 189 were issued what amounted to "fix–it" notices for failing to meet the staffing standard during at least one of 24 days studied, records show.

Mike Connors, of California Advocates for Nursing Home Reform, said understaffing often leads to low–quality patient care.

"Where do consumers go to get these standards enforced if the courts won’t do it?" he asked.

Roughly one of every five freestanding nursing homes – not tied to hospitals – reported staffing levels in 2005 that were below the state standard, according to a report this year by the California HealthCare Foundation, a nonprofit research group.

Significant improvement has occurred since 2001, when 49 percent of freestanding nursing homes filed reports with the state indicating they did not meet the standard of 3.2 nursing hours per patient day, the foundation reported.

Adams’ lawsuit is one of many in recent years that have pressed for greater accountability and higher standards in an industry providing long–term care to about 150,000 Californians, many of them elderly and frail.

Betsy Hite, of the California Association of Health Facilities, representing nursing homes, said a key problem for many years was extremely low reimbursement rates by Medi–Cal, which serves more than half of the long–term patients in nursing homes. Legislation passed in 2004 significantly boosted payments, she said.

"Every year the Legislature tends to add more regulation," she said. "We said, ’We don’t have a problem with regulation. We don’t have a problem with you requiring more staff. But give us the money and the tools, give us a system that rewards good behavior, and we promise you we’re going to turn it around.’ That is, in fact, exactly what’s happened."

Adams, a former nursing home resident, claimed in her class–action suit that understaffing in numerous facilities was hindering care, violating patient rights and being obscured by misleading promises of an "abundance of support."

McMaster, who dismissed the suit because the state failed to write regulations, did not rule on Adams’ accusations.

Adams’ attorney, Stephen Garcia, declined comment on McMaster’s decision.

The suit targeted a state law, passed in 1999, that required health officials to adopt regulations mandating that skilled nursing facilities provide at least 3.2 nursing hours per patient day, which would involve calculating and averaging daily staffing levels.

The statute allowed "nursing hours" to include patient services provided by aides, nursing assistants or orderlies.

Briefs in the Adams case argued that failure to write interpreting regulations left many questions unanswered, such as whether dietary, social service and other activities should count in calculating nursing hours.

McMaster, citing the appellate decision, said the Legislature clearly intended state health officials, not judges, to fill any gaps.

The Adams suit, he wrote, is asking "courts to resolve disputes that should have been resolved by the timely enactment of regulations."

Attorney Mark Todzo, of San Francisco, said that judges in years past – before the appellate ruling – did not necessarily dismiss staffing challenges. He filed similar suits that sparked improvements from dozens of nursing homes, he said.

"Different trial judges can see things differently," he said.

The issue soon could be moot.

State health officials, under court order, have proposed staff–to–patient ratios to replace the current minimum.

The goal is to enable consumers to better track deficiencies: A staff–to–patient ratio would mandate a specific number of employees per clients at all times, not a daily average.

Legislation passed six years ago ordered health officials to issue staff–to–patient ratios by August 2003, which they failed to do.

San Francisco Superior Court Judge Peter J. Busch, responding to a lawsuit by Todzo for the Sacramento–based Foundation Aiding the Elderly, ordered the state in July to act immediately.

An emergency regulation has been unveiled by the state Department of Public Health, but it would not take effect unless funding is appropriated. State costs are estimated at $208 million, primarily from Medi–Cal, at a time when the state budget faces a projected $10 billion shortfall.