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"State watchdog agency charged with overseeing nursing homes negligent, suit claims"

Original source:

Oakland Tribune
By Angela Woodall
Oct. 28, 2009
Updated: 10/29/2009

The state watchdog that oversees the quality of care in California nursing homes has allowed facilities to continue operating despite serious problems that persisted over years, a review by the Tribune revealed. Urine-soaked mattresses, festering bedsores, patients lying in feces or restrained in wheelchairs to stare off into space. This is the grim picture that emerged from a review of records of the state Department of Public Health, tasked by the federal government to monitor the care of millions of elderly or severely disabled adults in the nation's long-term care homes.

In some cases, operators were able to hide a pattern of problems by changing the names of their companies or their facilities after they were cited by the state or sued. In other cases, records show that regulators were aware of the care centers' history of noncompliance but licensed them anyway.

"The California Department of Public Health takes very seriously the role of protecting some of California's most vulnerable residents," Kathleen Billingsley, deputy director for the agency's Center for Health Care Quality, wrote in an e-mail. "The number of deficiencies and citations are just two of many factors that reflect the seriousness with which we approach our job."

But the department has been accused numerous times of not enforcing the state's own laws. It has been sued, for example, for taking years to respond to complaints about abuse and neglect, as well as for not requiring state-mandated staffing levels at facilities. One lawsuit claimed that the department's lack of oversight was contributing to poor care residents received at facilities.

Unchecked neglect and abuse was at least one factor that drove Diana Harden to walk into an Oakland nursing home last month and shoot her disabled daughter and then kill herself, according to a letter Harden wrote to KGO-TV ABC7 News before the Sept. 13 murder-suicide. Harden asserted that her brain-damaged daughter, Yvette Harden, was mistreated and neglected at the Oakland Springs Health Care Center on 10th Avenue, where she had been a patient for six years.

Between 2004 and the September murder-suicide, Oakland Springs received more than 152 complaints and 212 deficiencies, many of them serious. But the state took no enforcement actions. Instead, the facility was required to submit a plan of correction and largely expected to enforce its own compliance with the plan, according to Department of Public Health records.

Only after the shootings did the department launch an investigation into the quality of care at Oakland Springs.

"There's much more but you can ask my family. "... They can tell you. I can't go on like this. She has been begging me to end it for two years," Diana Harden wrote. "My health is failing and I don't want to leave her alone."

The investigation is ongoing.

Inspections lacking

Annual inspections are the principal tool the Department of Public Health uses to monitor the quality of care in nursing homes. If significant problems are found during surveys or when inspectors investigate complaints, the facility can lose its contract with Medi-Cal and Medicare. That poses a considerable threat to many homes because the two federal programs pay for the majority of all long-term resident care.

But in 2006 the department was so behind in investigating complaints that a judge required it to improve its oversight of nursing homes and submit quarterly reports showing that investigators were addressing complaints on time - within 10 days, or 48 hours when the complaint involves imminent danger to the resident.

The delays in investigations put residents at risk, according to California Advocates for Nursing Home Reform, which filed the lawsuit against the department, prompting the court oversight.

In one case, an 87-year-old man's wound became so infected that his leg had to be amputated in 2005 despite numerous complaints from his family to the department from the time the wound began to fester, according to the lawsuit. Shortly after the amputation, he died of multiple causes including widespread infection, the lawsuit alleged.

In another case cited in the lawsuit, a woman suspected her mother's October 2004 death had something to do with her treatment at a nursing home and complained to the department. Inspectors took seven weeks to arrive at the Los Gatos facility, Terenno Gardens Extended Care. They also took more than a year to investigate the death of a patient at a nursing home whose bedsores had become infected, according to the lawsuit. In the meantime, another resident of the same home developed severe bed sores, according to the court documents. An on-site investigation was not conducted until a year after the complaint was filed, the lawsuit contended.

With each day that passes, the chance of properly investigating and redressing violations diminishes. Instead, the delay means the complaint is more likely to be unsubstantiated because the residents, witnesses and evidence may no longer be available, said Michael Thamer, the lawyer who brought the lawsuit against the department on behalf of California Advocates for Nursing Home Reform.

Then in 2007, the California state auditor criticized the department for not correctly prioritizing complaints, too often understating their severity and not completing investigations. The auditor criticized the agency's policy of waiting for a nursing home to submit a plan of correction before informing caregivers of the investigation results.

The auditor also found that the system used to track complaints is subject to error, the disbursement of funds is suspect, and the timing of nursing home inspections is predictable, allowing some facilities to hide violations.

The department now claims to be meeting the deadlines in nearly all of the 15,488 complaints received since April 27, 2007. Only 60 were late as of Sept. 25, 2009, Billingsley said. But Tuesday, a Superior Court judge in San Francisco ordered the department to continue the quarterly reporting for another six months.

The problem, Thamer said, is that even when the agency responds there is no limit to how long the investigation can stay open. In the meantime, residents are exposed to the treatment that prompted the complaint in the first place, Thamer said.

In addition, he added, many complaints go unreported.

The Department of Public Health claimed that a lack of qualified evaluator nurses was behind the backlog of complaint investigations, which stretched into the previous decade. That demand is expected to grow more severe as the number of baby boomers move into retirement age - 78 million by 2030, according to the Institute of Medicine. Already there are 1.5 million Americans in nursing homes.

Without tough oversight, operators can continue to rack up deficiencies while residents suffer.
"When the state doesn't do its job, dependent adults are put in danger of neglect, abuse and fraud," Thamer said.

Deficiencies missed

The Public Health Department said the number of deficiencies and citations issued during the 1,320 detailed on-site inspections performed annually indicate the agency is fulfilling its watchdog role.

Surveyors, however, rarely considered the violations to be serious enough to issue a AA citation, which is the department's most severe category of violation. (Statewide, the department issues about 20 AA citations annually.)

In 2005, federal surveys found that California surveyors missed at least 25 percent of serious deficiencies. They are overlooked, a 2005 Government Accountability Office report said, because surveyors often are confused about what poses an imminent danger, such as worsening, avoidable pressure sores and untreated weight loss - frequently signs of understaffed facilities with poor quality of care.

In addition, surveyors across the country reported being asked by superiors to overlook or downgrade survey findings, the GAO said.

These problems distort the system of accountability for negligence and put residents at risk, said Carole Herman, founder of Foundation Aiding the Elderly. She sued the state Department of Public Health in 2006 because the agency still had not issued regulations that required nursing homes to provide each resident an absolute minimum 3.2 hours of skilled nursing care on a daily basis three years after the agency developed the staffing law.

The distortion can be tragic.

Jack Easterday had a record of patient care violations at his numerous nursing homes in California when the Alameda man applied to the East Bay branch of the Public Health Department for a license in 2001 to run the Oakland Care Center on Webster Street, according to Public Health Department records.

Those records also show that up to the time he was licensed under the corporate name Employee Equity Administration to run Oakland Care Center in 2001, the Department of Public Health had cited him for numerous serious deficiencies, fining him for A and AA citations.

Then in 2007, Easterday was cited for a AA violation and fined $100,000 when a resident at his Pleasant View Convalescent Hospital in Cupertino died after falling and her certified nursing aide did not report the fall or assess her injury, according to the Public Health Department. The medical examiner's report indicated the cause of death was "blunt impact of torso with laceration of liver."

Today, Easterday is fighting a 2-year sentence for tax fraud. He was charged in 2007 of bilking the IRS for millions in payroll taxes used to pay for a lavish lifestyle - including his $338,000 salary, 10,000-square-foot home and a sailboat.

Meanwhile, medical errors at Oakland Care Center mounted, employees complained they had to use their own money to buy supplies, and there were 72 deficiencies and 34 complaints between 2004 and 2009, Public Health Department records showed.

Easterday remains free while his lawyers seek a 9th U.S. Circuit Court of Appeals review.

"It's a failed system," Herman said.