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'Business as usual': Injunction looming for Humboldt County facilities in lawsuit


Original source:
http://www.times-standard.com/ci_16964088

Times Standard
By Matt Drange
December 29, 2010

Editor's note:
This is the third in a three-part series looking at the stories behind the class action lawsuit against Skilled Healthcare. In the end, parties agreed to a settlement in the case in which the company admitted no wrongdoing, and the court granted an injunction ordering 22 California nursing homes to comply with minimum staffing levels as mandated by the state.

"Now Hiring."

The sign greets visitors as they pull into the parking lot of Granada Healthcare and Rehabilitation and includes a phone number for interested certified nursing assistants to call. As you enter the nursing home through a pair of large wooden doors, a television screen displays a quote from Mark Twain:
"A man cannot be comfortable without his own approval."

Bright fluorescent bulbs line the ceiling, and hand sanitizer dispensers mark the end of each section of rooms and the start of the next. Two parallel hallways run lengthwise through the facility, serving as highways for patients in wheelchairs and nursing staff alike.

At the far end of the hall stands an office door with printouts attached like sheets of paper to a refrigerator. The postings are daily staffing reports for the last three days, which document hours worked while tracking how many patients there are in a given day, producing the number of direct nursing care hours per patient per day (ppd).

The figure was at the center of a lawsuit against the nursing home chain Skilled Healthcare, which operates Granada and dozens of other assisted living facilities across the state -- including five in Humboldt County. In July, a jury found 22 Skilled Healthcare nursing homes to be below the minimum state staffing requirement of 3.2 nursing hours ppd.

But some feel the argument is irrelevant, and the California statute that mandates facilities maintain 3.2 nursing hours ppd is too low to begin with.

"It's a laughable standard," said Charlene Harrington, a professor of nursing and sociology at the University of California at San Francisco. Harrington testified during the trial that when compared to other states like Florida and Maine, which have staffing requirements as high as 4.9 nursing hours ppd, California is a joke.

Harrington said Skilled Healthcare is not unique in the health care industry and that many nursing homes run by large corporations keep staffing levels to a minimum as a way to save on operating costs -- even if it means getting slapped with penalties from the state.

"They would rather just pay the fines and hope they don't get caught," Harrington said, adding that practice appears to be an effective business model for Skilled Healthcare, which since going public in 2007 reported an average of more than $120 million in gross profits a year, with nearly $665 million in annual revenue. "It's completely inadequate; California needs to just bite the bullet on this."

Beginning in February, an injunction goes into effect against the 22 Skilled Healthcare nursing homes named in the lawsuit and comes with a $12.8 million price tag for the company, the estimated cost of complying with staffing requirements. If the facilities spend less than $9.8 million in raising staffing levels, the remaining money will be redirected to the class, according to the settlement agreement, along with $500,000 for an elder abuse program aimed at rural California counties.

Humboldt County District Attorney Paul Gallegos intervened in the case four years ago with the goal of getting the injunction granted. While his office is set to get $2 million from the settlement over the next two years to help fund a consumer fraud unit, the case was never about money, he said.

"At the end of the day, all we're interested in is making sure these people are safe, and we want them to have a remedy for the harm they suffered," Gallegos said, adding that although the agreement is in place, there is still a great deal of work to be done monitoring the status of the injunction. "All we're asking is that these facilities comply with the law."

Skilled Healthcare defense attorney Kippy Wroten said earlier that the verdict -- which the California Association of Health Facilities vehemently opposed -- was "annihilating" for the company and that with the exception of a handful of days over the last six years, the facilities complied with law.

"With respect to the court and to these judicial proceedings as a whole, we strongly disagree with the outcome of this legal matter," Wroten said in an e-mail to the Times-Standard after the verdict. "We remain confident that our facilities are well staffed and are extremely disappointed with this result."

The court has yet to appoint a third-party monitor, who will enforce the injunction and have the ability to go into any of the 22 facilities without notice and check staffing reports. The injunction will be in effect for two years but can be cut short if a facility is found to be in compliance for 18 months. If a nursing home violates the law, the company can be brought in for contempt of court.

Judge Daniel Weinstein oversaw more than 40 days of mediation talks, and in approving the settlement agreement wrote:

"The negotiations on the injunction were complex, intense, and hard fought. Mr. Gallegos' firm and persuasive advocacy was crucial in getting all parties to agree to the final injunction terms. ... The importance of the hard-fought injunction terms cannot be overstated."

But the success of the agreement goes beyond the injunction, said Patricia McGinnis, executive director of California Advocates for Nursing Home Reform. McGinnis said the lawsuit will strike fear into other nursing homes across the state, and although the injunction is not permanent, there is nothing stopping another lawsuit if the company fails to increase staffing levels.

"From an advocate's standpoint, it's great. I hope this makes a real difference in these patients' lives and becomes a standard in the future," McGinnis said, adding that the agreement is the most substantial injunction the state's ever seen. "It's just so unusual. They've never had anything like this."

Business as usual

While the law can transform overnight, change isn't something that happens quickly at nursing homes, according to some staff and residents.

A patient at Granada Healthcare and Rehabilitation, who declined to be named for this story, said that little has changed in terms of staffing at the nursing home in the wake of the lawsuit. The patient, who is a member of the class action lawsuit against Skilled Healthcare, said that in the last month there have been nights when three certified nursing assistants called in sick, leaving a pair of CNAs to care for up to 87 patients.

"It's business as usual," he said in an interview outside the nursing home. "They just don't have any backup."

The patient said that while nights are the worst, many days he has to wait for up to half an hour after signaling for help before a staff member comes to his room. Despite the long waits, the patient offered nothing but positive remarks about the CNAs at the facility.

"They try their best," he said, adding that if there is one thing he would like to see changed it would be an additional "backup" CNA each day to cover for people who get sick and provide regular breaks for staff.
"They just need someone who goes around and can put out the fires," he said. "When somebody really needs help, there's no one to help them."

One CNA, who works at Eureka Healthcare and Rehabilitation and declined to use her name for this story for fear she would lose her job, echoed the sentiments of the patient, and said that an extra CNA would help her "tremendously."

Three CNAs during the day is considered fully staffed for one wing at the facility, or about one for every 10 patients. But that ratio is the best-case scenario, she said, adding that she's worked 20-hour triple shifts and had to care for an entire wing by herself some days.

"I'd like to see more changes, but we don't know what's going to happen," she said. "That's not our call. We just keep truckin' along."

The toughest part when understaffed, said the CNA, is finding time to administer showers, which are given twice a week at the facility. The time is usually tight for a shower, she said, because you have to schedule it with patients' rehab exercises.

Some days it doesn't happen.

"I'll check my load, and if I can swing it I'll make it happen," she said. "But we can't be on their elbow 24/7."

Compounding the problem, she said, is that many CNAs will go on to become registered nurses (RNs) or licensed vocational nurses (LVNs), which earn better pay and generally work more stable hours. A typical starting wage for a CNA in California is around $8.50 an hour, while LVNs can earn up to $50,000 a year or more, depending on where they work.

While the nursing home has less than two months before an injunction goes into effect, the CNA said she hasn't seen a noticeable difference in staffing levels and that the turnover for CNAs is as high as ever.
"They're taking the human aspect out of it," she said. "It's not all about dollars."

Despite the demanding working conditions -- she's been slapped in the face, kicked and even scratched by patients -- the CNA doesn't think about quitting. She can't.

"They say don't get attached, but that's impossible in CNA work," she said. "There are days when I don't want to leave. I feel like I'm needed here."

'I'm OK'

With black letters faded from the sun, the half sheet of paper sits in Diana Medal's kitchen window so that her neighbors know that she's all right. Pictures of her family sit in gold-plated frames above the fireplace and serve as colorful boxes in a solid expanse of wood paneling.

For Medal, the place is home, and that's all that matters.

"I used to dream every night of when I could be home again," said Medal, who spent three weeks at Granada Healthcare and Rehabilitation, one of five Humboldt County nursing homes implicated in a lawsuit against nursing home chain Skilled Healthcare. "I would rather be here than anywhere else."

Medal is just one of 42,000 patients in a class action lawsuit against Skilled Healthcare, and her story is a recurring theme at facilities run by the national nursing home chain. After three weeks of rehabilitation, Medal got her wish. She now lives back home, which has been modified to enable her to get around in a wheelchair. A ramp leads up to the front door where she gets groceries delivered.

Medal fractured her back earlier this year when she fell, and now even the slightest sideways movement can cause her pain. She recently had surgery to return her bladder to its original position, but Medal still needs to use the bathroom at least 10 times a day, sometimes more.

She takes a slew of daily prescription medications to help with pain -- at one point as many as eight -- and needs a constant supply of oxygen after being diagnosed with emphysema from more than 50 years of smoking. But it wasn't always this way.

After her husband died of cancer, Medal took a job at Target -- "man's work," she says, doing stocking at the store for 14 years before suffering a pair of compression fractures in her lower back. The injuries forced her to retire early, and without a steady paycheck, she had to sell her house and move to Humboldt Hill in 2001.

Medal now lives in a retirement community just south of Eureka with more than 80 homes, each one nearly identical to the next.

"My kids kept telling me to come and live with them," Medal said in an interview at her home. "But I said: 'No, no, no. There will be a day when I need you.'"

While Medal's oldest son Michael lives nearby in Eureka, he weighs close to 400 pounds and, after a stroke four years ago, is not able to provide her with the help she needs. The rest of her remaining family live in San Francisco, a five-hour drive from her home.

Medal has already begun the search for the next nursing home she will have to stay in, but with $1,600 a month between Social Security and her pension, Medal's options are limited.

She can't afford a private nursing home where double rooms can start at $2,645 a month. In-home care, meanwhile, can amount to more than $400 a day for round-the-clock care.

Even though she's worked since the age of 16, it won't matter the next time her back gives out.

Unlike many patients, Medal isn't eligible for free health care benefits through Medi-Cal, and while she didn't have to pay a dime for her stay at Granada, that's 21 days subtracted from a maximum of 100 days of skilled nursing care a year that Medicare will cover. Without Medicare, the three weeks at the facility would have cost her more than $14,000.

In California about two-thirds -- or 64 percent -- of patients in long-term care facilities are covered by Medi-Cal, according to the Office of Statewide Health and Planning Development (OSHPD), with the rest being private pay, managed care, insurance or Medicare.

"Nobody can afford to get sick anymore," Medal said, adding that the most she will get from her pending settlement claim in the class action suit against Skilled Healthcare is $366, and that's assuming that every day she was in Granada the facility was understaffed. "I don't care about the money, but come on."

But while most nights at the nursing home were a nightmare for Medal, staff made sure not every day was miserable.

Medal still remembers the time the facility invited a man to come and play the piano. She combed her hair and got ready.

"Everybody who wanted to go went," Medal said. "If they couldn't go, the nurses would bring them."

Wheelchairs lined the dining room like a row of chairs in a theater. Medal stayed close by the door, in case of a bathroom emergency. But that didn't stop her from requesting her favorite Frank Sinatra song -- "My Way."

"Because I'm old school," Medal said.

As she sat in her recliner at home earlier this month, Medal remained optimistic that she would still be able to support herself. But she turns 72 in February, and as her condition worsens, doctors warn Medal that it's only a matter of time before she can't.

She just wants to go out with dignity.

"I'm a fighter; I gotta move on," Medal said, pausing to remove the oxygen tube from her nose and wipe her face with a tissue. "I have to. I have no choice."
_____________________________________

Timeline of events:
May 4, 2006: Complaint filed alleging a violation of patients' rights under Health and Safety code section 1430 (b)
Nov. 30, 2009: Trial begins
June 14, 2010: Closing arguments begin
June 17, 2010: Closing arguments conclude, jury breaks for deliberation
July 6, 2010: Jury returns verdict of $618 million in statutory damages and over $58 million in restitution
July 7, 2010: Skilled Healthcare stock hits record low as prices more than 75 percent to just $1.52 a share
July 15, 2010: Attorneys opt to forgo punitive damages phase; jury released after nearly seven months of service
July 25, 2010: Parties enter mediation talks
Aug. 6, 2010: Defendants file motion for mistrial on grounds of juror misconduct
Aug. 26, 2010: Court finds no evidence of juror misconduct
Sept. 7, 2010: Parties reach initial settlement agreement
Nov. 30, 2010: Court approves final settlement agreement
Jan. 6, 2011: Deadline for class members to file a claim
Feb. 3, 2011: Injunction goes into effect