December 2018

In this Issue

New California Laws Take Effect

Nursing Home Staffing Waivers in the News
California Settles Legal Actions Against Oakmont Senior Living
KQED Reports Nursing Home Residents Are Dying from Extreme Heat
Education Campaign Targets Medicare Providers that Wrongly Deny Coverage on the Basis that Beneficiaries Must Show Improvement
Assisted Living’s Breakneck Growth Leaves Dementia Patients Behind
Class Action Lawsuit Filed Against Brookdale for Dumping Nursing Home Residents
Medicare Cuts Payments to Nursing Homes with High Rates of Rehospitalization

New California Laws Take Effect

Some of the notable laws that took effect on January 1 include:

AB 3211 (Kalra) updates California’s statutory Advanced Healthcare Directive to better identify organ donors and more clearly express their wishes. AB 3211 was co-sponsored by CANHR and Donate Life California.
AB 2850 (Rubio) allows online training of certified nursing assistants (CNAs), subject to the approval of the Department of Public Health.
AB 3098 (Friedman) modestly strengthens emergency preparedness requirements for RCFEs.
SB 1138 (Skinner) requires nursing homes to make vegan meals available to residents.
SB 1152 (Hernandez) requires health facilities to include within the hospital discharge policy, a written homeless patient discharge planning policy and process, as specified.

Nursing Home Staffing Waivers in the News

A December 7, 2018 article by Kaiser Health News describes immense efforts by skilled nursing facilities in California to evade new minimum staffing requirements. The article – More Than Half of California Nursing Homes Balk At Stricter Staffing Rules – deftly explains how the nursing home industry is using loopholes in the law to seek waivers so facilities do not have to comply with the small increase in the minimum staffing requirements established by SB 97. Thus far, 344 skilled nursing facilities have applied for “workforce shortage” waivers, while 391 facilities applied for “patient needs” waivers. For now, it does not appear to matter whether nursing homes receive official waivers or not, as the Department of Public Health is not enforcing the law. On December 10, 2018, the Department told CANHR that it had not issued a single violation for failing to meet the new staffing requirements that took effect on July 1, 2018.

California Settles Legal Actions Against Oakmont Senior Living

In a November 19, 2018 settlement agreement with the California Department of Social Services (DSS), Oakmont Senior Living Services admitted that its staff abandoned residents of Oakmont of Villa Capri and Oakmont of Varenna during the Tubbs fire, imperiling their lives. The settlement stays licensure revocation actions DSS filed against the neighboring assisted living facilities in Santa Rosa in September when its investigation found that 20 residents of Villa Capri would have died if family members and first responders had not rescued them after Oakmont staff abandoned them. Under the settlement agreement, both facilities will be on probation for two years and must implement revised emergency plans that meet specified conditions, including having enough trained staff day and night to carry out the emergency plans. Villa Capri’s probation period will not begin until it is rebuilt and resumes operation.

Read the November 20, 2018, Press Democrat article on the settlement agreement.

KQED Reports Nursing Home Residents Are Dying from Extreme Heat

Extreme firestorms are not the only danger to nursing home residents caused by climate change, says a KQED report published on December 9, 2018: Sweltering in Nursing Home, 95-Year-Old Succumbs to Heat, as Climate Endangers Most Vulnerable. To help illustrate that extreme heat is a deadly and growing threat to California nursing home residents, KQED examined the death of Lorraine Christiansen, a 95-year-old resident of St. Francis Convalescent Pavilion, a San Mateo County nursing home where responding paramedics reported temperatures of 98 – 100 degrees inside the facility before her death during a September 2017 heat wave. She died of heat-related shock after her temperature climbed to 106 degrees. No action was taken by the Department of Public Health, the agency that is supposed to protect nursing home residents from unsafe conditions.

Education Campaign Targets Medicare Providers that Wrongly Deny Coverage on the Basis that Beneficiaries Must Show Improvement

A new fact sheet by the Center for Medicare Advocacy on the Jimmo v. Sebilius Settlement Agreement aims to inform Medicare providers and contractors that beneficiaries do not have to improve to qualify for Medicare skilled nursing coverage. The Jimmo Settlement means that Medicare coverage and payment are available for care provided in a skilled nursing facility, home health or outpatient therapy setting when skilled nursing or therapy is required to maintain or slow decline of an individual’s condition.

Assisted Living’s Breakneck Growth Leaves Dementia Patients Behind

So says a December 13, 2018 New York Times article about broken promises assisted living facilities are making on their ability to provide safe and humane care to persons with dementia. It describes residents who were harmed or died at assisted living facilities which were not prepared to meet their needs, perhaps by design in understaffed facilities that put profits before care.

Class Action Lawsuit Filed Against Brookdale for Dumping Nursing Home Residents

A recent lawsuit against Brookdale Senior Living alleges residents of Brookdale’s ten California nursing homes are being routinely illegally evicted. The lawsuit states that residents Francis Fleming and Paula Lange were pushed out of Brookdale Camarillo when their lucrative Medicare-covered rehabilitation ended. According to the lawsuit, Brookdale systemically evicts residents by shortcutting legal requirements meant to ensure safe and appropriate discharges.

Inappropriate evictions are the most common complaint lodged against nursing homes nationwide, prompting new federal scrutiny on nursing home discharges nationwide. Meanwhile, residents continue to be thrown out of their homes to boost facility profit margins and in disregard of residents’ health conditions and care needs.

When it comes to compliance with nursing home discharge rules, lawsuits are the only means residents have to truly protect themselves. The lawsuit was filed by Johnson Moore of Thousand Oaks and BraunHagey & Borden LLP of San Francisco.

Click here to see the complaint.

Medicare Cuts Payments to Nursing Homes with High Rates of Rehospitalization

On December 3, 2018, Kaiser Health News reported that the federal government cut Medicare payments to nearly 11,000 nursing homes that have higher levels of residents being re-hospitalized within 30 days. Medicare gave bonuses to nearly 4,000 other nursing homes. In California, 70 percent of skilled nursing facilities are receiving penalties while 28 percent are receiving bonuses. The article includes a quote from Pat McGinnis, CANHR’s executive director, expressing concern that the incentive system may cause serious harm to residents who actually need to be readmitted to the hospital, but are blocked from doing so.

CANHR on the Move