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California Is Falling Short In Its Attempts To Comply With Federal Regulations In the Investigation of Nursing Home Abuse and Neglect

California nursing home inspectors fall short in following up on their own investigative findings, possibly enabling sustained neglect or lax practices that can injure residents, according to a new federal report.

The Department of Health and Human Services’ Office of Inspector General, which oversees Medicare and Medicaid, identified shortcomings by the California Department of Public Health, which inspects the state’s 1,150 nursing homes.

The report is the second in a series of federal examinations of California nursing home oversight. One review examines a case that limited federal overseers’ ability to take action after inspectors discovered that maggots were coming out of a resident’s ear.

The Department of Public Health is charged with enforcing both state and federal regulations that govern nursing homes. Both state and federal overseers have different sets of rules, fines and sanctions they can levy on nursing homes with violations. The inspector general’s reports examine how well state inspectors enforce federal regulations.

In response to the first report, which was released in September, the Department of Public Health said it receives about 19,000 complaints and facility-reported issues each year. It said the department instructs inspectors to first examine problems in light of state laws that allow them to levy fines of $1,000 to $100,000.

The report released last week examined the handling of 178 findings of deficiencies at three nursing homes that send a high rate of patients to nearby hospitals with bedsores and severe infections. The inspector general focused on nursing home surveys that are mandated to be done every 15 months.

The inspector general found nursing home regulators underestimated the severity of problems in 13 percent of the findings, possibly skewing ratings on Medicare’s Nursing Home Compare website. The three nursing homes discussed in the report were not named.

The report includes the case of a patient who was sent to a hospital for evaluation because she had blood in her urine. The hospital sent the patient back to the home after a day without medication, saying she needed follow-up with a doctor within two to three days.

However, a week later, the nursing home determined that the resident’s problem persisted and merited another hospital visit. The inspector general concluded that the problem should have been classified as one that caused “actual harm,” rather than the potential for harm.

The report also said that in 77 percent of cases requiring corrective-action plans, California inspectors accepted plans that did not meet federal standards requiring detailed explanations. And inspectors did not verify that homes corrected problems in 4 of 9 surveys, the report says. In those four cases, inspectors determined that the homes were in compliance with federal requirements without making a follow-up visit or seeking evidence of changes.

The inspector general’s office also highlighted another “noncompliant” practice by California nursing home inspectors. The report says that California’s 1996 Medicaid plan calls for a follow-up inspection in all cases that require a nursing home to craft a corrective-action plan. But they found that California inspectors conduct follow-up inspections only in cases they deem serious or in cases that involve a financial penalty against the home.

The failings by California inspectors “could have contributed to deficiencies that recurred three or more times from 2006 through 2008,” the report concludes.

Steven Peck a Nursing Home Abuse and Neglect Lawyer says the report shows that state inspectors are creating a system that does not hold nursing homes accountable for making meaningful changes after problems are found. California needs and must enforce both the Federal and State regulations pertaining to Nursing Homes Peck says.

In response to the latest federal report, California authorities said they are strengthening their staff training on federal guidelines.

The inspector general also examined California’s nursing home oversight in enforcing federal guidelines in a September report that looked at the state’s handling of nursing home complaints.

The report examined 24 complaint surveys at three nursing homes. The inspector general found that state regulators tracked problems in the state oversight system but did not cite 41 federal deficiencies.

That report highlighted the case of a woman who showed signs of neglect based on “multiple pressure sores and maggots coming from the resident’s ears.” State inspectors determined that the nursing home’s “wound care nurse documented in the medical record that the resident’s right ear was treated on April 24, 2008, when no treatment was actually provided.”

In the September, 2011 report, the inspector general recommended that the state require inspectors to identify and report unmet federal standards. In response, the department said that in the last three years, it had sufficient funding to follow federal standards only while probing 22 percent of the public complaints and facility-reported incidents. Those tend to be the most serious cases, including “AA” citations over preventable patient deaths that come with fines up to $100,000, according to a letter from the department to the inspector general’s office.

The Peck Law Group

About the Author

Attorney Adam Peck has been practicing law since 1981. A former successful business owner, Mr. Peck initially focused his legal career on business law. Within the first three years, after some colleagues and friend’s parents endured nursing home neglect and elder abuse, he continued his education to begin practicing elder law and nursing home abuse law.

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