California sued over lagging nursing home inspections

A Sacramento advocate for the elderly is suing the state for allegedly endangering vulnerable residents by failing to promptly investigate nursing home complaints, according to a lawsuit filed Tuesday in San Francisco.

The suit, brought by the Sacramento-based Foundation Aiding the Elderly, accuses state regulators of “taking months and sometimes years” to complete investigations of nursing homes and other long-term care facilities. Filed in San Francisco Superior Court, the lawsuit names the California Department of Public Health and two top administrators.

“This is jeopardizing all patients,” said Carole Herman, president of FATE. “The industry is not afraid of the regulators, they are so lax in their responsibilities.”

Corey Egel, spokesman for the Department of Public Health, said the department could not comment on pending litigation.

The lawsuit, filed by the Lexington Law Group, a San Francisco public interest law firm, seeks a court order requiring the state to “complete complaint investigations and the complaint appeal process in a timely manner.” The lawsuit asks the court to impose deadlines or enforce existing ones on the complaint process. And, it asks that the court compel the department to prepare an annual report detailing the timeliness of its complaint investigations.

Herman said she pursued legal action because “it’s the only way the state is going to pay attention.”

The lawsuit cites Herman’s personal experiences with the department in filing complaints on behalf of nursing-home clients. One case filed by Herman in October 2011, which involves “serious allegations of negligent medical treatment,” remains unresolved, the lawsuit states. Two other investigations involving “serious allegations of sexual and/or physical abuse against an elder” have been pending since February 2012, according to the suit.

According to the lawsuit, the delays endanger residents and make it less likely a facility’s underlying problems will be addressed. The issues raised often need to be resolved quickly, before more harm can occur, witnesses’ memories fade – or witnesses die, the suit states.

Herman founded her nonprofit organization after her 79-year-old aunt died in 1982 in a Sacramento nursing home, amid allegations of abuse and neglect.

The California Department of Public Health is responsible for ensuring that nursing homes comply with state laws and regulations, and that those receiving Medicare and Medi-Cal money meet federal requirements. The state currently licenses 1,286 nursing homes, or skilled nursing facilities.

The state’s job likely will get even bigger as the population ages and more Californians move into long-term care. The number of Californians age 65 and older is projected to triple between 2000 and 2050, with the group 85 and older experiencing the largest increase, according to projections from the California Department of Finance.

The Department of Public Health says it inspects nursing homes at least once every nine to 15.9 months, with a statewide average of once a year.

It is the consumer complaint process that is now under scrutiny, as the lawsuit charges that “DPH and its personnel have been extremely delinquent” by dragging complaint cases out for months and even years.

“… In the meantime, the underlying conduct raised by the complaint can continue unabated, exposing elderly and infirm residents of skilled nursing homes and other long-term care facilities to real and substantial harm, including neglect, suffering and avoidable injury or death,” the suit states.

Under the state’s Health and Safety Code, the department is required to make an on-site investigation “within 10 working days” after receiving a complaint, or within 24 hours if the complaint “involves a threat of imminent danger of death or serious bodily harm.” The latter is considered “imminent and serious” by the department, or an “I & S” complaint.

The state’s own record-keeping showed that its timely management of complaints had been steadily worsening before the department stopped reporting that data altogether, the lawsuit states. According to the suit, the state reported that it completed 69 percent of its imminent and serious complaint investigations within 10 days and 79 percent of its non-urgent probes within 40 days in fiscal 2007-08.

In fiscal 2009-10, the last period for which the department reported data, the department reported it completed 47 percent of its “I & S” investigations within 40 days and 54 percent of the non-emergency cases within 60 days.

The department’s most recent annual reports contain no information on timeliness of complaint investigations, the suit notes. The reports do show that complaints requiring investigations among all facilities went from 8,915 in 2010-11 to 9,281 the following year.

Attorney Howard Hirsch of the Lexington Law Group said the legal team requested timeliness data from the state but “they claimed they don’t have it.”

Hirsch said if the state has the information but simply won’t provide it, it is in violation of the California Public Records Act. If the state has failed to track its performance and has no current data, it is violating a Health and Safety Code requirement to make that information public via a report to the Legislature.

In addition to the Department of Public Health, the lawsuit also names as defendants Dr. Ronald W. Chapman, the department’s director, and Debby Rogers, deputy director of DPH’s Center for Health Care Quality.