California regulators failed to ensure that nursing homes follow the law and immediately report neglect and abuse accusations to the state, according to a recently released federal watchdog report.
The U.S. Department of Health and Human Services Inspector General examined more than three dozen incidents from 2017 in which abuse or neglect might have occurred in California nursing homes. In nearly 20% of cases, investigators found that the facilities were either late in reporting allegations to the California Department of Public Health (CDPH) or didn’t report them at all.
The 20-page report, issued earlier this month, went on to say that in many other cases the facilities did not provide enough information to determine whether abuse or neglect had occurred.
“Nursing facility residents are at an increased risk of abuse or neglect when health care professionals and caregivers fail to report incidents of potential abuse or neglect or when allegations of abuse or neglect are not acted upon in a timely manner,” the Inspector General’s report said.
The inspector general urged CDPH to bolster guidance to nursing homes on reporting abuse. State regulators agreed to do that. They also say they will remind, update and train the facilities on their obligations under the law.
“Refresher videos are in development providing field staff up-to-date training on prioritization of abuse and neglect allegations as well as other related intakes,” wrote Tomas Aragon, director and state public health officer, in CDPH’s response to the report.
Advocates for nursing home residents said CDPH has a long history of looking the other way when it comes to allegations of abuse, and they hope this report leads to some overdue reforms.
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“It is dismaying that the department of public health was not ensuring timely reporting of abuse, but not surprising,” said Mike Dark, lawyer for California Advocates for Nursing Home Reform (CANHR). “The department has taken a shockingly laissez-faire approach to protecting residents from abuse and neglect for years, but at least now government watchdogs are holding them to account for it.”
Yet, lawyer Scott Fikes, who represents victims of abuse at San Diego area nursing homes, isn’t so sure the inspector general’s report will dramatically increase abuse and neglect reporting rates by the facilities and better enforcement from CDPH.
“The framework that's currently in place to ensure that people who are mandated to report elder abuse and particularly sexual abuse in skilled nursing facilities does not work, it does not achieve the results that it is intended to achieve,” Fikes said.
He hopes the inspector general’s findings force a restructuring of the oversight system that imposes greater consequences on nursing homes that don’t report abuse complaints.
“I believe the only way to do that is to make sure the failure to report a sexual assault or other severe elder abuse in a skilled nursing facility, a federal crime,” Fikes said.
Fikes represented a woman who accused former caregiver Matthew Fluckiger of sexually assaulting her during a diaper change in June 2019 at an Avocado Post Acute nursing home in El Cajon. The woman said she immediately reported the alleged attack to staff and management.
But Avocado didn’t file a report about the incident with CDPH immediately, as required. And when it did, the facility didn’t categorize the allegation as sexual assault, but only as “rough handling.”
Fluckiger went on to work at two other nearby nursing homes where he was again accused of sexual assault. He is in jail awaiting trial on charges related to the alleged attacks.
Fikes contends nursing homes deliberately delay or outright refuse to report abuse and neglect complaints.
“And there seems to be a propensity on behalf of regulatory authorities that are responsible for disciplining people that do not report, to look the other way and not ensure that consequences occur,” Fikes said. “I don’t think there’s any question that facilities have an incentive not to report abuse because it exposes them to financial and legal liability.”
California prosecutors Northern California nursing home owner Mariner Healthcare for allegedly failing to report any of the numerous sexual assault complaints at its facilities.
Meanwhile, the nursing home industry group California Association of Hospital Facilities emailed a statement to KPBS in response to the federal inspector general’s report.
It read, “We take the issue of suspected abuse and neglect reporting very seriously and look forward to additional guidance from CDPH.”
