The California Department of Public Health, which has long been criticized for failing to properly regulate nursing homes, is now considering an overhaul of its inspection program that advocates say will further erode the agency’s oversight.
Under the current draft plan, Department of Public Health (CDPH) inspectors would visit the state's 1,100 nursing homes a few times each month to advise, educate and offer technical assistance to improve their standard of care.
Advocates believe CDPH’s remodel would make inspectors reluctant to judge facilities they’ve advised.
CDPH officials refused KPBS’s request for an interview, but wrote in an email that the “principle was to establish a more frequent presence in nursing homes.”
The nursing home industry group California Association of Health Facilities (CAHF), also declined an interview request.
“To clarify, we are not aware of any upcoming survey changes and it would be inappropriate to speculate on 'possible' decisions that might be made by our regulators,” wrote CAHF spokeswoman Deborah Pacyna in an email.
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Proponents of the change say the current system of annual checks by inspectors isn’t producing results and the process can be demoralizing for nursing home staff and management.
”It's very much, you know, gotcha,” said Karl Steinberg, medical director of Life Care Center of Vista and Carlsbad by the Sea Care Center. “It's really designed to be adversarial, to be punitive and to find things that the facility is doing wrong and punish them for it.”
Steinberg contends that many of CDPH citations issued through inspections have little to do with “clinical quality,” and that a change in approach should be explored.
“I think that there could be a lot of good that would come out of a more collaborative relationship,” Steinberg said.
But advocates for nursing home residents argue that by making inspectors collaborate with nursing homes CDPH would create unnecessarily cozy relationships between the facilities and their regulators.
”The equivalent would be if you got pulled over by a police officer for speeding and the police officer jumped in the car with you and said, 'ok, let's drive around and you show me your skills and I'll critique you,'” said Tony Chicotel, staff lawyer for California Advocates for Nursing Home Reform (CANHR).
CDPH maintains that if the new method is implemented, it will still carry out its “distinct regulatory enforcement role.”
That’s an impossible promise, according to Chicotel.
”What are they giving up?” asked Chicotel. “And I think the obvious answer is they'd be giving up enforcement, they'd be giving up complaint investigations.”
Chicotel said it already takes CDPH an average of 636 days to investigate complaints against the facilities statewide, and more than 1,000 days in Los Angeles County. CDPH’s backlog of complaints against nursing homes currently stands at more than 13,000.
As a result of the backlog, CDPH is closing thousands of substantiated complaints against nursing homes that have abused and neglected patients without citing the facilities, according to CANHR.
Using nursing home investigators as advisors will only add to the complaint backlog because the plan doesn't offer new positions or resources, according to CANHR.
”Complaint investigations would languish even longer and consumers would have even less access to justice through [CDPH] ,” Chicotel said.
Poor Track Record
Requiring government inspectors to act as both partners of nursing homes and regulators was tried nationally during the 1970s and 80s, but later abandoned. A 1986 study by a committee at the Institute of Medicine concluded the collaborative system had undercut care in the facilities.
“The committee believes that current federal policies requiring consultation undermine state agency efforts to eliminate substandard providers and deter marginal facilities from repeating violations,” the study found. “Federal and state procedures for enforcement should be modified to reorient the program toward enforcement rather than consultation and to encourage states to adopt a stronger enforcement posture.”
A lawyer for the CDPH inspectors union did not return phone calls.
When the department tried to institute the new strategy last summer, the union balked at the change in duties on grounds it wasn’t consulted.
Inspectors have yet to take a public stand either for or against the change. What is clear is inspectors — like Felicia Barbato who spoke at a legislative hearing last summer — know what life is like for many of the tens of thousands of people living inside California’s nursing homes.
“I’ve been well aware of the poor infection control and quality of care in many of our nursing homes prior to the pandemic,” Barbato said. “The high rates of death in these facilities during the pandemic, unfortunately comes as no surprise.”
'Make You Cry'
Former nursing home resident Rob Halliburton opposes a possible advisory role for CDPH inspectors.
The 57-year-old landed at Palomar Vista Healthcare Center last spring after developing a wound in his foot. He said the nursing home bungled the treatment.
“I almost got my foot amputated because they weren't taking care of my wound and my treatment,” Halliburton said.
He said other patients at the facility weren’t treated well either.
“I witnessed everything from the wound care, to not being changed, to being treated unfairly, being not listened to, a witness to so many things that would make you cry, literally make you cry,” Halliburton said.
A CDPH investigation substantiated Halliburton’s accusation that the facility did not properly treat his infected foot.
“As a result, there was the risk of delayed wound healing, fungal infection, and dry skin,” CDPH inspectors wrote.
Palomar Vista Administrator Dudley Fetzer wrote in an emailed statement to KPBS that he could not discuss Halliburton’s case.
“As a general matter, however, we would respectfully but earnestly disagree with the suggestion that any resident of the Facility was 'ignored' or 'mistreated,’” Fetzer wrote. “Likewise, we maintain that our staff are well-trained and qualified to deliver wound care to those residents in our community who are in need of same, and the treatment protocols, standing alone, are designed to comply with applicable standards.”
Meanwhile, Steinberg said his support of the possible new approach has nothing to do with his role as chief medical officer of Mariner Health Care. The group is being sued by the state for understaffing its nursing homes, falsifying its ratings to boost profits at the expense of care and failing to report a high number of sexual assaults at its facilities, as legally required.
He said he just believes teamwork will be more effective at turning around subpar nursing homes.
“I do think a little bit more of a sort of humanity and collaboration would potentially go a long way,” Steinberg said. “I don't think we'll find out until we try it.”
