by Sigrid Bathen published March 07, 1999
As Gov. Gray Davis relentlessly presses his education-reform agenda, other state business is seriously neglected. State department heads remain unappointed and policy in many key areas is virtually paralyzed. Many admirers and critics alike blame Davis’ legendary propensity to micromanage for the administration’s slow pace. One story has it that Davis is so obsessed with the minuscule details of his new administration that he has been known to spend 20 minutes pondering which secretary to send out on the next Federal Express run.
Perhaps nowhere is the current dearth of broad policy reexamination more apparent than in health care. Millions of children are without health care, and their elders face the daunting prospect of life in one of the state’s many substandard nursing homes, increasingly targeted by consumer activists.
This crisis in care for the state’s burgeoning elderly population could well become Davis’ health-care debacle, much as appalling conditions in state mental hospitals hammered his former boss, Gov. Edmund G. “Jerry” Brown Jr., in the 1970s. Recent reports about substandard conditions in state-licensed care facilities must have a deja-vu quality for Davis, who was frequently put in the awkward position of having to clean up the media and administrative messes in health care created by his unfocused boss. It may well be Davis’ memory of those years that infuses his achingly deliberate pace, but his caution could blow up in his face.
Last summer, the General Accounting Office (GAO), the investigative arm of Congress, issued a highly critical report on the quality of care in the state’s more than 1,400 nursing homes. Federal investigators found that one-third of them had been cited by state inspectors for “serious or potentially life-threatening care problems.” Many of the cases examined by the GAO involved the “early deaths” of elderly residents whose conditions went untreated.
The report is a sad and seemingly endless litany: patients lying in urine- and feces-soaked beds, bedsores to the bone; patients pleading for help and repeatedly ignored; nursing-home staff reporting therapy that was not provided, falsifying documents, failing to provide fluids and food, refusing to take patients to the toilet, failing to notify physicians or family members about the serious deterioration of patients.
It is troubling but familiar terrain for elder-care advocates like Charlene A. Harrington, a nursing and sociology professor at UC San Francisco. Director of licensing and certification of health-care facilities in the old state Health Department in 1975 and ’76, Harrington is doubtless remembered by Davis, who was Brown’s chief of staff at the time. Harrington was fired by Brown after she “decertified” state-run hospitals because of repeated, egregious licensing violations; parallel efforts to toughen enforcement sanctions against nursing homes were also largely ignored. She recalls that a scathing Little Hoover Commission report on nursing homes nearly a quarter-century ago came up with the same proportion of substandard nursing homes as the recent GAO report. “We’re not regulating the industry,” she says. “We’re not enforcing what is on the books now, and what is on the books is too low.” Much as she did more than two decades ago, she recommends tougher enforcement of licensing and care standards for nursing homes.
She and other elder-care advocates point to surveys showing that only about one-third of nursing-home budgets are spent on patient care, a figure the industry hotly disputes, and that CEO salaries and profits of the big nursing-home chains that increasingly dominate the industry are rising fast. (In 1997, industry revenue was about $5 billion, 70% of which was public funds.) In contrast with CEO compensation, the wages of “certified nursing assistants,” the backbone of the nursing-home industry, average just over $7 an hour. Industry officials agree that staffing and salaries must be improved, but they balk at increased fines.
But stiffer fines–the maximum is currently $25,000–and tougher enforcement are likely to command considerable legislative attention this session, as will efforts to tighten the current appeal process so that fines assessed by licensing inspectors are actually paid. “If you’re going to fine a facility for killing your mother,” says Patricia L. McGinnis, executive director of California Advocates for Nursing Home Reform (CANHR), “make it $100,000, not $25,000. My God, you can leave someone naked and tied to a wheelchair and you get a $500 fine. There are higher fines imposed for killing a dog in California.”
Recognizing the expanding universe of elder care, advocacy groups like CANHR and the American Assn. of Retired Persons are devoting more and more resources to other forms of in-home and residential care beyond the state’s nursing homes, which have beds for 120,000. As the population ages, the political climate may finally be ripe for major reform. As Californians increasingly “age in place,” that is, remain in their own homes as long as possible, services must become more available, affordable and safer. State law only recently required that nursing assistants and home health-care aides have criminal-background checks, but nonmedical, county-based In-Home Support Services personnel, funded by the state and federal governments, have no such requirement.
Criminal prosecutions involving elder abuse are increasing in frequency, and the state attorney general’s office is likely to step up such prosecutions in nursing homes through its Medi-Cal Fraud Bureau, which filed few cases under former Atty. Gen. Dan Lungren but is expected to have a much higher profile under Bill Lockyer. At the local level, prosecutors say it’s often pure happenstance when a case comes to the attention of law enforcement. Although some cases involve murder or assault by family members, other “caregivers” and nursing-home employees, more and more cases grow from financial exploitation of seniors, often in their own homes.
If stepped-up criminal prosecutions and increased state sanctions don’t stimulate nursing-home reform, civil suits and the threat they pose to companies’ bottom lines may be the spark. The California Supreme Court, in a landmark decision last week, upheld lower-court decisions awarding nearly $400,000 to the family of 88-year-old Kay Delaney, who died in 1993 at a Lake County nursing home after suffering from severe bedsores and lying in her own waste. In the unanimous ruling, justices raised the financial-liability limits of health-care providers that recklessly endanger the elderly. Also last week, the family of 75-year-old Ruth Witten, who choked to death last November in a nursing home near Sacramento, filed suit, contending that chronic understaffing at the Roseville Convalescent Hospital led to her death.
Fortunately, there are some signs that Davis is taking up health care. Early on, the governor named Grantland Johnson, a former federal health administrator and Sacramento County supervisor, as his health and human services secretary. “We have to look at tougher and more effective enforcement,” Johnson says. “We can be tough on the books, but if it’s not effective, it’s meaningless.” Johnson added, “It’s going to take us a while to settle on a methodical approach to this.”
But nursing-home and other residential care for the elderly has been the subject of countless state and federal hearings and reports over the decades. There are mountains of data pointing to horrific suffering and early deaths in nursing homes. The last thing elder-care reform needs is a “methodical” approach, which generally, in the language of government, means it will take a lot of time–a luxury Davis does not have.
Sigrid Bathen is senior editor of the California Journal, a monthly magazine about politics and government.
