‘Huge conflict of interest.’ California nursing home inspectors balk at new state mandate

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By Ryan Sabalow and Jason Pohl, The Sacramento Bee, August 24 2020

California is asking nursing home inspectors to take a more cooperative approach with the hundreds of facilities they regulate — something akin to a consultant role to help the disease-battered industry comply with health and safety laws, according to interviews and documents reviewed by The Sacramento Bee.

State inspectors who would normally issue citations and enforce rules about hand-washing, bedsores and other dangerous living conditions would shift some of their duties from cop to coach, from regulator to collaborator in a plan that state officials have called “regulatory reform.”

For some state inspectors interviewed by The Bee, the shift is alarming. Many fear they’ll be expected to increasingly coddle the largely for-profit industry rather than regulate the facilities in the way they’ve been trained for years. Inspectors and advocates say now isn’t the time to soften and retool the regulatory system for nursing homes.

“It’s just going to result in ongoing ineffective monitoring of adult abuse and neglect,” said Dr. Teresa Palmer, a geriatrician from San Francisco whose 103-year-old mother is in a nursing home.

The federal government last week gave nursing home inspectors the green light to go back inside facilities and resume routine inspections that have been on hold because of the COVID-19 pandemic. Inspectors with the California Department of Public Health will enter facilities with a new mandate for how they monitor an industry that has borne the brunt of the country’s public health disaster.

More than 22,500 residents in California’s nursing homes have tested positive for COVID-19, with the virus contributing to the deaths of at least 3,800 residents. About one-in-three COVID-19 deaths in California have been from nursing homes, a trend that is mirrored around the country.

It’s unclear how stricter regulatory enforcement — which has long existed — has helped bring down death tolls in nursing homes. The federal government claims that highly rated nursing homes with stronger inspection ratings have fared better. Academic research, however, suggests disastrous outbreaks in nursing homes were more the result of the virus’s rampant spread in the community rather than health violations uncovered by inspections.

Five inspectors for the California Department of Public Health spoke to The Bee on the condition of anonymity because they were worried about retaliation. They are calling the new California policy — originally suggesting inspectors should “adopt” a skilled nursing facility — yet another example of the industry having outsize influence over regulators.

“We’re all for keeping the residents safe, and we know as public health agents, that is our job,” said one inspector. “But ‘adopting’ a (nursing home) is completely wrong and goes against everything we’ve ever been taught.

“We’re not even supposed to take a glass of water from anybody in the facility, let alone consider adopting grandma and grandpa. That is a huge conflict of interest.”

“They’re just trying to roll out something that’s more conducive for those money gougers and the owners of the facilities to just make money and not be cited and not be penalized,” another inspector said.

Officials with the Department of Public Health said in a written statement that their adopt-a-nursing home proposal “was one of many concepts discussed early in the pandemic and discarded after conversations with staff and stakeholders.”

“An updated duty statement is being finalized, and inspectors will continue to perform enforcement and regulatory duties as is their primary role,” the agency said in an unsigned statement emailed from its public affairs office.

Shifting workload more toward collaboration

Critics say the agency merely scratched out its controversial “adoption” plan. Inspectors are still fighting the change to their job duties. And documents show the latest change still encourages a closer relationship between regulators and administrators — collaboration would account for 30% of their job duties under the proposal rather than the 10% under a 2017 job description.

“A primarily punitive model misses an important real-time opportunity to provide immediate feedback,” the department wrote in an executive summary describing its new “cooperative approach,” where “everyone participating, including the surveyor, facility leadership and staff, will do so with the presumption of good intent.”

Tony Owens, vice president for bargaining of SEIU Local 1000, which represents the inspectors, said the state dressed down the words but is still forging ahead with a plan that could be a conflict of interest.

“The concerns are still there; there’s nothing they’ve said or done that makes me feel like they’re moving away from that,” Owens said.

In 2018, a state audit slammed the state Department of Public Health for putting patients at risk by not fulfilling many of its oversight responsibilities, leading to a troubling increase in cases of substandard care at nursing homes. The health department refuted many of the auditors’ findings.

Nursing homes have long had problems with residents getting sick or falling ill from infections. Inspectors cited approximately 82% of California’s roughly 1,200 nursing homes with some sort of infection prevention and control violation in the past two years, a Sacramento Bee review of state and federal data found earlier this year.

The overwhelming number of those violations are relatively minor missteps — in normal times — like failing to wash hands or improperly handling food trays, but inspectors those years cited 18 nursing homes for serious violation of infectious disease rules that put residents in “immediate jeopardy.”

Patient advocates said the problem with nursing homes isn’t that they need coaching to better understand regulations; it’s that too many for-profit nursing facility owners would rather shirk training, keep staffing levels low and workers underpaid because they make more money that way.

“There needs to be some skin in the game,” said Leza Coleman, executive director for the California Long-term Care Ombudsman Association. “That’s a big part of the fallacy of the argument that ‘If we send Public Health in, then the staff are going to listen to them.’ The staff are not going to listen to them. (They’re) going to listen the person signing (their) paycheck.’”

Asking for a ‘continuous presence’ in nursing homes

Earlier this summer, the Department of Public Health announced nursing home inspectors would be required to participate in a new program called “Adopt a SNF” (short for Skilled Nursing Facility).

Officials said at the time that the program would “reform” nursing home oversight by ensuring inspectors had a “continuous presence” in facilities. That, they said, would create a more “consistent compliance culture.”

Instead of having inspectors visit nursing homes purely with an eye on documenting deficiencies and issuing citations, each inspector would be assigned facilities where they’d continually work with administrators and staff to address problems.

The proposal has support from the nursing home industry.

“Right now, surveyors go into nursing homes looking for problems. What if they went in looking for solutions?” said Deborah Pacyna, a spokeswoman for the California Association of Health Facilities, an industry group representing about 80% of the nursing homes in the state.

“The model appears to encourage dialogue to improve patient care and does not remove the ability to issue a citation,” she wrote in an email.

The industry-supported change follows a July Sacramento Bee investigation that found Craig Cornett, the trade group’s CEO, had access to high-level officials within the health department as the pandemic began ravaging nursing homes.

Separately, the California Supreme Court handed a win to nursing home operators Monday when it decided a years-old case. The court ruled that residents harmed by a facility’s failure to comply with multiple safety standards can collect only one $500 penalty — not penalties for each violation in the event there are several, even hundreds. A jury may also award damages for negligence.

The inspectors’ new job description says nearly one-third of their time will be “to assist health care facilities with regulatory actions and processes,” according to a copy of the inspectors’ most recent duty statement.

Inspectors also would be required to “advise and assist health care facility administrators in matters relating to the state requirements for inspections, licensing, construction and operation” of their facilities.

Many nursing home inspectors are appalled. They say they’re prohibited from taking a consulting or advisory role because of federal law, the 1987 Nursing Home Reform Act.

Passed to address widespread reports of abuse, neglect, and inadequate care, the inspectors say it also contains a provision that prevents consulting to ward off inspectors having too chummy a relationship with administrators.

“Enforcers cannot work as advisors at the same time they’re enforcing for obvious reasons,” one state nursing home inspector said. “It’s a huge conflict of interest…. We are regulators and enforcers. We went to an academy in Sacramento to learn how to regulate, and part of regulation is not advisement.”

Few visitors in nursing homes

Heidi Steinecker, deputy director of healthcare quality at the California Department of Public Health, didn’t address the proposal at a legislative oversight hearing last week. She originally told lawmakers about the changes in June.

But Steinecker said her department has been diligent in fighting COVID-19 at nursing homes and it will continue to be.

She said COVID-19-related checks targeting infection prevention and control at the facilities have had inspectors “on site more than ever.” (The federal government only last week gave the go-ahead to resume routine inspections, and inspectors have recently used video platforms like Zoom or Facetime to check in with facilities, in addition to in-person visits focused almost entirely on infection prevention.)

“In the three months between April and July, we were on site 1,000 times more than we were in the prior year,” she said. “That kind of cadence and oversight and boots on the ground in the facilities, I believe it has made a difference. And this is exactly why, as we look at regulatory reform … that’s a big part of the push for DPH to continue that going forward.”

The proposed changes in inspectors’ job duties come as the state’s nursing homes and families who depend on them have been upended as the coronavirus sickened and killed the state’s most vulnerable residents at a shocking rate.

To try to prevent the infection from getting inside nursing homes, families have been barred since March from visiting relatives inside, though in the last few weeks some facilities have allowed limited outdoor visits.

Administrators have had to craft COVID-19 prevention plans, facilities have been told to bolster their infection protocols, and they’re required to report their staff and patient testing schedules to officials. The state deployed infection control “strike teams” to the hardest-hit facilities, provided them with personal protective equipment and even paid for healthcare workers’ lodging, state officials said.

“When or if these intervention issues fail to correct any infection control issues at a facility, we take enforcement actions, the Department of Public Health said in its unsigned statement.

But family members say that’s not enough.

“Most of these people don’t even have a voice,” said Scott Akrie, whose father died in April from COVID-19 he caught at a Bay Area nursing home. “A lot of these people haven’t even had anybody advocating for them for months because nobody’s been in a position to.”

Some inspectors said that they were encouraged not to cite the facilities during the pandemic and were instead ordered to only look at infection-control issues, though state officials insist there was no edict to not issue penalties.

“We have people that saw egregious things like people arriving at a facility, and all the staff are outside totally covered in PPE, gowns, gloves, shield and everything out in the parking lot. Just conjugating,” one inspector said. “That would have been what we called an ‘immediate jeopardy’-type situation where there’s a potential for harm.”

With family members blocked, fewer complaints

Officials have been fielding fewer complaints, but not because patients are necessarily getting better care.

The Sacramento regional Ombudsmen’s office that works as official advocates for people in nursing homes received 97 complaints last month. It typically sees well over 100, said Sergio Landeros, a program manager with the state’s Long-term Care Ombudsman Program.

The decline is because family members are still blocked from facilities and unable to see potential abuse or neglect that might otherwise be reported. Some California counties also continue to prevent members of the state’s Long-term Care Ombudsmen Program from entering.

Landeros said he considers his team of six field representatives who look into complaints as advocates for families and nursing home residents. Their goal is to see problems resolved.

Ombudsmen do not have enforcement powers, and Landeros says that responsibility falls squarely in the realm of CDPH, which is why he’s troubled by the change in inspectors’ job description.

“Regulators should remain regulators,” Landeros said. “It almost kind of leans toward a conflict of interest. It sounds like you’re siding with the facility.”

But concerns about bribed surveyors covering up damning findings during an inspection are likely overblown, said Patricia Stone, centennial professor of health policy at Columbia University’s School of Nursing.

“If that’s the case, then the surveyor needs to be fired,” Stone said. “That’s a bad surveyor.”

There are other sources of data that indicate how well-run a facility is beyond just regular inspection reports and sanctions. Administrators report payroll data that watchdogs use to measure whether enough employees are caring for residents. Filed and substantiated complaints and investigations can reveal how a facility is functioning. And surveyors can still issue citations and penalties.

More collaboration, especially in smaller facilities that are not part of nursing home conglomerates, might actually improve residents’ quality of life, Stone said. That said, the state needs to strike a balance between collaborator and regulator.

“It shouldn’t just be this driver’s ed test where at the end they say, ‘You failed,’ ” Stone said. “They need that feedback. They need to know how to do those best practices.”

“This feels like it’s going in the right direction.”

But patient care advocates say the state should be hiring more inspectors and ramping up enforcement of an industry that has long been plagued with problems such as inadequate staffing and poor infection control practices even before the pandemic began.

“One of the problems is that a lot of the state’s inspections, even for complaints that are egregious, the state comes in and can’t sustain them, either because so much time has passed, or they didn’t catch someone in the act,” said Palmer, the San Francisco geriatrician.