Skilled Nursing Homes: Care Without Dignity (Report #109, April 1991)

 

Executive Summary

One of the State's most pressing obligations is to provide protection for its citizens who cannot help themselves. Nowhere is this need more evident than among the frail elderly who can no longer live independently and who need constant care. Close to 120,000 Californians are spending their final days in 1,200 skilled nursing facilities that are licensed, regulated and monitored by the Department of Health Services. The State's ability to perform effectively, efficiently and uniformly in its actives concerning skilled nursing facilities crucial to their quality of life and, in some instances, may be a matter of life and death for these vulnerable citizens.

Under its mandate to investigate state programs and promote effective and efficient methods to meet the policy goals of those programs, the Little Hoover Commission since 1976 periodically has examined the Department of Health Services' role in regulating skilled nursing facilities. Based on a series of reports, the Commission has fought successfully for legislative reforms that have brought improved standards for the state's nursing homes. But what is so troubling for the Commission is that despite these legislative victories there are continuing and persistent indications that the system is still faltering and the elderly are still being subjected to abuse and neglect.

In the course of the study that led to this report, the Commission received complaints about the state of skilled nursing home care from a variety of sources:

* Ombudsmen who worry that there are too few in their ranks to act effectively as "the eyes and ears" that are needed to monitor all state-regulated institutions for the elderly. They also report that complaints to the state investigators about various facilities don't always yield results, leading to discouragement and distrust of the State's commitment to enforcing regulations.

* Advocacy groups that are frustrated by the ineffective safety net that ombudsmen are providing seniors, are convinced the State licensing process is to closely aligned with the nursing home industry to act effectively as a policing agency.

* Despite laws and regulations directed at providing comprehensive consumer information, family and friends of nursing home residents say they don't know where to turn with the complaints and demands for better treatment.

* The nursing home industry, which argues strongly that more and better care can only come with higher payments that will allow homes to attract better staff through higher pay, reduce employee turnover and provide more direct caregiving.

In this report, the Commission addresses these concerns, evaluating the State's posture regarding major federal nursing home reforms, exploring the issue of a patient's right to informed consent before physical or chemical restraints are used, and revisiting the State's troubled system of citations and fines.

 

Federal Reforms

One of the most comprehensive reform packages for skilled nursing facilities was passed by Congress in December 1987, with a full implementation date set for October 1, 1990. Adopted as part of the Omnibus Budget Reconciliation Act of 1987 (OBRA 87), these federal reforms radically altered requirements for Medicaid- and Medicare- licensed nursing homes, focusing on improving the quality of care and the quality of life for nursing home residents.

Initially, California refused to comply with OBRA 87, arguing that its own laws and regulations effectively meet the intent of the federal reforms. The State dismissed the procedures outlined by the federal government's Health Care Financing Administration as little more than added paperwork that would cost upward of $400 million without adding anything to the quality of care. As this report was being written, a complex dance of court cases, administrative hearings and threatened funding sanctions was being performed with the final resolution still up in the air. In that context, the Commission reached the following finding and recommendation:

Finding #1 California has failed to implement nursing home reforms dictated by federal law, and in so doing has threatened the health, safety and well-being of an unknown number of nursing home residents and jeopardized the State's federal Medi-Cal funding.

Recommendation #1 California should take immediate steps to implement federal nursing home reforms in the manner prescribed by the Health Care Financing Administration.

Despite the State's persistent claims to be equivalent to or beyond the standards set in OBRA 87, there is substantial evidence to the contrary. Well-founded complaints continue to reach the Commission at a rate that belies the State's insistence that nursing homes are producing quality care. It is clear to the Commission that nursing home operations do not meet the new federal standards either on paper or in reality. Rather than finding ways to get around OBRA 87, the State should move aggressively to meet the federal mandates and improve the chances for better care for nursing home residents.

 

Informed Consent

The use of both chemical and physical restraints in skilled nursing facilities is a key quality-of-care issue for patients, their families and the industry. The industry frames the issue in terms of safety for residents who might harm themselves or others and maintains that alternatives to using restraints would greatly increase costs. Residents and their families object to drugs that leave the recipients little more than zombies and physical restraints that restrict mobility and lead to bedsores. For many people, in the end, the issue is one of rights: should nursing home residents have the same right to control their own treatment that exists for others in the state, including the mentally ill, the developmentally disabled and those who are incarcerated?

Although California has a nursing home patient's bill of rights that states that a resident is free to assume risks, it is also stated that this must be balanced against the responsibilities of the facility to provide patient care. There are no specific statutes or regulations that detail how a resident can give or withhold informed consent to the use of physical and chemical restraints.

The result of this silence on the part of the State has been a widespread reliance on physical and chemical restraints in nursing homes and a corollary widespread frustration on the part of residents and families who seek to control their own destinies. In addition, there is a substantial body of evidence that the use of physical and chemical restraints may seriously impair the quality of life for the elderly and may even shorten it.

Regardless of whether one believes restraints are necessary or are inhumane, federal law clearly prescribes a move away from the wholesale use of restraints. Under the Omnibus Budget Reconciliation Act of 1987 (OKRA 1987), patients are guaranteed freedom from the use of restraints that are imposed for reason of discipline or convenience ant not for treatment of medical symptoms. Restraints are not to be used except to ensure the physical safety of the resident or other residents, and then only upon written order of the physician, specifying the duration and circumstances. Patient involvement in and consent to treatment plans is also a key requirement.

After reviewing data on the use of chemical and physical restraints, the patterns of use across the country, anecdotal evidence and other material, the Commission reached the following finding and recommendations:

Finding #2 The Department of Health Services has failed to clearly define a skilled nursing facility resident's right to give or withhold informed consent for physical and chemical restraints.

Recommendation #2 The Governor and the Legislature should fulfill federal nursing home mandates by guaranteeing residents who participate in treatment planning and to grant or withhold informed consent for physical and chemical restraints.

Recommendation #3 The Governor and the Legislature should restrict the use of " as needed" prescriptions for medications that are subject to abuse in nursing homes.

Recommendation #4 The Governor and the Legislature should direct the Department of Health Services to create Medi-Cal drug approval system that will meet the needs of long-term care patients.

Recommendation #5 The Department of Health Services should gather statistics annually on the number of nursing home residents who are physically or chemically restrained and on the number who are incapable of giving informed consent and have no representative to make decisions on their behalf.

The central issue regarding physical and chemical restraints is one of human rights. In some cases, restraints may be the best choice and the optimum treatment, but the resident should have the ultimate say in how his life is shaped and controlled. Only an informed consent procedure that gives the resident a clear picture of the risks and the benefits, and then gives the resident control over his destiny, will safeguard dignity and the quality of life for the elderly in their last years.

Citations and Fines

From the time of its first study on skilled nursing facilities in 1983, the little Hoover Commission has pressed hard for a meaningful system of citations an fines to out teeth into the State's efforts to control the quality of care provided to the elderly. One of the Commission's prime accomplishments was the creation in 1985 of a new citation class for nursing home actions that contributed to the death of a resident ("AA" citations), increases in other allowable fines and the authority for the State to treble fines when violations were repeated within 12 months.

Seven years later, however, the Commission continues to find evidence that the State enforcement efforts are uneven and that the perception persists that citations and fines can be bargained away and are rarely paid. When fines are routinely dismissed, negotiated away or are not pursued when appealed, the system loses its credibility and those who should be able to rely on the system for protection lose faith in the State's willingness and ability to enforce its standards.

A review of the system of inspections, citations and fines shows it has been undermined by massive amounts of uncollected fines, a pattern of non-responsiveness to complaints, and some systemic barriers to efficient and effective enforcement. The Commission reached the following finding and recommendations:

Finding #3 California's citation and fine system has not proven effective as a deterrent to poor quality care in skilled nursing facilities.

Recommendation #6 The Governor and the Legislature should reform the citation and fine system to streamline the process and increase its deterrence value.

Reforms that should be included are:

* Instead of halving fines if facilities pay without appealing them, set up a system in which fines automatically double if the facility chooses to appeal and then loses.

* Do not allow "B" fines to be waived if they are corrected within 12 months. If violations gave occurred that affect patients, fines should be paid.

* Allow fines to be increased in Citation Review Conferences if new information is presented or discovered at the hearing.

* The process of appeal should be shifted to the skilled nursing facilities rather than leaving the burden with the State once the facility has given notice that it wants to appeal the fine. The facility should have 90 days to file an appeal in court.

Recommendation #7 The Governor and the Legislature should direct the Department of Health Services to investigate and respond to complaints promptly and to keep complainants informed of all steps taken.

Since 1985 when the citation and fine system was overhauled, the State attempted, with varying degrees of success, to enforce its laws and regulations regarding the care that should be provided in skilled nursing Facilities. The joint problems of uncollected fines, non-responsiveness to complaints and some systemic barriers have contributed to a perception that the State is not committed to ensuring the highest quality of care. The State needs to take aggressive steps to race that perception and to safeguard the health and well-being of the State's elderly.

 

Conclusion

California enjoys a perennial reputation as the center of youth culture. But this does not mean the State should be known as a place where old or deteriorating people are shoved aside, disregarded and abandoned. The State should be a haven for all of its citizens, including the elderly who can no longer care for themselves and whoa re in their declining days, months and years. After a rigorous examination of the State's regulation of skilled nursing facilities, the Little Hoover Commission is forced to conclude that this is not the case for far too many of this frail and helpless population.

The Commission recommends embracing federally mandate reforms, ensuring the right to informed consent before chemical and physical restraints are used and adopting a more vigorous enforcement policy for citations and finds. By following the recommendations in this report, the State can move into a new era of care for nursing home residents, one where human dignity and concern for the quality of life is emphasized and protected for all the State's vulnerable elderly citizens.