Overhaul of assisted living faces hurdles

This story originally appeared in the U-T San Diego.

A group of 15 bills to toughen state oversight of California’s assisted living industry is facing new challenges from owners of small facilities who say the measures would cause homes to close, leaving seniors with fewer options.

The bills had been speeding through the Legislature, following reports of problems in facilities around the state.

In San Diego County, at least 27 seniors died due to neglect or abuse over a five-year period in local homes, U-T San Diego and the CHCF Center for Health Reporting found in a joint investigation last year.

Now the bills must overcome several obstacles when the Legislature reconvenes Monday.

A newly formed group, 6Beds Inc., contends that many of the reforms would be too onerous for small, less expensive facilities. The group, representing owners and staffs at small homes, has hired former Assembly Minority Leader Robert Naylor as its lobbyist. It plans a rally Tuesday at the Capitol.

After lopsided favorable votes in Senate and Assembly committees, many of the bills now must pass muster in appropriations hearings where funding questions often derail measures every August.

Gov. Jerry Brown has not taken a position on the package overall. Last week he signed a related bill that would facilitate creation of patient councils at the homes.

Brown’s budget provided for a 7 percent staff increase for the Department of Social Services, which regulates 76,000 community facilities, including assisted living, adoption agencies and day care centers. None of those new jobs are targeted specifically for assisted living oversight.

“The intent was to strengthen the enforcement and the oversight of all facilities that Californians depend on,” said Pat Leary, senior deputy director of Social Services.

One of the bills’ chief advocates, Patricia McGinnis, said she is disappointed that the department is not advocating for specific legislation. McGinnis is executive director of California Advocates for Nursing Home Reform, which is sponsoring 12 of the bills.

She said Brown could say, “We can’t afford to provide such poor care to 170,000 people in California. We have to step up and do something.”

Brown spokesman Evan Westrup said, “Generally, we do not comment on pending legislation.”

Legislators sponsoring the bills argue that reform is needed after a long string of recent deaths, injuries, and sexual abuse in some of the 638 licensed homes in San Diego County and 7,570 statewide.

Perhaps the most high profile bill would raise the maximum fine for major violations, now set at $150. The top fine for a violation causing the death of a resident would rise to $15,000. By way of comparison, the top fine for such a death in a nursing home is $100,000.

The fine increase passed the Assembly in a 78-0 vote and goes to the Senate Appropriations Committee on Monday. Added administrative costs to the state are estimated at $200,000 to $300,000, excluding unknown costs related to possible appeals. No estimate was put on added revenues from higher fines.

“It’s a very vulnerable population. To think that they’re being treated so negligently that it causes their deaths – and then that it’s a $150 fine – that’s pathetic,” said bill co-author Assemblyman Brian Maienschein, R-San Diego.

Other bills would:

• Mandate the launch of a state online information system so that consumers can look up detailed ownership and performance records for every facility in the state. The state recently upgraded its site with limited information, but ongoing costs for expanding the system are estimated at $700,000. The Assembly passed the bill 72-1.

• Require homes to have an administrator, manager or trained substitute present at all times. The Assembly passed it 64-1.

• Require homes to carry liability insurance, legislation introduced by San Diego Democratic Assemblywomen Toni Atkins and Shirley Weber, and passed the Assembly 77-0, and the Senate, 32-0, but still faces some legislative hoops before it goes to the governor.

• Increase the frequency of home inspections, now mandated every five years, to a minimum of once a year. The estimated cost is $5 million annually. The Senate passed the bill 36-0.

All 15 bills have won bipartisan support, and McGinnis’ 12-bill package was endorsed in March by the GOP-led San Diego County Board of Supervisors. Most of the bills are backed by the larger assisted living homes, including the 460-member California Assisted Living Association, which agrees certain laws need to be updated. It has co-sponsored Maienschein’s bill to increase fines and a separate bill to lengthen training for home administrators and staff.

“We have an increasing senior population and we have a real crisis of confidence,” said Sen. Marty Block, D-San Diego, who authored two bills to increase caregiver training and raise licensing fees to pay for extra inspections. Following reports of local deaths, more people are reluctant to turn to assisted living, he said, “and there aren’t that many other options to choose.”

Gina Wasdyke, a founder and spokeswoman for 6Beds Inc. who runs a six-bed facility, Oxford Manor, east of Sacramento, said that small homes offering less expensive care are being punished unfairly for the misdeeds of large, corporate facilities.

“How can we provide affordable housing if we pass the costs of the bills along to our residents?” she asked, noting that many of them are lower-income seniors.

Wasdyke calculates that the proposed new rules would cost small homes $11,000 more per month. Most of that would stem from the bill requiring an administrator or manager on the premises 24 hours a day, something larger homes can more easily accommodate, she said.

The group also opposes the bill mandating liability insurance. It is asking legislators either to create a state fund to aid homes in buying insurance or to allow homes not to carry it as long as they disclose that to residents and families.

Currently, if residents die due to poor care, uninsured homes often declare bankruptcy and close, leaving the residents’ families with little if any recourse in the courts.

Wasdyke herself has been issued at least 26 violations for her home, Oxford Manor, since 2008, the agency’s records show.

They include 14 Type A citations, defined by the state as having “immediate health, safety or personal rights impact,” for violations such as some employees lacking dementia or first-aid training and for inadequate care of two patients, one with a pressure sore and the other with a skin condition, the records state.

Two of the violations were repeated — one for caring for a bedridden resident without state permission, and one for a non working auditory alarm — and those second violations resulted in fines of $150 each.

Wasdyke said that she has corrected every violation, and that she applied for permission to care for the bedridden resident.

Denise Johnson, consultant for another industry group, Community Residential Care Association of California, said that she agrees with the measure that would require inspections every year. But she, too, said she is concerned about the bills’ potential impact on small homes.

“If these facilities disappear, it’s limiting choices for potential residents,” Johnson said.

Many seniors who would have been cared for in California’s nursing homes 20 years ago are now in assisted living, which is less expensive and often meets families’ desires for homelike surroundings. But the facilities typically lack staff with medical training and are governed by some rules not updated since 1985.

In the face of increasing demand, state regulators have relaxed rules to allow many homes to care for sicker residents who are bedridden, suffering from dementia or require hospice care.

Last year’s “Deadly Neglect” series in the U-T documented failures by local homes and state regulators to protect residents.

Hundreds of seniors suffered broken bones, life-threatening bedsores, sexual assaults and other injuries, the U-T reported. At least 27 died during those years from neglect and poor care, it found. Inspectors probed 18 deaths and found them preventable, and fined homes in 12 deaths.

Of the 27 residents who died, 11 lived in homes with six or fewer licensed beds, three in homes with seven to 50 beds, five in homes with 51 to 200 beds and eight in homes with 201 or more beds.

Other media highlighted problems elsewhere, including Bay Area news accounts of an abrupt state shutdown of a Castro Valley facility that left more than a dozen seniors in the care of a cook and a janitor.

The findings triggered public outrage in San Diego and the Bay Area, with legislators in both regions responding with the package of bills.

Community advocates say they will continue pressing until the full slate of bills clears the Legislature and Gov. Brown’s desk.

“We cannot let this opportunity go by the wayside,” said Aaron Byzak of San Diego, whose grandmother died last year after being thrown from her wheelchair in a van operated by an assisted living facility in Oceanside. “We can’t wait for another 30 years for somebody to stand up and do something about this.”

The final test looms in coming weeks in a gauntlet of hearings, as lawmakers hear from groups for and against the reform bills and make their decisions. The legislature ends its session by Labor Day.

U-T staff writer Jeff McDonald contributed to this report, as did the Center’s Sarah Hellesen and Tim Greiving.

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