Dear Friends,

The email below is from our funding team leader. Not really encouraging news from our hearing yesterday on  AB2555, but we have a lot of support and hope that we can continue to move this forward.

Thank you all so much for your many support letters.  They do make such a difference in these tight situations.

We are deeply appreciative.
Sylvia

Ombudsman Funding Committee

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Hello All,

AB 2555 hit a speed bump at today’s Assembly Appropriations Committee hearing, where it was sent to the Suspense file. Nonetheless, we are very hopeful that it will move forward in a timely fashion due to the tremendous support for the bill.

Mike Feuer made a strong, passionate presentation, stressing that the ombudsman program helps save lives but cannot do so without funding. He advised the committee of the dire consequences if the funding is allowed to run out at the end of June and called for timely action on the bill. Although AB 2555 was sent to the Suspense file, the committee chair, Felipe Fuentes, seemed open to the possibility of taking action before May 27 when bills on the Suspense file are scheduled to be taken up.

Tippy Irwin did a great job as lead witness and was joined by about a dozen supporters and co-sponsors. Co-author Jim Nielsen and Assembly Member Calderon made strong statements in support of the bill and the urgency of its passage. The Department of Finance didn’t have any comments or concerns about the bill and the opponents didn’t speak at the hearing.

We are consulting with Arianna Smith of Mike Feuer’s office about the best way to keep the bill moving forward as quickly as possible and will keep you posted on how you can help.

In the meantime, please continue to urge legislators to support the bill. Please inform legislators in your area about the value of the ombudsman program and the urgency of passing AB 2555 in a timely manner. Please encourage legislators to sign on as co-authors of AB 2555 if they haven’t already done so and express thanks to those who are supporting the bill. Favorable media attention would also be very helpful.

Many thanks to all of you for the great support. Special thanks to the Alzheimer’s Association for making AB 2555 one of its top priorities for its advocacy day today. We are thrilled that 130 of its wonderful advocates worked the Capitol today to promote the bill.

A related item of interest: California Watch published an interesting article today on the pending audit and DPH’s failure to collect nursing home fines. See below. Additional information is posted on the California Watch website.

http://californiawatch.org/watchblog/why-state-only-collecting-one-third-nursing-home-fines

Why is state only collecting one-third of nursing home fines?

April 21, 2010 | Christina Jewett

California lawmakers have called for an audit exploring why state regulators are collecting only about one-third of the fines they have levied against nursing homes in recent years.

A legislative committee unanimously approved the audit in February. It is expected to look at how the funds that were collected have been spent in light of laws that say the money should be used to protect the health of residents in nursing homes.

“The whole point of having citation accounts and the penalty system is to deter nursing homes from doing anything but provide the highest quality care to residents,” said Mike Feuer, D-Los Angeles, one of 10 lawmakers who signed a letter calling for the audit. “If the fines coming in are less than a third of (those) issued, it leaves one to wonder if the state is being as effective as it could be in protecting nursing home residents.”

The Department of Public Health has levied fines in recent years after workers hit patients, stole from them or left them languishing in dirty diapers.

Records released to California Watch under the Public Records Act show that the state’s fine collections are falling behind. In 2005, authorities had collected 60 percent of the fines they levied, about $1.8 of $3 million.

However, by 2008, authorities collected a smaller portion of the fines, about $1.5 million of $5 million that had been assessed, or less than 30 percent.

In contrast, the same state department, the Department of Public Health, has collected nearly 80 percent of the fines it levies against hospitals that fail to report preventable errors, records show.

Kathleen Billingsley, deputy director of the Department of Public Health Center for Healthcare Quality, said in an interview that her office has hired 95 inspectors since 2006 who complete the inspections and have issued a rising number of citations.

Billingsley said nursing homes have the right to appeal fines and do not have to pay until the process is completed in administrative and state courts. When nursing homes are faced with a final fine amount, the department is equipped to force many nursing homes to pay, she said.

The department can garnish a nursing home’s Medi-Cal payments to collect unpaid fines, leverage it holds over 75 percent of the state’s nursing homes that accept low-income patients.

The state, however, writes off unpaid fines if a facility goes bankrupt, changes ownership or does not accept patients through the Medi-Cal program, a spokesman said.

While the appeal process delays fine collections, there are other reasons nursing homes don’t pay the full amount. In 2007, records show, half of the $4 million in nursing home fines issued were categorized as “allowable adjustments.” That means homes may have qualified for a 35 percent discount allowed under law for homes that pay promptly.

In other cases, an administrative law judge or mediator pares down a fine, a scenario that is becoming increasingly common. Since 2005, the number of cases that nursing homes appeal has doubled, from 110 to more than 220 in 2008, Department of Public Health records show.

Critics of the waning fine fund point to a 2004 law that gave nursing homes a powerful incentive to fight the penalties. That law, AB 1629, overhauled nursing home funding and allows nursing homes to bill the state for legal fees spent fighting citations.

It’s a scenario that Sen. Elaine Alquist, D-Santa Clara, calls a “perverse incentive.” Other advocates call it outrageous and scandalous. “It undermines everything,” Alquist said. “We know that enforcement really needs to improve.”

And even as more nursing home owners are appealing more cases, they are seeing settlement proceedings end with deeper and deeper discounts. Authorities knocked $320,000 in fines down to $20,000 for one Los Angeles County nursing home, according to Department of Public Health data and citation-review-conference records.

Those fines were accumulated after workers turned off an alarm to a ventilator, an action that prevented workers from immediately realizing that a 90-year-old patient was disconnected from her breathing tube and was slipping away, records show.

Workers at the same home were cited 11 more times for continuing to dismiss the ventilator alerts, records show. Those citations each carried a $20,000 fine, but each was dismissed in an appeal hearing.

Lydia Sainz, administrator of Casa Bonita Convalescent Hospital, said the eventual dismissal of the bulk of the fines was the appropriate outcome. She said she felt the state reacted harshly under pressure from the outspoken family of the 90-year-old who died after her ventilator alarm was turned off. And she said the nurses who later dismissed other alarms did so when patients were in no distress.

Sainz said the state’s efforts to penalize the facility were a poor use of public funds. “It’s really sad because it’s hard to work in places like nursing homes and then you get a bad (reputation),” Sainz said. “It’s really hard for the nurses.”

Other observers, commenting generally on the state’s waning rate of fine collections, see the trend as evidence that nursing homes face little accountability if their actions or inactions harm patients.
“As long as facilities know there’s no punitive damage, nothing will change,” said Joan Parks, manager of the nonprofit Ombudsman Services of Northern California.

The Bureau of State Audits report on the nursing home fine fund is expected to evaluate the laws and rules governing the state’s collection of the fines and recommend better ways to go forward.

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Michael Connors
Advocate
California Advocates for Nursing Home Reform (CANHR)
Tel:  415/974-5171
Fax: 626/796-6256
Email: michael@canhr.org

Visit our web site at http://www.canhr.org

To help support our efforts, please visit:
http://www.canhr.org/help.html

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Joan S. Parks,
AdministratorOmbudsman & HICAP Services of Northern California
3950 Industrial Blvd. Suite 500
West Sacramento, CA 95691
916/375-3307Fax 916/376-8914
jparks@osnc.net