California Nursing Home Inspectors Fight Pandemic-Related Oversight Failures by CDPH

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Without question, the pandemic has been extraordinarily cruel to California nursing home residents. Over 4,000 residents have suffered and died alone from COVID-19, tens of thousands have been infected and residents have been locked away from their loved ones for nearly six months. Making matters worse, the state agency charged with protecting them – the California Department of Public Health (CDPH) – has turned its back on residents time and time again.

In the midst of this unfolding disaster, new voices are emerging to expose problems and seek solutions. One important voice belongs to California nursing home inspectors, who have unique knowledge about the crisis. Unlike almost everyone else, they have been inside nursing homes during the pandemic and have first-hand knowledge of conditions there.

In recent weeks, state inspectors have exposed serious failures at CDPH and fought CDPH’s highly misguided plan to turn them into consultants to nursing home operators. At risk to their jobs, they have repeatedly drawn public attention to problems that endanger nursing home residents right now. Those who are speaking up are providing a badly needed public service by doing so.

Inspectors’ Union Files Unfair Practice Charge Against CDPH

As CANHR has been reporting, CDPH has embarked upon a sweeping plan to undermine the independence and reliability of its inspection program at a time when nursing home residents need rigorous enforcement most. Originally called “Adopt-a-SNF,” CDPH has renamed its plan multiple times, but its core purpose has remained constant: to transform the registered nurses (RNs) it employs as nursing home inspectors into guidance counselors to nursing home operators.

The plan is a long-sought gift to the nursing home industry, whose trade press has described it as “Christmas in July.

A key part of the plan involves major changes to the inspectors’ official job description, called a “duty statement.” Under the revised duty statement, inspectors would spend thirty percent of their time advising and assisting nursing home operators in matters relating to nursing home requirements. On August 26, CDPH directed inspectors to sign the revised duty statement.

Two days later, on August 28, SEIU Local 1000 ­– the union representing Health Facility Evaluator Nurses (the job title for RN inspectors at CDPH) – filed an unfair practice charge against CDPH, claiming its actions were illegal, unsafe and defiant of nursing standards.

The powerful charge is an indictment of CDPH mismanagement during the pandemic and its focus on protecting nursing home operators at the expense of the health and safety of residents and inspectors.

It states “CDPH ignored and rejected valid concerns in favor of an immediate and excessive reliance on HFENs as a staffing solution during a pandemic to repair the broken public health standards at many Skilled Nursing Facilities, some of which have allowed COVID-19 to take many lives.”

Beyond concerns about bad policy and poor management, the charge cites several laws CDPH is violating through the paradigm shift in duties it is trying to force on inspectors. Among them is a state law that prohibits employees who provide technical assistance to operators from participating in inspection or regulation of facilities. Another prevents employees being assigned duties outside of their class. Currently, inspectors are in a class of employees whose primary role is enforcement through inspection, investigation, survey and evaluation for compliance with state and federal requirements.

The charge asks the Public Employment Relations Board (PERB) to order CDPH to cease and desist from imposing the unilateral changes and to take other actions.

Even before the charge was filed, inspectors were speaking out strongly against CDPH’s ill-advised plan. Their views were featured in an August 24 article by the Sacramento Bee: ‘Huge conflict of interest.’ California nursing home inspectors balk at new state mandate, where they expressed alarm that they are increasingly expected to coddle the largely for-profit nursing home industry.

Inspectors Blow Whistle on Lack of Testing

In July and August, the Los Angeles Times reported CDPH did not have a COVID-19 testing program for the inspectors it has been sending into nursing homes for months to ensure the facilities were complying with rules on infection control. Eight inspectors talked to the Times during its investigation of this shocking failure.

The Times’ initial article on July 24 – As coronavirus ravaged nursing homes, inspectors were not being tested – described an inspector reporting she got sick and tested positive for COVID-19 soon after visiting more than a dozen nursing homes in two days. Another stated it was “unconscionable” that inspectors were being sent into nursing homes without testing or screening. Inspectors expressed fear they could be spreading the virus during their visits.

Hours after the story was published, the Times reported Governor Newsom announced the state would launch an aggressive testing regime for nursing home inspectors.

Yet more than a month later on August 26, the Times published a follow-up story – Most nursing home inspectors still haven’t been tested for the coronavirus, despite Newsom pledge – that reported at least 60 percent of inspectors had still not been tested. Inspectors told the Times that instead of developing a designated testing program for them, CDPH directed them to go to Rite Aid or their own doctors like members of the general public. One of them had to inspect a nursing home with a large coronavirus outbreak while she waited six days for the results of her test.

Legislators also raised alarm about CDPH’s dangerously lethargic response. Assemblymember Adrin Nazarian told the Times, “There’s no sense of urgency.”

On August 17, more than a week before the Times’s follow-up article, Heidi Steinecker, CDPH Deputy Director, testified at a legislative hearing that nursing home inspectors were being tested. During that testimony, Assemblymember Nazarian expressed strong concern that CDPH was failing to respond with the urgency needed to protect the lives of nursing home residents.

CDPH Complaint Substantiation Rates Drop to Near Zero During the Pandemic

Inspectors also weighed in for an August 25 article by the Voice of San Diego, Confirmed Nursing Home Complaints Plummet During Pandemic.

According to the article, CDPH data showed that it only substantiated 21 of 739 nursing home complaints it received from March to June 2020, or 2.8 percent. This appalling statistic means that there is almost no chance CDPH will confirm complaints made by residents or the public during the pandemic. When a nursing home complaint is filed, CDPH takes no action against the facility unless it is substantiated.

In more than 97 percent of the complaints that were filed in this period, CDPH found nothing wrong.

How can that be? Although there might be other factors, an important one is that inspectors were told to ignore all but the most extreme violations. A high level CDPH official told CANHR he directed inspectors not to cite violations during the first round of infection control surveys. Inspectors have reported similar marching orders for complaint investigations. Top CDPH officials have spent the pandemic engaged in turning inspectors into consultants.

Throughout the pandemic, CDPH has given inspectors a steady message that they are not expected to cite problems in nursing homes right now.

Perhaps the most stunning aspect of the article was CDPH’s explanation for why it has substantiated so few nursing home complaints during the pandemic. It claimed the pandemic had resulted in “every nursing home making dramatic shifts to properly care for their residents while following regularly updated health regulations and guidance from federal and state entities.”

What does it say about CDPH when its views are indistinguishable from the most outlandish propaganda from the nursing home industry about the quality of nursing home care? That it expresses no concern about the tremendous suffering so many residents are enduring? And that its own inspectors have to fight it to restore its mission and hold it accountable?