At a nursing home in Los Angeles last year, a nurse鈥檚 aide was giving a resident a bed bath when she noticed something moving around his feeding tube. When she looked closer, she saw maggots crawling from underneath the tube鈥檚 dressing.
Another nurse noted that the patient鈥檚 tube 鈥� inserted into his stomach to provide nutrition 鈥� 鈥渉ad not been cleaned鈥� and 鈥渇lies are always in the building.鈥� There was no record of the feeding tube being cleaned for 23 days, a
Already paralyzed from a stroke and suffering from COVID-19 pneumonia, the 65-year-old man contracted a serious infection and landed in the hospital.
The California Department of Public Health, which regulates nursing homes, investigated and in September 2020 , concluding that the patient鈥檚 care at Longwood Manor Convalescent Hospital was so deficient that it could have killed him.
But the nursing home鈥檚 operator, Longwood Enterprises, Inc., has sued the state to overturn the fine, saying the alleged violations were not serious enough to merit the amount, according to a filed in Los Angeles County Superior Court last December.
Over the past 18 months, Longwood Manor has sued the state four times in an effort to overturn fines and violations alleging poor care of its patients, according to court records.
The company鈥檚 lawsuits are among at least 433 appeals that nursing homes have filed against the state health department since 2016, according to a CalMatters analysis of . Nursing homes appealed more than 60% of the state citations involving a patient death and nearly half of the citations involving significant patient harm or threat of harm.
At Longwood Manor, in addition to the maggot case, the health department since 2017 has reported that a mentally-impaired woman was by another patient, a resident repeatedly and required a trip to the emergency room, and a patient and spent nine days in intensive care. The nursing home , out of a possible five stars, from the federal government.
The California Department of Public Health declined to grant interviews or discuss its process or criteria for deciding when to downgrade citations and fines.
In court documents for the maggots case, Longwood Enterprises called the state鈥檚 $60,000 penalty 鈥渁rbitrary, capricious and lacking in evidentiary support.鈥� Elizabeth Tyler, the company鈥檚 attorney, said she was 鈥渘ot in a position to talk about the facts鈥� in the case, and described the other three incidents as unforeseeable. Tentative settlement agreements between the state and Longwood have been reached for three of the lawsuits, according to Los Angeles County Superior Court records.
The state health department settles many nursing home lawsuits, downgrading some of its most severe sanctions for deadly and dangerous incidents to less serious violations and lower fines, CalMatters鈥� analysis shows.
Between 2016 and 2020, the state downgraded and reduced fines of 14 of 45 citations involving the death of a resident after nursing homes sued, according to CalMatters鈥� analysis. Some of the facilities had chronically poor safety records. These 鈥淎A鈥� citations carry fines of up to $100,000; two were slashed to $20,000.
State regulators also downgraded about 12% of 鈥淎鈥� penalties 鈥� which involve actual or probable serious harm to patients 鈥� that nursing homes have taken to court since 2016. These violations carry fines of up to $20,000.
California is unusual in its requirement that nursing homes sue in civil courts to overturn citations and fines, due to a 1973 state law. Other states have state regulators or administrative judges handle appeals.
The California Department of Public Health declined to grant interviews or discuss its process or criteria for deciding when to downgrade citations and fines, and there are no public records on individual cases that explain their decisions. The department only provided an unsigned, emailed statement saying that its decisions are 鈥渂ased on the individual facts of the case鈥� and information that emerges during appeals.
The maggots incident is a sign of a 鈥渟ystems breakdown, a violation of the right to quality care.鈥�LORI SMETANKA, NATIONAL CONSUMER VOICE FOR QUALITY LONG-TERM CARE
The state has downgraded more than 600, or almost a quarter, of the more than 3,000 citations issued to nursing facilities over the fire-year period for all violations, from the most serious ones involving deaths to records falsification, short staffing and data breaches, according to the health department鈥檚 statement.
A Nov. 19 indicates that a 鈥渟ettlement agreement is under final review鈥� in Longwood Manor鈥檚 appeal of the state sanctions imposed for the patient who had a maggot-infested feeding tube. No additional information was included.
The maggots incident is a sign of a 鈥渟ystems breakdown, a violation of the right to quality care,鈥� said Lori Smetanka, executive director of the National Consumer Voice for Quality Long-Term Care, an advocacy group.
Imagine, she said, 鈥渉ow that person and their family felt. There鈥檚 nothing okay about that. That (Longwood Manor) should be excused from that is really outrageous.鈥�
Patient names in investigation reports are redacted for privacy, so it is unknown whether the patient survived the maggot-related infection.
The courtroom battles hold high stakes for nursing homes: their profits and even outright survival. State regulators have the authority to cut Medi-Cal payments or revoke the licenses of nursing homes that receive too many citations too quickly, just as drivers can lose their licenses after too many traffic tickets.
Nursing homes consider these fines and the legal costs of contesting them as 鈥渏ust the cost of doing business,鈥� Smetanka said.
Suing the state is the only process that Longwood Manor and other nursing homes are allowed to pursue in California to appeal certain violations and fines, said Elizabeth Tyler, Longwood Manor鈥檚 attorney.
The lawsuits provide a 鈥渟afeguard to ensure these serious allegations against health care providers are carefully evaluated,鈥� she said. 鈥淭he idea that just because you鈥檙e a nursing home you should take your lumps rather than explore defending your reputation鈥� in court, 鈥淚 find that troubling.鈥�
As of mid-September, the state was defending 194 lawsuits by nursing homes. The companies do not have to pay fines until their appeals, which can take years, are exhausted.
鈥淭he idea that just because you鈥檙e a nursing home you should take your lumps rather than explore defending your reputation (in court), I find that troubling.鈥�ELIZABETH TYLER, LONGWOOD MANOR鈥橲 ATTORNEY
Of the roughly $23.3 million in fines California has levied on skilled nursing facilities since 2016, about 25% remains unpaid, mostly from still-open cases.
Reports of and delays in penalties date back at least several years in California.
A found that the state health department lagged in inspecting and citing facilities for violations and failed to ensure that they met quality-of-care standards. The average age of the pending investigations of violations nearly doubled between January 2019 and March 2020, according to an auditor鈥檚 .
A new law takes aim at fines and appeals
In 2008, a Marysville nursing home appealed a state 鈥淎A鈥� after an 84-year-old woman with Alzheimer鈥檚 disease was found dead with her head stuck between her bed and a bed rail. An autopsy showed that her larynx had been compressed and fractured, according to the citation.
In the state鈥檚 report, a nurse inspector for the state agency wrote that the patient 鈥渨ho was totally dependent for all activities of daily living, choked to death on the side rail while she was unable to free herself.鈥�
The nursing home appealed, and its attorney noted that the coroner had found the , a possible sign of a stroke that could have contributed to the patient鈥檚 death. Before a judge could rule, the California Department of Public Health by downgrading the citation from 鈥淎A鈥� to 鈥淎鈥� level and reducing the nursing home鈥檚 fine.
A new , however, is designed to make it easier for the agency to prevail in cases like this.
Sponsored by Assemblyman Ash Kalra, a Democrat from San Jose, and signed by Gov. Gavin Newsom in October, the legislation raised nursing home fines 鈥� which hadn鈥檛 changed in about 20 years 鈥� by 20 to 50%.
It also changes how state regulators sanction nursing homes that were found to have caused the death of a patient 鈥� and then may have to litigate to defend those sanctions in court. Beginning Jan. 1, the state must demonstrate that the nursing home鈥檚 actions were 鈥渁 substantial factor鈥� in the resident鈥檚 death, rather than a 鈥渄irect proximate cause.鈥�
Kalra said the old standard allowed some nursing homes to evade accountability if they could show patients had other ailments that might have contributed to their deaths. The nursing home industry and previous versions of it.
The California Department of Public Health detailed in a how the current law had hindered its efforts to hold nursing homes accountable for preventable deaths.
Because nursing homes often cite patients鈥� other serious medical issues when appealing citations for violations that resulted in death, 鈥渁s a result, many of the violations that involve an LTC (long term care) resident death are either issued as class 鈥淎鈥� instead of class 鈥淎A,鈥� and the facility receives a lower penalty, or a judicial decision is rendered that downgrades the level of the citation,鈥� the agency wrote to Kalra.
The case involving the death of the woman in Marysville, Kalra said, is 鈥渁 perfect example of how nursing homes escape culpability.鈥�
Costly fights against fines
COVID-19 thrust California鈥檚 1,200 nursing homes , intensifying about inadequate staffing and infection control and poor quality care. The virus has killed and 250 staffers statewide.
About each year reside in skilled nursing facilities, which serve the most medically fragile patients, including people who need 24-hour-a-day nursing care and are disabled or suffering from a serious illness, and those recovering from surgery or injury.
Advocates for the elderly contend that nursing home operators are spending huge amounts of money on legal fights that would be better spent on improving patient care, and that California鈥檚 willingness to settle some cases just gives them more incentive to do so.
Defending the nursing homes鈥� lawsuits to overturn fines can be time-consuming for the California Department of Justice. These cases can take up to three years to wind through the courts.
Some nursing homes and the department are still fighting in court about citations first issued in 2016, according to .
鈥淭he labor and expense involved to go through superior court is extraordinary for the amount of money involved,鈥� said Eric Carlson, directing attorney of Justice in Aging, an advocacy group.
鈥淚t doesn鈥檛 surprise me that the state chooses to settle some cases,鈥� he said. 鈥淭he burden of defending the citation is such that the state can make a cost-benefit analysis and choose to settle for pennies on the dollar.鈥�
Fighting the fines can be costly for nursing home operators, too. They easily can spend more on legal fees than the state fines they鈥檙e appealing, which can range up to $100,000.
But with nursing home payments tied to quality ratings, the homes have a financial incentive to appeal as many citations as possible. Citations can lower a home鈥檚 rating on website, which families, hospitals and insurers use in assessing nursing home quality.
鈥淭he burden of defending the citation is such that the state can make a cost-benefit analysis and choose to settle for pennies on the dollar.鈥�ERIC CARLSON, JUSTICE IN AGING
Sanctions for severe lapses of care also can preclude homes from seeking leniency on state staffing requirements or receiving state quality bonuses that can top $500,000, said Mark Reagan, an attorney who represents nursing homes and serves as legal counsel to the industry group California Association of Health Facilities.
鈥淚鈥檝e had cases over the years where the operator knows it鈥檚 going to cost more money to pursue the case than the fine, but it鈥檚 more important 鈥� to not have something on their record that the general public can see that they don鈥檛 think is fair,鈥� Reagan said.
Citations do appear on state and federal nursing home enforcement websites while they鈥檙e being appealed, but are updated if they are downgraded, Reagan said.
Decades ago, California was known for its leadership in nursing home enforcement.
The state has robust nursing home health and safety standards that served as a national model, Carlson said. As a result, most other states simply enforce federal standards, while California puts more energy into enforcing state laws, he said.
That makes the nursing homes鈥� ability to appeal sanctions in superior court an important safeguard for the companies because it 鈥渆vens the playing field and gives us a fair chance,鈥� said Eric Emanuels, a Sacramento attorney who represents nursing homes.
In some cases, Emanuels said, the state issues a citation up to two years after an event. 鈥淚t鈥檚 a great way to win those cases,鈥� Emanuels said, because judges acknowledge that nursing homes can鈥檛 successfully defend themselves so long after the fact.
A case study: dueling lawsuits
In some cases, two lawsuits involving the same event are occurring simultaneously in the same courthouse 鈥� a resident sues a nursing home and the nursing home sues the state.
In May, state inspectors after accusing the company of failure to prevent a mentally-impaired woman from being sexually abused by another resident. The 37-year-old woman was taken to a hospital for a rape evaluation and given preventive treatment for sexually-transmitted diseases, the noted.
Two months later, the state health department to overturn the fine, saying the agency鈥檚 actions were 鈥渁rbitrary, capricious and lacking in evidentiary support鈥� 鈥� the same words it used to describe the maggots case.
Shortly after that, the patient鈥檚 sister, who was not identified, sued Longwood for the sexual assault, said her attorney, Art Gharibian.
The patient, known in the lawsuit only as 鈥淕.W.,鈥� was vulnerable because of her many medical conditions, including brain damage, epilepsy, heart attack and a feeding tube, . The lawsuit alleges that the nursing home failed to protect G.W. from the assault.
Both cases are still pending.
Gharibian said he typically can鈥檛 use the state鈥檚 citation reports 鈥� appealed or not 鈥� to bolster his clients鈥� cases because they鈥檙e considered hearsay under a legal precedent known as . Nursing homes will tell a judge that a citation is being appealed if patients鈥� lawyers try to use them to establish patterns of poor care, he said. He said they also sometimes use those appeals as leverage to get residents or family members to settle their lawsuits.
Longwood Manor is still battling , in which a 80-year-old woman with diabetes and difficulty walking went missing from the nursing home in Los Angeles after failing to return from a routine afternoon outing to do errands. Instead of checking on the resident, who had lived there for five years, the nursing home discharged her after she didn鈥檛 return for three days and did not consider her a missing person.
Twelve days after leaving Longwood Manor, the woman was found dead in a storage unit in Pennsylvania on a night when the recorded temperature was 29 degrees, according to a state inspector鈥檚 .
According to the report, a family member 鈥渟tated that Resident 1 was found deceased in Pennsylvania on 3/16/18 by the owner of the storage unit and was only dressed in a hospital gown in the cold temperature weather.鈥�
State regulators imposed a on the nursing home, for, among other violations, not informing the family member of the woman鈥檚 absence and not investigating her absence or reporting it to the state.
Tyler, the company鈥檚 attorney, told CalMatters that the woman was considered self-responsible, meaning that she could make her own decision to leave the nursing home. A bench trial, postponed because of the pandemic, is scheduled for .
Nursing homes have the right to appeal their citations, but this system seems more 鈥渂eneficial to the facilities, not the victims,鈥� said Carole Herman, founder of the Foundation Aiding The Elderly patient advocacy group.
Nursing homes if they don鈥檛 appeal an 鈥淎鈥� or 鈥淎A鈥� citation and pay their fines promptly. 鈥淚f you get a speeding ticket, can you negotiate that? No.鈥� Herman said.
Herman said the state鈥檚 sanctions are so long-delayed and watered down that they wind up failing to force nursing homes to protect their patients.
鈥淔amilies are desperate for justice,鈥� she said, 鈥渟o they file their own lawsuits.鈥�
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