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State investigators are substantiating dramatically fewer complaints against nursing homes during the pandemic than in each of the last two years, leading to concern that regulators aren’t policing the industry tough enough during a crisis.
In June, Rob Halliburton became so concerned about his nursing home’s care of his severely infected foot that he phoned state health regulators to file a complaint.
He expected the California Department of Public Health to be his advocate when he alleged Palomar Vista Healthcare Center in Escondido had failed to deliver adequate antibiotic treatments for an infection that left him at risk.
Instead, Halliburton claims, health administrators treated him like a villain for calling.
“During a phone interview I was made to feel like I did something wrong,” Halliburton said. “It’s almost like they’re trying to run you away.”
His complaint ended the way many did during the first four months of the COVID-19 pandemic: unsubstantiated. The California Department of Public Health, or CDPH, substantiated only 2.8 percent of complaints against nursing homes during the timeframe, much lower than the same period two years prior.
Total complaints to CDPH have fallen during the pandemic, but the rate at which they’ve been substantiated has plummeted. An advocate for nursing home reform called the drop shocking, and one surveyor indicated officials are only now working on complaints from March. Yet CDPH officials said the low substantiation rate is evidence of the industry’s all-hands-on-deck approach to the crisis.
The low rate follows both a shift in inspection priorities and a reported complaint backlog. At the same time, the public health department recently announced a plan to overhaul inspections by fostering a more collaborative relationship between facilities and their overseers, a change that critics argue would lead to nursing home impunity.
Complaint investigations — which can lead to citations and corrective plans — are meant to be a safeguard for the elders and disabled people who live in nursing homes, many of whom are more vulnerable to COVID-19. Long-term care residents also are at heightened risk of institutional abuse and neglect.
Halliburton, who also claimed he shared a room with a resident who was in contact with a coronavirus-positive nurse, said he never got a reason for the unsubstantiated finding, which he’s appealing. CDPH records are similarly unclear.
Dudley Fetzer, the administrator of Palomar Vista, did not respond to a request for comment on Halliburton’s antibiotic treatment. In June, he addressed patient grouping. Fetzer said the facility follows federal rules by dividing residents into three zones: Those with COVID-19, those without and those with an unknown status due to “potential community or other such exposure.”
Palomar Vista has five stars under a federal-rating system, which is above average. The system, based on recent inspections, acts as a jumping-off point for choosing a skilled nursing facility, but may not reflect the current situation at a home.
CDPH substantiated 21 of 739 nursing home complaints that it received from March to June, or 2.8 percent, according to data recently obtained by Voice of San Diego. During the same period last year, the agency substantiated 1,276 of 3,240 nursing home complaints, or 39 percent. Data from the same period in 2018 were similar.
Complaints that aren’t substantiated lack evidence, according to state regulations. Some of the investigations are pending.
The drop in complaints — and much steeper decline in substantiated ones — came after the federal government in March halted annual inspections and many complaint investigations.
Instead, state inspectors were told to focus on infection control and “immediate jeopardy” complaints linked to allegations of resident abuse, neglect or death.
Complaints also have declined because those who typically file complaints on behalf of nursing home residents — family members, other visitors and long-term care ombudsmen — were shut out of facilities. Visits resumed in recent weeks. But some facilities have stayed in lockdown, prompting families to push back.
Tony Chicotel, an attorney with California Advocates for Nursing Home Reform, said he expected complaints to fall because of the regulatory and visitation changes, but such a low rate of substantiated complaints shocked him.
He said CDPH should more aggressively investigate complaints, and issue penalties, amid a pandemic when violations can carry deadly consequences.
“There’s never been a more urgent time for enforcement, even zero-tolerance enforcement,” he said.
Chicotel said even prioritized infection control surveys — which occurred independent of complaints — have lacked teeth, echoing a June report from California Advocates for Nursing Home Reform.
In an emailed statement, CDPH said it thoroughly investigates complaints. Inspectors, who are registered nurses, review a nursing home’s compliance history, observe operations, interview residents and staff and examine medical records.
The agency said it hasn’t analyzed the complaint data, but that the pandemic 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.”
Deborah Pacyna, a spokeswoman for California Association of Health Facilities, put it more bluntly: “It’s all hands on deck to prevent COVID infections and protect resident lives.”
CDPH also said it hasn’t changed its policies for accepting and investigating complaints, and that all reports are logged.
A nursing home surveyor in Southern California, who spoke on the condition of anonymity for fear of being fired, said certain complaints recorded in March are only now being investigated. The reports did not involve infection-control violations and were not considered immediate threats to safety.
Delays can complicate investigations, the inspector said: Witnesses can be tough to track down and memories fade.
CDPH didn’t respond to a recent request for the number of backlogged complaints against nursing homes.
On Aug. 17, the federal government announced that routine survey inspections — days-long affairs encompassing staff interviews and resident observations — would resume “as soon as resources are available.” It’s unclear when that might happen in California. The state health department said it continues to focus on infection control, facility-reported incidents and monitoring.
Meanwhile, a CDPH plan that calls for inspectors to adopt two or three nursing homes for intensive oversight has been met with strong criticism from elder advocates and a surveyor’s union. The proposal’s sponsors say beefed-up training, daily check-ins and weekly visits would lead to greater patient safety.
“This is completely changing and reforming how we do quality and safety oversight,” CDPH Deputy Director Heidi Steinecker testified to the state legislature in June, as part of a larger reform proposal.
Steinecker added that frequent visits — a hallmark of the plan — have been critical for minimizing COVID-19 cases and deaths.
But groups like California Advocates for Nursing Home Reform say the emphasis on cajoling compliance, rather than enforcing it, could leave residents in greater jeopardy.
Tony Owens, the vice president of bargaining for SEIU Local 1000, which represents inspectors, said the proposal represents a conflict of interest.
“As a surveyor, you would no longer be the police, you’re the parent,” Owens said.
Owens said the current enforcement model arose after the Institute of Medicine concluded in the 1980s that a past approach like the state’s proposal failed to deter repeat violations. He also said inspectors lack adequate personal protective equipment for increased facility visits.
Pacyna, the spokeswoman for California Association of Health Facilities, said the proposal resulted from stakeholder input, including representatives from her organization, UC Davis, nurse practitioners, long-term care doctors and others.
“Right now, surveyors go into nursing homes looking for problems. What if they went in looking for solutions?” she asked. “We see a lot of value in a scenario where a discussion takes place on ways to improve a practice area, an action plan is put into place and facilities are held accountable.”
For discontented residents and families, submitting a complaint isn’t always a priority — or easy.
Lisa Russell said her 93-year-old mother regressed physically and mentally during a nearly month-long stay in early 2020 at The Springs at Pacific Regent, located in La Jolla.
Russell, who is considering legal action, has also thought about filing a complaint with CDPH. But she’s already stretched thin with work and caring for her mom.
“I’m so exhausted every day,” she said.
Ensign Group, which owns The Springs, did not return a request for comment. In late May, the daughters of a 73-year-old man who died after contracting COVID-19 in The Springs sued the home. It was among the earliest litigation of its kind in California.
CDPH directed a request for copies of the 21 substantiated complaints to the federal government, which couldn’t immediately supply the records.
In addition, the California Department of Social Services – which regulates assisted living facilities — did not provide complaint investigation data by deadline.
Halliburton, who filed the complaint against Palomar Vista, last month left the facility. He’s now at another nursing home: Bella Vista Health Center in Lemon Grove, where he’s happy with the care he’s getting.
But he’s determined to press ahead with his appeal against Palomar Vista.
“I’m going to keep fighting,” he said.
Jared Whitlock reported this story with support from the 2019 Impact Fund, a program of the USC Annenberg Center for Health Journalism.