Skilled-nursing facilities must meet minimum level of staffing 

This week's question comes from Felicity H., who asks:

Q: "Over the holidays, I visited my aunt in a skilled-nursing facility in Northern California. She has advanced Alzheimer's disease. When I was there, I felt that the facility was understaffed. She was sitting in a soiled diaper and I questioned whether she was getting her medications. I never saw a registered nurse on-site and when I asked about whether there were nurses I was told that they came in 'as needed' and most of the care was provided by aides. This concerned me as I know that they call this place a skilled-nursing facility, but there are no RNs. This can't be right, can it? She is paying for nursing care but not really getting it."

A: Felicity, this is an ever expanding problem. As we as a society age and are living longer, we are outgrowing our independence. As the need for support services grows, so does the elder-care industry. Individuals 85 years and older, the oldest of the old, are one of the fastest-growing segments of the population. In 2005, there were an estimated 5 million people 85 and older in the United States. This figure is expected to increase to 19.4 million by 2050.

This means that there could be an increase from 1.6 million to 6.2 million people age 85 or over with severe or moderate memory impairment in 2050. In California, more than 100,000 people live in skilled-nursing facilities, often transitioning from the hospital. Many, like your aunt, are in the late stages of Alzheimer's.

The majority of this population is comprised of women over the age of 75. One industry research analyst states that revenues for the elder care services industry in the U.S. will grow 5.2 percent per year through 2016 to $319.5 billion. Skilled-nursing facilities will remain the largest segment, while home health care services and assisted living facilities will see the most rapid growth.

A good piece of investigative journalism revealing California's major nursing homes' performance on critical measures of patient care can be found by searching for the Sacramento Bee article "Unmasked: How California's largest nursing home chains perform."

You can also find out statistics and records by contacting the Department of Public Health's Licensing and Certification Program. L&C licenses and certifies California nursing homes on the basis of investigating complaints and conducting investigations. For the L&C office in the county closest to your aunt's nursing home, call the state L&C office at (800) 236- 9747.

Unfortunately, L&C has been widely criticized for failing to investigate and charge nursing homes. A lawsuit was brought against the Department of Public Health for failure to investigate and prosecute nursing home complaints. Likewise, the state Legislature in 2014 hauled the DPH into special hearings criticizing L&C for dismissing hundreds of complaints without adequate investigation.

California Welfare and Institutions Code Section 14110.7 sets the minimum number of equivalent nursing hours per patient required in skilled-nursing facilities at 3.2. Nursing hours means the number of hours of work performed per patient day by aides, nursing assistants, or orderlies plus two times the number of hours worked per patient day by registered nurses and licensed vocational nurses. This is a complicated formula, but if there are no RNs in attendance, they are failing to provide the level of care required.

While I encourage you to report the issues to L&C, its history of failing to investigate and cite violations creates a need for private enforcement. As adequate staffing is one of the rights enumerated under the Nursing Home Patient's Bill of Rights (California Health and Safety Code Section 1599.1), a private right of action exists for patients, or their patient advocates, to bring legal action against the nursing home facilities. The full text of the Nursing Home Patient Bill of Rights can be found by searching for the above referenced Health and Safety Code and/or by searching "Your Rights as a Resident in a Nursing Home California."

Failure to provide adequate care may also constitute both criminal and civil elder abuse, which I will discuss in more detail in next week's column.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to help@dolanlawfirm.com.

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