Time to Get Tough Again

California’s laws protecting its nursing-home residents are among the nation’s toughest. But this doesn’t mean that they always work. A recent five-state study by the federal General Accounting Office has found that many California nursing homes are in chronic violation of national and state regulations governing patient care, cleanliness, safety and food preparation. The toughest laws may not be tough enough.

Repeat violations of nursing-home regulations often result from the lack of credible federal sanctions and deterrents. The only federal penalty against chronic offenders is decertification--a move that forces nursing homes to close. But the widespread shortage of nursing-home beds undercuts the decertification effort, putting a premium on keeping the facilities open. On the state side, penalties to combat the majority of infractions are either absent or woefully inadequate. California’s innovative system of intermediate penalties, a 1973 system implemented to punish nursing homes without forcing them to close, was designed to provide a more potent deterrent than the largely empty decertification threat.

Then why has the GAO found so many California nursing homes to be in such bad shape? According to a report by the Little Hoover Commission, California’s long-term health-care laws still contain critical debilitating loopholes. First, nursing-home operators can escape their penalties with a promise to “promptly� correct their violations; these corrective measures, however, are frequently little more than self-administered slaps on the wrist. Second, California nursing-home operators who repeatedly disregard the law can substantially delay payment of their penalties by initiating a protracted appeal process. In many cases the state is eventually forced either to settle or to drop its complaint. The $5 million in fines that the Department of Health Services’ Licensing and Certification Division collected last year is only a fraction of the fines that it has assessed. Financial penalties, in effect, have lost their ability to deter.

Congress is pursuing legislation that would bring nursing homes in the rest of the nation up to California’s standard. That may help the rest of the country. But this state’s system of intermediate penalties, unless reformed, will continue to allow nursing-home abuses. Nursing-home operators should retain their right to appeal a penalty; federal and state codes are numerous and sometimes confusing. But the attorney general’s office should require the immediate payment of all fines, and provide for their reimbursement, with interest, only on successful appeal. Deterrents are designed to prevent an act. Right now California plays catch-up after a violation has been committed. It is time for California to get tough again.