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The California Department of Public Health’s (CDPH) Licensing and Certification Program, hardly an aggressive watchdog of wealthy, politically connected nursing homes, issued a class “B” citation and monetary fine in October 2011 to a nursing home that negligently failed to administer oxygen to a fainting patient at a flow rate required by physician orders and the patient’s care plan. At that time, the unfortunate, 88-year-old victim suffered rapidly declining oxygen saturation levels, respiratory arrest, and unexpected death. In its citation, CDPH said, “The above violation had a direct relationship to the health, safety and security of Patient 1.” Despite CDPH’s findings, tantamount to obvious elder neglect, the California Department of Justice’s Bureau of Medi-Cal Fraud and Elder Abuse (BMFEA) chief of prosecutions, Mark Zahner, based his decision to file no criminal charges in the case, not on the assigned BMFEA special agent’s expert opinion, but instead on the different opinion of BMFEA medical consultant Kathryn L. Locatell, M.D. Dr. Locatell shockingly said, “There were no breaches of any applicable standards of care in the events leading to Mr. [patient’s name deleted] death. I see no indication of neglect whatsoever. . . . [W]hether or not oxygen was administered, or administered timely . . . was immaterial.”
Veteran supervisor working for CDPH’s Licensing and Certification Program admitted high-level pressure prevents CDPH’s aggressive enforcement of deficient nursing homes
The confidential and revealing admission of a veteran supervisor working for CDPH’s Licensing and Certification Program to an Elder Abuse Exposed.com member confirms Senator Grassley’s disturbing finding of high-level pressure on nursing home inspectors to “go easy” on deficient nursing homes. The CDPH supervisor, whose name Elder Abuse Exposed.com will not divulge, admitted to the Elder Abuse Exposed.com member that the supervisor could not properly enforce nursing home laws because of pressure from “upstairs” to be lenient on nursing homes.
Comments by attorney for nursing home trade association in California may explain Attorney General Kamala Harris’ reluctance to criminally prosecute nursing home owners
Recent comments in The Sacramento Bee by the general counsel to the long-term care industry’s largest trade association in California are also very revealing and may explain Attorney General Harris’ and the U.S. DOJ’s reluctance to file criminal charges against nursing home owners. In the November 3, 2012 “California Attorney General’s Office to Ramp Up Elder-Abuse Investigations,” the Sacramento Bee’s Marjie Lundstrom reported that Attorney General Harris’ BMFEA would start aggressively investigating nursing home elder abuse and building criminal cases against administrators and employees in profit-obsessed nursing homes plagued by systemic elder abuse. Responding to Harris’ supposed initiative, Mark Reagan, attorney for the California Association of Health Facilities, said the nursing home industry’s support for Harris’ new crackdown “depends on how well they handle prosecutorial discretion,” The Bee reported. “With so much at stake for workers and corporate owners—an entire chain of nursing homes could be forced out of business with a single conviction—state prosecutors must sort out which cases should be handled administratively, civilly or criminally, Reagan said.”
The Bee said that Mark Reagan’s “prosecutorial discretion” and related comments were all about nursing homes “avoiding death sentences.” Reagan explained that “if a nursing home owner is convicted criminally of elder abuse—even if it’s an isolated act—the law requires that the facility be excluded from receiving Medicare or Medicaid funding,” according to The Bee. Reagan referred to a criminal conviction as “a real death sentence” for a nursing home owner, The Bee said.
Elder Abuse Exposed.com disputes Mark Reagan’s claim that a criminal conviction is “a real death sentence” for a nursing home owner in California
When an owner of a profit-obsessed, deliberately understaffed nursing home in California is criminally liable for elder abuse, wrongful death, and patient records falsification to cover up the crimes, the death sentence is definitely not for the nursing home owner. Rather, the “real death sentence” is for the unfortunate victim who succumbs to the gross negligence of overloaded, poorly trained, previously caring nursing staff who, while immersed in the culture of a corporate nursing home, eventually become inured to their patients’ suffering and deaths. The “real death sentence” is also for the grief-stricken, traumatized widow, widower, son, daughter, or other family members who are tormented, not as much by the patient’s death, but instead by the horrible circumstances of the death and by the failure of Attorney General Harris’ BMFEA to hold the perpetrators accountable.
A nursing home owner convicted of criminal elder abuse (California Penal Code § 368), which has never happened in California, would have to do something that is hardly “a real death sentence.” The nursing home owner would just have to quickly sell the facility, probably at a reduced price, to another nursing home owner without a criminal history of abusing and causing “a real death sentence” for a vulnerable resident and his or her loved ones.
The time has come for Attorney General Harris’ chief elder abuse prosecutor, Mark Zahner, to start prosecuting and convicting even one nursing home owner
Elder Abuse Exposed.com applauds the OIG, GAO, U.S. Senate Special Committee on Aging, selected investigative news reporters, and patients’ rights advocacy organizations, such as Disability Rights California, for bringing the disturbing truths about nursing home elder abuse and Medicare fraud to the attention of government leaders and the public. But Elder Abuse Exposed.com is dismayed that the seemingly endless series of nursing home reports, since at least 1998, have not led to less nursing home neglect, less Medicare fraud, or even a single prosecution and conviction of a California nursing home owner by BMFEA’s chief of prosecutions, Mark Zahner.
Elder Abuse Exposed.com thinks that the time has come for Mark Zahner to finally start carrying out his legal duty as California’s chief elder abuse prosecutor. He can do this by prosecuting not just the overloaded nurses and certified nursing assistants (CNAs) but also the principal malefactors—the profit-obsessed owners who are directly responsible for understaffing and the widespread practice of patient records falsification, which predictably lead to systemic and chronic nursing home abuse.
If Attorney General Harris and Mark Zahner continue to fail to prosecute nursing home owners, then the Offices of the United States Attorneys need to intervene to prevent “death sentences” for nursing home residents
If Attorney General Harris and Mark Zahner continue to fail to enforce California’s criminal elder abuse laws against nursing home owners, then the Offices of the United States Attorneys will need to step in. The OUSA can then prosecute what Harris told The Sacramento Bee “is a particularly tragic crime because it targets a beloved population—our aunts and uncles, our parents—at what can be a vulnerable time in their lives.” The OUSA and FBI can also investigate the verifiable allegations of California government officials who break the law while protecting wealthy, politically connected nursing home owners.
Mark Zahner and Attorney General Harris should not be swayed by Mark Reagan’s comments to The Bee about Harris’ handling of “prosecutorial discretion” and need to avoid “a real death sentence” for nursing home owners. In other words, Mark Zahner and Kamala Harris should not focus on “avoiding death sentences” for wealthy, politically connected nursing home owners who commit major Medicare fraud and criminal elder abuse. Instead, Mark Zahner and Attorney General Harris should focus on avoiding criminal elder abuse and literal death sentences for some of California’s most vulnerable members—our grandparents, parents, and other aging family members.
Mark Zahner and Attorney General Harris have the awesome power and sacred duty to protect some of the weakest members in California and therefore to make California even greater than it already is. As the great humanitarian and political leader Mahatma Gandhi said, “A nation’s greatness is measured by how it treats its weakest members.”
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