Guardian Healthcare is a small chain operating in California. It is interesting in that a radically different strategy to address the mistreatment of the elderly by for profit chains has been tried. The company has already been cited for poor care on many occasions without much impact. In the past fraud has been prosecuted through both civil and criminal courts. This is the first time that poor care and neglect has been prosecuted as a criminal offence.
The government initiated a criminal action for neglecting a number of vulnerable citizens. If proven guilty then the company would normally be barred from Medicare and Medicaid payments. In return for a "no contest" plea the government imposed a settlement forcing the company to pay fines, to sell the homes and to recompense those who were misused. It did not lose its Medicare funding but it is on notice that it will do so if there are more problems. A company Guardian Post Acute Services in California is listed as entering into a corporate integrity agreement with government on 9 June 2000. Presumably it is the same company.
It is the use of the courts, rather than the easy to manipulate surveillance system, which frightens the big corporations - real people, responsible to no one but the community sit on juries. Court actions by individuals or as here government are the only actions which have had any impact on care.
This differs from the much more lenient surveillance system in that it is open and transparent. The jobs of those who make decisions are not vulnerable to pressures from politicians who receive campaign contribution and are susceptible to corporate lobbying.
Citizens groups have been urging this approach for a long time. The corporate chains will be lobbying frantically to make sure it does not happen again. I have not seen subsequent reports describing a similar use of the law.
This is not to suggest that increased use of
the law is the correct way to address the problem of substandard care
in nursing homes, which place profit first. The correct way is to
address the cause which is the competitive pressure for profit,
particularly in market listed companies.
The extracts on these pages are from copyright material. They are reproduced for educational purposes and to stimulate public debate about the provision of health care. I consider this to be "fair use" and in the public interest. They should not be reproduced for commercial purposes.
Disclaimer: - The material in these pages is selective and not all-inclusive. The extracts do not necessarily reflect the full perspective of the original. Corporate denials and explanations have not been included. No claim is made that all of the matters referred to are true. The intention is to give the flavour of the material and an idea of the extent of the allegations.
Nursing homes to shut or be sold :::::
Chain pleads no contest in neglect, abuse case
San Jose Mercury News: May 24, 2000
BY ED POPE
A Northern California convalescent home chain agreed to sell or shut down two of its homes in San Jose and Los Gatos after pleading no contest Wednesday in Santa Clara County Superior Court to felony charges of elder abuse and neglect.
The prosecution of Guardian of the North Bay Inc. marked the first time in the nation that prosecutors have used a criminal indictment as a tool to force a major nursing home chain to clean up its operation.
``This is good; this is huge; this is a way to get the industry's attention,'' said Preston Cole, an attorney with California Advocates for Nursing Home Reform, a non-profit agency in San Francisco. ``This is not just Guardian.''
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The DA's investigation of the case found five deaths that it alleged were at least partly attributable to neglect or abuse.
To avoid the upheaval closing would have caused for the 2,000 patients in Guardian facilities, a compromise agreement was reached with the help of Andy Penn of the federal Office of the Inspector General, Hey said.
Equivalent to guilty plea
Emerson asked Guardian's attorney, William Goodman of San Francisco, if the chain's officials understood that the no-contest plea was the equivalent of a guilty plea. Goodman said they did.
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Hey said he has been told by nursing industry representatives that they ``are watching the case very closely.'' And state health inspectors told him that as a result of the case, ``They've seen the quality of care in Santa Clara County improve measurably.''
Cole, the reform advocate, also said he was aware of the national attention the case had drawn. He said an executive of a nationwide chain told him everyone in the industry was upset by Santa Clara County's use of criminal charges and that the official himself was considering resigning.
``This changes everything,'' Cole quoted the man as saying.
Relatives applaud
Relatives of some former Guardian patients applauded the court settlement Wednesday.
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Of her mother's care, she said: ``I visited two or three times every day, and they did not care if she had pain, they did not care if she had a bowel movement, they did not care if she had oxygen.''
Rocke died after an intestinal blockage that her caregivers attributed to ``gas'' led to a perforated bowel that poisoned her body.
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``The doctor refused to talk to me,'' Case said. ``He told the nurse if I was that concerned to call 911.'' Case did. The acute hospital found her mother was suffering from dehydration, pneumonia, a staph infection and malnutrition. She died in the hospital a week later.
``The doctor at the hospital told me he had never seen anyone so dehydrated,'' Case said.
Though he could also have charged Guardian's corporate officers, Hey said he chose not to because he ``wanted to focus on the fact that the problems were with the corporation, not individuals.'' For that reason, he did not charge the six nurses and aides involved in an incident of neglect that first attracted his office to the case.
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But charges against individuals, he said, would be an option for any prosecutor in future cases.
The prosecutor, who leaned heavily on the findings of inspectors for the health-services licensing office in San Jose in his case, said the state had given Guardian homes some 50 citations for serious care violations in the past few years.
Probation for company
As part of the court settlement Wednesday, Guardian also was placed on probation -- to be closely monitored by federal and state health officials -- for four years. The company agreed to pay $120,000 in fines -- $20,000 for each of the six felony counts charged -- plus $20,000 to the family of a patient who died at Guardian and a like amount to another patient who suffered severely from the substandard care.
Guardian had offered $20,000 settlements to all of the patients or their families involved in the eight felonies that Hey originally charged.
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Two of the felony counts were dismissed, Hey said, as part of the settlement negotiations, which made it possible for the nursing home chain to remain in business.
No Contest Plea in Elder Abuse Case
Guardian agrees to sell or close two care facilities in South
Bay
?? Chronicle Thursday, May 25, 2000
Julie N. Lynem, Chuck Squatriglia, Chronicle Staff Writers
SANTA CLARA CO -- A Northern California nursing home chain agreed yesterday to shut down or sell two Santa Clara County facilities and place 16 others under federal scrutiny after pleading no contest to felony charges of patient abuse.
Under a plea bargain with Santa Clara County prosecutors, Guardian Health Group Inc. has three months to relinquish control of the two nursing homes, Guardian of San Jose and Guardian of Los Gatos.
-------------------------Corte Madera-based Guardian is the first nursing home chain in California to be charged with elder abuse and neglect. Prosecutors said Guardian has improved patient care since a Santa Clara County grand jury returned indictments against it last year.
``It's rare in criminal law that we see something work this effectively,'' said Deputy District Attorney Radny Hey. ``I'm sure the entire nursing home industry is watching this case.''
Prosecutors on May 15 charged the company with six counts of elder abuse and neglect, capping an investigation that started when doctors at a nearby emergency room found maggots around a Guardian patient's feeding tube.
A no-contest plea in a criminal case has the same effect as a guilty plea but cannot be used in a civil case to establish liability.
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The company also will pay a $120,000 fine to the state and compensate eight victims and their families. Five of the victims have died since the investigation began.
Two victims have agreed to collect $20,000 settlements, Hey said. Five others declined and are proceeding with civil suits against Guardian. Another has refused any compensation, he said.
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A criminal grand jury indicted Guardian in March 1999, on felony charges of neglecting elder and dependent adults after a yearlong investigation by San Jose police, the state Department of Health Services and the district attorney. Investigators found evidence of substandard care involving six patients at four facilities.
Two months later, a grand jury returned two additional indictments, Hey said.
The nursing homes failed to feed, change or provide proper medical care to patients, Hey said. In some cases, patients developed bedsores or were found lying in their feces or urine.
