‘All they got was a slap on the hand.’ Is California low-balling penalties in nursing home death investigations?

Read the article here.

Even more aggravating for elder neglect lawyers, the Sacramento Department of Public Health, when receiving a state complaint has repeatedly failed to investigate them as such. Instead, they claim to be conducting “federal” investigations, and thereafter refuse to participate in civil claims and ignore state subpoenas, citing Federal regulations passed during the Bush administration that requires authorization for federal employees to testify – which is routinely denied.

This is what happened in a recent Sacramento elder neglect and abuse case after DPH investigated a state claim, then refused to produce a witness, citing Federal regulations:

DPH’s argument and the declaration of its witness, Heather Riley, is completely and utterly unsupported, flies in the face of California law, common sense, and is devoid of any actual evidence about what happened in this underlying investigation.  It is uncontroverted that DPH’s primary obligation is to insure nursing homes comply with state laws and regulations.  It is uncontroverted that under California law, complaints like the one made involving this defendant’s horrible neglect of Plaintiff requires an on-site inspection.  It is uncontroverted that during these inspections, sometimes referred to as “surveys” DPH employees are required to evaluate compliance with state regulations.  It is absolutely telling that in 10 pages of opposition, not once does DPH address the fact that California law, as cited in Plaintiffs’ moving papers, directs and requires the agency to investigate the claims of Plaintiff’s neglect. This is the California law DPH and the Attorney General now try to ignore, Health & Safety Code section 1420:

…the state department shall assign an inspector to make a preliminary review of the complaint and shall notify the complainant within two working days of the receipt of the complaint of the name of the inspector.  Unless the state department determines that the complaint is willfully intended to harass a licensee or is without any reasonable basis, it shall make an onsite inspection or investigation within 10 working days of the receipt of the complaint….

(2) When conducting an onsite inspection or investigation pursuant to this section, the state department shall collect and evaluate all available evidenceand may issue a citation based upon, but not limited to, all of the following:

(A) Observed conditions.

(B) Statements of witnesses.

(C) Facility records.

(3) Within 10 working days of the completion of the complaint investigation, the state department shall notify the complainant and licensee in writing of the department’s determination as a result of the inspection or investigation.

After all, it would seem a Deputy Attorney General for the State of California representing the California Department of Public Health would be at least familiar with state law on this issue and would be able to address why, in this particular circumstance, with this particular surveyor who is not Heather Riley, DPH was somehow not obligated to follow the law and specifically chose to violate California law and abdicate its duty to investigate.  Instead, what the Attorney General does is put his head in the sand, pretend the law does not exist, wholly fails to address it, refers to unsupported hearsay evidence that has not been presented and which does not exist, and then intimates to the court that DPH has never lost one of these motions…. this is about Plaintiff – an 86-year-old dementia resident who was neglected to death by a facility that DPH knew to be a chronic bad-actor.  Plaintiff was neglected so badly it caused a facility employee to call-in an anonymous complaint directly to DPH – not to CMS, not to DHHS.  California law protected Plaintiff.  California law required that DPH investigate on Plaintiff’s behalf.  Now Plaintiff would like to have an hour’s worth of testimony about statements that critical witnesses made to DPH surveyor during her state law mandated complaint investigation.  Instead, DPH (and CMS) wastes everyone’s time by refusing to produce the witness because the findings were written on a federal form instead of a state form.  That is absolutely absurd and amounts to the most ludicrous waste of resources imaginable, especially since plaintiffs have indicated with all of these bureaucrats from the very beginning that we were solely interested in the State investigation and specific statements made therein, that we would wholly forego any document requests, and we would be as cooperative as possible to not burden government resources….

The government refused to produce the witness, indicating they did not do a state inspection.  Thanks DPH.