After Due Diligence Comes Confusion, Frustration

Many facilities have thrown in the towel and closing or selling their facilities in part because of the strains of coping with Covid-19: constant testing and screening of residents, staff, and visitors; the cost of testing staff; paying higher worker compensation costs due to a government order; purchasing an ever-increasing amount of personal protective equipment (PPE) at higher and higher prices; the cost of getting staff “fitted” for PPE; getting staff and residents vaccinated; purchasing sanitizing agents and constantly wiping down everything that doesn’t move; complying with more and more difficult “requirements;” and, well, you fill in the blank.

          Many have said they could not keep up with DSS’ provider information notices or PINs due to the shear quantity; conflicting information; hard to comprehended language, even scientific information; redirecting to other sites, then having to “guess” or discern which agency had the stricter requirements.

          Then, the mitigation plan, previously accepted, “changed” and facilities had to submit new policies and procedures because, yet another PIN was released with numerous pages and redirection to other sites. The frustration and confusion have pushed many others to the point of tossing in that proverbial towel.

          Many of those PINs kept stating the situation was “fluid,” meaning everchanging, and that was and is an absolute. The involvement of the state’s public health department complicated the situation as public health staff kept insisting upon “nursing home-type regulations” that were way beyond social models. For instance, a facility was told to have hand sanitizer available to all residents but the residents in the facility had dementia and could foreseeably mismanage the toxic sanitizer. An argument ensued.

          There was a perceived lack of common sense in facility oversight placing licensees and administrators in vicarious positions. Many just hoped the next day did not produce another “information notice,” or there would be another, sometimes misinformed, “consultant” telling facilities what to do. Does the state really need consultants? Are the employees of the state incapable of handling the situation? Perhaps, that is another problem along with the pandemic and lack of support from analysts who just told facilities, “Read the PIN.”

SSI, Serious Mental Disorders and RCFEs

The California Legislature passed AB1766 creating H&S Codes 1507.4 (ARFs) and 1569.4 (RCFEs). The new laws require DSS to inform county mental or behavioral health departments on facilities that accept SSI, admit residents with serious mental disorders and the number of beds at each facility. Facilities are not required take SSI or admit residents with serious mental disorders.

Complete DSS’ paperwork, but perhaps you are asking why were these laws necessary? How about some lengthy history for an answer? It is that history that explains why NOW the state is seeking your facility to place persons on SSI with serious mental disorders. You do not have to!

The California Department of State Hospitals (DSH) manages the state’s mental hospitals, totaling just five. In the late 1950s, the state began to remove patients from its mental hospitals into nursing homes and residential care, a process called “deinstitutionalization.”

Under Governor Reagan, California passed the Lanterman-Petris-Short (LPS) Act, enacting a “patient’s bill of rights.” It ended the practice of institutionalizing patients against their will or keeping patients “forever” when they were suitable for community placement. It also virtually abolished involuntary hospitalizations except in extreme cases.

Confinement now required “due process of law.” By the early 1970s, California moved most mentally ill patients out of its hospitals. The LPS Act made it difficult to get them back if patients relapsed or needed additional care. The number of mental hospitals dropped under Reagan and successive governors. Reagan realized his mistake as many of the mentally ill ended up in prison, so he restored funding. However, Governor Jerry Brown made deeper cuts.

Governor Reagan also signed the Community Care Facilities Act in the early 70s creating adult residential facilities for the purpose of accepting the mentally ill into “homelike” environments. Unfortunately, the rush to open ARFs and child-care facilities created more of a ghetto than quality care.
Before Reagan’s steps in California, in 1963, President Kennedy signed the Community Mental Health Act pushing the responsibility of mentally ill patients away from the states and toward the federal government’s programs and hospitals. Shortly after Kennedy signed the Act, he was assassinated, and the Act did not go forward. That left 2,000 community mental health centers with unstable funding. President Carter tried to resurrect the Act, but President Reagan repealed it altogether.

In the 90s, two major court decisions—Coffelt and Olmstead—reinforced the LPS Act and maintained the patient’s bill of rights to due process and release programs. These two decisions forced institutions to find alternative, homelike environments for patients. Many entered assisted living facilities but could not be forced to stay.

The Washington Post reported Governor Brown did severe damage to the mental health system more than any other governor. “The system has deteriorated to the point that thousands of patients are being pushed out of mental hospitals to find their way through the inhospitable worlds of skid rows, flophouses, and county jails.” Brown’s critics said he failed to “fund adequately the state hospitals or the community care facilities since the Reagan years.” Brown vetoed many bills meant to “upgrade hospital staffing standards” and “his repeated refusal to spend large amounts on community care facilities as proof of what [critics] call his malignant neglect of the mentally ill,” the newspaper wrote.

An internal audit of the state’s hospitals found 1,285 suspicious deaths were associated with staff and physician negligence including over medicated patients. Several of the state’s hospitals lost federal accreditation and millions in funding. The term “dumping” came up in the Federal government’s audit of California’s mental hospitals, causing the loss of additional federal funding. In 1972, the Agnews State Hospital near San Jose released 3,800 patients and created a “mental health ghetto.”

According to The Balance, a fiscal watchdog, the state’s policy of “deinstitutionalization” led to annual budgets cuts—since the 1960s. About 16% of former patients ended up in the state’s prisons and are now being released due to Covid-19. More homeless?

The discovery of psychiatric drugs, especially Thorazine, in the 1950s, were thought to assist in the deinstitutionalization of patients. The only approaches up to that time were electroshock therapy, straightjackets, padded cells, hydrotherapy, and lobotomies. Society began to accept that mental illness needed to be treated and “locking people up” was not the right treatment.

A former nurse’s aide in a California veteran’s hospital, Ken Kesey, wrote “One Flew Over the Cuckoo’s Nest” published in 1962. The movie was made in 1975 and turned the public off to the barbaric treatment of shock therapy and lobotomies. In 1965, President Johnson signed social security amendments to fund health care but not mental hospitals resulting in the mentally ill going to nursing homes for payment by the Federal Government, and California’s psychiatric institutions were emptied as a result.

In 2009, the Great Recession forced many states, including California, to cut funding to mental health programs. In 2010, President Obama signed the Affordable Care Act forcing insurance companies to fund treatment for mental health including substance abuse addiction.

Through the years of deinstitutionalization, it became clear it was not appropriate to release the mentally ill into the community and were better served in long-term, in-patient care, but the funding was not there. Courts were more reluctant to “put people away” because of higher court decisions. In 2018, those suffering from mental health issues comprised 40% of the prison population and 20% of the homeless population.

California state hospitals now serve patients “committed” through civil and mostly criminal court action. In 2017, about 91 percent of the 13,000 patients treated by DSH were being held relating to criminal cases, in dispositions including not guilty by reason of insanity, incompetent to stand trial, sexually violent predator, and mentally disordered offender designations. The population was 87 percent male, 42 percent white, 25 percent black, 25 percent Latino, 79 percent were high school dropouts, with only one percent claiming, “some college.” About half of the patients are over 40, 40 percent are diagnosed as schizophrenic disorders, which include mood disorders like mania or depression, 16% diagnosed with paraphilia, a diagnosis of “abnormal” sexual desires; and 20 percent “other” make up the balance. Are these the residents you wish to admit?

Since deinstitutionalization and the subsequent funding cuts, California has worked to replace funding for community mental health services, passing Proposition 63, the Mental Health Services Act, in 2004. The Act imposes a one percent tax on personal income above $1 million, with the revenues used for prevention, early intervention, service needs and ancillary support.

Do you really understand, comply with all the PINs?

The apparent first U.S. death related to COVID-19 (C-19) occurred on January 20, 2020 (according to USA Today) in Snohomish County in Washington State. California governor Gavin Newsom declared a state of emergency on March 4 related to the spread of C-19, and DSS released its first provider information notice (PIN) on February 28. Each DSS-issued PIN was an attempt to keep facility operators and administrators informed about the pandemic and prevent its spread into the states’ assisted living facilities.

Health and Safety Code 1569.1 describes RCFEs as “not primarily medically oriented” and a “homelike environment.” The agency tasked with enforcing the laws of California is, according to Health and Safety Code, “the State Department of Social Services.” It is not a medical agency, and Title 22 and Health and Safety Code state DSS is “not responsible for the evaluation of medical services provided to the resident….”

DSS has presented several zoom webinars to non-medical, facility operators using health care “consultants” to explain issues, precautions, and management of the virus. Since facilities are not medical, why the medical consultants? Health and Safety Code also states RCFEs under six-beds—the majority of elder care homes in California—are considered a “residential use of property,” the “residents and operators of the facility shall be considered a family,” and facilities are no different “in any other way from a family dwelling.” Was it appropriate for the hundreds of non-medical facilities to be told what to do by non-DSS staff, medical consultants Questions arose when these consultants were telling facilities to discuss C-19 with dementia clients.

Since March 6, 2020, DSS has released over 50 PINs to inform licensees how to manage the pandemic. Here is how the industry has responded to these PINs: there are too many and no time to read them all; too expensive to do everything the PINs require; each one seems to cancel a previously issued PIN; the language is confusing; having to look up too many external references for information; which agency am I supposed to obey; and analysts want immediate compliance or want what is not in the PIN.

I believe it is the intent of DSS to assist facilities to prevent the spread of C-19, but the PINs are overwhelming the industry with confusing, lengthy, hard to comprehend information, then using “consultants” without hands-on, facility-operating experience telling operators what to do.

Should the PINs stop? No, but should be in “lay terms,” not redirect licensees to “authorities” that conflict other “authorities,” then tell licensees to pick the stricter provisions without expressly telling facilities which are the strictest provisions. In other words, keep it simple so compliance is easier.

Merry Christmas for residents, families?

Celebrating the holidays with family and residents will be vastly different this year. Facilities are attempting to make the holidays a celebration despite the “no visitor” policy. DSS released a provider information notice or PIN about its position on holiday gatherings in light of COVID-19 (C-19).

          Residents in long-term facilities are at higher risk of severe illness or death from C-19 because of chronic medical conditions. Facility staff are strongly urged not to attend any gatherings or keep gathering to immediate family only. DSS is advising administrators to inform residents’ family members to not take the resident home, to not subject them to others, to participate in the effort to “flatten the curve.” It wants residents and families to consider the number and rate of C-19 cases in the community where any gathering will take place. DSS states gatherings with attendees who are traveling from different places pose a higher risk than gatherings with attendees who live in the same area.

          For residents returning from any outing must screen returning residents for signs and symptoms of C-19, and immediately test symptomatic residents and isolate them in a single room pending test results. Ask each resident or family member if they were in contact with someone who tested positive for C-19 or did not take any precautionary measures (physical distancing, wearing a face covering, or engaging in exposure-type activities.

          DSS’ guidance continued with stating outdoor gatherings are safer than indoor gatherings. If gathering indoors, increase fresh air circulation by opening windows or doors, as much as possible, especially in rooms where people are gathering. A gathering of no more than three households is permitted in a public park or other outdoor space. Gatherings are defined as “social situations that bring together people from different households at the same time in a single space or place.” Gatherings should be two hours or less. DSS does not want people in gatherings to sing, chant, shout, cheer, engage in physical exertion, or any other activity that increases the release of respiratory droplets and fine aerosols into the air.

          Licensees are encouraged to distribute the COVID-19 Safety Tips for Gatherings (a flier produced by DSS [attached]) to residents, facility staff, families, and friends, and post the flier in a public area near the facility entrance. When gathering away from the facility, licensees, facility staff, and residents should stay at home if sick, maintain at least six feet of physical distancing, wear face coverings, wash hands often, limit the number of people handling or serving food, limit contact with surfaces and shared items then disinfect those surfaces and items, and limit mixing different household attendees.

          Facilities may hold communal activities and dining while adhering to C-19 infection prevention practices: residents may eat in the same room with physical distancing and consider additional limitations based on status of C-19 infections in the facility. Face coverings should be worn by residents going to and from the dining area and whenever not eating or drinking. Group activities may also be facilitated with physical distancing among residents, appropriate hand hygiene, and use of face coverings. Encourage as many of these activities to occur outdoors when feasible, but communal holiday activities and dining may not include visitors.

COVID-19, PINs and Now What?

The Department of Social Services’ (DSS) has at least 40 PINs or provider information notices about Covid-19, some with good and useful information, and some with difficult direction. Local licensing offices want facilities to follow these PINs, update the first Covid-19 plan of operation, and now update facility emergency plans with a new, detailed Covid-19 plans of operation. One barrier, as DSS recently stated, the entire situation is “fluid,” subject to successive PINs updating previously issued PINs, changing “requirements,” and mandating a constant updating of facility procedures.

It would have been ideal if DSS had created a clear “here’s what we want” PIN, instead of successive PINs overturning previously issued PINs, amending previously issued PINs, and then present newly created requirements easily found and deciphered. Yet, credit to DSS’ Pamela Dickfoss (retiring at the end of November) in trying to keep facilities informed.

Most, if not all, PINs referenced other resources to follow or review: California Department of Public Health (CDPH), Center for Disease Control (CDC), and DSS. Also, each PIN directed facilities to comply with the “stricter provisions” without telling facilities which entity had the stricter provisions. Several PINs advised following CDC guidelines, but did not include those guidelines, and CDPH frequently required facilities to follow skilled nursing provisions making “social model facilities” compliance too complicated and difficult.

Is the Everbridge survey process a requirement? One PIN said facilities are “strongly encouraged” to complete the survey and return, whereas another PIN used the words “facilities should.” Technically, these are not legally required, but if it helps with tracking C-19 cases, do the surveys.

Facilities may be forced to pay for C-19 testing which went from testing “10% of staff every 14 days” to “25% of staff every 7 days.” Right now, a facility is not compelled to pay for testing, and testing is “free,” through public health sources, i.e. the county.

PIN 20-34-ASC addressed flu prevention including having staff and residents receive flu shots. It quoted the CDCs definition of what an epidemic outbreak is: “2 or more residents with onset of flu-like illness within 72 hours of each other.” Such an outbreak is a DSS-reportable event. Flu and C-19 is not a good combination for the industry.

For an easy and affordable C-19 addendum, go to Products and Services on our website. It’s just $9.99!! We also have our basic C-19 plan at the same site, and it’s free!

Holidays, COVID-19, Escalating Costs

What are your plans if families cannot visit your residents during the fast-approaching holidays? What will you say to your residents and their families about visiting, enjoying, and celebrating family-time holidays?

          A recently released study found a high amount of deaths have occurred among dementia residents that was attributed to “shelter-in-place” orders and residents prevented from seeing their families. The “excess mortality,” the study stated, was directly tied to residents’ “isolation and loneliness.” The rate, compared to previous years, increased 900%. Also reported were increases in resident falls, pulmonary infections, and depression.

          A researcher from the University of Pennsylvania gave his perspective: “The loss of interaction and caregiving that residents’ families provide to…residents is significant,” said Jason Karlawish, M.D. “If you think of Alzheimer’s as a disability, family members are almost like a cognitive wheelchair for patients who have lost part of their mind. They (family members) are essential. Social and mental stimulation are among the few tools that can slow the march of dementia.”

          Criticism is mounting against city, county, and state governments about opening universities, bowling alleys and malls, but keeping care facilities closed.

          Providers are begging for state and federal relief from having to purchase protective personal equipment (PPE) that has skyrocketed in price, up as high as 386%, and a halt to mandatory Covid-19 testing for staff and patients. The testing is costing facilities up to $15,000 a week. Then, in the midst of escalating costs, advocacy groups are pushing to increase minimum wage to healthcare works to a “livable wage” meaning providers should increase wages to staff as much as 15.5% claiming the industry would “greatly benefit.” That increase could be as much as $1.55 more per hour.

          Hey, advocacy groups, who ends up paying for that wage hike? Who are you advocating for—the residents, the staff, or providers? (Now you may see why staff opted to remain on unemployment rather than work.)

          PPEs, testing, and higher wages hurt the providers and residents. “Someone must pay for all of it.” That someone is the resident, of course.

          What is the maximum a resident and his or her family, not willing to pay, but able to pay? With the rising costs…that someone who must pay is the resident.