By Erin Sherbert
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By Albert Samaha
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On June 19, thousands of workers and supporters massed on the walkway of the Golden Gate Bridge. Wearing the trademark purple of the Service Employees International Union, they sang chants and sported T-shirt slogans demanding that every American have access to quality health care. On June 22, the final day of the union's annual convention in San Francisco, John Kerry gave a keynote speech at the Moscone Center echoing the convention's theme slogan: "Healthcare for All." He lamented the lack of quality health care for workers and denounced a recent Supreme Court decision limiting the lawsuits that patients are able to file against HMOs that deny them medical care.
On that same day, SEIU lobbyist Allen Davenport continued making the rounds of the politically connected in Sacramento, promoting the union's campaign to limit the right of disabled and elderly patients to sue nursing homes when they are neglected, maimed, sexually abused, or killed.
That's right: Just as the SEIU's highly public health-care-for-all sloganeering is gaining national resonance, the organization's lobbyists are visiting offices and conference rooms in Sacramento, hoping to limit the medical legal rights of the most helpless and infirm of Californians. The SEIU has entered a compact with the owners of California's for-profit nursing homes, and it involves an apparent, coldblooded trade-off: In the pact, alluded to on an industry/SEIU "alliance" Web site and described in greater detail by elder advocates who oppose the deal, the SEIU has agreed to help the nursing home industry obtain its long-sought holy grail of limiting lawsuits that hinge on allegations of mistreatment of patients. Among the benefits the SEIU would receive by dint of the pact is better access to nursing home workers who might be organized into the SEIU's ranks.
The compact that SEIU lobbyists are touting to legislators and others includes a warm-and-fuzzy package of health care reforms, such as higher wages and staffing levels and higher government payments to nursing homes that care for low-income Medi-Cal patients. But the real action, the deal's sweet spot, involves so-called "tort reform" for nursing homes. To this end the union is currently lobbying politicians and interest groups to sign onto a legislation package that would make it harder to sue the deadliest members of California's poorly regulated nursing home industry. If everything goes according to the SEIU/nursing home industry plan, some of the pact's "reforms" aimed at limiting patient lawsuits might be quietly slipped into the massive, 2004 state budget bill.
Nursing home patient advocates -- who've long supported the SEIU on issues such as pay, benefits, and staffing levels for nursing home orderlies -- consider the deal an act of betrayal.
"We're outraged," says Lupe de la Cruz, California advocacy director for AARP, an organization formerly known as the American Association of Retired Persons. "Our basic line is that we care about the people in the beds. The erosion of their rights, so the SEIU can get a sweeter deal on negotiations ... it's not [the SEIU's] to negotiate away."
Many nursing home residents aren't terribly old, yet they suffer severe disabilities. And disabled advocates are likewise astonished by the industry/labor pact. Deborah Doctor, with the group Protection and Advocacy Inc., says that as recently as this year she had been fighting alongside the SEIU against cuts in the California health care budget.
"Before I put out anything to my constituency, I verified this information with the SEIU's lobbyist, to make sure I wasn't dealing with rumors, partly because I was disbelieving. I was thinking, 'This can't be,'" says Doctor, who was told the union would indeed carry water for the nursing home industry and lobby to limit elder-abuse lawsuits. "I would say the SEIU's alliance with the for-profit nursing home industry is unholy. They have no more right to negotiate away our rights than we would to negotiate away their collective bargaining rights."
Pat McGinnis, executive director of California Advocates for Nursing Home Reform, recalls standing on SEIU nursing home picket lines when corporate owners fired workers and shut down less profitable homes.
SEIU members "are people we've worked together [with] on so many issues that would further residents' rights. They think they'll be guaranteed all this extra money for staffing and wages. We know they're getting access for unionizing at these facilities, too. It's all tied together," says McGinnis. "It just breaks your heart."
I asked Bay Area SEIU Local 250 President Sal Rosselli whether it was really true that this deal would allow organizers greater access to nursing homes.
"Yes, by agreement," Rosselli said. "Traditionally, there has been an adversarial relationship between SEIU and general health care providers. We've been changing those relationships to accomplish common goals."
When asked about the SEIU lobbying toward the nursing home industry's goal of limiting patient lawsuits, Rosselli suggested that somehow the money the most abusive nursing homes would save on lawsuits would go to patients and union members. But does the lobbying mean the union is swapping the possibility to expand its membership in nursing homes in exchange for "reforms" that would limit injured patients' right to sue? "That's not a legitimate way to describe it whatsoever. The problems in the nursing home industry are multifaceted. We make decisions based on what's needed to reform nursing homes. It's a complicated question. There are problems in the system. There is a system where dollars don't go to actual health care," Rosselli explained. "So it's legitimate that the whole system be looked at, from our point of view."
SEIU statewide spokeswoman Lisa Hubbard likewise insisted nothing was amiss as she confirmed the more noxious elements of the union/nursing-home-owner lobbying deal. She said she didn't believe the tort-reform aspects of the deal would move forward this year -- but not for lack of SEIU support. "The SEIU has helped the industry support tort reform," she said. "We have developed a working relationship with some of the nursing home industry's largest employers to get access to some of the largest nursing homes in the state."
Though little-publicized, the "alliance" (as the SEIU and the nursing home industry call it) has been long in coming. In fact, lobbying pacts between the SEIU and the nursing home industry had previously been struck in Florida and Texas, AARP's de la Cruz says.
"We were approached by the industry a year and a half ago. They told us what they were doing in Florida, and they had every intention of doing it here," de la Cruz says.
Over the past two years, various corporate nursing home chains and the SEIU, which has thousands of members who work in nursing homes, decided to lay down their arms and pursue their mutual goals of more money for the nursing home industry and for union employees. Nursing home operators had previously spent thousands of dollars on union busting, hoping to keep worker pay low. Meanwhile, union members worked hand in hand with the industry's bitterest enemies, including advocates for the elderly, who were seeking to reduce the unwarranted death, injury, and psychological trauma that have been grist for dozens of media investigations of substandard nursing home practices.
But that was before the birth of the "alliance," which has created a Web site, established a front group called California United for Nursing Home Care, and put forth a list of "principles" -- including adequate staffing of and more accountability for nursing homes and increased wages and benefits for nursing home workers. "They were principles my cat would sign," California Advocates for Nursing Home Reform's McGinnis said. "These are things nobody would argue with."
But the principles didn't directly address the deal's seamy underbelly: labor's support for tort reform in exchange for relaxed union-busting by nursing home chains.
With the innocuous "principles" as bait, the "alliance" obtained signatures from members of the clergy and from consumer and community organizations, thereby creating the appearance that the deal's key players -- workers and employers -- were just two of many participants in a broad coalition.
Earlier this year, nursing home industry representatives put forward a proposal, drafted in cooperation with the SEIU, that would increase staffing at nursing homes while creating a Medi-Cal reimbursement system that would give nursing homes a guaranteed profit along the lines of a regulated public utility -- without the high levels of regulation that public utilities receive. Under this scheme, taxpayers would guarantee nursing home owners an 8 percent return on investment.
These warm/fuzzy aspects of the proposal certainly appealed to the nursing industry, which would love to have a larger government-sanctioned revenue stream. Perhaps even more important to the industry, however, are sections of the bill that would limit a patient's right to sue a nursing home.
The nursing home industry has long sought to limit its legal liability, because lawsuits have become the only significant regulatory weapon against an industry notorious for choosing profits over patient care. Despite stacks of state and federal reports showing widespread elder abuse in nursing homes, state regulation is anemic. Even in the best of times, California regulators are required to go into homes only once every 15 months to perform spot checks. In residential care facilities, government bureaucrats poke their heads in just once every five years.
Counties typically employ a single "ombudsman" who checks up on nursing homes. But these officials have thousands of patients to monitor and no enforcement authority -- all they can do is pass along complaints to the state, which has a complaint backlog going back months, at a minimum. So while the number of actual complaints in categories such as physical abuse, sexual abuse, and gross neglect increased in California by 38 percent between 2000 and 2002, and as owners sought to eke out more profit from nursing home chains, the state actually inspected and verified fewer complaints.
Depending on how life-threatening a complaint may be, state inspectors are required to arrive from one to 70 days after a formal allegation is made, to see what is going on. According to a report just completed by UCSF nursing home expert Charlene Harrington, state inspectors arrived an average of three months after the time limit, giving homes ample time to cover up problems. Partly as a result of this lack of oversight, the federal General Accounting Office estimated in 1998 that residents at one-third of California's 1,400 nursing homes are at risk of being unnecessarily killed or injured.
The state's abdication of duty in regulating nursing homes leaves private lawsuits as the primary method of checking nursing home abuse. Actually, nursing homes are sued fairly rarely -- around one suit per 1,000 patients, according to a November 2003 California Advocates for Nursing Home Reform study -- given the large number of horror stories emanating from the lower, Dickensian level of the industry. The few cases that get to court tend to be particularly grisly: Nursing home orderlies asphyxiated one Sacramento County woman when they illegally used a physical restraint. Another Sacramento County woman died after being sexually assaulted twice. A Santa Clara man died following neglect that led to infected bedsores, dehydration, malnutrition, and other medical problems. A San Mateo County woman died because the temperature inside her nursing home reached 108 degrees. A San Francisco man was trapped and died when his bed collapsed.
Significantly, the SEIU's anti-lawsuit lobbying effort would benefit the worst abusers. Most of these lawsuits target nursing homes that have already been cited numerous times for neglect and abuse. About half of the lawsuits hit the worst 10 percent of abusers, the CANHR report said. In short, lawsuits are the only thing keeping the worst for-profit abusers in check.
And the health-care-for-all SEIU is carrying water for these malfeasants as they seek to get away with what too often amounts to something very close to murder.
There's little to disagree with on most of the California United for Nursing Home Care Web site; like the rest of the "alliance's" propaganda, the messages on the site are designed to create the appearance that this employee-employer compact is all about helping elderly patients. Just the same, the site contains a few lines that hint at the true nature of the unholy SEIU-industry deal, particularly in a section that announces that alliance members "support availability of adequate, affordable professional liability insurance and appropriate compensation for residents who suffer harm."
Translation: Liability insurance will become more affordable for nursing home owners once we make it more difficult for abused patients to sue.
Under the nursing home industry proposal being advanced by SEIU lobbyists, judgments obtained against nursing home owners for pain and suffering would be capped at $250,000. The proposal would also change current state law -- which says nursing home owners may be liable for damages if they are proven "reckless" in caring for patients -- so that nursing homes could be sued only if it could be proved that they willfully harmed patients.
By changing legal standards in this way, the "reforms" would make it more difficult for patients to use previous nursing home violations of health care codes as evidence in elder-abuse lawsuits; it would no longer matter if nursing home owners were reckless, much less merely negligent. To prevail against nursing home owners, victims would have to prove that those owners intentionally caused harm -- a standard that is much harder to meet. The "reforms" would also keep injured nursing home patients who win in court from recouping their attorneys' fees, unless their attorneys came from the same "geographic region" as the patients -- thereby preventing patients from hiring out-of-town lawyers experienced in the recalcitrant ways of the most unscrupulous nursing home owners.
"We would not support their effort to put caps on claims. They're not talking about just some claims, but even the most egregious abuses would be capped," says de la Cruz, the AARP lobbyist. "They were also looking to change the definition of the Elder Abuse Act, so that recklessness wouldn't be included. It would have to be knowing and willing. The idea that a nursing home would put this into a memo is ridiculous. It's clearly an attempt to keep nursing home residents from exercising their legal rights."
Sal Rosselli, the Bay Area SEIU leader, described his union's pact with the nursing home industry as a new form of employer-employee solidarity. "As this relationship changes, we are experiencing employers not resisting their workers who want to join us," Rosselli said. "Traditionally employers put huge amounts of money and time in anti-union campaigns. As relationships change and we collaborate more toward common goals, we expect these employers will save money they spent resisting organizing drives."
Rosselli told me that there's an actual, formal agreement giving organizers better access to nursing homes, but that he didn't have it at hand to describe in detail.
"I'll have to get back to you on that," he said, and then didn't.
Though I wasn't there, I'm told the June 19 march was a glorious affair in which blue-collar workers of all ethnicities and ages walked across the world's most beautiful bridge and shouted support for the truly righteous cause of quality, affordable health care for all Americans.
SEIU members were right to applaud when John Kerry publicly adopted the union's health care motto, because in a just America, people wouldn't suffer or die for lack of good medical care. And SEIU members would be right to be outraged that their union's California leadership appears to have done the political equivalent of selling its soul.
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