Vulnerable -- Part 2 

Second of two parts

Drifting languidly through the halls at Seaview Rehabilitation & Wellness Center, the poles are as brightly colored and as aimless as reef fish. They waft forward, idle, then reverse. The poles are paint-roller extension handles, the kind used to reach high ceilings, except these are draped with flowers and ribbons. They rise skyward from the wheelchairs of residents who enjoy rolling into others' rooms uninvited, and who no longer grasp that an invitation matters. The poles are just tall enough to run smack into shower rods barring the upper doorway of any nursing home resident who'd prefer more privacy.

Each of the five Brius-operated nursing homes in Humboldt County -- which is to say, pretty much every nursing home in the county -- has strategies for dealing with wandering dementia patients. All latch exterior doors or gateways. Some offer stop signs on strips of cloth that can bar a doorway. Some use a paint rod-shower rod combo, without the flourishes. At Seaview, "to erase the institutional look," nurses coordinated with relatives to decorate the rods, creating a palm tree, a maypole, a summer garden. "It brightens up something that could be viewed as a negative," said Roger Endert, who until recently was Seaview's top administrator.

Endert was the only Brius administrator allowed to give an interview to a reporter during most of July. He had to phone company executives first to get permission, and was restricted to talking only about the origins of this pole solution, and how it came by its gentle whimsy. Other than that one exception, Brad Gibson, a Brius vice president, had told his administrators that all press queries must go to him. That was the rule during the long, painful years when Brius' predecessor, Skilled Healthcare Group, was being sued, said Mary Johnson, an administrator who spoke with the Journal after Gibson lifted his ban. That tradition of schism, the corporate rulers elbowing aside the caregiver, says much about the turbulent history of nursing home care in Humboldt County. Some of the people who love seniors the most have had limited power to speak or act on their behalf.

This dichotomy haunted jurors in last year's landmark class action suit, which determined that Skilled understaffed so relentlessly and so often that it should pay residents and former residents $677 million. If jurors had been able to do so, said jury foreman Bob Hart, they would have given that money instead to the workers, the aides and nurses who struggled so hard to keep their charges safe and leave them some scrap of dignity.

The dichotomy lingers today in Pacific Rehabilitation & Wellness Center in Eureka, where Eureka resident Richard Furlong visited an elderly friend repeatedly in July. During his frequent visits, Furlong saw friendliness from a nurse, swift help from an orderly, and practical coaching on wheelchair safety from an occupational therapy aide. He got the impression these workers were doing their best. And yet, he said, the place was filthy, its odors oppressive, and help sometimes took a long time coming.

"The building, it radiates Third World energy," said Furlong. "What makes you think it is much worse than it really is is the stench of the place. ... The feces is quite pungent." His friend didn't get offered denture cleaner until someone overheard Furlong volunteering to buy some for him. Another day, his friend was wearing donated jeans too small to be zipped or buttoned at the waist. They flapped open above his crotch, and stayed on with the help of a pair of red, white and blue suspenders. "Unless you ask, you're not going to necessarily receive," Furlong said. He worries what might happen to people who have no one to visit, no one to speak up for them.

Five years ago, attorneys wanted to speak up for Humboldt County's nursing home residents. They sued Skilled Healthcare Group, in what became a class action lawsuit against 22 Skilled homes around the state. After the Humboldt County jury found against Skilled, the case was settled late last year. Skilled agreed to pay around $50 million and undergo rigorous monitoring at 22 homes, for a cost estimated at $12.8 million. Then Skilled got creative. It leased out its five Humboldt homes to a new operator, keeping the real estate while turning over daily operations to something called Brius. All involved agreed that the new arrangement allows Brius to sidestep two years of costly, intrusive monitoring.

The ease with which Skilled escaped monitoring is atypical for class action settlements, said Cruz Reynoso, a law professor and former California Supreme Court justice who reviewed the settlement at the Journal's request. "To me it seems like an odd settlement that would permit someone to take over immediately and therefore not be subject to the injunction," Reynoso said. "All the attorneys involved here would know that normally it's not doing much good" to structure an agreement that way. For that reason, Reynoso said, "I don't think they did it accidentally." Possibly, he said, attorneys wanted to permit a sale so that Skilled would have enough money to pay the $50 million. Or there could have been other reasons it made sense at the time. Needham said the settlement talks were confidential, so he cannot comment in detail on the reasoning of either side. He did recall that he was open to an outright sale of Skilled facilities here, which he would have considered "good riddance." Either way, Reynoso said, "I hate to be cynical, but the only threat to the new owners to whom this facility has been leased is that they too will be sued and lose millions of dollars.  ... I don't have much faith in the state doing proper supervision."

Without the injunction, nursing home care here is back where it started in one fundamental way: The state of California is again the main bulwark against abuses, enforcing rules to protect some of Humboldt County's most vulnerable residents. That's giving ulcers to jurors and advocates who watched the ways that Skilled played the state system, boosting staffing for inspections then cutting back the minute they ended. "Why would we have been so emphatic in making a stand if we thought the state would do its job?" said jury foreman Hart. Pat McGinnis, executive director of California Advocates for Nursing Home Reform, said state fines are too low and are imposed too rarely. "If you could count on the state, they wouldn't have had a successful lawsuit," she said.

Sharon Peters was scared, her voice on the phone husky. She had called the Journal a few days after a reporter first visited Pacific Rehabilitation & Wellness Center. Peters had been shocked when an administrator walked the reporter over to one of the nicest people in the place, a woman who never had a bad word to say. "Everyone is hiding the fact that the place is not up to par," Peters said into the phone. "There's rats running around the patio." There are broken toilets, she said, and electrical wiring so feeble it can't run an electric bed and a television at the same time. After she pushes a call button, her wait for help can drag past 45 minutes.

When the line went dead on the cordless phone that residents use, Peters worried that nurses might have listened in and disconnected her. She made contact again, inviting a reporter back, then called it off, deciding she didn't want to provoke the people who changed her bandages. Discharged in late July, she said via email that she wanted to focus on her own health, then cut off contact.

Asked to investigate, a Brius executive named Brad Gibson dispatched each complaint. He flushed every toilet in Pacific, he said, and they were fine. He could find no wiring problems. Nurses cannot listen to residents' phone calls. And while a dead rat was found in Pacific's courtyard, neighboring businesses also have a rat problem because of the nearby slough. The day he walked through Pacific, there was no smell. Gibson's boss, Shlomo Rechnitz, suggested that some nursing home residents are confused about what goes on around them. And yet, despite her skittishness, Peters described the same scents that disgusted Furlong, a frequent Pacific visitor. She described the same waits endured by residents in other Brius homes.

Over on Humboldt Hill, where Brius runs Seaview Rehabilitation & Wellness Center, Sally Marx of Eureka kept a log of how long it took before someone responded to her call button. Marx spent three months recuperating from a broken leg at Seaview, arriving on April 6, a few days after Brius took over. She remembers being told she'd have to wait for a bedpan because others needed their meals or their medicine. The waits that Marx logged averaged 25 to 40 minutes, and at least once lasted an hour. She said she turned over her log to the long-term care ombudsman's office.

That office has earned seniors' trust partly because it will keep their complaints confidential, said Suzi Fregeau, ombudsman coordinator for Humboldt and Del Norte counties. Fregeau offered in early July to ask her volunteers to put a reporter in touch with nursing home residents, but a few days later she said they could find no one willing to talk. "They're afraid of retribution, which is very common," she said.

Dependency and fear run like twin threads through life in a nursing home, according to McGinnis of the nursing home reform group. In 30 years of working with seniors, "maybe once out of a thousand" she can find someone willing to talk to reporters. Even if the fears are not real, many people hesitate to anger those they depend on. Workers at nursing homes, if they choose, can strike back in a thousand small ways at people who speak out, who have assertive relatives or who just aren't terribly pleasant to be around, McGinnis said. They can forget to fill a water glass, or skimp on meals. If things escalate, "People can hurt you. They can make you stay in bed for most of the day instead of coming and getting you out of bed on time." If the administration doesn't like you, she said, they can find a way to transfer you to another home. At Pacific, according to Peters, the rumor was that if you acted out too much, you'd be transferred to Granada, another Brius home. At Seaview, Marx was reluctant to complain to some head nurses. "I was afraid when they would ball the aide out, the aide wouldn't come back in."

With the settlement monitoring dead, with the state of California cash-poor, with nearly 20 percent of its nursing home surveyor jobs vacant, the remaining health and happiness of nursing home residents here rest in the hands of two men and the unknown investors behind them. One of the top executives here, Brius vice president Gibson, is an industry old-timer who started out as a teenager driving a van for a Eureka nursing home owned by relatives. "He's always been a straight shooter," said Needham, who pored through Skilled emails while preparing for the trial. "There were internal emails that indicated Brad was very supportive of managers trying to add staff." So far, Needham's office hasn't received a single serious complaint about the homes under Brius.

Gibson has worked for six different nursing home owners here since 1984, through times of trouble, state fines and lawsuits. This time, he said, he's in charge. "There's been no restrictions placed on me," he said. "I don't go to Shlomo and say I want to add three more FTEs," or full-time equivalents. "I want to be proud of the care we give everyone."

Shlomo is Gibson's boss, Shlomo Rechnitz, who launched his health care career in 1998 with boxes upon boxes of unwanted latex gloves. Born and raised in Los Angeles, he is the son of a closeout specialist, the kind of businessman who'd take a gamble on unloading latex. As Rechnitz tells it, he was just back from studying in Israel when he and his twin brother Steve thought they could solve the glove problem. They founded TwinMed LLC, a medical supply distributor. They sold the gloves to nursing homes.

Rechnitz branched out to nursing homes in 2006, taking over a building whose owner, he'd heard, was having trouble paying her medical supply bills. After getting that home on track, Rechnitz shopped the bargain rack for more. "We knew how to turn around a distressed facility, so we were looking mostly for distressed facilities, people who couldn't run their businesses correctly."  When he takes over, Rechnitz says, he likes to sink some money into making a place look "homier," and he staffs about 15 percent higher than state minimums.

Skilled isn't talking about how or why it hooked up with Brius, but Rechnitz said Skilled came to him and others in early 2011, looking for bidders to lease its Humboldt properties. Brius paid nothing upfront, but agreed to pay Skilled rent - around $500 per bed per month, or about $2.7 million a year for Skilled's 449 beds, said Rechnitz. Such deals are fairly typical in the nursing home industry and can benefit both sides, according to Grant Edwards, a Missouri broker who specializes in nursing home sales.

Once Brius took over, it in turn brought in Rockport Healthcare Services to run what Gibson calls back office operations. Brius dubbed the Humboldt homes "Redwood Healthcare Services." If this nest of company upon company is confusing, it's also popular and profitable in the nursing home industry, according to a 2007 New York Times investigation, which laid some of the blame for poor care at the feet of investors. According to Gibson, investors also own a chunk of Brius.

Beyond that, things get vague fast. Both Gibson and Skilled have called Rechnitz the chief executive officer of Brius, but that isn't quite right, Rechnitz said. "I'm the owner. I don't think I'm the CEO." Skilled and Gibson must have been mistaken, he said. Gibson was equally mistaken when he said his boss, a "low-key guy," had declined to be interviewed. Thanked for changing his mind and agreeing to a phone interview, Rechnitz said, "I never had a problem in the first place. I'm very accessible." Rechnitz also had some trouble with the number of nursing homes he's involved with. He initially put the total at 24. Told the California Department of Public Health says he has an ownership interest in 40, with one more pending, Rechnitz offered to look into the discrepancy. A week later, Gibson made the same request for the state list, and the same offer to look into it. Another week passed, and neither Gibson nor the "very accessible" Rechnitz was returning calls.

Rechnitz and Gibson swear they're going to do right by Humboldt's nursing home residents. They have no metrics for how quickly a call button should be answered, but they want it to be fast. They have no way to measure or track how long anyone waits, but they promise to investigate any complaints of excessive times like 45 minutes. If people feel they're waiting too long, Gibson said, that also could be subjective. "If someone wants to go to the bathroom, it might seem like an eternity," he said. Rechnitz had another theory about patient complaints: "I'm sure that there are some people in the facilities who are incoherent or confused. ... I don't know who you listen to or how much credence you can give to someone."

Now, those who care about the people in Humboldt County's nursing homes will have to depend on Shlomo Rechnitz and Brius, with their multiple company names, their changing titles, their oscillating yes's and no's on access, their ownership numbers that don't match the state of California's. Perhaps they will do everything they have promised. Or perhaps they are just confused.

The sun steams into a courtyard at Granada Rehabilitation & Wellness Center in Eureka, and a soft breeze ruffles the petals of pansies, impatiens and nasturtium. Angie Mattingly, an aide at Granada, lifts some of the little plants from crowded flower boxes. She takes them, one by one, to Granada residents waiting beside a glass table. This Friday, July 15, is gardening time, and the dividing and repotting of flowers into new containers is both recreation and a kind of therapy. As they are able, residents pour potting soil into the new containers, dig a small hole, and ease another plant into place. One woman uses her right hand to hold her left arm as she tries to dig. Another, who once owned a large farm, swiftly assembles an entire flower box. Fred Maguire calls out requests for different plants, creating a multi-colored mix. His long, gray-blond hair drifts in the breeze. Carefully, he keeps his Day of the Dead bracelet from Mexico dirt-free.

Maguire's past, as he tells it, includes years as a technician and field engineer for Lockheed, and a couple of marriages that have left him with a daughter and a granddaughter nearly the same age. At 73, he doesn't mind talking about the health problems that put him in a nursing home at a younger age than most, but he'd just as soon the Journal not print the specifics. He'd rather garden a little, or play his harmonica and work on tunes with Two Ramblers and a Renegade, a band led by a fellow resident. "Music heals, I believe," he says back in his room, as he thumbs through a binder of his favorites. Bob Dylan's "Girl from the North County" is in there, and so is "Me and Bobbie McGee." Talking about rehearsals, Maguire softly sings a line or two. He doesn't need much encouragement to knock out a sweet harmonica break.

Maguire is president of Granada's residents' council, which he says gets complaints mostly about smaller things: cold dinners, dirty toilets and unmade beds. At the next meeting, he wants to talk about respect, about staffers not rearranging things that don't belong to them.

"It's a difficult situation for people living in a (nursing) home," he says. "It's an environment where you've given up everything, you've given up your home ... You try to make the most of it."  The longest-serving staffers at Granada understand well how much has been stripped away from residents' lives, he says. He hears them urging new employees to imagine it, being unable to drive, to cook a meal, to move well, even to remember. "The regular people all are wonderful," he says. "They have to get the message down to the new people coming in." There have been a lot of new people coming in lately, Maguire says. It's the only change he's noticed since Brius took over.

A few miles away at the Eureka Rehabilitation & Wellness Center, administrator Mary Johnson has seen other Brius-driven changes. Johnson runs one of the prettiest and best-smelling Brius homes, and resident Marcia Murray, who calls her an angel, is not the only one who loves her. Johnson has fluffy blond hair, a wall full of diplomas, and a deep hope that Brius is going to be her best employer yet. Since April when Brius took charge, she's been able to turn a foyer into a seating area for visitors, has had the baseboards and thresholds painted a dark burgundy to better orient Alzheimer's patients, and bought a new recumbent exercise machine, for a total cost of around $20,000. With Skilled, Johnson said, she used to have to navigate through 10 or 12 signatures to spend over $5,000. With Brius, she just needs two.

Neither Johnson nor Samantha L'Allier, who runs Fortuna Rehabilitation & Wellness Center, thinks the nursing homes they knew well were understaffed during the lawsuit years. L'Allier was sure there must have been some problems, though, because you don't get sued like that if no one had a problem. "I'm hoping that out of this lawsuit, maybe some people somewhere did take from it, ‘OK, maybe we do need to make budgets bigger,' " she said.

For L'Allier and others who work in nursing homes, the legal turmoil was wrenching. The hardest part, she said, was "not being able to say our side, to be able to say ‘Look, here's what we do.' ... I hold people's hands when they're dying because they don't have any family. "

During the lawsuit, the news coverage felt "like a knife in the heart," said Valerie Denton, a certified occupational therapy assistant at Pacific. No one seemed to acknowledge the love and sweat that went into keeping a nursing home running. "There is a whole world you pass by on these streets that is operating by the sheer willpower of the people who work there," she said. And no one seemed willing to put their finger on the real problem. Denton knows the home can smell sometimes, when an aide might have 13 or 14 people to tend. The problem isn't the aide, she said, and it isn't really Skilled, or Brius or any other new operator to come down the line, who will have the exact same motivation to meet minimum standards and turn a profit. "What the underlying problem is, is we have health care for profit. As long as it's for profit, you're going to see that over and over."

The day Pat Morrison left Granada in 2006, her physical therapist warned her that if she didn't exercise daily, she'd end up right back in the nursing home and this time she'd never get out. Morrison went straight home from the place she called Camp Hell and stitched the therapist's words into a beige and brown piece of needlework for her wall. It reads "... and they will never let you go!" Ever since, she leans into her walker and walks a quarter mile each day around her apartment complex in Arcata. Back indoors, she repeats a series of 17 different stretches with exercise bands. Around the end of June, Morrison found a surprise in the mailbox. A check for $1,575, her share of the $50 million class action settlement paid by Skilled.

Morrison spent two months recovering from pneumonia in Granada, a place she remembers for dreadful food, a loud roommate and excruciating waits. "They asked too much of too few people," she said. "You'd ring for someone to crank your bed down because your back was killing you, and it would be a half hour or 45 minutes."

On June 27, about 2,500 checks went out to members of the class on whose behalf Skilled was sued: people who lived in one of the understaffed homes during a time when short staffing was documented. Payments varied. The more days of proven short staffing someone endured, the greater the dollar amount. That first round of checks, which went to people whose forms were complete, averaged $653.16 per person for a rough total of $1.6 million. The smallest were for $45. The biggest topped $20,000. A second round of checks, totaling around $7.2 million, should go out somewhere around Labor Day, bringing payments up to nearly $9 million. After that, another 800 or so claims still have to be sorted out.

The relatively small share of the $50 million that will flow to class members peeves Kippy Wroten, who represented Skilled during the trial and through the settlement. Reporters should be asking why Needham and other lawyers got more than $20 million, she said. They shouldn't be asking how much money Skilled saved by avoiding monitoring on five of its 22 homes. That, said Wroten, is a meaningless question, an irrelevant distraction from the real issues of the case. And reporters shouldn't be asking her why Skilled got rid of the operational end of its Humboldt homes for at least the next 10 years. She said she'd communicate that question to her client. It never responded. In the face of Skilled's silence, Humboldt can only guess about its carefully crafted pseudo-departure. Jury foreman Hart suspects spite. "It seemed like it was just payback. ‘OK, we won't do business with you people. We'll let you do business with other people.' " Or Skilled might be testing the waters here, before trying to unload more of its 17 operations, some attorneys speculated.

Beyond Humboldt County, the Skilled settlement's final imprint on nursing care in California remains unclear. At least five copycat suits have been filed, using similar legal arguments. The state has clarified its rules on working hours and started a round of audits to determine whether nursing homes are following the rules. The 17 other Skilled homes have been complying with required audits and submitting required reports. The reports are kept confidential under the settlement, but Needham has seen the first two and said that not a single nursing home has been understaffed on even a single day. That compares, he said, to understaffing 20 percent to 30 percent of the time during the years covered by the lawsuit. "Amazing what a little bit of court supervision will do," he said.

And yet, what the Humboldt attorneys could claim as wins are tinged with losses and disappointments. The new state rules have broadened definitions of who provides care, making it harder for people to win cases like the Skilled one, Wroten said. The new audits are still too scanty, said Needham. The state Department of Public Health is supposed to be auditing every nursing home in California this year to ensure they are providing the minimum required nursing hours: an average of 3.2 hours of care per patient, per day. The audits began in February, and as of mid-July the state had inspected only 218 of the 1,200 plus homes. It hadn't issued a single fine. About a quarter of the inspected homes, 57, were identified as possibly being subject to penalties. They are still being reviewed.

The next round of settlement checks, worth 4½ times as much as the first batch, seem likely carry 4½ times the freight of confusion, anxiety and fear. At least one relative whose mother got one of the first checks was too afraid of the implications to even discuss it, fearful his mother would lose her government aid.

It's not a simple thing for an elderly person with no resources to suddenly get $5,000, $10,000 or more. People on Medi-Cal -- which can include roughly two-thirds of long-term nursing home residents -- generally must keep their assets below $2,000 or lose eligibility. People getting Supplemental Security Income, known as SSI, can lose their checks if they have more than $2,000 in assets. If they're in nursing homes, people can spend down newfound assets on things like paying the phone or cable TV a year in advance, or making funeral arrangements, said McGinnis of California Advocates for Nursing Home Reform. If enough money is involved, people can set up a special needs trust. "We had quite a few calls when the checks first came," McGinnis said. "People need counseling" to get this right, and her group is giving callers free advice.

The money can't be held too long. It can't be given away, at least not by Medi-Cal recipients in nursing homes. And it has to go fast, sometimes in a month or less. Make the wrong move, said McGinniss, and suddenly you're no longer eligible for Medi-Cal, and have to pay the monthly nursing home bill yourself. In Humboldt, that can run around $7,000 a month. With so many people likely to get checks, McGinnis fears that somewhere in California, someone could fall into one of the cruelest traps of all: They'll use up their settlement money paying the same nursing home that was sued for stinting on their care.