David W. Tate, Esq., San Francisco and California – dave@tateattorney.com

The following post was originally made on my other blog at http://auditcommitteeupdate.com

I have provided below two snapshots from the California Department of Public Health’s website discussing and disclosing some information pertaining to nursing home resident COVID-19 cases and deaths, as reported to the Department by the nursing homes themselves. I took both snapshots today, May 9, 2020. I have also provided below a link to the Department’s website page pertaining to nursing home residence COVID-19.

The first snapshot contains the Department’s top-of-the-page introductory paragraphs, indicating that the information provided by the nursing homes is as of May 7, 2020, and describes how that information is reported. The second snapshot is a random snapshot of some of the information that is provided by the Department in the chart of information further down the Department’s page. Note that the actual chart does contain an additional column to the left which provides the name for each nursing home that is listed – I left that information off because it is not related to the purpose of this post, and because you can also find that information yourself if you would like.

Nursing home resident care, processes and procedures, risk management, and reporting are always of absolutely key importance, and are of even more deadly importance in this COVID-19 time. You will also find other prior elder care and nursing home related posts on this blog.

As indicated in the first snapshot, the information that the Department has and provides only is information that is reported by the nursing home facilities themselves to the best of each nursing home’s knowledge. The Department does not discuss the actual criteria or evaluation processes were used by each nursing home, the extent to which the information that has been provided is reliable, whether reliability is evaluated, or how reliability is evaluated if in fact it is. Thus, I would have to assume that the information is not comparable as between different nursing homes. And I would also have to assume that some of the information that has been provided is not accurate or does not satisfy whatever reporting requirements the Department communicated.

Regarding evaluation of compliance programs the U.S. Department of Justice Criminal Division, just as an example, lists three primary criteria, plus subparts:

I.  Is the Corporation’s Compliance Program Well Designed?

II.  Is the Corporation’s Compliance Program Being Implemented Effectively?

III.  Does the Corporation’s Compliance Program Work in Practice?

It would be legitimate to ask the above three questions of each nursing home and of the Department of Public Health with respect to resident care, processes and procedures, risk management, and reporting in this COVID-19 time. The following is a link to an earlier post discussing the Department of Justice’s guidelines for its evaluation of compliance programs: https://wp.me/p75iWX-nb

The first snapshot is provided immediately below. Snapshot two and comments about snapshot two are provided following the first snapshot.

Below is the second snapshot. As I have stated above, the actual chart on the Department’s page contains an additional column to the left which provides the nursing home’s name. Let’s look at the chart. First I noticed that while most nursing homes have provided information, throughout the chart and in the snapshot below, there are facilities for which the information is N/A, or, in other words, there is no information provided. I do not know why there is no information provided, but if I was the Department I would want to investigate the reason for each such facility, and most likely report the reason. And for each such facility I would also need to decide how to proceed on the issue of reporting and there being no information. Of the sixteen facilities in the snapshot below, two are N/A, which is 8% based on a random sampling.

Many nursing homes report no COVID-19 cases or deaths, which is good, but only if the information is reliable. The first column in the snapshot below lists the county in which the nursing home is located, the second column lists confirmed health care worker COVID-19 cases reported that day (May 7, 2020), the third column reports confirmed resident COVID-19 cases reported that day, the fourth column reports confirmed health care worker COVID-19-related deaths cumulative, and the fifth column lists confirmed resident COVID-19-related deaths cumulative. For unknown reason if there are occurrences but those occurrences are less than 11, the actual number of occurrences is not listed. You can view the information provided yourself and reach your own opinions. If you have a loved one in a nursing home you should also ask the facility the questions for which you want information.

You might also be interested, the following is a link to a recent short blog post about family councils: https://wp.me/p1wbl8-w0.  And you can find the Department’s COVID-19 page at https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/SNFsCOVID_19.aspx.

Best to you, Dave Tate, Esq. (San Francisco and California) – dave@tateattorney.com

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Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only.

I am also the Chair of the Business Law Section of the Bar Association of San Francisco.

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