Investigation leads to charges against Guardian Post Acute Services

Newly renovated Los Gatos facility is cited for neglect

Statewide impact predicted

By Jason Baker

A three-month criminal investigation prompted by allegations of patient neglect at a Los Gatos nursing home led to a Santa Clara County criminal grand jury indictment on May 25 against Guardian Post Acute Services Inc., of Northern California, on six counts of neglecting elder and dependent adults.

The outcome of the indictments could affect nursing home regulations throughout California, according to industry officials. The case is unique in that criminal charges were brought directly against the health-care corporation, not against an individual facility.

The charges stemmed from documented cases of substandard care given six patients, ranging in age from 37 to 82, at three of Guardian's facilities in Los Gatos and San Jose dating back to 1996.

In March, the Santa Clara County district attorney's office launched its investigation at the Guardian Los Gatos facility after personnel at an acute-care hospital reported finding maggots around the feeding tube of a woman who had been transferred to the hospital by the nursing home.

Upon further investigation of the three facilities in Los Gatos and San Jose, Deputy District Attorney Randy Hey said investigators discovered documented cases of patients who had developed bedsores or were left to lie in their feces and urine for hours at a time. One patient was allegedly sexually assaulted by a member of the staff, and three patients died after they were removed from Guardian, he said. Officials investigated Guardian at every standpoint, discovering at least 60 serious health care violations. "We're talking about patients lying in their own body waste for hours. Patients with bedsores rotted down to the bone," said Hey, who prosecutes elder abuse cases for the county. "We're talking about a patient with a colon so severely blocked that they vomit up feces and caregivers not recognizing it.

"These are really basic nursing problems. We're not talking high-grade medical malpractice here. I could have filed charges based on any single one of these cases and have been comfortable with it. This is certainly nothing isolated."

Robert Peirce, chief executive officer of Guardian Health Group, said that he was shocked by the charges leveled against the company's facilities. "We set very high standards, among the highest in the state," he said. "We are not perfect, but we are not criminals. I feel terrible about this." Peirce said the staffing ratio in Los Gatos is 36 percent higher than required by the state.

"I've been in this business 26 years. This company has been in existence 25 years and nothing like this has ever happened," Peirce said.

Peirce said he could not speculate as to why the district attorney chose to "retroactively criminalize" incidents that had been addressed through state policies and regulations.

"I can't speculate as to what is on his mind," he said. "What I can say is that this has never happened in the state of California."

Of the state health deficiency logged against Guardian Los Gatos, Peirce said a majority of them occurred in the midst of a $1.8 million facility renovation.

"Hindsight, in this case, is terrible. I wish we had closed the facility [during the renovation]," he said.

Peirce estimated Guardian had paid about $100,000 in deficiency fines to the state based on incidents occurring between July 22, 1996, and July 16, 1998, the time frame of the cases cited by the district attorney's office.

"That does not suggest that we feel that was an admission of fault," he said. "That is simply how the citation process works. Some companies try to shirk their responsibility to pay fines. That's not how we operate."

The indictments against Guardian resulted from a three-month investigation by the Santa Clara County district attorney's office, the San Jose Police Department and the state attorney general's office. Guardian operates 16 skilled nursing homes in eight Northern California counties, including four in Santa Clara County and one in Salinas with 1,600 patients.

If convicted, the corporation could lose its ability to collect reimbursement under the state's Medi-Cal program because it has a single license for all its homes. Guardian also could be subject to penalties up to $20,000 for each felony count. The firm also could be prohibited from participating in the federal Medicare program for up to five years.

While owned by the Alta Bates medical group in Berkeley, Guardian was a nonprofit operation. The current ownership converted it to for-profit status. The corporation has invested more than $10 million in improvements to its facilities since 1994, including $1.8 for renovations to Guardian Los Gatos.

Lea Brooks, spokeswoman for the California Department of Health Services in Sacramento said her agency does not handle criminal investigations into nursing homes. They simply perform annual inspections to ensure facilities are adhering to state and federal guidelines, as well as each facility's self-imposed standard of polices and procedures. The state also performs inspections based on reports of "unusual occurrences", she said. Each facility adopts and must follow its own set of standards, based on variables like size and the type of care the facility provides, as well as maintaining state and federal standards, she said.

After an investigation, state regulators may assess a deficiency to a facility, often accompanied by a substantial fine. A facility may then respond to the state with a plea of correction and a plan to address the noted problem or problems, which the state must approve.

State documents show that in each instance being prosecuted against Guardian, the health department had cited and fined the company several thousand dollars and established a procedure for compliance. But according to records, the pattern of neglect had not been sufficient to prompt officials to revoke the company's license.

"It's very unusual for a facility to have its license revoked," Brooks said. "Our goal is to make sure an agency is in compliance. Most want to comply and do."

But while the deficiencies documented against Guardian may have been resolved or corrected by state standards, Hey said they also warrant investigation by criminal prosecutors.

"All I can say is that in the investigation we conducted, we found what Guardian was doing to be criminally negligent," he said. Since the publication of the indictments against Guardian, the district attorney's office has received numerous phone calls from people reporting similar problems experienced with [other] local nursing homes. "With respect to Guardian, we will log all of the calls and look at the potential of filing any new cases."

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