California Watch

Attorney General Jerry Brown last week announced his bid for governor, and his office didn’t miss a beat in issuing press releases about his accomplishments as the state’s top cop.

But a release issued yesterday about the money recovered by the Medi-Cal Fraud and Elder Abuse Unit made no mention of another trend: Brown's office had filed fewer elder abuse cases than the previous Attorney General.

In 2006, the office (under Bill Lockyer) filed 93 criminal elder abuse cases and four civil complaints for the offense. But in 2007, after Brown took office, the corresponding numbers were lower – 75 criminal cases and zero civil suits for elder abuse violations, according to the Medi-Cal Fraud and Elder Abuse unit's annual report.

Brown's office secured five more elder abuse criminal convictions than Lockyer's had in 2006, a total of 88. But the press release – making no mention of the prior year's numbers – says Brown secured 47 criminal elder abuse convictions in 2009. That would be roughly half as many as during the prior year.

Orders for restitution stemming from these types of cases faced an even steeper decline. For both civil and criminal elder abuse cases, the amount of restitution ordered fell from about $443,000 under Lockyer in 2006 to $88,000 in 2007, the report says.

What’s more, unannounced nursing home inspections conducted by a team of medical professionals dubbed “Operation Guardians” fell off drastically, from 92 in 2006 to 51 in 2007. That group is now defunct, a former member recently told California Watch.

The complete 2009 numbers are due in a May report.

Brown’s office provides one possible reason for the slow-down in elder abuse avenging in a 2009 letter to federal funders provided to California Watch. Brown broke down the size of other states’ Medicaid programs (we call it Medi-Cal in California) and the size of their fraud fighting staffs:

California’s total Medicaid budget for Fiscal Year 2008-2009 is the second largest in the nation at approximately $38 billion (New York’s is the largest at approximately $46.5 billion). However, California’s staffing for enforcement has slipped to the fourth largest in the nation at 197. (New York’s unit has the largest staff, with 335, which mirrors its Medicaid allotment. Florida and Texas, with smaller Medicaid allotments, each have 232 and 208 enforcement positions.)

Brown, however, seemed to have placed considerable energy into the more-lucrative Medi-Cal fraud cases. Prosecutions and orders for money rose considerably after he took office. From Lockyer's last year to the end of Brown's first, restitution orders in civil fraud cases jumped from $46 million to $145 million. 

The 2009 report recounts the details of some of those cases, including one that Brown’s office describes as “the first known instance of conspiracy between provider and recipient the Bureau has encountered in the context of in-home health support services.”

Defendants Cato and Beasley are charged with a conspiracy to commit grand theft and submission of false claims, as well as the underlying crimes. Defendant Cato was the care provider for Beasley from 2003 until the end of 2007, and both are accused of engaging in a scheme by which Cato would submit claims for care without performing any services but receive a small portion of the Medi-Cal assistance monies paid, while Beasley would receive the majority of the money intended to pay for his supposed care. Together they stole $29,000.

Brown’s office went after the operators of a hospice where patients, oddly, didn’t seem to die:

Defendant Milagros Delmenu, the owner of We Care Hospice, directed cappers to pay beneficiaries $250 a month to falsely claim they were hospice patients. The We Care Hospice facility falsified medical records to justify payments. The national average of patients who die in the first month of hospice care is approximately 80 percent; We Care Hospice, by contrast, experienced only an 11 percent death rate over a six month period. Ultimately, We Care Hospice fraudulently billed over $1 million to Medi-Cal and $9 million to Medicare. The case was filed in early May and is pending in Los Angeles County.

And in this case – an elder abuse action – Brown’s office went to bat for seniors who were allegedly sedated without their consent.

On February 18, 2009, Gwen Hughes, the former director of nursing at the skilled nursing facility of the Kern Valley Healthcare District in Lake Isabella, Kern County, was arrested on charges of elder abuse and assault with a deadly weapon. Also arrested were Debbi Hayes, the former pharmacist at the Valley Healthcare District and Dr. Hoshang Pormir, a staff physician at Kern Valley Healthcare District, who was serving as the medical director of the skilled nursing facility.

An ombudsman reported that a patient in the skilled nursing facility had been held down and given an injection of psychotropic medication by force. The ensuing investigation determined that many Alzheimer’s and other dementia patients at the skilled nursing facility were being given high doses of psychotropic medication not for therapeutic reasons, but to simply control and quiet them for the convenience of the staff.

Specifically, Gwen Hughes is alleged to have ordered that Alzheimer’s and other dementia patients in the skilled nursing facility be given high doses of psychotropic medications in order to make them more tranquil and easy to control. Hughes is alleged to have directed Debbi Hayes, the hospital pharmacist, to fill prescriptions for these psychotropic medications. Hayes is alleged to have written and filled these prescriptions without first obtaining a doctor’s approval. Dr. Hoshang Pormir is alleged to have approved these psychotropic medications, if at all, only some time after they had been administered and without examining the patients first and determining whether these psychotropic medications were medically necessary.

UPDATE:

Attorney General Brown spokeswoman Christine Gasparac offers this repsonse:

Under the Brown administration, the Bureau of Medi-Cal Fraud and Elder Abuse has had a greater percentage of criminal case filings than under his predecessor. Brown’s percentage of criminal filings has been larger than every year the previous attorney general was in office. This is true despite the decline in referrals of neglect and abuse cases for investigation and prosecution, and the deep budget cuts suffered by all state agencies in recent years. Since Brown took office, the Attorney General's Office (AGO) has seen its annual budget cut by $100 million. Because of such drastic budget cuts, the AGO was forced to eliminate BMFEA's Operation Guardian program, the single largest source of referrals for investigation. Other referral agencies such as the California Department of Health and state and county Ombudsman offices have also reduced and cutback inspections, dramatically impacting the number of referrals provided to the AGO. To quantify the impact, in FY 2002-2003, the AGO received 2382 referrals. Last year, the AGO received only 678 referrals for investigation. This year, Brown’s office is on track to receive only 505 - less than 22% of what was sent in FY 2002-03. Despite the tough economy, Brown’s office has been incredibly successful in obtaining criminal convictions and civil judgments against those that defraud Medi-Cal and commit elder abuse. The AGO’s efforts to clean up the industry and protect California’s elderly and infirmed should not be overlooked by ignoring the context of its achievements.