Health inspection·April 7, 2023

H & S CODE 1432-No licensee shall discriminate or retaliate in any manner against any complainant, or any patient or employee in its long-term health care facility, on the basis or for the reason that the complainant, patient, employee, or any other person has presented a grievance or complaint or has initiated or cooperated in any investigation or proceeding of any governmental entity relating to care, services, or conditions at that facility. A licensee who violates this section is subject to a civil penalty of no more than ten thousand dollars ($10,000), to be assessed by the director and collected in the manner provided in Section 1430. Any attempt to expel a patient from a long-term health care facility, or any type of discriminatory treatment of a patient by whom, or upon whose behalf, a grievance or complaint has been submitted, directly or indirectly, to any governmental entity or received by a long-term health care facility administrator or any proceeding instituted under or related to this chapter within 180 days of the filing of the complaint or the institution of the action, shall raise a rebuttable presumption that the action was taken by the licensee in retaliation for the filing of the complaint. Any attempt to terminate the employment, or other discriminatory treatment, of any employee who has presented a grievance or complaint or has initiated, participated, or cooperated in any investigation or proceeding of any governmental entity as specified in subdivision (a), and where the facility or licensee had knowledge of the employee's initiation, participation, or cooperation, shall raise a rebuttable presumption that the action was taken by the licensee in retaliation if it occurs within 120 days of the filing of the grievance or complaint, or the institution of the action. Presumptions provided for in subdivisions (b) and (c) shall be presumptions affecting the burden of producing evidence as provided in Section 603 of the Evidence Code. Where the civil penalty assessed is one thousand dollars ($1,000) or less, the violation shall be issued and enforced in the same manner as a class "B" violation, except in no case shall the penalty be trebled. Where the civil penalty assessed is in excess of one thousand dollars ($1,000), the violation shall be issued and enforced in the same manner as a class "A" violation, except in no case shall the penalty be trebled. Any person who willfully violates this section is guilty of an infraction punishable by a fine of not more than ten thousand dollars ($10,000). A licensee who violates this section is subject to a civil penalty or a criminal fine, but not both. Each long-term health care facility shall prominently post in a facility location accessible to staff, patients, and visitors written notice of the right to request an inspection pursuant to Section 1419, the procedure for doing so, including the right to remain anonymous, and the prohibition against retaliation. For purposes of this section, "complainant" means any person who has filed a complaint, as defined in Section 1420. On 10/13/22, at 11:20 AM, an unannounced visit was conducted at the facility to investigate a complaint regarding falsification of employee COVID vaccination records. Based on interview and record review the facility failed to prevent an Administrator from threatening retaliatory actions against Staff Members (SM 1, SM 2, SM 3, SM 4) for participating in a state/federal survey regarding falsified COVID vaccination cards. This failure had the potential to impede the investigation. Findings: During an interview on 10/13/22, at 12:55 PM, with staff member (SM) 1, SM 1 stated, the facility Infection Control Nurse (ICN) provided a COVID vaccination card indicating, two doses of COVID vaccinations were administered. SM 1 stated, they did not get COVID vaccinations, but the ICN still offered a COVID vaccination card with documentation that several COVID vaccinations had been administered. SM 1 stated, the Covid vaccine card was false. During an interview on 10/13/22, at 1:21 PM, with SM 2, SM 2 stated, ICN had approached SM 2 about not being vaccinated against COVID. SM 2 stated, ICN had stated, "What if I can get you a [COVID vaccination] card without getting the vaccine." SM 2 stated, ICN provided a COVID vaccination card. SM 2 stated he did not get vaccinated and ICN issued the card. During an interview on 10/13/22, at 1:43 PM, with SM 3, SM 3 stated, ICN provided a falsified COVID vaccination card that indicated SM 3 received two COVID vaccinations. The vaccination card provided by ICN indicated the first dose was administered on 5/13/22 and the second dose was administered on 6/3/22. SM 3 stated, COVID vaccination were never administered to me. During a review of the facility's "Investigation Conclusion" (IC), dated 10/13/22, the "IC" indicated, "Investigation conducted for ten (10) staff members who received COVID vaccination cards from [ICN]. All ten (10) employees denied alleged deficient practice and verbalized and documented they received the COVID vaccine prior to receiving the COVID vaccination card." The "IC" was signed by the facility Administrator and Director of Nursing (DON). During a review of the Licensing and Certification Declaration Witness Statement Form (LCWSF - a written statement/testimony of facts provided by a an individual/witness), dated 10/24/22, the LCWSF indicated, SM 2 received a COVID vaccination card from ICN that falsely indicated that two COVID vaccination were given. The LCWSF indicated, the facility Administrator threatened to terminate SM 2 if the statement was not retracted.. SM 2 completed a form provided by facility Administrator indicating, they received the COVID vaccine from ICN to prevent facing repercussions/retaliation from the Administrator. SM 2 stated the statement the Administrator requested was false. During a review of the LCWSF, 10/24/22, the LCWSF indicated SM 3 received a COVID vaccination card from ICN that falsely indicated they received two COVID vaccines. The LCWSF indicated, SM 3 stated ICN gave them COVID vaccines as instructed by facility Administrator. SM 3 stated the information that Covid vaccines were given was false. SM 3 stated, Administrator provided the instructions on what to put down. SM 3 stated there was fear of repercussions/retaliation from Administrator. During a review of the LCWSF, 10/24/22, the LCWSF indicated, SM 4 was offered a falsified COVID vaccination card by ICN. The LCWSF indicated, "[Administrator] along with his leadership obstructed my, and other staffs (CNA [Certified Nursing Assistant], Activities support staff, Nursing) ethical obligation to ensure residents safety, by reporting and maintaining adequate compliance. Failure to comply to his [Administrator] demands will be grounds for being fired and or having him scout for your replacement. During CDPH [California Department of Public Health] investigations and interviews he [Administrator] would demand to be present so that staff was intimidated to speak in the facilities favor or in his. During interviews he would text/harass staff to be quiet and not be forthcoming in information. I was asked today by [Administrator] to fill out or send him info on my exp. [experience] with the booster shot [COVID vaccine] . . . [SM 4] responded with semi truthful information relating to fear of retaliation since he [Administrator] has affiliation and communications with other [County] skilled nursing facilities." During an interview on 10/26/22, at 2:04 PM, with SM 1, SM 1 stated, Administrator had requested a change to their statement during his [Administrator] investigation into falsified COVID vaccination cards or face retaliation and/or termination. SM 1 stated they had to falsely state they did get the COVID vaccination for the facility investigation as told to them by Administrator. SM 1 stated, no matter what I say, either I lose my job or my license. There are repercussions for everything, no matter what I say. I am going to be punished one way or another. During an interview on 10/26/22, at 4:57 PM, with DON, DON stated, Administrator conducted the investigation and concluded the allegation of falsified COVID vaccination cards was unsubstantiated. DON stated, she did not take part in any portion of the investigation including questioning employees. DON stated, her only involvement with the investigation into falsified COVID vaccine cards was in reading the Administrators conclusion and signing off that the investigation was unsubstantiated. During an interview on 10/26/22, at 5:34 PM, with Administrator, Administrator stated, his investigation into falsified COVID vaccine cards by ICN consisted of record review, interviews (conducted by Administrator), and coming to a conclusion. Administrator stated, the conclusion to the facility investigation was that there were no findings of falsified COVID vaccine cards by ICN. Administrator stated, if he did have findings he would have, "Spoke with legal counsel and did the right thing." During a review of the facility job description (JD) titled, "Administrator", dated 12/2018, the "JD" indicated, "The primary purpose of your job position is to direct the day-to-day functions of the facility in accordance with current federal, state, and local standards, guidelines, and regulations that govern nursing facilities to assure the highest degree of quality care can be provided to our residents at all times. . . Is a role model for our Mission, Vision, and Values. Ensures all employees, residents and families are treated with the utmost respect. . . Monitors industry regulations, laws, compliance updates and makes changes appropriately. . . Develops and maintains a stellar reputation within the industry and community. . . Assist in providing survey team members with additional information during the survey that may aid in preventing deficiency citations." During a review of the facility's Employee Orientation Packet (EOP) titled, "Commitment to Crescendo," undated, the EOP indicated, "As a teammate at [facility name], I know that I play a crucial role in creating the greatest post-acute care provider the world has ever known. In everything I do, I believe in creating a lasting, positive impact on the lives of the people I touch. To that end, I agree to live by the following . . . I will actively promote a culture of professionalism, passion and compassion and conduct myself in the most professional manner." During a review of the facility's "Employee Handbook California" (EHC), 6/2021, the EHC indicated, "Ethics Code . . . The Company will conduct business honestly and ethically wherever operations are maintained. . . will maintain a reputation for honesty, fairness, respect, responsibility, integrity, trust, and sound business judgement. Our managers and employees are expected to adhere to high standards of business and personal integrity . . . Violation of the Code of Ethics can result in discipline, up to and including termination of employment. The degree of discipline imposed may be influenced by the existence of voluntary disclosure of any ethical violation and whether or not the violator cooperated in any subsequent investigation. . . Discrimination, Harassment, and Retaliation Prevention . . . The Company has a strict policy against all types of workplace harassment . . . This policy protects all applicants and employees (including managers and supervisors) from unlawful harassment and discrimination. . . Retaliation means any adverse employment action taken against an employee because the employee engaged in activity protected under this policy. Protected activities include, but are not limited to, reporting or assisting in reporting suspected violations of this policy and/or cooperating in investigations or proceedings arising out of a violation of this policy. Adverse employment action is conduct or an action that materially affects the terms and conditions of the employee's employment status or is reasonably likely to deter the employee from engaging in protected activity. Even actions that do not result in a direct loss of compensation may be regarded as an adverse employment action when considered in the totality of the circumstances. Examples of retaliation under this policy include but are not limited to: demotion, suspension, reduction in pay, denial of a merit salary increase, failure to hire or consider for hire, refusing to promote or consider for promotion because of reporting a violation of this policy, harassing another employee for filing a complaint, denying employment opportunities because of making a complaint or for cooperating in an investigation . . ." In violation of H & S CODE 1432, the facility failed to prevent an Administrator from retaliatory actions against Staff Members (SM 1, SM 2, SM 3, SM 4) for participating in a state/federal survey regarding falsified COVID vaccination cards. The above violations caused or occurred under circumstances likely to cause SM 1, SM 2, SM 3, and SM 4 to not participate in a state/federal survey without fear of retaliation and/or other negative consequences and had the potential to cause other facility staff members to fear retaliation and/or other negative consequences. The above facts indicate that the licensee threatened retaliation against employees because of grievance, complaint, or investigative proceedings. 2