Elderly advocates win tentative ruling against Department of Public Health

Foundation Aiding the Elderly, a nonprofit corporation for the elderly and nursing home patients, scored an apparent major victory Monday when San Francisco Judge Ethan P. Schulman found the California Department of Public Health failed to comply with state law to resolve complaints from nursing home patients by mandated deadlines.

The judge agreed with the petitioner's counsel's argument that the government body has established "a consistent pattern of noncompliance" and "it is apparent that petitioner's experiences are not isolated incidents and respondent's inability to meet the statutory deadlines is institutional and long-standing."

The tentative ruling instructs the state agency to draft a plan on how it will comply with the statute. Schulman also ordered that the petitioner's counsel, Howard Hirsch and Joseph Mann, review the terms of the plan and that both parties file a joint statement by Jan. 14, 2022 laying out their agreements and disagreements on the plan. The declaratory relief cause of action was denied because of redundancy.

According to Hirsch and Mann, the judge seemed to have little patience for the state agency's arguments. They stated that Schulman "found their arguments absolutely unconvincing in any way," and wondered since "the statute is not that complicated, why can't the agency comply." The judge brought up the possibility of bringing in the head of the agency for live testimony, Hirsch said.

The statute in question is Health and Safety Code Section 1420, which currently mandates that investigations for complaints must be resolved within 60 days of receipt, with the possibility to extend the deadline by 60 days in the case of extenuating circumstances. Multiple complaints about the lack of expediency shown by the department have stretched back for several years, showing the COVID-19 pandemic is not to blame, said the petitioner's filing.

Hirsch and Mann said failing to timely investigate can pose "a threat of imminent danger of death or serious bodily harm" and asserted "there can be no doubt as to the gravity of this problem."

The attorneys were happy the court agreed with them on the severity of the issue. "It is disappointing that a state agency entrusted with protecting some of California's most vulnerable citizens has failed them for so long," Hirsch said. Despite the allegations of the government body's history of noncompliance, Hirsch is optimistic that the state officials will listen to the court's order. Mann echoed that sentiment, saying, "We look forward to working with the department to present a plan to the court that will address these long-standing and serious health and safety complaints."