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Long Term Care
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CR’s Quick Take
Our investigation found that the state agencies responsible for overseeing nursing home care have often failed to correct problems. But consumers can increase their odds of choosing a good nursing home if they narrow their search to certain types. Our findings:
While our investigation suggests that you or a family member might receive better care at a not–for–profit, independently owned facility, they make up a small portion of the industry. Since the establishment of Medicaid, the state and federal program for the poor and the elderly, in the 1960s, for–profit homes have come to dominate the field.,?
"In some chains we see facilities that will consistently do poorly," says Paul Dreyer, director of licensing and certification in the Massachusetts Department of Public Health. "Sometimes it hasn’t been the chain’s priority to make facilities the best they can be. The focus is maximizing some kind of return to investors."
Bruce Yarwood, president and CEO of the American Health Care Association (AHCA), which represents primarily for–profit homes, says that poor homes are a "chronic, tough issue." He notes that many nursing home executives have trouble escaping Wall Street’s quarterly earnings pressure. But, he says, "For every bad story there are probably 50 good ones."
Nursing home researchers say that the most serious problems sometimes show up in small, for–profit chains within a state. In New York, for example, Healthcare Associates, wholly owned by Anthony Salerno, jointly administers a network of 12 separately incorporated facilities. Salerno is the largest shareholder in all the facilities. Three of the homes have been on our quality–monitor list.
Earlier this year Eliot Spitzer, New York’s attorney general, sued one of the three homes, the Jennifer Matthew Nursing and Rehabilitation Center in Rochester, alleging abuse and neglect. Investigators used a hidden camera to show that call bells were placed out of residents’ reach and that patients would go unturned and unwashed for hours. That facility was a four–time repeater on our lists. The legal case is ongoing; a lawyer for the center did not respond to requests for comment.
One reason the independently owned, not–for–profit facilities might do a better job is that they tend to have more staff, which experts agree is crucial to good care. We found that on average, not–for–profits provided almost an hour of additional nursing care each day per resident, compared with for–profit facilities. They also provided nearly twice as much care from registered nurses.
In 2002, a study conducted for the federal Centers for Medicare & Medicaid Services (CMS) noted that without a daily average of 2.8 hours of care from nurse aides and 1.3 hours from licensed nurses, residents were more likely to experience poor outcomes––pressure sores and urinary incontinence, for example. "Most nursing homes are staffed significantly below that," says John Schnelle, director of the Borun Center, a joint venture of UCLA and the Jewish Home for Aging that does research on long–term care.
The CMS, however, has not recommended or adopted minimum staffing standards, a point of contention for nursing home advocates, who are pushing for them. Marvin Feuerberg, a technical director at the CMS, says officials even watered down the 2002 study’s executive summary when it was given to Congress.
Instead, current rules say that staffing must be sufficient to meet the needs of nursing home residents, a standard so vague that it makes penalizing nursing homes that skimp on care almost impossible. Rules do require homes to have 8 hours of registered nursing and 24 hours of licensed nursing coverage per day. But the standard applies to all homes, no matter how many residents they have. So a nursing home with 200 residents can use the same–size staff as one with 20.
Inadequate staffing puts residents at risk. Glen Barnhill, 46, of Nashville, lived in Tennessee nursing homes for several years after he suffered a gunshot wound to the head. Barnhill, a quadriplegic who needs a ventilator to breathe, says he would sometimes go into respiratory distress while waiting for a call light to be answered. "I’d be in bed gasping and fighting for air, not knowing when the nurse would come," he says.
The AHCA says that minimum staffing rules cannot be an unfunded mandate on the part of the government. "If you’re required to have x amount and certain types of staff, you need reimbursement," says Sandra Fitzler, the group’s senior director of clinical operations. More money from Medicaid, which pays for more than half of all nursing home stays, would improve staffing, the industry says.
But money is not always the problem. We examined Medicaid reimbursement for nursing homes in 2002, the last year for which we had complete data. We found no evidence that the average state Medicaid payment to nursing homes had a significant impact on the percentage of homes identified as poor performers.
Nursing homes are not major donors to national political campaigns, but they wield considerable clout in state capitals, where their $500, $1,000, and $3,000 contributions count with gubernatorial, state legislative, and judicial candidates.
In Arkansas, for example, the industry was a top contributor to state candidates in 2004, according to Followthemoney.org, a nonpartisan database of campaign contributions. The Arkansas Health Care Association, which represents for–profit nursing homes, gave almost $100,000 that year to candidates in the state.
The trade association also maintains an office near the Arkansas Capitol in Little Rock, where legislators can stop in and enjoy a free lunch three times a week during legislative sessions.
"They contribute a large amount of money to people’s campaigns" and the politicians become beholden, says state Sen. Mary Anne Salmon, a Democrat. She adds, "Nursing homes have stopped some very good legislation that would have made things better for the elderly. "
Messages from legislators, subtle and not so subtle, filter down to regulators, who have learned that nursing homes will challenge them if they press too hard. Grachia Freeman, a former nursing home inspector in Arkansas, says that supervisors "would not let me write deficiencies I wanted to write" for a facility she was inspecting. Now a nurse at a VA hospital in North Little Rock, she adds, "They were angry with me for investigating and told me not to complete the survey." We made several efforts to interview regulators in the long–term–care unit of the Arkansas Department of Health and Human Services but were repeatedly rebuffed.
This pressure "gives facilities the confidence to push back in so many ways, like appealing citations and sanctions because they know that state legislators tend to be very protective of homes in their districts," says Iris Freeman, principal consultant with Advocacy Strategy, a Minneapolis firm that works with community groups on behalf of the elderly and disabled.
Although the number of deficiency citations written by state inspectors has increased 7.6 percent since 2003, according to the CMS, inspectors appear to be watering them down. Each one carries a letter code, from A through L, indicating the scope and severity of the violation. Citations labeled G through L denote actual harm or the potential for death. Codes I through L indicate that the harm was widespread, affecting many people.
State inspectors are now writing fewer deficiencies with codes that denote actual harm, such as avoidable pressure sores and medication errors. "We are going back to a less stringent and simpler enforcement," says a federal analyst familiar with nursing home inspection data at the CMS. "Everything is becoming a D level. Nursing facilities are going to challenge anything above a D level if it carries a mandatory penalty, can be used in a tort case, or will be publicly disclosed."
In 2000, 40 percent of all deficiencies carried a D designation. By 2005, the number had risen to 54 percent. The reason, says the analyst, is pressure from nursing homes on understaffed state agencies that find it hard to muster the resources to defend their citations in court.
The most common remedy for violations is a "plan of correction." The nursing home acknowledges there is a problem and promises to fix it within a specified period. Often the problem is corrected but soon resurfaces, a phenomenon regulators call yo–yo compliance.
The 1987 nursing home reform law provided for monetary penalties that could be imposed by states and the federal government. But that hasn’t meant that fines are collected. In fact, last year the federal Office of the Inspector General found that the CMS did not take all the required steps to collect 94 percent of past–due penalties.
Some states are doing no better. Even when inspectors find that homes are providing poor care, regulators may be slow to impose fines, if they levy them at all.
In 2003 and 2005, Consumer Reports examined whether states were levying fines against our sample of poorly performing homes. We found that the ones that could impose fines were not always using that authority. Our earlier study found that in states with the power to impose fines, only 55 percent of the facilities in our sample that could have received one actually did. In our most recent analysis, we found that states fined just 50 percent of such homes.
Eight of the 12 five–time repeaters on this year’s list of poorly performing homes had not received state fines between 1999 and 2004. The others received minimal penalties. California regulators, for instance, fined White Blossom a total of $10,800 during the six years it was on our lists. The largest fine it received in any one year was $3,600.
When fines are assessed, they tend to be low, sometimes absurdly so. Consider the slap on the wrist given the Willow Tree Nursing Center in Oakland, Calif. In 2001, according to state records, a 38–year–old paraplegic with poor cognitive ability left the home on a pass. When he did not return until 2 a.m., the home’s administrator ordered a nurse not to let him back in. Regulators cited the facility for failing to keep a resident free from mental abuse and assessed a fine of $700. The state, however, collected only $455 and closed the case. Seventeen months later, the state again cited Willow Tree, for failing to report an allegation of abuse within 24 hours. This time, a nurse who allegedly put a pillow over a resident’s face, said, "I’m going to smother you," and then walked out of the room laughing after the patient pushed it off. The state collected $600.
States can reduce an already meager fine by 35 percent if the nursing home agrees not to appeal. The median fine in 1999 for the homes we looked at was $4,800; in 2004 it had dropped to $3,000. Less than 2 percent of the homes received a fine greater than $100,000.
"The system hasn’t been hard enough on those who view penalties as the cost of doing business," says David Hoffman, a former federal prosecutor in Philadelphia who has sued many nursing homes and now consults with the industry about improving the quality of its care.
The CMS can disqualify a home from the Medicare and Medicaid programs, cutting off federal funds. But that remedy, the most drastic in the agency’s arsenal, is used less frequently than in the past. In 1998, the number of terminations peaked at 51; in 2005 there were only 8.
States can also try to shut down what they judge to be poorly performing facilities. In 2005, Indiana regulators investigated a complaint that a student nurse aide at the Hanover Nursing Center in Hanover had beaten a resident in the face, an immediate–jeopardy violation. That inspection resulted in a 62–page report detailing numerous violations.
Regulators placed a 45–day ban on admitting new residents to the home but lifted it after further inspection. In February, Hanover’s license expired, and state officials refused to grant a new one. The facility is appealing the loss of its license and a federal fine of $117,500 for the immediate–jeopardy violation. Meanwhile, it continues to operate.