In nursing homes and hospices, too little oversight, too much profiteering

hospicenyer-300x123What happens when the highly vulnerable — older, sick, injured, and debilitated people — get left in the hands of profit-obsessed private enterprises operating under woefully lax regulatory oversight? Big messes abound, as news organizations have reported after taking deep dives into the workings of the “hustle” of for-profit hospice programs, or the chronic  staffing shortages that prevail at far too many private nursing homes.

Sure, this is a hectic time of the year, and it can be a challenge to carve out the time to pore over the painstaking reporting of fine journalists who race to make public their major investigations before the year’s end (including to qualify for major professional prizes).

Still, for anyone concerned about destructive failures in the U.S. health care system, how they blow up over time, and how they get ignored until they become crises, the reports by ProPublica, the New Yorker, and USA Today are important reading.

In brief, ProPublica and the New Yorker have found that hospice — once a “visionary” and well-intentioned movement to provide compassionate care for those at the end of life — has become “a $22 billion industry plagued by exploitation.” Buck-raking business people, who need not have any health care or medical training or experience, are racing to get into hospice care to grab federal dollars that are doled out too easily and with too little oversight, journalist Ava Kofman says. Here are a few quotes from her reporting:

  • “It might be counterintuitive to run an enterprise that is wholly dependent on clients who aren’t long for this world, but companies in the hospice business can expect some of the biggest returns for the least amount of effort of any sector in American health care. Medicare pays providers a set rate per patient per day, regardless of how much help they deliver. Since most hospice care takes place at home and nurses aren’t required to visit more than twice a month, it’s not difficult to keep overhead low and to outsource the bulk of the labor to unpaid family members — assuming that willing family members are at hand. Up to a point, the way Medicare has designed the hospice benefit rewards providers for recruiting patients who aren’t imminently dying. Long hospice stays translate into larger margins, and stable patients require fewer expensive medications and supplies than those in the final throes of illness. Although two doctors must initially certify that a patient is terminally ill, she can be recertified as such again and again …
  • “[H]alf of all Americans die in hospice care. Most of these deaths take place at home. When done right, the program allows people to experience as little pain as possible and to spend meaningful time with their loved ones. Nurses stop by to manage symptoms. Aides assist with bathing, medications, and housekeeping. Social workers help families over bureaucratic hurdles. Clergy offer what comfort they can, and bereavement counselors provide support in the aftermath. This year, I spoke about hospice with more than 150 patients, families, hospice employees, regulators, attorneys, fraud investigators, and end-of-life researchers, and all of them praised its vital mission. But many were concerned about how easy money and a lack of regulation had given rise to an industry rife with exploitation … hospice has evolved from a constellation of charities, mostly reliant on volunteers, into a $22 billion juggernaut funded almost entirely by taxpayers …
  • “For-profit providers made up 30% of the field at the start of this century. Today, they represent more than 70%, and between 2011 and 2019, research shows, the number of hospices owned by private-equity firms tripled. The aggregate Medicare margins of for-profit providers are three times that of their nonprofit counterparts. Under the daily-payment structure, a small hospice that bills for just 20 patients at the basic rate can take in more than a $1 million. A large hospice billing for thousands of patients can take in hundreds of millions. Those federal payments are distributed in what is essentially an honor system. Although the government occasionally requests more information from billers, it generally trusts that providers will submit accurate claims for payment — a model that critics deride as ‘pay and chase.’”

As the article details, too many private providers pad their numbers and rosters of patients, many of whom may be ill but not at death’s doorstep. These victims get shoved into hospice programs, only to find themselves booted out as they near the time when their federal benefits are set to expire. They still have significant medical needs. But now they are cut off from programs that could provide them desperately needed treatments, including chemotherapy, dialysis, and costly prescription medications.

Regulators, the article reports, are so lax in their hospice supervision that patients and their loved ones complain private providers skimp on the care for the already ill, injured, and failing, worsening their failing health, and ensuring their final days are even more miserable.

Staffing low at nursing homes

As for nursing homes and their disturbing lack of front-line caregiving, USA Today got the receipts on facilities that rely on federal dollars but don’t provide the care that taxpayer money purportedly pays for:

“USA TODAY compared millions of nursing home timesheets and thousands of inspection reports to the staffing numbers set down by federal rules and formulas. It found a staggering pattern of failure. Out of 15,428 nursing homes in the U.S., more than three-quarters – 11,757 – had fewer nurses and aides in 2021 than expected under Medicare’s payment formula. Regulators cited only 589 of them for short staffing…”

This problem has gone on for years — long before the coronavirus pandemic exposed how lethal and detrimental shortages of nurse and aide care can be for elderly, frail, sick, and injured nursing home residents. The Biden Administration has made clear that, coming out the pandemic, officials of the Centers for Medicare and Medicaid Services — the agency that regulates nursing homes — would crack down and set minimum staffing requirements for long-term care facilities. This is supposed to occur in 2023. But what about enforcement? As the newspaper reported:

“Regulators have allowed thousands of nursing homes across America to flout federal staffing rules by going an entire day and night without a registered nurse on duty, a USA TODAY investigation has found. Nearly all of them got away with it: Only 4% were cited by government inspectors. Even fewer were fined. When other nursing home caregivers are added into the equation, one-third of U.S. facilities fell short of multiple benchmarks the federal government has created for nurse and aide staffing. Low-income residents, disproportionately people of color, fare the worst. Their nursing homes report the lowest staffing levels, but data show they seldom get in trouble because of it. A USA TODAY investigation has documented …how rarely the federal government enforces decades-old staffing guidelines and rules for nursing homes. Citations and penalties remained sparse even as regulators developed three ways to measure staffing … Having enough nurses and aides is the strongest predictor of whether nursing home residents will thrive, researchers have found. When facilities are short-staffed, essential medical tasks are ignored. Doctor’s appointments are missed, call buttons go unanswered, diapers are not changed, showers are not given, and wounds are not cleaned. Dementia can set in faster. People get sicker, and die, alone.”

Nursing home workers, especially nurses, the newspaper reported, are reluctant to put themselves and their employment at risk by providing candid information about staffing shortages. Facilities also somehow learn in advance when inspectors will appear, and owners and operators have managed to call in extra nurses and aides when oversight visits occur.

The newspaper reported that frontline federal inspectors, under pressure from industry groups, as well as owners and operators, have been far too reluctant to tangle with the thorny topic of staffing shortages that they can see. They know their supervisors not only will question them about finding personnel problems but also may be too inclined to reverse their recommendations for remedies and fines. Several administrations have balked at setting minimum staffing requirements because of the ferocious response from the politically powerful nursing home industry and its allies.

In my practice, I see not only the harms that patients suffer while seeking medical services, but also the damage that can be inflicted on them and their loved ones by neglect and abuse in nursing homes and other long-term care facilities.

The pandemic laid bare the increasing failures in the long-term care industry, which has cried “poor me” and sought large and larger taxpayer support. This is occurring even as big, private investors gobble up facilities, hike prices, reduce services, and make their operations, management, and ownership ever opaquer to outsiders.

Those who are appalled by aspects of long-term care have struggled for some time now with the tough choice of potentially pursuing justice and remedies in the civil system for long-standing, well-known, and unacceptable wrongs in nursing home care. Some of these actions are bringing justice to the harmed.

The ProPublica-New Yorker article, however, points out that pursuing justice in the civil system with hospice-related claims can be tougher, as many of the would-be plaintiffs die before their cases can be readied. Judges and juries also may be disinclined to award damages in these cases involving individuals with likely short lifespans.

That said, federal regulators clearly can do a far better job in providing more rigorous oversight to hospice and nursing home operations. Members of Congress need to hold the agencies and bureaucrats in them to far more stringent performance standards

As our nation increasingly grays and more of us face not only a possibility but a likelihood of institutional care, we have much work to do to vastly improve the safety, quality, access, affordability, efficiency, and excellence of nursing homes and other long-term care facilities.

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
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