Nursing homes hide violations with behind-scenes maneuvers

nhomehall-300x200The battle to safeguard the elderly, sick, and injured residents of the nation’s nursing homes and other long-term care facilities is far from over — and the fight may be even tougher than advocates for the vulnerable may have imagined.

That’s because the facilities employ aggressive tactics to contest safety and other violations found by state and federal regulators in a system that favors them and shuts out the aggrieved while also keeping crucial information hidden from the public, the New York Times reported.

The newspaper said it investigated what happens when inspectors write up homes, finding a little-known system that owners and operators play to the max to protect a financially lucrative aspect of their operations: the “stars” awarded by the Centers for Medicare and Medicaid Services on its web site.

These marks are supposed to provide harried consumers a fast, short-hand way to evaluate complex and detailed measures of the quality and safety of care offered in nursing homes. But the ratings are fraught with problems, the newspaper reported:

“The Times this year has documented a series of problems with Medicare’s ratings system. Much of the data that powers the system is wrong and often makes nursing homes seem cleaner and safer than they are. The rating system also obscures how many residents are receiving powerful antipsychotic drugs.

“But the problems with the inspection process, which are the core of the ratings system, are the most consequential. On-the-ground inspections are the most important factor in determining how many stars homes receive in Medicare’s rating system. The reports that inspectors produce give the public an unvarnished view inside facilities that house many of the country’s most vulnerable citizens. On the rare occasions when inspectors issue severe citations, nursing homes can fight them through an appeals process that operates almost entirely in secret. If nursing homes don’t get the desired outcome via the informal review, they can appeal to a special federal court inside the executive branch. That process, too, is hidden from the public. Even when the citations are upheld by this federal court, some never make their way onto the Medicare website, known as Care Compare … The pattern [of contesting inspections] gives nursing homes a powerful incentive to pursue every available appeal. Even if they lose, the process eats up time and reduces the odds of damaging information ever becoming public.”

In the ratings-crazed world that exists now, the institutions’ push-back against theirs may be unsurprising, the newspaper reported, noting:

“There’s big money at stake. Because of the weight that people place on the star ratings, researchers have found a connection between better inspection results and greater profits. The Times analyzed nursing homes’ financial statements from 2019 and found that four- and five-star facilities were much more profitable than lower-rated facilities. (For-profit companies own about 70% of all U.S. nursing homes.)”

The New York Times, in cataloging violations that institutions contested, makes clear that owners’ claims of “poor us, we do the best we can” don’t hold up and that residents and their loved ones need to know about homes’ problems, including:

  • “From 2017 to 2019, The Times found, inspectors wrote up more than 2,000 five-star facilities at least once for not following basic infection-control precautions, like having employees regularly wash their hands.”
  • “People checking Care Compare never found out that a resident was arrested at the Voorhees Care and Rehabilitation Center in New Jersey after being spotted placing heroin in another resident’s purse, and that a third resident died of an overdose.”
  • “The public never found out that inspectors cited another New Jersey nursing home, Rehab at River’s Edge, for failing to protect a fragile resident who fell seven separate times, at one point fracturing her foot.”
  • “And the public never found out that a resident at the Golden Living Center nursing home in Morgantown, W.Va., crashed to the ground and died after staff mistakenly removed the safety rails from his bed.”
  • The CMS web site never recorded incidents in August 2015, involving an 87-year-old dementia patient who “was left alone and tumbled from her wheelchair, injuring her shoulder, according to court documents and her son. Then, shortly before Christmas, the woman was alone again. She wheeled herself out of unlocked doors to the facility’s parking lot, where she fell, smashing her face on the pavement. It was just above freezing outside, and she was wearing only a thin nightgown. More than 30 minutes had passed before she was found on the ground, her hair matted with blood and her nose broken.”

When federal officials conduct spot-checks on the work done by state inspectors (who are contractors to CMS), they don’t disclose incidents like these, the New York Times also reported:

“One [case] involved the Lakeview Manor nursing home in Indianapolis. In March 2020, federal workers were following up on a state inspection from two months earlier when they found that Lakeview had placed a resident in danger by installing the wrong rails on her bed, increasing the risk that she would get entangled in them. The same month, at Landerbrook Transitional Care in Mayfield Heights, Ohio, federal investigators discovered a woman smoking a cigarette while connected to a flammable oxygen tank. The federal inspectors determined that both situations risked causing severe injury or death. Neither was disclosed to the public. (Representatives of Lakeview and Landerbrook didn’t respond to requests for comment.)”

Inspectors themselves, as well as their supervisors, told the newspaper they were unhappy and dissatisfied with the regulatory oversight of nursing homes. They complained they must over-document violations because they know that facilities will fight them so ferociously. Further, politicians — particularly at the state level — have shown themselves to be pro-business cheerleaders, telling inspectors and regulators to be “kinder and gentler” with owners and operators.

CMS officials say they are looking into the newspaper’s findings, and they concede that there are flaws in the system that prevent the most current — and damaging — information from accurately getting factored into star ratings.

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. It is unacceptable that federal and state oversight systems are tilted so far in protecting the reputations and star-ratings of profitable facilities that the safety and well-being of residents gets put at risk.

Clearly, as profit-seeking entrepreneurial types have seen the revenue the homes gush, they have moved with alacrity to make them even more lucrative — slashing services, staff, and care, leaving the catastrophic conditions exposed by the coronavirus pandemic. The virus took a terrible toll on the vulnerable, who, at points, made up 10% of the disease deaths, even as they represented a far smaller slice of the population.

Americans were promised that, in return for the billions of dollars in emergency funding and support the facilities received, that nursing home care would be improved. What signs do we have of that? We know that homes have raced to declare normalcy’s return and to try to get out of the public spotlight. Does anyone, though, hear of mass campaigns to get the under-paid, overworked, and foot-dragging health workers at the facilities vaccinated or to get protective boosters into arms of the old, sick, and injured in institutional care, especially as evidence grows as to the importance of this step, especially for the aged, with the rise of the Omicron variant?

The silence and inaction is deadly and can be blamed in recent months for yet hundreds more avoidable deaths in nursing homes, even as owners, operators, and their advocates continue to denounce desperately needed oversight of their facilities and the brave efforts by residents and loved ones to seek justice through the civil system with malpractice and other lawsuits. Our rapidly graying nation has much urgent work to do to bring up the quality and safety of nursing homes.

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