U.S. nursing-home rating system ‘broken’ by gamed data and poor oversight

cmsnursinghomecompare-300x139Federal regulators, by allowing owners and operators to self-report quality and safety data and failing to audit vital information with diligence, have “broken” the national nursing-home rating system — what was supposed to be an invaluable tool for consumers to make life-and-death decisions about where to place vulnerable loved ones needing round-the-clock care.

Instead, the New York Times reported, the popular and convenient star rankings have become little more than an inaccurate means for facilities to advertise and market themselves, even while keeping from the public their serious problems — including abuse, neglect, over medication, sexual assault, and killings of the aged, injured, and ailing.

The system’s glaring shortcomings were exposed even more by the coronavirus pandemic, the newspaper reported. It launched its deep dig into the ratings when it became clear that highly rated homes, when the pandemic struck, did not fare notably better, as might be expected.

The newspaper, in contrast, found this:

“Despite years of warnings, the system provided a badly distorted picture of the quality of care at the nation’s nursing homes. Many relied on sleight-of-hand maneuvers to improve their ratings and hide shortcomings that contributed to the damage when the pandemic struck. More than 130,000 nursing-home residents have died of Covid-19, and The Times’s analysis found that people at five-star facilities were roughly as likely to die of the disease as those at one-star homes.

“The ratings program, run by the U.S. Centers for Medicare and Medicaid Services (CMS), relies on a mix of self-reported data from more than 15,000 nursing homes and on-site examinations by state health inspectors. Nursing homes receive scores based on how they fare in those inspections; how much time nurses spend with residents; and the quality of care that residents receive. Those three grades are then combined into an overarching star rating for each nursing home. To evaluate the ratings’ reliability, The Times built a database to analyze millions of payroll records to determine how much hands-on care nursing homes provide residents, combed through 373,000 reports by state inspectors and examined financial statements submitted to the government by more than 10,000 nursing homes. The Times obtained access to portions of the ratings data that aren’t publicly available from academics who had research agreements with (CMS).”

The news organization’s investigation found that homes submitted inaccurate information that made them look cleaner and safer than they were. They inflated their staffing, while understating their use of dangerous antipsychotic medications. They underreported accidents and health problems.

The New York Times also learned that high-rated homes, when scrutinized in person by CMS investigators, were as likely to fail inspections as pass them. But the agency rarely audited information that owners and operators submitted. Further, the data “suggest” that homes got tipped to “surprise” inspections, and inspectors often downplayed infractions they found at highly rated facilities, allowing them to keep their stars.

Problems known and neglected

Other researchers and nursing home advocates long have zeroed in on the growing ownership of long-term care facilities by profit-hungry private interests, notably investment capitalists. They maximize their returns by slashing already lean facility staffing, especially the crucial presence of skilled nurses. They also overload the poorly paid, minimally trained, and often well-intentioned direct-care aides, many of whom must toil at several different places to barely make ends meet.

These practices blew up when the pandemic occurred, exposing staff and residents to sickness and death as facilities found themselves lacking the workers needed and with poor emergency planning and too few medical resources — whether in expertise, training, or equipment and other items — to cope with a formidable disease outbreak.

Researchers have found that conditions outside homes had high correlation to the gravity with which institutions struggled with coronavirus infections and deaths: A higher the rate of community spread had great effect on how long-term care facilities were hit hard by the disease.

That did not jibe, though, with data that top-rated facilities reported to CMS, saying, for example, that they were well-staffed, including with nursing care, and had strong infection-control regimens in place.

In 2018, reporter Jordan Rau of the independent Kaiser Health News service exposed nursing homes’ gaming of staffing data by drilling into inconsistencies between figures reported to the agency and payroll information that CMS made public three years ago. CMS, embarrassed that one reporter had analyzed data the giant agency had and had not scrutinized, promised to do better.

It apparently did not, based on the New York Times’ investigation.

Let us also not forget that CMS, under the industry-accommodating Trump Administration, sought to relax in many ways the federal oversight of nursing homes and other long-term care facilities, acquiescing to owner and operator bleats that they were doing the best they could and were getting over regulated. CMS also yanked its inspectors and locked down nursing homes and other long-term care facilities for months, even as the deaths and infections of the vulnerable skyrocketed, becoming a third of all coronavirus casualties nationally.

Turning residents into drugged-out zombies

The New York Times investigation also reveals the return of a nasty issue in nursing homes: the under reporting and over reliance on antipsychotic drugs. Critics have denounced the use in the aged and injured of these powerful medications, some developed to help parents deal with strong and unruly schizophrenic adolescents. CMS campaigned to curb the drugs’ abuse, allowing fewer nursing home aides to deal with more “compliant” residents — seniors who effectively were reduced to zombies for profit and convenience.

The newspaper makes its investigative case not only with data and policy but also the grim and tragic stories of individuals who have suffered harms in high-rated facilities or chains, whether in horrible abuse and neglect or in sexual assault and violence. The owners and operators, of course, wring their hands, say they regret that bad things occurred. But they also dismiss them as one off or “never” events that, golly, just somehow happened.

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 abuse and neglect in nursing homes and other long-term care facilities.

It is heartening news that the coronavirus’ reign of sickness and death in long-term care facilities may be subsiding as residents and staff get vaccinated. But this is not the time to take a victory lap, nor to revel in false self-congratulations. The vulnerable in the facilities, many so elderly, sick, and injured that their lives already were limited, can never recover lost time with loved ones. They need as much attention and care as can be lavished on them, in a post-pandemic period.

It also will be vital that we determine how we can reform the long-term care that has cost so many grandmothers, grandfathers, aunts, uncles, moms, dads, and friends their lives — in the pandemic and due to an operating model that is beyond dysfunctional. The folks in Congress should act, post haste, if nothing else because they have been prodded by a major news organization investigation.

The facilities’ owners and operators are not racing to deal with their challenges. As facilities reopen, and more information flows about what happened in them, disclosures are forcing residents and their loved ones to make tough decisions, for example, whether to seek justice with lawsuits in the civil system. And it seems growing numbers of plaintiffs are pursuing this option.

President Biden has nominated Chiquita Brooks-LaSure, a seasoned health care administrator with experience in CMS, to head the agency. If confirmed by the U.S. Senate, she has huge challenges ahead. We, too, must hold the administration, especially CMS, to account for not only the disaster that occurred in nursing homes and long-term care facilities during the pandemic, but to move these facilities and their residents to a far better place.

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