The Center for Public Integrity has released an analysis showing large-scale discrepancies in the nurse staffing information self-reported by nursing homes on the Centers for Medicare and Medicaid (CMS) Nursing Home Compare website. By comparing staffing information contained in cost reports nursing homes make annually to the Medicare program and staffing data reported on Nursing Home Compare, the Center has found that the majority of facilities – more than 80% of nursing homes nationwide – report higher levels of registered nurse care to Nursing Home Compare than are reflected in annual cost reports. In addition, according to the Center’s research, over-reporting of the total hours of total nursing care residents receive is commonplace. Although these discrepancies were found throughout the country, eight of the ten states with the largest levels of reporting discrepancies are located in the South.

This newly-released research supports what advocates have known for quite some time – that the nurse staffing information reported and available to consumers on CMS’s Nursing Home Compare website is widely unreliable and inaccurate. As there is a strong correlation between staffing levels in nursing homes and quality of care, the need for publicly available, accurate staffing information is essential for consumers and their loved ones to make well-informed decisions when selecting potential facilities. The Improving Medicare Post-Acute Care Transformation (IMPACT) Act of 2014, signed into law by President Obama in October of this year, provided funding for development of a system for the collection of nursing home staffing levels through verifiable payroll data (read more about this issue here). It is now imperative for CMS to operationalize this system without further delay in order to fix the current discrepancies found on the Nursing Home Compare website.

To view the Center for Public Integrity’s report, click here. The Center has also included a search feature on the right-hand side of this webpage that permits individuals to search and find the discrepancies in staffing information for more than 10,400 individual nursing homes across the country based on facility name or location. This report is the first part of a continued series from the Center for Public Integrity on nursing homes, which the Consumer Voice was pleased to assist with. Stay tuned for further information in the weeks to come!

Mcknight’s had an interesting article on a recent survey from nursing home workers from the Agency for Healthcare Research and Quality.  “Nonpunitive response to mistakes” was the area with the lowest average positive response rate, of 51%. This indicates widespread problems with workers being blamed when residents experience harm, staff members being treated unfairly when they make a mistake, and not feeling they can safely report mistakes.  Staffing levels are a major problem area, with many respondents saying they have to hurry because of workloads.  However, these direct care providers are not to blame; the corporate decisionmakers who short staff the facility to increase their profits are to blame for unsafe conditions.

AHRQ is part of the U.S. Department of Health and Human Services. Click here to access the complete survey results.

 

The New York Times had an enlightening article on the difficulties in getting a copy of your medical records.  We are very familiar with how nursing homes prevent residents and their families from getting copies of their chart.  “The medical record is held hostage,” Professor Cohen said. “The reason is often to keep a customer or keep a patient from leaving the practice.”  Or worse, to give the facility an opportunity to alter or delete information in the chart.  We see this all the time in our nursing home cases.  Although doctors and hospitals legally own their medical charts, patients have a right to have access in a timely manner — Hipaa requires a response within 30 days of a patient request — and at a reasonable processing cost.

“You should be able to walk into a provider’s office and say, ‘I want a copy’ — you are legally entitled to that,” said I. Glenn Cohen, a professor at Harvard Law School, noting that there were only a few exceptions, such as for prisoners. But the reality is that many hospitals and doctors have created a series of hurdles that must be cleared before patients can get their information. And many of those hurdles, experts say, are based on the economics of medicine.

Some providers contend that releasing information might somehow compromise patient privacy and confidentiality concerns laid out in Hipaa, the Health Insurance Portability and Accountability Act of 1996. But that legislation was created at the dawn of the Internet era, when there were worries that sensitive health information that could embarrass patients or leave them vulnerable to discrimination would be too freely accessible. Internet security systems have greatly improved, and it is no longer legal for insurers to reject applicants for pre-existing conditions.

“When hospitals talk about Hipaa or charge for releasing records what they’re really saying is, ‘I don’t want to do this and I have to find an excuse,’ ” said Dr. David Blumenthal, president of the Commonwealth Fund, who was previously President Obama’s national health information technology coordinator. “Hipaa is used in all sorts of distorted ways, because ‘protecting privacy’ sounds good.”

A better flow of information would benefit both patients and the health care system as a whole, Dr. Blumenthal said. If patients possess their records they can choose and move their care at will, picking doctors and testing sites that are cheaper or more to their liking. Likewise, if records can be transmitted with the ease of emails, doctors in different locations can better dispense treatment, avoiding the need to repeat tests. On a larger scale, the release of data that is now trapped in hundreds of hospital systems and thousands of doctors’ offices is crucial for researchers, Dr. Blumenthal said. They could use it to identify trends in overuse or unrealized side effects. (For research purposes, the data can easily be released in a way to protect patients’ identities.) “The nation is on a journey toward more accessibility,” Dr. Blumenthal said, though it still has “a long way to go.”

Government mandates, meanwhile, are laying the groundwork for more sharing. Legislation passed in 2009 prods hospitals and doctors’ offices to convert to electronic records, a changeover that officials estimate is more than 80 percent complete. But the next step requires health providers to show they are using that capability to begin better sharing medical information with patients and one another.

Medscape had a great article on the lack of RN staffing at nursing homes and how that affects the quality of care for the residents.  “A large and growing volume of research shows that a higher nurse-to-patient ratio improves patient outcomes. Furthermore, when those nurses are registered nurses (RNs) rather than licensed practical nurses (LPNs), the care improves even more. That’s why it’s alarming that in one of the most heavily regulated segments of healthcare in the United States, namely nursing homes, there are almost no requirements for the use of RNs in providing care to our frail elders.”[1,2]

In 1986, Congress directed the Institute of Medicine to prepare a report on the services then being provided in the nation’s nursing homes and to make recommendations to improve the care. The Institute of Medicine’s recommendations became the foundation of the NHRA within OBRA which are regulatory rules applicable to all nursing homes.[3]  OBRA brought tremendous changes and some improvements to America’s nursing homes through increased regulatory oversight.   Within OBRA is a requirement that each nursing home have “sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care.”[4] There are no regulations establishing minimum ratios of nursing staff to residents or the credentials of nursing staff, with one exception.

OBRA requires “that a skilled nursing facility provide 24-hour licensed nursing services, an RN for 8 consecutive hours a day, 7 days a week, and that there be an RN designated as Director of Nursing on a full-time basis.”[4]  This minimal requirement is the same for facilities serving a small or large number of residents, and is the same regardless of whether the clinical acuity is low or high.  Embarrassingly, organizations of nursing home professionals have made little effort to advocate for minimal nurse-to-resident staffing ratios. Like the public campaigns that have led to the creation of OBRA in the 1980s, consumer groups have done most of the lobbying for better staffing ratios and more professional staff.[5]  As a result of these efforts, many states have tried to strengthen the OBRA staffing standards, to no avail: Although state regulations are typically less vague, they are not much more stringent.[6]

To help consumers make informed decisions when selecting a facility, each facility’s staffing ratios are posted on the CMS website Nursing Home Compare. In fact, this measure is one of those included in CMS’s Five-Star Quality Rating System. At first blush, the information seems useful. It is unfortunately, very misleading.  The most glaring problem with this is the failure to account for the residents’ needs within each facility. Some nursing homes have high percentages of residents who need little more than custodial supervision and support. These residents might be well served by a higher ratio of CNAs. But more and more facilities are providing subacute or post-acute care. These patients often have new diagnoses, complex wounds, intravenous medications, new drug regimens, new functional limitations, and more. Subacute patients (and often their family or caregivers) need to be regularly assessed, monitored, and educated—all of which require staff with greater time and clinical competence.

When the surveyors calculate the staffing ratios, they include the staff reported on the daily staffing sheets. This report is supposed to include only the direct care staff—that is, excluding those staff with administrative roles only. As an example, the staff educator will generally not be included. Although the distinction seems rather clear, many roles are less clear. In many facilities—and certainly in all facilities on a given day—the unit manager or shift supervisor spends most of his or her time performing administrative functions and very little time providing direct care. As a result, many believe that the ratios reported may not accurately reflect the direct care staff.

Another major flaw in the CMS five-star measure for staffing is less obvious. Anecdotal evidence gathered around the country describes a common occurrence, as perceived among staff (and sometimes residents and their families), that facilities boost their staffing as the annual survey window approaches.[7]

It becomes clear that “nursing homes” do not even have to be staffed with nurses. “People who use nursing homes quickly find out there are not enough nursing staff as a general rule, but it doesn’t occur to them that includes no RN oversight,” says Sarah Green Burger, RN, MPH, FAAN, coordinator of the Coalition of Geriatric Nursing Organizations, which represents approximately 28,000 nurses, most of whom work in long-term care. “RNs are the only nursing staff whose license allows them to do a head-to-toe assessment and clinical decision-making.  Many nursing homes have no RN in the evenings or nights. Remember, unlike hospitals, nursing homes have no doctors on duty 24 hours a day. The registered nurse is the only professional clinical person on staff.”

What can healthcare professionals do? They can lobby legislators to make changes in staffing requirements to match the evidence in the research. More RNs means better care and better outcomes! Let legislators know that nursing homes are providing more complex care than ever, and the old staffing patterns typical of chronic care facilities of decades past is no longer adequate.

References

  1. Zhang NJ, Unruh L, Liu R, Wan TT. Minimum nurse staffing ratios for nursing homes. Nurs Econ. 2006;24:76-85, 93, 55. www.medscape.com/viewarticle/531036 Accessed October 24, 2014.
  2. Zhang NJ, Unruh L, Wan TT. Gaps in nurse staffing and nursing home resident needs. Nurs Econ. 2013;31:289-297. http://www.medscape.com/viewarticle/821460 Accessed October 24, 2014.
  3. Klauber M, Wright B. The 1987 Nursing Home Reform Act. AARP Public Policy Institute. 2001. http://www.aarp.org/home-garden/livable-communities/info-2001/the_1987_nursing_home_reform_act.html Accessed October 24, 2014.
  4. H.R. 3545 (100th): Omnibus Budget Reconciliation Act of 1987. In: State Operations Manual, Appendix PP—Guidance to Surveyors for Long Term Care Facilities. See §483.30. http://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/GuidanceforLawsAndRegulations/Downloads/som107ap_pp_guidelines_ltcf.pdf Accessed October 24, 2014.
  5. National consumer voice for quality in long term care. www.theconsumervoice.org Accessed October 24, 2014.
  6. Black K, Ormond B, Tilly J; Urban Institute. State-initiated nursing home nurse staffing ratios: annotated review of the literature. Washington, DC: US Department of Health and Human Services; May 2003.http://aspe.hhs.gov/daltcp/reports/2003/ratiolit.pdf Accessed October 24, 2014.
  7. Wiener JM, Freiman MP, Brown D; RTI International. Nursing home care quality: twenty years after the Omnibus Budget Reconciliation Act of 1987. Henry J. Kaiser Family Foundation. 2007.http://www.allhealth.org/briefingmaterials/Wiener-1002.pdf Accessed September 24, 2014.
  8. Department of Research, American Health Care Association. Report of findings: 2009 nursing facility staff retention and turnover survey. 2011. http://www.ahcancal.org/research_data/staffing/Documents/staffsurvey_2009_full_report.pdfAccessed October 24, 2014.
  9. Decker FH, Gruhn P, Matthews-Martin L, Dollard KJ, Tucker AM, Bizette L. Results of the 2002 AHCA survey of nursing status vacancy and turnover in nursing homes. Health Services Research and Evaluation. American Health Care Association. February 12, 2003. http://www.ahcancal.org/research_data/staffing/documents/vacancy_turnover_survey2002.pdf Accessed October 24, 2014.
  10. Hunt SR, Corazzini K, Anderson RA. Top nurse management staffing collapse and care quality in nursing homes. J Appl Gerontol. 2014;33:51-74. Abstract
  11. Xu E. LPN vs. RN: the advantages of being a registered nurse. Rasmussen College. May 21, 2013. http://www.rasmussen.edu/degrees/nursing/blog/lpn-vs-rn-advantages-of-being-registered-nurse/ Accessed October 24, 2014.
  12. Health Resources and Services Administration; Bureau of Health Professions; National Center for Health Workforce Analysis. The U.S. nursing workforce: trends in supply and education. April 2013.http://bhpr.hrsa.gov/healthworkforce/reports/nursingworkforce/nursingworkforcefullreport.pdf Accessed October 24, 2014.
  13. Kurtz A. For nursing jobs, new grads need not apply. CNN Money. January 23, 2013. http://money.cnn.com/2013/01/14/news/economy/nursing-jobs-new-grads/ Accessed October 24, 2014.
  14. Williams D. The nursing shortage: why it isn’t a good time to become a nurse. MedpageToday’s KevinMD. February 7, 2013. http://www.kevinmd.com/blog/2013/02/nursing-shortage-good-time-nurse.html Accessed October 24, 2014.
  15. Ferris M. Where are the geriatric nurses? Multidisciplinary forums need your expertise. J Gerontol Nurs. 2008;34:3-4.

WBUR’s Common Health had an interesting article on bullying in nursing homes.  New research released shows that aggression among residents in nursing homes is widespread and “extremely high rates of conflict and violence” are common, according to study author Karl Pillemer, professor of gerontology in medicine at Weill Cornell College of Medicine in New York. His stark findings: One in five people living in the nursing facilities studied was involved in at least one “negative and aggressive encounter” with another resident during a four-week period.

In a sample of more than 2,000 residents, 16 percent were involved in incidents of cursing, screaming, or yelling; about 6 percent in physical violence such as hitting, kicking, or biting; one percent in “sexual incidents, such as exposing one’s genitals, touching other residents, or attempting to gain sexual favors”; and 10.5 percent in events researchers labeled “other” — residents entering rooms uninvited, for example, or rummaging through others’ belongings.

Abuse and mistreatment of the elderly in nursing facilities is a serious and growing problem. One survey of certified nursing assistants found that 17 percent of CNAs had physically abused residents, 51 percent had yelled at them, and 23 percent had insulted or sworn at them. The elder population is burgeoning; the number of vulnerable elderly is increasing; more and more people need care—and nursing homes are understaffed. Because abuse is usually hidden, data on abuse is difficult to gather. The problem is very likely vastly underreported, according to the National Center on Elder Abuse. Rates of abuse are especially high among elders with dementia: as many 50 percent of people with Alzheimer’s and other dementing diseases may be mistreated.

Mild to moderate dementia is clearly a factor in much of the aggression, however, because it causes disinhibited behavior. Other factors, Pillemer says, include:

Crowded conditions: The study found higher rates of mistreatment in more crowded facilities, and in areas within facilities where residents were more densely gathered.

Understaffing: The study found higher rates of resident-on-resident aggression in nursing homes with lower staff-to-resident ratios.

Nursing-home workers who are inured to the problem: “Staff can become somewhat blinded to this,” Pillemer says, “because of the frequency with which it occurs.”

Conflict’s cyclical nature: “The negative behavior and effects are contagious,” Pillemer says. “Seeing these incidents causes other residents to be fearful, anxious, concerned—and that can lead to more of the behavior.”

The prevalence of such aggression raises questions about how well U.S. nursing homes are meeting the great and growing need for compassionate, skillful long-term care. Laura Mosqueda, a practicing geriatrician and director of the National Center on Elder Abuse, believes that nursing homes should be seen as responsible for easing aggression. “Let’s not forget that the people [in this study] … are some of the most vulnerable members of our society. Even if they’re the ones who are ‘perpetrating’ some of this, they’re not the ones who should be held accountable,” Mosqueda says. If, for example, inadequate staffing is linked to the problem, as the study found, then facilities should hire more staff, she says.

Mosqueda, Pillemer, and others say that staff need to better understand the root of the problems. For instance, Pillemer asks, “Is someone being aggressive because they’re in pain? Are they being aggressive because they’re hungry or bored? Personalizing the care for residents, understanding why they [become aggressive], and looking for individual solutions are very important.”

He believes that better training for nursing-home workers is essential to help them deal with aggression more skillfully, to protect residents and to keep themselves safe. “These violent and aggressive and conflictual incidents are extraordinarily stressful for staff,” he says.

 

Salon had a great article on how Big Business is taking away our constitutional right to a jury trial by forcing mandatory arbitration clauses in all consumer and employment contracts.  “These hidden forced arbitration clauses lurk behind many of the most brutal injustices facing consumers and workers.”

In the early 20th century, American corporations frequently required their workers to agree not to join together in a union to seek higher wages or better working conditions.  The choice wasn’t whether or not to waive your rights, but whether you wanted a job — and that wasn’t much of a choice at all. Commentators at the time referred to these agreements as “yellow-dog contracts,” because they “reduced to the level of a yellow dog” every person forced to sign them.  The contracts were not the result of free and equal bargaining between workers and their employers.   Rather, they effectively forced employees to sell themselves into indentured servitude.   With the Norris-LaGuardia Act, Congress preserved workers’ dignity and restored the freedom to contract.

Recently, a series of Supreme Court decisions have made forced arbitration agreements a new kind of “yellow dog contract.” Buried in the terms and conditions of cellphone contracts, credit agreements, school enrollment forms, nursing home contracts and employment contracts in non-union workplaces, forced arbitration clauses require consumers and employees to give up their constitutional right to a jury of their peers as a condition of keeping their job or buying goods from a company.

We know that despite assurances from corporations that arbitration is faster and quicker than litigation, forced arbitration agreements often require consumers and non-union employees to pay arbitration fees that are much higher than the filing fees they would have to pay to file a claim in court.

We know that the vast majority of consumers and non-union employees are prevented from vindicating their rights because forced arbitration clauses prevent them from pooling their resources in a class or collective action, thus allowing companies to violate the law with impunity.

We know that arbitrators who handle claims under these forced arbitration clauses, who are paid hundreds of dollars by the hour, have a financial incentive to rule in favor of corporations to keep getting work from the companies whose arbitration clauses designate them to decide claims.

And we know that these agreements, like the “yellow-dog contracts” of the early 1900s, aren’t agreements at all.  They are the price of being a consumer or non-union worker in 21st century America.

The legalese in the “Terms & Conditions” we absentmindedly accept online and the dense language of the employee handbooks given to us on the first days of jobs in non-unionized workplaces aren’t bargained for after negotiation as contracts should be. This language is developed by lawyers in office buildings behind closed doors. Recently it came to light that, in the late 1990s, the major credit card companies came together to form a secret “arbitration coalition” designed to create ways to force consumers to waive their rights to file claims in court. When credit card companies changed the terms of their card agreements to effectively insulate themselves from liability for wrongdoing, consumers were left without a choice. They could either waive their rights or give up their credit cards.

Voluntary arbitration can help resolve some disputes, but consumers and employees should have the opportunity and right to make this choice for themselves. Recently, President Obama signed an Executive Order allowing employees of large federal contractors to voluntarily decide whether they want to submit their sexual harassment or discrimination claims to private arbitration. The CFPB can do the same for consumers of financial products, the Security Exchange Commission for some investors, and the EEOC can help tackle the clauses in employment agreements.  Congress can simplify things by giving all employees and consumers the right to voluntarily decide whether they want to arbitrate disputes.

The freedom to contract is one of the bedrocks of our society. Let’s take it back by stopping forced arbitration.

Weill Cornell Medical College had an interesting article on their website about the growing problem of inappropriate, disruptive, or hostile behavior between nursing home residents.  The study found that nearly one in five nursing home residents were involved in at least one negative and aggressive encounter with one or more fellow residents over the previous four weeks. These included acts of verbal or physical abuse, inappropriate sexual behavior, or invasion of privacy, among other incidents, known collectively as resident-to-resident elder mistreatment. This new study, funded by the National Institute on Aging, suggests that a frequent threat to residents is aggression committed by other cohabitants.

“This is the first study to directly observe and interview residents to determine the prevalence and predictors of elder mistreatment between residents in nursing homes,” said Dr. Karl Pillemer, a professor of gerontology in medicine at Weill Cornell and the Hazel E. Reed Professor in the Department of Human Development at Cornell University. “The findings suggest that these altercations are widespread and common in everyday nursing home life. Despite the acute urgency of the problem, resident-to-resident mistreatment is under-reported. Increased awareness and the adoption of effective interventions are greatly needed.”

The study showed that resident-to-resident elder mistreatment affected 19.8 percent of residents over a four-week period. Specific types of mistreatment included verbal incidents, such as cursing, screaming or yelling at another person (16 percent); physical incidents, such as hitting, kicking or biting (5.7 percent); and sexual incidents, such as exposing one’s genitals, touching other residents, or attempting to gain sexual favors (1.3 percent). A fourth category, which involved 10.5 percent of people, included unwelcome entry into another resident’s room or going through another resident’s possessions.

“People who typically engage in resident-on-resident abuse are somewhat cognitively disabled but physically capable of moving around the facility. Often, their underlying dementia or mood disorder can manifest as verbally or physically aggressive behavior. It’s no surprise that these individuals are more likely to partake in arguments, shouting matches, and pushing and shoving, particularly in such close, crowded quarters,” Dr. Pillemer said.

They recommend programs that educate and train nursing home staff to recognize and report resident-to-resident elder mistreatment; provide guidelines for staff to follow when incidents occur; and use an approach that considers the needs and abilities of individual residents.

 

Another form of alleged abuse that has been lurking amongst nursing homes and elder care facilities is mandatory pre-suit arbitration clauses hidden in nursing home admission paperwork.  The so-called “arbitration agreement” is a common practice of nursing homes in an attempt to escape accountability. Families of incoming residents are asked to sign waivers that hold any and all disputes over elder care neglect or a nursing home injury are to be decided by arbitration, and not the courts. Lately, the courts have been ruling that such agreements are unconscionable, in that they tend to be one-sided and violate public policy.  When you waive your right to a jury trial, do you really understand what you’re giving up? And if you don’t fully understand or comprehend what you’re agreeing to, how much weight can be put on the agreement in the first place?

In Hendricks v. Manor Care, Berks County Court of Common Pleas Judge Jeffrey Sprecher found that some of the provisions in the arbitration agreement at issue in the case were “misleading,” while others were “overreaching.”   “There is no evidence that this plaintiff realized what she was giving up by waiving a jury trial or even a court proceeding,” Judge Sprecher said, in his opinion released October 3. “This plaintiff is not an attorney or a businessperson experienced in the law. This court cannot conclude that plaintiff understood her rights. Therefore, this court concluded that plaintiff lacked informed consent when she agreed to waive the resolution of all future disputes in a court of law in favor of private arbitration.”

“Arbitration may be fine for monetary issues in business transactions, but injuries caused intentionally or negligently in tort should not be the subject of routine arbitration unless both parties fully and completely negotiated and agreed to the final terms,” Sprecher wrote. “Unlike contracts where the issues are relatively clear and a breach can be easily identified, negligence issues are not so obvious.”

Sprecher also noted that Hendricks was asked to sign the arbitration agreement at an emotionally trying time and did not fully understand what she was agreeing to. There was no provision for negotiation in the agreement, which had to be signed as is. Judge Sprecher held that the agreement was “procedurally unconscionable.”

In November 2011, a five-member majority of the Florida Supreme Court rejected key aspects of an arbitration agreement signed by the family of a resident with Manor Care Florida Inc.  The lawsuit, Gessa vs. Manor Care of Florida Inc., involved the same elder care company that was involved in the Pennsylvania case.

Yet another case in New Mexico also found for the plaintiff. The son of a resident who died just a few months after admission filed a wrongful death lawsuit on behalf of his deceased parent. The defendant immediately moved to compel arbitration. The trial court in Figueroa v. THI of New Mexico at Casa Arena Blanca LLC,denied the motion on grounds that the agreement was one-sided and unconscionable, citing the Supreme Court’s decision in Cordova v. World Finance Corporation of New Mexico, 2009-NMSC-021, 146 N.M. 256, 208 P.3d 901, which held that arbitration agreements that are unfairly and unreasonably one-sided in the drafter’s favor are unconscionable under state law.

 

The L.A. Daily News reported the sad preventable death of a nursing home resident who choked on medications mixed with apple sauce.  Windsor Gardens Healthcare Center of the Valley, a skilled nursing facility in North Hollywood, was fined $75,000 after a state inspection concluded  a Class “AA” citation, the most severe penalty under state law, was warranted.

The death occurred last year, when a resident who had trouble swallowing was given the oral medication in her apple sauce. She was admitted to the hospital where she died days later as a result of aspiration pneumonia or “infection of the lungs that develops due to the entrance of foreign materials, usually oral or stomach contents, into the lungs, often caused by an inability to swallow; the bacteria are different than those seen in common types of pneumonia,” according to the state inspection report.