CMS last month announced that it would add a new icon—which is a red circle with a white stop hand in the center—to the site to alert consumers when a nursing home has been cited for incidents of abuse, neglect, or exploitation. According to the data-analysis company StarPRO, CMS has affixed the icon to ratings for only 760, or roughly 5%, of the 15,262 facilities on the site.

CMS said the consumer alert icon would appear next to facilities that have been cited in inspection reports for abuse that caused a resident harm within the past year, as well as abuse that could have potentially caused residents harm in the past two years, and the move has been applauded by experts and consumer advocates in the nursing home industry.

CMS’ Nursing Home Compare website assigns a certain number of stars to nursing home facilities, similar to systems used to rate hotels. The best possible rating Medicare can give to a nursing home is five stars based on staffing, quality measures, and other factors. The ratings are designed for both consumers and providers. CMS added the icons to the site, and they appear directly next to the names of facilities that have received citations.

CMS said it will use the agency’s latest inspection data to update the icons each month, and it will remove the consumer alert icon when nursing homes have fixed the issues that caused the citations. According to the Wall Street Journal, CMS will remove the icon once a flagged facility goes without an abuse citation for one year.

Consumer advocates praised the icon’s introduction, but said the tool is imperfect and is based on an inspection system that often misses cases of abuse.

Richard Mollot, executive director at the Long Term Care Community Coalition, said, “We just hit the tip of the iceberg here. We are not finding the harm that’s out there. If we see a few occasions that are getting out, I think it’s an important alert for the public.”

 

Nursing homes provide care to about 1.4 million nursing home residents—a vulnerable population of elderly and disabled individuals. CMS, an agency within the Department of Health and Human Services (HHS), defines standards nursing homes must meet to participate in the Medicare and Medicaid programs.  The Centers for Medicare & Medicaid Services (CMS) is responsible for ensuring nursing homes meet federal quality standards, including that residents are free from abuse. To protect vulnerable nursing home residents from abuse, the Centers for Medicare & Medicaid Services (CMS) contracts with state agencies—known as survey agencies—that can cite nursing homes for incidents of abuse.  Most are overworked and without adequate budgets and support for enforcement.

Abuse citations doubled from 2013-2017. GAO recently reviewed a 2016-2017 sample of narratives substantiating abuse citations and determined that physical and mental/verbal abuse were more common than sexual abuse, and that perpetrators were often staff.

CMS can’t readily access this information, which it could use to improve its oversight by focusing on the most prevalent problems. GAO recommendations address this and other issues GAO found.

Nursing Home Abuse by Type and Perpetrator among the Sample of Narratives in Our Review

Bar chart showing physical and mental/verbal abuse and staff perpetrators most common

GAO also found gaps in CMS oversight, including:

Gaps in CMS processes that can result in delayed and missed referrals. Federal law requires nursing home staff to immediately report to law enforcement and the state survey agency reasonable suspicions of a crime that results in serious bodily injury to a resident. However, there is no equivalent requirement that the state survey agency make a timely referral for complaints it receives directly or through surveys it conducts. CMS also does not conduct oversight to ensure that state survey agencies are correctly referring abuse cases to law enforcement.

Insufficient information collected on facility-reported incidents. CMS has not issued guidance on what nursing homes should include when they self-report abuse incidents to the state survey agencies. Officials from all of the state survey agencies in GAO’s review said the facility-reported incidents can lack information needed to prioritize investigations and may result in state survey agencies not responding as quickly as needed.

Boston 25 News obtained a letter sent out to residents, their families and staff members at Lutheran Rehabilitation and Skilled Care Center in Worcester discussing what they are calling “an isolated incident.”  The alleged isolated incident is the tragic and wrongful death of a resident under suspicious circumstances.  As a nursing home attorney for over 20 years, we can smell a rat.

The incident in question involves a certified nursing assistant and one resident dead. A state investigation is underway.

The facility released a meaningless statement that omitted any key facts:

“The resident was injured and sadly passed away the following day at the hospital. As a result of this unfortunate event, Lutheran is the subject of various enforcement actions and additional review by the Massachusetts Department of Public Health.”

The center’s administrator, Ziad Baroody, declined to go in front of a camera, but sat down with Boston 25 News to answer some questions.

While Baroody could not comment on the specifics of the incident, he confirmed the nursing assistant involved is no longer employed by Lutheran and the rest of their staff has undergone additional training and new safety measures related to the incident have been implemented. The type of training was not mentioned.

In a statement, a DPH spokesperson said that after the serious incident on Sept. 15 they “immediately conducted an unannounced onsite inspection to ensure the health and safety of residents, imposed a freeze on admissions and continues to work with the nursing home on a corrective action plan to address identified deficiencies.”

 

The HHS Office of the Inspector General (OIG) notes an increase in nursing home complaints last year according to the most recent set of data from the Department of Health and Human Services.  High-priority incidents that were not investigated within the proper timeframe rose 23% in a year.  The number of high-priority grievances that failed to be investigated within the mandatory 10-day period peaked at 6,540 in 2018, as compared to 5,305 the year before.Obviously, the Trump Administration feels these incidents are not a high priority.

The OIG rolled out its 2016-2018 trends in nursing home complaints on individual state surveys — with the most recent 2018 complaint average reaching its highest level in two years at 52.3 out of 1,000 residents, versus the previous year’s 49.9 per 1,000.

On a state-by-state basis, Hawaii received a mere 8.7 complaints per 1,000 for 2018, with only four high-priority incidents. Texas, at the other end of the spectrum, saw 102.3 complaints per 1,000, with 3,043 high-priority complaints — 1,304 of which were not investigated in 10 days — and 10 immediate jeopardy complaints not probed in two days.

Source: HHS OIG

This past week, CMS rolled out a number of new assessment tools — including a rubric and grading scale — for the State Performance Standards System (SPSS), which took effect for the 2020 fiscal year beginning October 1.

 

There was a great article on Health Affairs website discussing the failures of nursing home oversight by CMS and their attempts to improve.

“More than 30 years after Congress passed the Nursing Home Reform Act, we are still failing to protect nursing home residents. Recent cases of abuse and neglect, repeated failures of governmental oversight, and stories of owners’ mendacity and greed are not only wake-up calls but sobering reminders of how far we have to go.”

The government has focused attention on nursing home care, releasing blueprints to put “patients over paperwork.” CMS also issued a proposed rule in July taking aim at a range of regulatory provisions it characterized as “unnecessary, obsolete, or excessively burdensome.” Advocacy groups expressed skepticism about CMS’s claims that these changes would “produce significant savings without jeopardizing patient care in any way” and that the “reduction in red tape [will] free up facility resources to focus on patient care.”

Nursing home providers are entrenched in a blind faith in deregulation (if only we reduced regulatory burden, providers could focus resources on resident care). CMS reflects the administration’s broader push toward deregulation and have exacerbated tensions between providers and advocates.

“Most visible among these changes are the repeal of the Obama administration’s arbitration ban, guidance that lessened financial penalties for past non-compliance, and a proposal to relax the frequency of surveys for better-performing facilities.”

“A key aim of nursing home oversight over the past decade has been to ensure greater transparency in nursing homes’ ownership and financing. Nursing homes have been mostly for profit for decades. In the early 2000s, increased private equity investment and ownership complexity spurred a renewed focus on this topic, culminating with provisions to bolster disclosure of ownership and financial relationships being included in the Affordable Care Act. Still, in the wake of scandals such as Skyline Healthcare, where a single owner acquired almost 100 facilities over a relatively short time period across multiple states before running them into the ground financially and putting vulnerable residents at risk in the process, it is clear that substantial gaps still exist.”

CMS should make more complete ownership data widely available, not only to researchers but to state licensure agencies that evaluate applications from potential operators. In addition, CMS should add the ability to examine care across all facilities of specific owners to the Nursing Home Compare website, allowing consumers and others to see quickly if an owner is generally involved in the provision of higher- or lower-quality nursing home care.

Beyond ownership, improving the ability to understand where nursing homes spend their resources and gaining a more accurate sense of their financial well-being are important elements of transparency. Progress has been made in simplifying nursing home cost reporting, yet, according to the Government Accounting Office, there are still substantial questions about the accuracy and completeness of these data. CMS should take further steps to ensure the veracity of these data and develop summary measures for inclusion in public use files or even on the Nursing Home Compare site to convey an accurate picture of facilities’ financial status and spending priorities.

 

Blue Ridge in Georgetown nursing home and rehabilitation center was named to a list maintained by the federal government of poorly performing facilities.  Blue Ridge in Georgetown was already fined nearly $44,000 for health violations in 2018. The facility received 33 health citations during its last inspection in October 2018.

Blue Ridge joined four other nursing homes in the Palmetto State as candidates for a federal oversight program. Commander Nursing Center in Florence has been officially flagged for the government to focus on since July.  Blue Ridge of Sumter was added to the list of candidates for the SFF program in June. Magnolia Manor in Columbia and The Retreat at Brightwater in Myrtle Beach were added in July.

The Centers for Medicare and Medicaid Services, the federal office in charge of administering the programs, keeps a list of nursing homes that consistently don’t meet standards and agreed to publicly release a monthly update to that list in June.

The most severe offenders are then designated as Special Focus Facilities. This designation increases the frequency that a nursing home must be inspected and sets guidelines for where and how quickly a facility must improve. Around 400 facilities are designated as SFF candidates at one time.

Facilities that do not graduate from the SFF program within 18 months risk losing their ability to participate in the Medicare and Medicaid programs.

 

LeadingAge reported that the GAO was asked to review federal oversight of elder abuse reporting, investigation, and law enforcement notification in both nursing homes and assisted living facilities. Both types of facilities often fail to report neglect and abuse.

The report highlighted specific federal requirements for reporting, investigating, and notifying law enforcement of elder abuse for nursing homes and state survey agencies.  For assisted living facilities, the report noted that there are no similar federal requirements as those are regulated by the states.  The Centers for Medicare and Medicaid Services (CMS), however, requires state Medicaid agencies to develop policies to ensure reporting and investigations of elder abuse in assisted living facilities.

In commenting on the report, the Department of Health and Human Services (HHS) reiterated its commitment to resident safety and acknowledged the distinct, and not directly comparable, oversight frameworks for nursing home and assisted living facilities.  This is a must read for all nursing home abuse and neglect attorneys.

 

 

McKnight’s had an article about the issues and problems at California Villa in Van Nuys, CA, an assisted living facility.  Staff members were unable to identify a veteran in their care when a case manager from the Department of Veterans Affairs visited, resulting in the case manager reporting that she had visited with the resident — four days after he had died, according to the U.S. Office of Special Council.

The incident is part of a larger issue with the care of veterans in assisted living, according to the office. The alleged incidents are examples of how VA  “compromised patient care” because they “failed to take action on repeated allegations of patient care deficiencies and employee misconduct” at assisted living facilities where veterans live. The VA investigation concluded that because veterans, not the VA, pay assisted living facilities, VA officials did not oversee those facilities as “vigorously” as they did other programs funded directly by the VA.

California Villa was approved to care for veterans by the VA Greater Los Angeles Healthcare System, according to the OSC. When a case manager visited in October 2017 looking to meet with a specific veteran, however, staff members referred her to the wrong resident, a VA investigation found. The resident she had come to see actually had died four days before her visit.

The VA investigation also “confirmed longstanding and well-known” issues at the home, including a general state of disrepair and a disorganized medication room, the OSC said. Between 2015 and 2018, several veteran residents experienced “serious” medication errors, according to investigators.

For instance, staff members did not provide physician-prescribed antibiotics to a 100-year-old veteran with sepsis, the report said. In another case, staff members allegedly did not update records related to physician-canceled prescriptions, resulting in a veteran receiving double doses of medication on two occasions. And in a third case, staff members allegedly did not provide medication to a resident who did not leave his room.

“I am shocked that such lax oversight of facilities providing critical care for vulnerable veterans ever occurred, and I commend these whistleblowers for coming forward to shine a light on this serious issue,” he wrote.

The VA has agreed to begin monitoring more closely the assisted living communities caring for veterans. Also, the VA agreed to make the community care program coordinator a full-time position, and the person in the role now will visit all VA-approved assisted living facilities every month, according to the OSC. All facilities also will be independently reviewed, too, the office said.

One of the problems I see as a nursing home abuse and neglect lawyer is with assisted living centers who treat the residents as hotel guests and not vulnerable adults who need supervision and assistance at times.  A recent article in InFORum sadly reminded me of that problem.

A state investigator has issued a finding of neglect and maltreatment against Hillcrest Terrace of Chisholm assisted-living facility after one resident allegedly raped another.  The report, concluded July 11 and posted by the Minnesota Department of Health, was forwarded to the Chisholm Police Department, the Chisholm city attorney and the St. Louis County attorney. The matter is being investigated by Chisholm police and she couldn’t comment further.

According to the report, the female resident states she was raped.  The male resident who allegedly raped her “had a history of touching other clients’ private areas to provoke them” along with a history of yelling, destroying property and impaired judgment when upset.

On June 17, the victim told the investigator that the male client struck her on the legs with a statue, pried her legs apart and raped her. She said she reported the incident to the staffer and asked her to call the police, but she was told to call the police herself.

According to the report, Chisholm police arrived about 7 that evening, collected evidence from the apartment and took the female client to the hospital for a sexual assault examination. Police then removed the predator from the facility, the report said. Hillcrest Terrace evicted him but he was allowed to return once to gather his belongings. The victim was kept in the nurses’ office during that time.

The employee on duty admitted that she had not been given vulnerable adult training, but her personnel file indicated that she had completed the training and received retraining two months before the incident. The staffer was placed on 90-day probation and assigned to a different facility where there always would be two staff members working, according to the report.  The investigator faulted the staffer, but also faulted the facility for not supervising the staffer and not providing retraining after the incident.

The Centers for Medicare and Medicaid Services, the federal office in charge of supervising the care at nursing homes, keeps a list of nursing homes that consistently don’t meet standards and agreed to release a monthly update to that list in June. The most severe offenders are then designated as Special Focus Facilities. This designation increases the frequency that a nursing home must be inspected and sets guidelines for where and how quickly a facility must improve.

Two more facilities in Columbia and Myrtle Beach became the latest in South Carolina to be named on a congressional list of poorly performing nursing homes providing poor quality of care to their vulnerable residents.  Another one in Florence was officially flagged for the government to focus on.  Magnolia Manor in Columbia and The Retreat at Brightwater in Myrtle Beach were added to the list of candidates for the SFF program in July. Commander Nursing Center in Florence, which was a candidate for the program in June, was officially added as an SFF program.

Commander Nursing Center had 30 health citations at its most recent available inspection in July 2018, according to Medicare.gov, which periodically updates a nursing home database with health and safety information. South Carolina facilities typically average seven citations, the website states.  The facility was fined over $115,500 in 2018, records show.

Magnolia Manor had 25 health citations in a February 2019 health inspection and paid a $33,363 fine in 2017.  Manolia Manor-Columbia is owned and operated by the Fundamental chain which is a national for-profit chain with revenue over a billion dollars per year.  They have a long history of issues and problems ranging from fraud, short-staffing, and abuse and neglect.  As nursing home abuse and neglect lawyers for the last 20 plus years, Poliakoff & Associates have dealt with that awful chain often.

Riverside Health and Rehab in North Charleston was previously the only nursing home in the state designated as an SFF facility. They are also owned and operated by the Fundamental chain.  It shows the pattern of poor care provided at their facilities.

The Retreat at Brightwater had 16 citations in an April 2019 inspection and has not been fined in the last three years.

“It is outrageous that we continue to hear stories of abuse and neglect in nursing homes that do not live up to these high standards,” Casey said in a news release at the time. “Choosing a nursing home is a difficult and often painful decision to make. Individuals and families deserve to have all the information available to choose the facility that is right for them.”