Alex J. Fajardo is an Associate in Stark & Stark’s Nursing Home Litigation Group. He wrote the below for The National Law Review

A recent study found significant understaffing in 75% of nursing facilities across the country, raising concerns about the level of care patients receive.

The Harvard and Vanderbilt study, published in the July issue of the Journal of Health Affairs, used data from the Payroll Based Journal (PBJ) to analyze the staffing levels of more than 15,000 facilities. The study examined the staffing levels of registered nurses (RN), licensed practical nurses (LPN), and nurse aides, relative to the number of nursing home residents who rely on their care.

Understaffing is an ongoing issue for nursing facilities. Numerous reports highlight that nursing facilities often inflate the staffing numbers they report to the government, facilitating this study to dive into payroll records. Because facilities are required to submit payroll information and other auditable data, the numbers in this study more accurately depict the current staffing situation.

The Centers for Medicare and Medicaid Services (CMS) is responsible for quality control in facilities caring for Medicare and Medicaid beneficiaries. As part of the CMS requirements, nearly every facility is required to have at least one RN on site for eight hours, every day. Yet, the study found that three-fourths of nursing homes rarely complied with CMS staffing requirements.

The study also found a peculiar trend of higher staffing levels in the weeks directly before and after the facilities anticipate CMS’ annual survey, especially in those of RNs. It also showed large fluctuations in staffing between weekdays and weekends.

Overwhelming a facility’s nursing staff with too many patients or residents can certainly diminish the level of care rendered to those admitted. Some of the clients I represent are dropped while being taken to the bathroom by one person, when two staff members were required by doctors’ orders. Sometimes they fall while attempting to go to the bathroom on their own, because there is no one to answer their call bells. Other clients develop painful infected pressure sores because the facilities they were in did not have adequate staff to relieve pressure as frequently as needed.

All too often, understaffing is the source of the neglect and mistakes nursing home residents suffer from. For the families and friends of nursing home residents, the results from this study are understandably worrisome. Without enough nurses to attend to patients who rely on them for medical assistance and basic needs such as food, bathing and movement, it can be nearly impossible to deliver sufficient care.

It stands to reason that these staffing issues are the result of the facilities’ financial stakeholders cutting costs to increase their profits. Perhaps this is why non-profit nursing facilities generally provide better care to their residents than their for-profit counterparts. It is clear increased requirements and reforms are needed to ensure adequate patient safety.

The neglect of patients that result in death, ulcers, fractures, and other physical and emotional harms are actionable claims. It’s important that families of nursing home residents keep a close eye on their loved ones and seek legal counsel if they see signs of neglect.

A recent New Jersey case really made me think about criminal intent in nursing home caregivers.  Monique Beaucejour, a nursing home aide was charged with reckless manslaughter for failing to seek emergency care for a patient who later died after suffering a head injury, said acting Essex County Prosecutor Theodore N. Stephens, II.

Beaucejour found the 85-year-old resident on the floor of her room at the Waterview Center nursing home but placed her back in bed instead of seeking help. Investigators determined, however, that Beaucejour had placed Fannie McClain in bed and “returned to the room later and acted as if she just discovered her injured,” Stephens’ announcement said.

McClain’s 62-year-old daughter, Fangela McClain, said she had previously raised concerns about her mother’s care and said the nursing home did not have enough staff to adequately care for all of the patients. She said her mother, who had dementia, had fallen previously and another time she sprained her ankle.

In addition to reckless manslaughter, the prosecutor charged Beaucejour with hindering, obstruction and neglect of the elderly, Stephens said.

NJ.com had an article about the lack of staff at nursing homes and how that directly affects the quality of care provided to the residents.  The short-staffing prevents supervision to prevent falls and resident to resident altercations.  The lack of staff prevents residents from being repositioned to avoid pressure injures or bedsores.  The under-staffing makes it impossible for the caregivers to spend the time with the residents to feed them or participate in social activities.  It is the key reason for the neglect suffered by nursing home residents.  And everybody knows it.

“Anyone who has spent any time in a nursing home has a story to tell. About a loved one suffered while waiting for help to go to the bathroom. Or someone who went hungry because there was no one to feed them. A call bell that went unanswered for hours.”

It takes time and staff to regularly turn a patient every two and a half hours, which is what needs to be done to avert pressure ulcers. When bed sores develop, it is a direct consequence of not having enough staff to prevent it.

Federal data shows N.J. nursing homes are understaffed. One-in-four of the more than 360 nursing homes in the state had staffing issues, according to reports issued this year by the Centers for Medicare & Medicaid Services.

They revealed 25 percent were rated “below average” or “much below average” in the number of nursing personnel available to take care of residents — a ranking that takes into account that some nursing homes have sicker residents and may therefore need more staff than other nursing homes whose residents aren’t as sick.  Half of those same facilities had poor health inspection reports as well.

At the same time, those self-reported numbers by the nursing homes themselves may not true.  It is well known that nursing homes inflate their staffing numbers to get a better star rating on Nursing Home Compare.  However, new payroll data being collected by the government will provide a more accurate picture of the number of staff on duty.

Families for Better Care, a non-profit advocacy organization, said the state ranked 45 nationwide in the amount of direct care service hours provided per resident. In its own analysis, the Texas-based group said nursing home residents here received 34 minutes less direct care daily, when compared to the country’s top-ranked states, or an average 2.27 hours of direct care staffing hours per resident.  The state minimum in New Jersey is 2.5 hours, according to the Department of Health.

“They like to keep the profits close to the vest — to give it back to shareholders instead of staff,” Lee said.  New Jersey is the seventh most expensive state for nursing home care, according to a study, by SeniorLiving.org, based on the most recent data from the 2018 Genworth Cost of Care Survey. The average cost of a semi-private room in New Jersey is $10,646 per month or $127,752 per year, the study found. That compares to the national average of $7,441 per month or $89,297 per year.

McKnight’s reported on an analysis that shows nursing homes where a majority of residents are black or Latino were more likely to receive a penalty in the first year of the Value-Based Purchasing Program. Nursing homes with more than 50% of residents who are black were nearly 25% more likely to be penalized by the Centers for Medicare & Medicaid Services compared to facilities with mostly white patients, according to the findings published July 1.  The study looked at how nursing homes that serve minority populations were impacted by fines and bonuses that were first doled out last October. About 85% of nursing homes with mostly Hispanic or Latino residents received a penalty, versus about 72% of white-majority homes.

“The patterns of performance among SNFs serving vulnerable populations underlie concerns about incentive-based approaches to quality improvement,” researchers from UMass reported in Health Affairs. “While SNFS that perform poorly should not be rewarded for delivering lower-quality care, it is concerning that vulnerable populations may be disproportionately affected by penalties.”

The data also strongly correlated penalties with high-Medicaid populations.  Most likely because they get less reimbursement so they spend less on staff.

 

Health Leaders Media had a great article by RN Jennifer Thew on the need for more RN staffing at nursing homes.  A new analysis of payroll-based staffing data for U.S. nursing homes, uncovered large daily staffing fluctuations, low weekend staffing, and daily staffing levels that often fall well below the standards and reasonable expectations of the Centers for Medicare and Medicaid Services. In fact, the average weekend staffing time per resident day was just 17 minutes for registered nurses, nine minutes for licensed practical nurses, and 12 minutes for nurses’ aides.

The study, published in the July issue of Health Affairs, found that when compared to weekday staffing there was a large drop in weekend staffing in all staffing categories, based on CMS’ data resource, the Payroll-Based Journal which is provided by the nursing homes under penalty of perjury. To meet a requirement of the Affordable Care Act, CMS has been collecting data from nursing homes since 2016. PBJ data have been used in the federal Five-Star Quality Rating System for Nursing Homes since April 2018. Unlike previous nursing home staffing data that was self-reported by facilities and covered only a narrow window of time around a facility’s annual recertification survey, PBJ data are linked to daily payroll information for several staff categories and cover the entire year.

Additionally, using PBJ data from more than 15,000 nursing homes, researchers discovered that 54% of facilities met the expected level of staffing less than 20% of the time during the one-year study period. For RN staffing, 91% of facilities met the expected staffing level less than 60% of the time.

Staffing in the nursing home is one of the most tangible and important elements to ensure high quality care,” study co-author David Stevenson, PhD, a Health Policy professor at Vanderbilt University Medical Center says in a news release. “Anyone who has ever set foot in a nursing home knows how important it is to have sufficient staffing, something the research literature has affirmed again and again. As soon as these new data became available, researchers and journalists started investigating them, and the government now uses the PBJ data in its quality rating system.

“We found that the newer payroll data showed lower staffing levels than the previous self-reported data,” says co-author David Grabowski, PhD, professor of Health Care Policy at Harvard University. “The lower levels in the PBJ data likely reflect both the fact that they are based on payroll records as opposed to self-report, and also that staffing levels were abnormally high around the time of the inspection. In fact, the PBJ data clearly show this bump, followed by a return to normal after inspectors leave.”

Stevens says he hopes families and future nursing home residents become aware of and push back against these staffing practices.

“Hopefully, the general public will gain a broader awareness of the information that is available, not only on staffing but on other aspects of nursing home care,” Stevenson says. “The only way nursing homes will change their behavior is if there is value in doing so. Some of that can come through the pressure of regulators, but it also needs to come from incentives in the marketplace, notably from expectations of current and future residents and their families.”

 

The Record Online reported that a class-action lawsuit has been filed against the operators of Sapphire Nursing at Meadow Hill, claiming they cut so much staff after buying the 190-bed nursing home that residents’ calls for help go unanswered and some lie “in their own fecal matter and urine for hours at a time.”  The complaint cites federal data showing that daily nursing staff hours have significantly dropped to 3.2 hours per resident from about 4.0 hours before the transfer.

The case alleges the buyers made steep cuts in nurses and nursing aides after completing the purchase of what used to be Elant at Meadow Hill.  Controversy over staffing at the 120-bed Goshen home began in December 2017, when union representatives said the home had announced layoffs that would reduce the number of nurses to 17 from 37.  The suit is seeking proper staffing levels, accurate dislosure of the staffing, and an unspecified amount in damages for all residents of the home since the home changed ownership in 2017.

Dorothy Olympia rarely got her medications on time, and once was taken to a hospital because she had been given her insulin without being fed sufficiently and nearly fell into a diabetic coma, according to the suit by her daughter, Joanne McCleary. The suit also alleges that staffing was so short that “on many occasions, Mrs. McCleary had to shower her mother herself.” In another instance, it meant that a male physical therapist had to change Olympia’s clothes “because he had found her sitting in urine and feces for several hours.”

The complaint charges that residents’ call bells “would be left on for hours with no nurses or aides coming to assist.”

 

 

NBC News recently reported on Operation Brace Yourself.  The federal investigation discovered that medical brace manufacturers were allegedly paying kickbacks and bribes to doctors working with fraudulent telemedicine companies in exchange for Medicare patient referrals for medically unnecessary braces.

At least, two dozen people, including doctors and owners of medical equipment companies, were charged in a more than $1 billion Medicare scam. As many as 130 medical equipment companies were implicated in the scam that resulted in a total of $1.2 billion in losses, prosecutors said.  As part of the scheme, doctors profited by prescribing braces to patients they had little to no relationship with. Prescriptions frequently came after doctors had brief conversations via phone or video conference with patients they had never met, prosecutors said.

Investigators uncovered the sprawling plot that targeted elderly and disabled people by setting them up with back, neck and knee braces that they didn’t need, according to federal prosecutors.  The ill-gotten gains were then laundered through shell companies and used to buy exotic cars, yachts and luxury real estate in the United States and overseas, prosecutors said.

The taxpayers should be outraged by this,” Gary Cantrell, who oversees fraud investigations for the Health and Human Services inspector general’s office, said in an interview with NBC News. “These are losses to the Medicare program that we all, as taxpayers, fund.”

“White-collar crime is not victimless,” Sherri Lydon, U.S. attorney for the district of South Carolina, where the probe originated, said at a press conference announcing the indictments. “All taxpayers will endure the rising cost of health care premiums and out-of-pocket costs as a result of fraud on our Medicare system.”

Mark I. Korn, the former owner of several nursing home was sentenced to 18 months in prison and ordered to pay more than $3 million in restitution and back taxes.  Korn pleaded guilty to bank theft and willful failure to pay tax. He had faced up to two years in prison for each charge.  Korno also committed bank theft in connection with his actions concerning a credit card and loan from Fifth Third Bank. He also failed to pay over employment taxes related to his nursing homes over three quarters in 2009.

In 2008, Korn sought a loan to refinance the Batavia Nursing Home from Fifth Third Bank. In June 2008, Fifth Third Bank provided $3,900,000 to refinance the nursing home and provided the defendant with a credit card. As part of the application for the loan, Korn submitted a personal financial statement and guaranty on which the bank relied when underwriting the loan. The statement contained numerous falsehoods, including the overvaluation of his primary residence. The defendant stated that the property was valued at $1,465,000 when, at the same time, he was contesting its value with the Town of Amherst for purposes of property taxes, alleging it was worth between $500,000 and $550,000. Additionally, Korn provided the bank with statements of bank accounts that he claimed to own. However those statements also contained falsehoods – including one statement in which the defendant claimed ownership of an account containing $50,000 in February 2008, when the account actually contained $1.00 and belonged to someone else. The loan and payments on the credit card went into default, and Fifth Third Bank lost more than $2,400,000.

Prior to March 2009, for both Batavia Nursing Home and Fairchild Manor Nursing Home, Korn used a service to collect and pay over employment taxes owed. However, beginning in March 2009, the defendant ceased using the service and subsequently intentionally failed to pay to the IRS employment taxes owed for the second, third and fourth quarters of 2009. Instead of paying the taxes owed to the IRS, Korn spent the funds on personal expenses including restaurants, hockey tickets, jewelry, and to pay his children’s college tuition.

The Daily Beast had an incredible article written by Jordan Rau of Kaiser Health News on exorbitant salaries of hospital doctors.  The problem, according to the government, is that the efforts run counter to federal self-referral bans and anti-kickback laws that are designed to prevent financial considerations from affecting physicians’ clinical decisions. The Stark law prohibits a physician from referring patients for services in which the doctor has a financial interest. The federal anti-kickback statute bars hospitals from paying doctors for referrals. Together, these rules are intended to remove financial incentives that can lead doctors to order up extraneous tests and treatments that increase costs to Medicare and other insurers and expose patients to unnecessary risks.

The Skilled Nursing News reported that Kansas will implement stricter vetting standards for nursing home owners and investors in the wake of several high-profile receivership cases over the past year.  The new law will require potential nursing home owners to submit detailed financial and historical ownership information before receiving approval.  Anyone seeking to buy a skilled nursing facility will need to provide a list of every other licensed property that he or she owns or has ever owned, either within Kansas or elsewhere in the United States.

In addition, the disclosure rule applies to ownership stakes in either the operations or the real estate associated with a nursing facility. Prospective buyers must further provide a 12-month operating budget for the facility, along with proof that he or she has sufficient funds to make that plan a reality.

The law will also make it easier for the state to revoke, suspend, or deny a license. Moving forward, anyone with any amount of ownership interest in a nursing home can find themselves on the blacklist; previously, such bans or suspensions only applied to people with direct or indirect ownership of 25% or more.