PENALTIES FEW FOR POOR CARE
Nursing homes usually prepare for `the game'
By Jim DeBrosse and David Gulliver
Dayton Daily News (OH) - Monday, December 6, 1999
(C) 1999 Dayton Daily News
When state inspectors walked into the Bethany Lutheran Village nursing home in October, they didn't hear complaints about staffing problems. They didn't find any incident reports in charts. And if they learned anything they didn't know, it wasn't because some staff member volunteered the information.
That's because at Bethany, officials have made a science out of preparing for the annual visit from the Ohio Department of Health. Before the inspectors showed up this fall, Bethany administrators distributed a copy of a "surveyor arrival punch list" to the Centerville nursing home 's weekend and evening staff members.
Among the suggestions:
* "Remove any accident/in-cident reports from charts and place under door of unit manager's office."
* "Don't talk about being `short-staffed' or any staffing issues."
* "Don't volunteer anything unless asked specifically."
* "If you see something is wrong, don't be afraid to correct immediately . . . try to do it without calling attention to it if the surveyor is with you."
State inspections have become "this little game played out every year, because the surveyors never see the conditions that are the norm for the other 50 weeks of the year," said a staff member at the 315-bed facility, who asked not to be named. "And it's not just Bethany, but a common, industry-wide routine." An eight-month Dayton Daily News examination found that Ohio's nursing home regulatory system fails to protect its most vulnerable charges. It's a system where nursing home operators have little to fear from the people who police them and plenty of opportunities to hide bad care.
* Nursing homes are seldom surprised by "surprise" inspections. State health department inspection records show that just 15 percent of state surveys fall within a year of the previous visit, and 60 percent occur 14 to 15 months after the last inspection. "It's a no-brainer. Homes can usually predict within a few weeks of their next annual survey," said Debby Allen, spokeswoman for the Ohio Association of Regional Long-Term Care Ombudsmen, an umbrella group for agencies that investigate nursing home complaints.
* Federal funding cutbacks and state hiring freezes have slashed the number of inspectors. Since 1995, the Ohio Department of Health has lost a third of its inspectors - even as the number of facilities for the aged has grown rapidly. The result is that overstretched inspectors take longer to revisit homes and respond to complaints. "The deficiencies and abuses just go on longer and become harder to correct," said Lisa Hetrick, Ohio coordinator for the Service Employees International Union, which represents the state's inspectors.
* The enforcement system is so riddled with waivers, appeals and correction periods that most homes cited for providing bad care get off the hook. Three-quarters of all enforcement actions result in no penalties, and the state has shut down just six homes in five years. Even homes repeatedly cited for putting residents in "immediate jeopardy" have stayed in business after persuading state regulators that they've solved the problems.
* The industry has a revolving door with the agencies that regulate it. The top legal counsels to both of Ohio's trade associations of for-profit nursing homes are former state regulatory officials. So is the executive director of the nursing home association representing non-profits. And one state inspector estimates that 70 percent of her colleagues who have quit the district office find jobs as nursing home consultants or administrators.
"When (state employees) go to the other side, which happens all the time, their job is to tell providers how to stay within the law and, at the same time, how to get around the law - `legally,' I guess," said Gerson Silver, a family counselor in the Montgomery County court system who once headed the nursing home complaint division of the Ohio Department of Human Services.
There's nothing cozy or unethical about the industry recruiting from the ranks of its own regulators, said Peter Van Runkle, chief legal counsel and lobbyist for the Ohio Health Care Association, the major trade association for Ohio's nursing homes . Van Runkle, as the former top legal adviser to the Ohio Department of Health, was once a regulator himself.
"If you looked at any other industry, I think you would find the same thing," he said. "Where do you find the people who have the expertise that you need?"
State health department officials also said Ohio is a national leader in collecting fines.
"We feel we're pretty aggressive in our enforcement scheme in Ohio," said Alan Curtis, chief of the health department's bureau of regulatory compliance.
"Our goal, collectively as a division, is not to put facilities out of business but to encourage them to comply and improve their quality of care," said Kurt Haas, who heads the department's inspections office.
Haas said the department has stepped up its educational services to the industry, offering seminars, speakers and brochures on such topics as how nursing homes can reduce bed sores, falls and the use of patient restraints.
"There have been some very good outcomes that don't just come from enforcement, enforcement, enforcement," he said.
'NOT REALLY A SURPRISE'
Federal law requires that nursing homes be inspected every nine to 15 months, and operators aren't supposed to know when it's coming. But nursing home administrators are seldom caught off-guard when the inspection team arrives.
Because of short-staffing, Ohio Department of Health inspectors often can't make their rounds until the end of the 15-month cycle. And, making it even easier to predict, inspections almost always begin on a Monday or Tuesday, inspectors say.
"It's not really a surprise," said Joan Earl, who was a state nursing home inspector for 17 years in the Cleveland area before retiring last year. "When my daughter got a job as an aide in ahome (in Lorain County), they told her, `Got to get this place in shape because the inspectors are coming in two weeks.' Sure enough, I was sent there two weeks later. How they knew, I have no idea."
The Daily News reviewed one employee's pay stubs at Bethany Lutheran Village showing double premium pay for work during the two weeks leading up to and including the five-day state inspection in April 1997. Bethany offers such premiums to bolster staffing before and during inspections, then withdraws them after, according to the staff member who asked to remain anonymous.
Bethany spokesman David Lamb said the home offers premium pay at times but not to boost staffing levels during inspections.
As for the home 's "off-hours survey arrival punch list," he said, "the employees on weekends and evening shifts aren't used to (inspectors) on campus. It makes sense to let them know what to expect, and it's also a good idea to reinforce everyday behaviors."
"Staffing up" for the state inspection is typical behavior for most homes , said an inspector in the Ohio Department of Health's Dayton-Cincinnati district office.
"There's no law against that," she said. "We can pull into their parking lot on a Monday morning, no problem. But Tuesday morning when we show up (for the second day of the inspection), there's no room."
Ohio Department of Health officials say they have conducted investigations into whether surveyors or their managers are tipping off nursing homes to inspection times, and have even called on the Ohio Highway Patrol to do its own probe. The investigation found nothing conclusive to support the allegations.
"That's not to say it doesn't happen, but if it does, it's . . . rare," Haas said. "I can tell you what we'd do if we did find out - they'd be out looking for work."
INSPECTION RANKS THIN
State surveyors conduct inspections on about 940 nursing homes in Ohio, and a growing list of other long-term care facilities, including hundreds of assisted living facilities, adult grouphomes and home health care agencies.
But while the workload has increased, the number of state inspectors has not. Thanks to cuts in federal funding and a state hiring freeze, the inspection ranks had thinned from 182 people in 1995 to 123 this fall - a 30 percent decline.
Those who remained worked longer hours - some without choice - and wrote fewer citations as their workloads expanded.
Adding mandatory overtime and evening and weekend hours to the duties of already heavily-burdened inspectors "just takes its toll on our people," said Hetrick, the union coordinator. Several of the new recruits "have quit because they were stressed out . . . They refuse to work under these conditions."
Haas acknowledged that, until recently, a shortage of surveyors meant fewer citations for nursing homes in Ohio. "Frankly, to make good use of our teams out there, we didn't have the luxury of citing each and everything we found . . . With less than ideal resources, they have to attend to priorities," he said.
Federal funding for inspectors increased in October for the first time since the early 1990s, allowing the health department to add about two dozen inspectors to its long-term care inspection staff. But the new hires are still in training and won't be available for another six to 12 months, Haas said.
More inspectors are needed if Ohio is to meet a Clinton administration push to toughen the nation's nursing home enforcement.
New federal rules issued this summer call for more off-hour inspections, quicker responses to complaints of harm or jeopardy to people living in nursing homes and swifter, more certain penalties, especially for repeat offenders, allowing states to impose fines of up to $10,000 for each case of serious or chronic violations.
The American Health Care Association, the nation's trade group for nursing homes , is fighting the new fines in court, arguing the industry wasn't given proper notice of the changes.
The new federal measures are intended to reverse a decade of erosion in enforcement since Congress passed the 1987 Nursing Home Reform Law. That law was supposed to tighten restrictions and toughen enforcement.
But under fire from the nursing home lobby, the Health Care Financing Administration, which oversees Medicare and Medicaid, redefined what would constitute a bad home , limited fines and made it easier for homes to challenge survey findings.
The result is a system where homes can neglect and abuse residents time and again and escape punishment by working the system.
A Daily News analysis of enforcement actions by the Ohio Department of Health since 1994 found one in five resulted in a fine and one in nine ended with a home temporarily losing its federal funding for new admissions. Three-quarters of all actions resulted in no penalties.
Federal law gives nursing homes up to 90 days to correct most violations and "normally they come up to compliance in time," the health department's Curtis explained.
Nursing homes can avoid penalties at every stage of the game. They can dispute inspectors' findings, and get violations stricken from reports. They can appeal findings in formal hearings, delaying any penalties. And if they waive the hearing, fines are automatically cut 35 percent.
But the biggest escape route is at the heart of the system in Ohio and most other states. State officials step in immediately if residents have been harmed or are deemed to be in immediate danger. But in most other cases, penalties are dropped if homes clean up violations for the follow-up inspection, usually 40 to 50 days after the problems are discovered.
"Ninety-nine percent of those cited for deficiencies get a chance to correct them without punishment of any kind," said Toby Edelman of the National Senior Law Center in Washington, D.C., a non-profit advocacy group for the elderly. "Basically that says there are no penalties for non-compliance."
State legislators in Ohio could, of course, pass licensing laws that are tougher than the federal guidelines. That's what happened in the state of Washington, where most penalties againstnursing homes are imposed immediately without a correction period.
"(Ohio) can be more stringent if we want . . . but it's hard to convince people to go much beyond the national policy," Curtis said.
The state proposed enforcement actions against Integrated Health Services of Huber Heights at Spring Creek five times in four years, citing it for dozens of violations.
In 1997, inspectors wrote 16 violations there, including four for causing "actual harm" to residents. Those four included inadequate supervision of residents, causing bed sores to develop, insufficient nursing staff and not tending to residents who suffer from incontinence. Surveyors observed that one resident with an open pressure sore on the right buttock was left sitting for four hours without being repositioned or checked for wetness, even though aides told inspectors the resident was supposed to be checked every hour.
The following year, inspectors found another 16 violations, including not adequately preventing and treating bed sores. But because the home cleaned up its problems in followup inspections each year, it did not lose a penny in fines or other penalties.
"When we are cited for deficiencies, we work very hard to clear them up immediately, so at our first follow-up we are completely cleared," said Lisa Miller, a spokeswoman for Integrated Health Services Inc., the for-profit chain that owns Spring Creek. "And we also put systems in place so that they don't happen again."
The inspectors' initial findings at Spring Creek in 1998 cited the home for failing to prevent bedsores in five of 95 residents, enough to categorize the problem as widespread. But the homedisputed that finding and state supervisors downgraded the offenses to just two patients - too few to penalize the home for substandard care.
Dennis Swartzbaugh, administrator at Spring Creek, said it's not unusual for inspection reports to be amended once inspectors and their supervisors are presented with all the evidence. "They, like anyone else, are human. They may not have looked at all the documentation at the time," he said.
The average nursing home is cited for about seven violations each year, although many homes do considerably better. Last year 122 homes recorded a perfect score: zero violations.
In three years, Heartland of Oakridge in Miamisburg logged 60 violations, including 45 in 1995 - the fourth highest total of any nursing home in the state over the last five years.
Inspectors found that 10 residents suffering from incontinence did not get appropriate treatment to prevent urinary tract infections and regain bladder control. One patient with a catheter who suffered from recurrent bladder infections was observed on two different days with the catheter tubing wrapped around the armrest of his wheelchair, allowing urine to flow back into his bladder. The following day, another resident was observed handling the patient's tubing and catheter bag.
Inspectors also found that five residents had suffered from severe weight loss because the home failed to intervene with proper dietary measures. One resident was admitted Aug. 29, 1994, weighing 121 pounds. By Dec. 21 of that year, records at the home show, the resident's weight had dropped to 102.9 pounds; by Jan. 2, 1995, it was 98.5 pounds. "There was no dietary intervention for the continued weight loss until March 2, 1995, when the resident had a documented weight of 93.7 pounds," the report states.
After each survey, the home passed a follow-up inspection and received no penalty.
Then, in 1998, the home tallied 29 citations, including one for placing a confused resident in "immediate jeopardy." The resident fell three times from her wheelchair, breaking her hip in one fall and then falling again five days after her hip was surgically repaired. The home eventually paid a $10,400 fine - about what it takes in from Medicaid in two days and a fraction of the cost of hip surgery.
That same inspection showed the home failed to immediately notify families of an outbreak among residents of scabies - tiny infectious mites that cause itching and sores. It also didn't provide proper services to 34 residents so they could maintain or improve their abilities in basic tasks such as eating, walking, toileting and bathing.
A statement released by HCR-ManorCare, the for-profit chain that owns Heartland of Oakridge, said, "We take the survey process very seriously and have addressed the state's previous year's findings . . . We work hard to ensure delivery of quality care and feel that the center is in substantial compliance."
Lindy Manor, an independently owned home in Cincinnati, had one of the state's worst inspection records between 1994 and 1996, when it was cited for quality of care deficiencies, inadequate supervision of residents and widespread patient abuse.
In 1997, following another bad inspection, the state sought every penalty under its authority: fines, a temporary cutoff in Medicaid funding for new residents, and terminating the home 's certification for all Medicare and Medicaid funding.
The owners, Herman and Bernard Moskowitz, closed Lindy Manor in November 1997. However, they applied for and got a transfer of the bed license to a new 100-bed home , Lakeridge Villa Healthcare Center, which opened that same month under the same management.
The Lindy Manor facility was "not conducive to modern nursing home care because it was so old," Bernard Moskowitz said.
But troubles soon began in the new Lakeridge nursing home . While it passed its opening inspection in late 1997, the home 's next inspection in January of this year uncovered 31 violations, with four deemed harmful to residents. A follow-up inspection in August found 27 violations, including a citation for inadequate supervision to prevent falls.
"We're going to ask for a hearing. The inspector cited us for things that weren't true," including bedsores on several residents that were healing at the time and not getting worse, Herman Moskowitz said. Even so, the home has corrected all deficiencies cited by inspectors, Bernard Moskowitz said.
"We have a good reputation, and we try to keep up that reputation," he said.
Last year, Charlotte McConnell, a nurse's aide at Lakeridge, was convicted of patient abuse. Prosecutors' notes on the case say she "hit resident, then hit resident with a set of keys, later came back and punched resident in the face."
She was sentenced to three years probation and ordered to enter an anger management program.
Also last year, Carmen Hamilton, a nurse's aide at Lakeridge, slapped a female resident, causing swelling and bleeding from her lip. She was convicted of patient abuse and sentenced to six months in jail, six months of electronic monitoring and five years' probation. Bernard Moskowitz said the home reported the abuse to the state and cooperated fully with investigators. "We do not accept that kind of behavior from any of our staff," he said.
How did the previous owners get approval to run another home ?
Curtis said Ohio Department of Health officials couldn't use Lindy Manor records in the Lakeridge approval process because the transfer of licensed beds to the new facility had already been in the works before the 1997 inspection.
To have blocked state approval of the new facility at that point, he said, the department would have had "to show they're morally unfit . . . We could have very well lost. Denying someone the right to operate a facility is a lot different from a civil money penalty."
But Curtis said if he had known then about the problems that would later surface at Lakeridge, "I'd say, `Hey, maybe we should take our best shot.' But we don't have that. We're not clairvoyant . . . I would like to see it be better. What can I say? "
A YO-YO PATTERN
Ohio isn't the only state with enforcement troubles. A recent national survey by the U.S. General Accounting Office, the investigative arm of Congress, found that one in four nursing homeshad severe deficiencies that endangered health or lives. In most cases, sanctions never took place. And although most homes corrected their deficiencies to avoid sanctions, 40 percent again showed serious problems less than three years later.
That same yo-yo pattern can be found in the Miami Valley.
Inspectors cited Kettering Convalescent Center for 28 violations in 1996, including poor housekeeping in 53 of 74 resident rooms and commons areas and allowing injuries from accidents because of inadequate supervision. The home protested the findings, arguing that they did not jeopardize the health and safety of residents.
The home improved to just three citations in 1997 - less than half the average for all Ohio nursing homes that year.
But in 1999, the center was written up for 24 violations, including an immediate jeopardy citation for failing to adequately supervise a resident who walked out of the home in June and was struck by a vehicle and injured on Dorothy Lane.
The home was fined $3,050. The operators again protested the citation, saying the man was alert and oriented and that he had his physician's written permission to leave the building.
One reason for the yo-yo pattern is that inspectors seem to change their emphasis from year to year "and you don't know what they're going to be looking for," said Tim Shackleford, who took over as administrator at Kettering Convalescent Center in July.
Shackleford said nursing homes often get caught between state safety regulations and patients' civil rights when trying to keep residents who use poor judgment from leaving their buildings. The man who was injured in traffic outside the home failed to sign out or tell anyone before leaving and crossing the street to buy something at a convenience store, he said.
"We do want to do everything we can to keep people out of harm's way, but ultimately - unless they've been declared legally incompetent by a judge - they make their own decisions," he said. "This is not a prison, and I'm not a warden."