JFActivist

Monetary Sanctions for Nursing Home "Deficiencies" Too Low to Create Change

Valueless Lives of Elderly and Disabled in Nursing Homes
Information Bulletin #   (5/08)

Federal monetary sanctions and fines against nursing facilities that fail to comply with federal minimal standards of care are abysmally low, reflecting how little value or worth elderly and disabled persons are to the Department of Health and Social Services' Centers for Medicare & Medicaid Services, the federal agency that is supposed to punish nursing facilities for the injuries they cause residents.

In a recent report, the Center for Medicare Advocacy reviewed 85 of the 2007 HHS enforcement decisions, and the monetary fines imposed against nursing facilities that had failed to comply with the federal standards that are supposed to ensure proper care and protection to people in nursing homes. Even though CMS could terminate the nursing facility's Medicaid payments, deny payment for new admissions or a combination of penalties, nearly all the deficiencies resulted in only small monetary
fines.

These administrative decisions/cases involved extremely serious failures/deficiencies: deaths, over medications, amputation of limbs, development of avoidable pressure sores, elopements, failures to give prescribed medications, and many other injuries.  When HHS finds such violations, it gives the nursing facilities an "opportunity to correct" the deficiency.  It's important to understand that money penalties are imposed NOT for the deficiency - the death, the amputation, etc.- but for a nursing facility's failure to correct the deficiency.

Fines, penalties and sanctions are imposed only if the nursing facility does not achieve substantial compliance with the standards within a given time period.  That must be a great relief to the dead person, the person in pain with the avoidable pressure sure or the person who was over
medicated.  Also, the dollar amount for serious deficiencies is only $3,050 -$10,000 per day.  That surely must really frighten nursing facilities that receive Medicaid reimbursements, depending on your state, between $40,000 - $65,000 per year per person. If a nursing facility had 100 Medicaid recipients @ $50,000 per year, the following fines/penalties would not have much of an impact on the profits.

Here are a few of the deficiencies and the "penalties":

• Failure to provider CPR to resident who then died - $53,200 penalty [resident in cardiac distress, who was not transferred to the hospital or given emergency treatment, including CPR.]
• Strangulation death on bed rail - $4,050 penalty [88 year old resident who had fallen numerous times from her bed, found with her neck wedged between the side rail and the mattress.]
• Leg amputation following failure to follow doctors' treatment orders - $7,500 penalty [resident admitted for short-term rehabilitation following surgery for a fractured ankle.  Nursing facility did not bring resident for follow-up visit and subsequently failed to monitor for infection and treatment, including antibiotics.  Resident's leg had to be amputated.]
• Elopement death - $64,050 penalty [resident with history of elopement found dead a week later.  Nursing facility failed to implement care plan that required monitoring every two hours.  Nurse falsified report, counting resident present, even though she did not see resident.]
• No pain medication for three months - $7,500 penalty [ Resident, who cried out when she was given care and stopped crying when care was completed, was not given pain medications.  Resident not given pain medication for three months, despite doctor's order that pain medication be administered
  "as needed." ]
• Sexual assault of resident by aide and staff failure to report sexual assault - $12,600 penalty [resident sexually abused, reported it, but next day the same aide was assigned to take care of resident.]
• Choking death of one resident and other residents' dehydration during heat wave - $80,000 [resident whose care plan required he be fed, fed himself, choked and died.  Same nursing facility failed to provide residents with necessary care and services during heat wave, resulting in residents' suffering from dehydration.]
• Failure to monitor blood sugar levels, leading to re-hospitalization with hypoglycemia four days after admission to nursing facility - $38,700 penalty.
• Ten consecutive overdoses of morphine and other medication errors -$178,150 penalty.

The full report and many other case descriptions can be found at www.medicareadvocacy.org/SNF_08_05.13.DABNursingHomeDecisions.pdf

Elderly and Disability Advocates:

These incidents are not even the tip of the iceberg.  Advocates who visit nursing facilities regularly hear and see regularly many, many other "deficiencies."  Maybe it's time we publicly point out these violations in the press.

The Nursing Home Reform movement apparently believes that more money to nursing facilities will improve these institutions, despite the past 20 years of increased Medicaid reimbursements.  Does not the continuation of these abuses demonstrate that institutions cannot and will not provide the care that elderly and disabled people deserve?

It's obviously beyond the CMS political will to shut down these nursing facilities that are literally killing some elderly and disabled persons. 

CMS (and Congress) has known about these abuses for years, but continues to impose these paltry money penalties that do not amount to "chump" change.  What about enlisting private lawyers to bring real damage actions against these nursing facilities?  Although there have been some such litigation, the number of cases has been relatively minimal.  Nursing homes are quite worried that such litigation will increase, and that's why the nursing home industry in a number of states have tried to prevent such
litigation.

~Steve Gold, The Disability Odyssey continues

House Attaches Medicaid Moratorium to Iraq Bill

This news update comes from the American Hospital Association (AHA):

AHA SPECIAL BULLETIN

Thursday, May 15, 2008

House approves Medicaid moratorium …
action now moves to Senate

In a key victory for people who rely on Medicaid, and for the hospitals and other providers who take care of them, the House today voted to attach the Protecting the Medicaid Safety Net Act of 2008, H.R. 5613, to the Iraq supplemental spending bill. The AHA-backed Medicaid legislation places a moratorium through March 2009 on seven Medicaid regulations that would cut billions in funding from the program. Without further action, a moratorium on two of those rules that directly impact hospitals will expire May 25.

Thanks to all hospital leaders who so forcefully advocated for the Medicaid moratorium! And now, on to the Senate, where …

… the Senate Appropriations Committee today is drafting its version of an Iraqi supplemental spending bill that also would block the seven Medicaid rules. The full Senate is expected to consider the bill early next week.

ADAPT to National Governors Association: STOP FUNDING INSTITUTIONS!

April 29th

10:45 AM - Carrying flags representing all fifty states, ADAPTers began to file into the courtyard area in front of the Hall of States building, home of the National Governors Association, near Union Station in Washington, D.C. Security desk employees on the other side of the window walls of the front of the building shot quizzical stares as the crowd built and the sound system was quickly assembled just in front of the front entrance doors. Moments later, a banner was unfurled at the front of the gathering crowd that read "STOP FUNDING INSTITUTIONS."

11:15 AM - Packed in, rallying chants began: "Up with attendant care, down with nursing homes!" and "What do we want? FREEDOM! When do we want it? NOW!" Through the sound system, ADAPT leadership told the crowd that they have once again found themselves at the offices of the National Governors Association because the governors are not listening to the voices of their citizens who want out of institutions and into their communities. In loud voices, the crowd made sure that those in the NGA office definitely heard them outside.

11:30 AM - ADAPT released its  Ten Best - Ten Worst Home and Community Services and Supports list, complete with five honorable mentions and five dishonorable mentions. Cheers and boos from the crowd came in appropriate response to the announcement of each list. Following some wrap-up ADAPT chants, the group broke for lunch around the noon hour.


... Stay tuned for more.

House Roll Call on Medicaid Moratoria Bill

From the Associated Press (April 23):

House Roll Call: Medicaid Bill

By The Associated Press – 17 hours ago

The 349-62 roll call Wednesday by which the House passed the legislation to delay for a year the implementation of regulations affecting Medicaid programs.

A "yes" vote is a vote to pass the bill.

Voting yes were 221 Democrats and 128 Republicans.

Voting no were 0 Democrats and 62 Republicans.

X denotes those not voting.

There are 3 vacancies in the 435-member House...

...Read the rest of the article and view the roll call.

Websites to Expand Ratings on Nursing Homes

From The Wall Street Journal (April 24):

Web Sites Expand Rating Information On Nursing Homes
By ANNA WILDE MATHEWS

The federal government on Thursday plans to identify some of the most troubled nursing homes in its public database, part of a trend toward giving consumers easier access to a trove of nursing-home information online.

That trend could accelerate if Congress passes a bill introduced this year that would force more nursing-home data into the public domain....

...Read more.

House Subcommittee Unanimously Passes Moratorium on Medicaid Regs

From The Wall Street Journal (April 10):
 

Bill Advances to Suspend Medicaid Cost-Shift Rules
By Jane Zhang

WASHINGTON -- Legislation to block Medicaid rules that states said would shift billions of dollars of costs to them began a move through the House.

The House Energy and Commerce Committee's health panel Wednesday unanimously passed the bill, which would put a moratorium on seven rules that, among other things, would end federal payments for physician training and transportation of Medicaid-eligible children to school. Congress put some of the rules on hold last year; that moratorium expires June 30. The new legislation would hold the rules in abeyance until April 1, 2009, when there will be a new president...

...Read more.

Congressman Dingell Comments on Medicaid Regulations Hearing

Statement of Congressman John D. Dingell, Chairman
Committee on Energy and Commerce

SUBCOMMITTEE ON HEALTH HEARING ON
“H.R. 5613, PROTECTING THE MEDICAID
SAFETY NET ACT OF 2008”

April 3, 2008

I thank Chairman Pallone for holding this hearing on H.R. 5613, legislation introduced by Representative Murphy and me. And I commend the Gentleman from Pennsylvania for his willingness to work in a bipartisan fashion on this important issue.

The “Protecting the Medicaid Safety Net Act of 2008” is a simple, straightforward bill that would place a temporary moratorium on seven regulations recently issued by the Centers for Medicare and Medicaid Services (CMS). These regulations would reduce or eliminate payments for services provided to vulnerable Americans and the institutions that serve them: children with disabilities, people with mental illness, those with multiple care needs, people attempting to transition from an institution to a community living environment, and people with disabilities who need these critical services, such as rehabilitation services and case management, in order to remain in their community. The regulations would also eliminate funding for school-based outreach and enrollment, and funding that helps safety net providers care for indigent and under-insured patients in our communities.

In my home state of Michigan, the rehabilitation rule would cut rehabilitation services for 15,000 children with special needs, eliminate habilitation services for another 29,000 developmentally disabled adults and children living in the community, and eliminate access to critical community services and resources for 23,600 adults and 5,100 children who are in supported independent living arrangements or group homes.

The Administration’s arguments for supporting these regulations do not hold water. These regulations go beyond any justifiable point to curb any abuses in the system and instead would shift costs to the States and prohibit Federal support for legitimate expenditures on behalf of Medicaid beneficiaries.

When one reviews how CMS dealt with comments submitted on the regulations, it appears that there was no intention of working with States or other beneficiary groups to find common ground. For example, according to CMS’s own analysis, only 1 of the 1,000 comments submitted to CMS on the rule limiting payments to public providers “contained a positive comment.” With respect to the rule limiting payments for hospital outpatient care, there were 91 pieces of correspondence received containing more than 300 comments, of which one piece of correspondence “contained a positive comment.” And in the case of the rehabilitation rule, of the 1,845 comments received, “no comments were in support of the regulation.”

The Protecting the Medicaid Safety Net Act will delay implementation of these seven regulations for a year. It will allow time to examine the regulations thoughtfully.

I look forward to the testimony of our witnesses on this important legislation. I hope that the Committee will move H.R. 5613 forward quickly, to both protect Medicaid beneficiaries and the integrity of the program.

Prepared by the Committee on Energy and Commerce
2125 Rayburn House Office Building, Washington, DC 20515

Florida Nursing Home Residents Sue for At-Home Services

From the St. Petersburg Times (March 31):

Nursing home residents sue for at-home care
By Stephen Nohlgren

Since a stroke four years ago, 66-year-old Bud Lee can't lift himself out of bed or take himself to the bathroom. He would like to regain a bit of his old independence.

John Boyd, 50, has been paralyzed since 14. He would like an apartment of his own and a job, like when he answered customer service phones for Red Lobster a few years back.

Instead, both men live in nursing homes, a frequent situation when Florida Medicaid pays the bills.

That may change.

Lee, Boyd and five other nursing home residents backed by the AARP Foundation have filed a class-action lawsuit against the state of Florida under the Americans with Disabilities Act, citing a 1999 court ruling that helped spring mentally ill people from big, impersonal hospitals...

...Read more.

CMS Proposed Rule Could Mean Thousands More Get Community-Based Supports

From the Centers for Medicare and Medicaid Services:

For Immediate Release:    
Monday, March 31, 2008
Contact:    
CMS Office of Public Affairs
202-690-6145

THOUSANDS MORE MEDICAID ENROLLEES COULD GET HOME AND COMMUNITY-BASED CARE UNDER NEW RULE
DRA GIVES STATES NEW OPTIONS FOR CARE

Thousands of Medicaid beneficiaries who were previously limited to receiving care in an institutional setting may now be given the option to receive that care in their homes and communities, under a proposed rule  published today by the Centers for Medicare & Medicaid Services (CMS).

The Deficit Reduction Act of 2005 (DRA) gave states a new option to provide home-and-community based services (HCBS) to Medicaid beneficiaries without applying for a demonstration waiver.  The proposed rule provides guidance to states on how to implement this provision of the DRA.

Under this option, states will now be able to set their own eligibility or needs-based criteria for providing HCBS.  Previously, to qualify for assistance with personal care, home health care or other services in the home or community setting, beneficiaries were required to be at imminent risk of institutionalization.  The DRA provision eliminates this requirement and allows states to cover Medicaid recipients who have incomes no greater than 150 percent of the federal poverty level, or $15,600 per individual in 2008, and who satisfy the needs-based criteria.

“Thousands more Medicaid beneficiaries may now be able to opt for needed long-term support services in their homes rather than institutions,” said CMS Acting Administrator Kerry Weems. “Breaking the historic link between long-term care and institutions will level the playing field and give beneficiaries new choices for how they receive care.”

The proposed rule emphasizes “person centered” care, giving individuals an active role in developing their care plans, and the “self-direction” option in which states can allow individuals to take charge of their own services.  The services states may make available under this benefit include case management, homemaker, home health aide, personal care, adult day health, habilitation, and respite care.  The DRA also allows states to provide special services to individuals with chronic mental illness, including day treatment or other partial hospitalization, psychosocial rehabilitation, and clinic services.

Under the proposed rule, states would no longer have to apply for a waiver to provide HCBS to Medicaid beneficiaries.  Under the DRA, states only need an approved state plan amendment (SPA) satisfying the DRA criteria.  Once approved by CMS, the SPA does not need to be renewed nor is it subject to some of the same requirements of waivers such as budget neutrality.

Since the DRA made the HCBS option available beginning in January 2007, CMS has provided technical assistance to states wishing to move forward prior to publication of the proposed rule.  One state, Iowa , has since been granted an HCBS SPA.  Three additional states, Colorado , Nevada , and Georgia , have requests pending under CMS review.

“We anticipate states will be eager to take advantage of this new flexibility,” Weems said. “The home and community-based services option is a win/win opportunity, giving beneficiaries more control over their care and allowing states to spend Medicaid resources more efficiently.”

The proposed rule will be published in the Federal Register on April 4, 2008, and will have a public comment period through June 3, 2008.  Go to http://www.cms.hhs.gov/MedicaidGenInfo/Downloads/CMS2249P.pdf to view the complete proposed rule.

Getting Out of a Nursing Home Just Got Harder

 

From the The Modesto-Bee:

(Guest Opinions Column Contribution)

Getting out of a nursing home just got harder
By MIKE ERVIN
McCLATCHY-TRIBUNE

The Bush administration is going after poor people who want to get out of nursing homes.

Earlier this month, the Bush administration put forth new restrictions on Medicaid funding. (In California, Medicaid is called Medi-Cal.) The restrictions are in what the government calls "targeted case management." This area covers people who use various federal programs and who need help coordinating these services.

One group of Medicaid recipients on which this surely will have a severe negative impact are nursing home residents trying to transition into community living support situations...

...Read more.

~Ervin is a disability-rights activist with ADAPT (www.adapt.org).