Investigation proves lack of enforcement

Arizona Daily Star reported an investigation into the lack of investigation of neglect and abuse in Arizona nursing homes.  The investigation was bold and tragic and led to the reopeing of several complaints, and the conclusion that Arizona fails to protect elderly and vulnerable nursing home residents.  Below are excerpts from the story and investigation.

tAnita McEvoy put her 92-year-old mother in a Tucson nursing home so she wouldn’t get hurt as Alzheimer’s disease took its toll. Instead, her mother shivered in bed while nursing aides took no notice. She died of hypothermia complications.

Another elderly woman, who couldn’t see well and trusted nursing aides to bathe her, did not know they used a cell phone camera to photograph her in the shower, then went to the nursing station to show the photos and laugh about them with others.

And in a third local nursing home, a nursing aide assigned to feed a confused, 84-pound woman withheld a drink and demanded that the woman say “please” and “thank you,” laughing while the woman kept asking: “What do you want? Who the hell are you?”

These cases and others over the past three years have this in common: State regulators did nothing about them.   Until Friday — when investigators reopened one of the cases as a direct result of the Star’s questions.   The inspectors showed a consistent pattern of weak enforcement.
Only 15 percent of the time did they substantiate allegations of abuse, neglect or other problems in how the homes cared for some of our most vulnerable people.

The Star reviewed nearly 1,000 citations for safety problems and more than 1,100 complaints of poor care to the Arizona Department of Health Services in Pima County’s 22 nursing homes in the three years ending in 2007.  The review mirrors what federal auditors have found nationally: State inspectors miss violations, underrate the severity of the offenses, and allow homes to yo-yo in and out of compliance.

The Star’s investigation also reveals:
● The state blew its own investigation deadlines in three out of every four cases, often compromising the findings because patients and staff members are no longer around. The median case is 72 days late.
● The state doesn’t give you enough information to determine whether a home is giving consistently good care. The public can’t see the patient’s side of any given complaint. You can’t see reports the nursing homes make when a patient is harmed. And the only snapshot of how a home is performing is up to 18 months old in some cases.
● The state fined poorly performing homes only 24 times in three years, even though it wrote 958 citations. Until recently, the fines were typically so small that even your next-door neighbor could pay them — usually not much more than $1,000.
● Unlike other states that have set precise staffing standards, Arizona adheres to a vague requirement of “sufficient” staffing. That standard, set by the federal government 20 years ago, is notoriously difficult to assess.
● Unlike doctors, nursing homes don’t have to disclose if they’ve paid out judgments or settlements. Dozens of cases have been settled secretly. It could become even harder to learn about improper care, because homes are getting patients to promise not to sue if something goes wrong.
● Because the state rarely substantiates complaints, sometimes staffers who are fired at one nursing home after being accused of abuse or neglect can be hired right away at another.

Tucson Region
STAR INVESTIGATION
Arizona fails to protect nursing home residents
State is slow to investigate and act on abuse, neglect
The U.S. Government Accountability Office concluded in 2005 that 8 percent to 33 percent of state investigations missed significant care problems at nursing homes.
Researchers at the University of Colorado Health Sciences Center wondered what’s really happening in the field. In 2007 they tagged along with survey teams in four other states and found a trend: Investigators often minimized what was happening in nursing homes, either by dropping citations or downplaying their severity. Researchers watched new staff members argue vehemently to cite a home, only to meet resistance from higher-ups, resulting in a “socialization of trainees to make lenient decisions.”

Homes cite turnover, funding as problems
Eighty-year-old Sylvia Culpepper moved into ManorCare after being treated for sciatica pain at a nearby hospital. Her doctor prescribed morphine, and the nursing home staff began giving it to her. Two days later, she was dead of an overdose.
Her family’s lawyers say the staff continued to give her the morphine “despite the fact that she was showing visible signs of a narcotic overdose.”
They also alleged in a lawsuit that Culpepper was the victim of a profit scheme to skimp on staffing at the expense of patient safety.
A ManorCare registered nurse who quit her job a week after Culpepper’s death testified in the lawsuit that as the only nurse assigned to the subacute-care unit, her workload was too heavy and unsafe — part of an “intolerable working environment.”

Twenty years ago, Congress passed extensive nursing home reforms. The new law set a vague requirement to have enough staffing to “maintain the highest practicable well-being of each resident.” It required a licensed nurse to be on staff at all times and at least one registered nurse for eight hours each day, no matter how big or small the home.
Some lawmakers want to strengthen nursing home regulations. Sens. Chuck Grassley, R-Iowa, and Herb Kohl, D-Wis., have introduced the Nursing Home Transparency Act of 2008, which would require more consistent reporting of staff hours, disclose more about who owns the homes and increase fines.
On any given day, the nation’s nursing homes are short almost 100,000 positions, according to a 2005 report by the National Commission on Nursing Workforce for Long-Term Care. The turnover rate is just shy of 50 percent for registered nurses and 71 percent for nursing aides, who make a median hourly wage of $10.67, according to the Bureau of Labor Statistics.
Recruiting and training new workers costs roughly $250,000 per year for each nursing home in the country, the report says. New staffers mean a dip in productivity, Martin said: “Some staff will leave for 50-cents-an- hour wage increase, so we’re constantly stealing from each other.”
Administrators, too, depart in huge numbers. A 2001 study pegged turnover at 43 percent.
Although nursing homes report staffing levels to the federal government, those numbers are not audited. Even federal auditors have questioned their validity. Homes also don’t have to report their turnover rates.
Mary Reskin, a 50-year-old local teacher, said she didn’t believe the horror stories she’d heard about understaffed nursing homes. Then her 73-year-old father, a teacher and guidance counselor at Flowing Wells High School for 30 years, became ill and spent time in three nursing homes in 2006.
“I’m a teacher; I don’t expect perfection. I went in trusting people to do the best they could,” she said. Instead, she found staffers who were overworked and indifferent.  In general, she said, the homes didn’t keep her father clean, didn’t care for him well and pushed him out the door too soon.

Residents sign away right to sue
When state regulations fail, it is often the courts that provide a separate check on nursing homes.
Few cases, though, actually go to trial. Most settle. And they inevitably settle with confidentiality agreements that prevent the victims or their lawyers from talking about the case or disclosing how much the nursing homes paid out.
Across the nation, fewer patients are filing suits and plaintiffs are winning less money, in part because of caps on lawsuit awards. In Texas, the number and size of claims are down more than 60 percent from pre-tort-reform levels.
The nursing home lobby won some changes at the Arizona Legislature four years ago, requiring a victim to promptly produce an expert witness detailing the alleged substandard care. Lawmakers hoped this would reduce the filing of frivolous lawsuits against health-care professionals. Attorneys counter that those concerns are overblown — medical cases are so costly to work up that they are very careful about screening cases.
To head off judgments, some nursing homes are increasingly using “alternative dispute resolution” agreements. Often found in admission packets, the document states that residents will not sue the home if something goes wrong, but instead will mediate the dispute. If that fails, the case generally goes before an arbitrator, selected and paid for by the nursing home. That decision is binding.
Sen. Russell Feingold, D-Wis., introduced legislation last year saying these agreements have far surpassed their initial intent of solving disputes between commercial companies of similar sophistication and bargaining power — say, a lumber company negotiating with a big chain home-improvement store.
Because arbitration companies are beholden to the corporations for repeat business, there is strong financial incentive to rule in their favor, the consumer advocacy group Public Citizen reported last year. The group looked at mandatory arbitration by the credit card industry in California, which in 2003 became the only state to open some arbitration records to the public. In more than 19,000 cases, 94 percent of the decisions sided with business.
Complaints aren’t irrelevant. A 2006 Harvard University study found they are a good indicator of how many problems state inspectors will find — and how serious those problems are — when the homes have their next inspection.
Those who study the nursing home industry and lobby for reforms say their experiences back up the Star’s findings.  University of California researcher Charlene Harrington said she has been pushing for changes since 1975 — and in that time, she has seen numerous federal studies finding the same ongoing problems with weak enforcement across states.

Janet Wells, director of public policy with the National Citizen’s Coalition for Nursing Home Reform, agreed that the problems the Star found are “pretty common” across state survey agencies. The group has been lobbying for change for 33 years, and change is often slow, she said.
But fixing the system needs to be a focus. We’re all at risk, she said.
Then there’s the larger issue of how we protect those who can’t protect themselves.
“This is how substantial numbers of people in this country are ending their lives,” Wells said. “It’s the final place many people live and the last living experience people know. If it’s a bad environment and if they’re neglected and suffering unnecessarily, it speaks very poorly for our society and where our values are.”