Medicare Annouces Changes to Nursing Home Rating System

On October 6, 2014, the Centers for Medicare and Medicaid Services (CMS) announced changes to the rating system used for nursing homes. These changes, which will start to be implemented in 2015, include focused survey inspections for a nationwide sample of nursing homes, quarterly electronic reporting of staffing data, the use of additional quality measures, improved requirements for nursing home inspections, and an improved scoring methodology.

CMS hopes that the changes will improve the rating system, leading to better care. The agency writes that the survey inspections, which will start in January, 2015, will “enable better verification of both the staffing and quality measure information that is part of the Five-Star Quality Rating System.”

The press release states the new system for the electronic reporting of staffing data “will increase accuracy and timeliness of data, and allow for the calculation of quality measures for staff turnover, retention, types of staffing, and levels of different types of staffing.” My past post on staffing levels mentioned that the number of staff and the hours of care they provide are important to the quality of care a resident receives. In a New York Times article, Katie Thomas quotes Brian Lee, executive director of Families for Better Care, who said, “If we are able to get better information on staffing levels, the higher the quality is going to be in the long run.”

CMS is not only looking to improve current quality measures, but also adding additional measures to the rating system. Beginning in January, 2015, the rating system with take into account the use of antipsychotic medications by residents. According to Thomas’ article, 20.3 percent of long-term residents of nursing homes are given antipsychotic medications. With the changes, instead of merely being reported, the percentage of residents given these drugs will play a role in each nursing home’s rating. In the future, ratings will also take into account other measures, including claims-based data on re-hospitalization and community discharge rates. These new inclusions, along with a revision of the scoring methodology of the rating system, could produce noticeable changes in nursing home ratings.

I have blogged about issues with the five star rating system in the past. When researching ratings, self-reporting and the manipulation of data have made it difficult to decipher the actual quality of care provided by a nursing home. It seems that CMS has proposed these changes with the goal of addressing these issues in mind. Only time will tell if the new rating system will be effective. However, these changes seem to be a step in the right direction. In addition, CMS demonstrates that they are aware of the issues and are responding to calls for change.

While writing this post, I was wondering why CMS does not have a section of their website dedicated to consumer reviews and ratings. Today, almost everything (movies, restaurants, hotels, etc.) is rated by consumers. Anyone who has access to the internet can rate and review a product in just a few minutes. While residents and family members can file complaints with the New York State Department of Health, if they have issues with a nursing home, to my knowledge, there is no option to rate or comment on the quality of a nursing home on Nursing Home Compare. A cursory Google search revealed some websites that allow individuals to rate and comment on nursing homes, including http://www.aplaceformom.com/, https://www.senioradvisor.com/, and https://www.ourparents.com/. Consumer reviews should always be taken with a grain of salt, but reviews from individuals with firsthand knowledge of nursing homes can provide a valuable insight into their quality.

Attorney General’s Hidden Camera Investigation Leads to Arrests

Two days ago, Attorney General Eric Schneiderman announced that another hidden camera investigation has resulted in the arrests of nursing home employees. Two certified nurses’ aides, who worked at Erie County Medical Center Skilled Nursing Facility (also known as Terrace View Long Term Care Facility), were arrested and charged with “Falsifying Business Records in the First Degree (class E felony), Endangering the Welfare of an Incompetent or Physically Disabled Person (class A misdemeanor) and Willful Violation of Public Health Laws (unclassified misdemeanor).”

According to video footage, the CNAs, Donna Laury and Nakeia Green, allegedly neglected to follow a 79-year-old resident’s personal care plan, “failing to use two people when performing incontinence care and failing to use a mechanical lift to transfer the resident.” The employees are accused of falsifying documents to cover up their alleged neglect.

Due to Alzheimer’s disease, dementia and the inability to get around on her own, the 79-year-old resident relies on nursing staff to assist with daily activities. Many nursing home residents are in similar situations, where their well-being depends on the care of others. While many residents do receive the care they need, there are many instances, including this one, where caretakers are neglectful or abusive, and do not provide proper care. What is it about the culture of a facility that lends itself to this type of behavior?  And is it evidence of a systemic problem?

Do Staffing Levels Affect Quality of Care?

Back in January of 2006, the Office of the Attorney General released a report titled “Staffing Levels in New York Nursing Home: Important Information for Making Choices.” This report, although dated, has some interesting information regarding nursing home staffing levels in New York State, as well as recommendations to consider when searching for a nursing home.

While there are multiple factors that determine the quality of care in a nursing home, staffing levels are an important one. The number of hours of care provided to a resident and quality of care show “a strong relationship.” In New York State, staffing levels in a nursing home are usually measured in “the average number of hours of daily care that staff members provide each resident of the home.” This measurement is commonly referred to as “hours per resident day,” and is “calculated by adding up the total number of hours worked by the nursing staff and dividing it by the number of resident-days during the reporting period.”

A study done by the Centers for Medicare and Medicaid Services (CMS) found that quality of care declined once staffing levels fell below three separate thresholds. Once the amount of care provided by Registered Nurses (RNs) fell below 0.75 hours per resident day (45 minutes), quality of care declined. If RNs and Licensed Practical Nurses (LPNs) together provided less than 1.3 hours per resident day (1 hour, 18 minutes), the quality of care suffered. In addition, quality of care started to decline when Certified Nursing Assistants (CNAs) provided less than 2.8 hours per resident day (2 hours, 48 minutes). These thresholds mean that any nursing home in New York must provide at least 4 hours and 6 minutes of total nursing care, for the quality of care not to suffer.

The level of care provided to residents also should take into account specific needs of residents. If residents have special needs, they may need additional care and a nursing home may need to employ additional staff. Additional care may be required when residents are pediatric, have suffered traumatic brain injuries, have AIDS, are on ventilators, are on respite care, or have behavioral needs. With any of these cases, additional care is necessary, and nursing homes must ensure that their staff can provide the necessary and proper care.

When considering which nursing home you or a loved one should choose, keep in mind that staffing levels are only numbers. The Office of the Attorney General also recommended prospective residents and their loved ones:

  • Visit the home and look around
  • Learn about the management and staff, including the level of turnover
  • Speak with caregivers
  • Speak with others who have experience with nursing homes, including knowledgeable professionals

These recommendations should be part of any nursing home decision.

What Does a Five-Star Rating Really Mean?

The New York Times placed Medicare’s nursing home rating system front and center in a recent, in depth article, by Katie Thomas, and a recent editorial . In the past, I have written about Medicare’s rating system, pertaining to New York State nursing homes. While The Times article mentions nursing homes in New York, it focuses on nursing homes in California, specifically Rosewood Post-Acute Rehab, which has a five-star rating despite having over 100 consumer complaints and around a dozen lawsuits filed against it.

Nursing home ratings, like Rosewood’s, cannot be taken at face value because much of the data behind them is self-reported and can be changed or misreported by facilities’ employees. The ratings are determined by three criteria, staff levels, quality statistics and health inspections. The Times editorial acknowledges that staff levels and quality statistics “are reported by the nursing homes and accepted at face value by Medicare without verification.” If this data is not authenticated by Medicare, facilities can easily get away with manipulating it for their benefit.

The data from annual health inspections, while not self-reported, can be manipulated, as well. Nursing homes often know when inspections will occur, and increase staff hours during the inspection, only to decrease them once the inspection was complete. The administrator of Medford Multicare Center for Living, a facility in New York, described the inspection period as “our Super Bowl.” The current rating system seems to shift the focus and effort of nursing home staff and administrators to obtaining high ratings, and away from providing consistent, quality care.

In an attempt to rectify part of the problem, the Affordable Care Act “requires Medicare to use payroll data to verify the accuracy of staff levels.” However, the agency, “still working on the verification system,” has not yet put this requirement into effect.

Even though the rating system is imperfect, Katie Thomas writes that, starting this year, Medicare plans to use a comparable system for hospitals, dialysis centers and home-health-care agencies. While the five-star rating system makes it easy for families and loved ones to compare facilities, these recent stories show that the data behind the ratings are not always accurate. When deciding on a nursing home, be sure to look beyond the ratings. They do not always represent the true quality of care.

Medford Multicare Center Investigation Leads to Arrests

Nine people have been arrested after an investigation by the state attorney general’s office into Medford Multicare Center, a nursing home located on Long Island, according to an NBC New York article. Kethlie Joseph, an employee of Medford, was charged with criminally negligent homicide in the death of 72-year-old Aurelia Rios, a former patient of the nursing home. Ms. Rios died after becoming disconnected from her ventilator. Aides neglected to respond to an alarm that sounded every 15 seconds for over two hours.

Six other employees, including the administrator, David Fielding, have been charged with participating in the cover up of the death. New York Attorney General Eric Schneiderman released a 58-page civil complaint stating there had been a “history of neglect of Medford’s most vulnerable residents.” Two additional employees have been charged with falsifying documents regarding injuries to other patients at Medford.

Falsifying records and covering up incidents are recurring problems in nursing homes. Many times these incidents go undiscovered. In a previous blog post, I mentioned the state investigation into Northwoods Rehabilitation Facility in upstate New York. These investigations are a step in the right direction, but more needs to be done to protect the rights of loved ones in nursing homes. If you believe a loved one has been the victim of abuse or neglect, contact a lawyer immediately.

Privacy and Nursing Home Surveillance

In recent months, with revelations concerning consumer credit card theft and the National Security Agency surveillance programs, the notion of privacy has again entered the public consciousness. Now seems like a good time to discuss the debate that continues over privacy and surveillance in the world of long-term care facilities. Unfortunately, abuse and neglect occur far too often in nursing homes and assisted living facilities and, in an attempt to protect loved ones, families are turning to technology. Small, sometimes hidden, cameras, often referred to as “granny cams,” are becoming increasingly popular as families and governments seek to ensure proper care.

In a New York Times article last November, Jan Hoffman recounts the story of a nursing home resident, Eryetha Mayberry, from Oklahoma City, Oklahoma. Ms. Mayberry and her family had noticed a few personal belongings go missing and installed a hidden camera in an attempt to catch a thief. When Ms. Mayberry’s daughter finally watched the footage, however, she was astonished and horrified by what she discovered. Staff members had been abusing her mother.

As a result of the outrage that arose following the discovery of Ms. Mayberry’s abuse, Oklahoma became the third state to explicitly allow surveillance cameras to be used in the rooms of residents of long-term care facilities. New Mexico and Texas are the other two states that have passed similar legislation. Although New York has passed no specific legislation allowing individuals to maintain surveillance cameras in their rooms, the government, specifically Governor Andrew Cuomo and the Medicaid Fraud Control Unit, has been using hidden cameras in nursing home investigations throughout the state.

In March of 2010, then-Attorney General Cuomo reported that 22 arrests had been made after investigations into Northwoods Rehabilitation and Extended Care Facility in Troy, NY and Williamsville Suburban Nursing Home in Amherst, NY. Surveillance footage played key roles in both investigations, revealing instances of alleged neglect and conduct endangering residents.

Proponents of video cameras understand that, without surveillance, much of the abuse and neglect that is occurring may never be discovered. In addition to uncovering instances of mistreatment, many hope that cameras, coupled with posted notices of surveillance, will prevent abuse and neglect from occurring in the first place.

However, nursing home surveillance has encountered opposition. Opponents claim that these cameras are an invasion of privacy. A frequently used argument against the use of cameras is that the monitoring infringes not only on the rights of a loved one, but also the rights of fellow residents. Cameras may catch residents during their most intimate moments, such as when they are dressing or undressing. Some nursing home operators also believe surveillance may reduce staff morale, claiming that it may become more difficult to hire and retain caretakers if they constantly feel threatened by the monitoring of video cameras (CNA’s Cost and Benefits of Video Surveillance).

These arguments against video monitoring may be valid. But is slightly less privacy worth the potential reduction in abuse and neglect, along with the peace of mind gained by residents and their families? With the right rules and regulations, I think so.

Johnson & Johnson to pay $2.2B in U.S. Health Care Fraud Settlement

I was pleased to learn that Johnson & Johnson is being held accountable under the false claims act for promoting three prescriptions drugs (Risperdol, Invega and Natrecord) in way that put the elderly, children and mentally ill at risk. (See article http://www.timesunion.com/default/article/2-Billion-Settlement-Largest-Single-Drug-Civil-4953700.php) I have previously blogged about the misuse and abuse of psychotropic medications in nursing homes and I find the allegations against Johnson & Johnson outrageous.

Johnson & Johnson was accused of paying kickbacks to doctors and pharmacies to recommend and prescribe psychotropic drugs to the elderly in a way that was unsafe.  As federal studies have demonstrated, psychotropic drugs are being overused because nursing homes don’t have sufficient staff to care for certain behaviors that patients exhibit because of dementia.

Criminal charges were brought over Ripserdal sales representatives promoting it to doctors and other prescribers for symptoms such as anxiety, agitation, depression, hostility and confusion despite the drug having only been approved for schizophrenia at the time.  Sales representatives were allegedly offered incentives for the off-label use of these drugs.  It is unclear from the article as to what extent these fines will impact Johnson & Johnson. For example, are these fines just the cost of doing business, or do they exceed the profit earned from wrongfully promoting these drugs?  It is important to note that part of this lawsuit involved criminal charges, but because the corporation entity was the defendant, no individual from the corporation will be held accountable.

The importance of knowing what drugs are being prescribed to a loved one and for what reason cannot be overstated.  It is important to know dosage and also the side effects.

Medicare and Medicaid Fraud

I recently heard from a colleague from my days as a Bronx prosecutor that I had lost contact with for many years.  I was pleased to learn he was doing well and is in charge of a large division of the New York Attorney General’s office’s Medicaid Fraud Control Unit.  We got to talking and I realized that in all the years that I have been handling nursing home cases I have never reported a case to law enforcement that involved neglect and/or altered records.   I have had many cases where the aides are charting that they provided care when my client is in the hospital or when someone went back and tried to re-create the record to cover up the neglect.  I have really considered how criminal prosecution of these transgressions fit in with my representation of the victim.

As plaintiff lawyers, we must consider how the client’s case would be impacted by the involvement of law enforcement.  Will the facility withhold discovery because of a criminal investigation?  Will witnesses take “the fifth”?  If so, how will that impact a case?  I can see it as being helpful if a witness takes the fifth on a civil case.  On the other hand, a criminal conviction of individuals who work at or operate the facility would likely be very helpful to you case, including the pursuit of the punitive damages.

You might also consider involving an attorney or the Government in bringing a Qui Tam action if you suspect Medicare or Medicaid fraudulent billing.  It is my understanding that a Qui Tam action is one brought by a private individual on behalf of the Government under the false claims act found in the United States Code, Title 31, Section 3729, through 3733 (31 U.S.C. Section 3729-3733).  The Government may choose the join the action once notified.  If there is recovery, the whistleblower can receive 15-30% of the Government’s recovery.

To reach the Attorney General’s Medicaid Fraud Control Unit dial: 1 (800) 771-7755 and press “3” or feel free to ask for my former colleague Thomas O’Hanlon.    The link to a form on the Attorney General’s website to report Medicaid Fraud or patient/resident abuse and/or neglect is: http://www.ag.ny.gov/comments-mfcu