Pa. regulators get tougher on nursing homes, but advocates say problems remain

Oct. 17--Over the course of an eight-month investigation last year, PennLive found that Pennsylvania regulators were failing to properly cite and penalize nursing homes for serious failures.

Those failures included residents who died from medication errors, preventable falls, and a lack of supervision. PennLive's findings drew concern from Pa.'s congressional delegation and spurred a federal review of the state's oversight.

Now, more than a year after PennLive's investigation, the Pa. Department of Health appears to be taking a tougher line on nursing homes.

According to a PennLive analysis of federal data, the department issued 36 immediate jeopardy citations against homes over the past fiscal year -- twice the amount it issued in the past three years combined.

Immediate jeopardy citations are the most severe type that the department can issue, typically reserved for facility errors that endanger residents. They usually result in penalties, like fines, and extra scrutiny from the department.

Elderly care advocates confirmed that the department appeared to have gotten tougher on bad homes.

In addition to issuing more immediate jeopardy citations, they say, the department appears to be more frequently citing homes for failing to report problems. The department also seems to be more regularly penalizing homes.

Lori Walsh, a program manager for CARIE, a Philadelphia-based advocacy group for elderly care, pointed to a local home, Inglis House, that was recently penalized.

Inspectors discovered that an unsupervised blind resident fell down nine concrete steps and was badly injured.

The department placed the home on a provisional license, meaning it could be shut down if inspectors continue to find serious problems.

"We haven't seen that in many, many years," Walsh said.

What's changed?

April Hutcheson, a spokeswoman for the Department of Health, said the increase in immediate jeopardy citations was the result of increased outreach by the department.

Hutcheson said the department launched a public awareness campaign in October to encourage residents to complain if they had concerns about nursing home care.

"Every complaint is investigated, which means that our surveyors are in nursing care facilities more frequently than before," Hutcheson said. "Our increased presence has led to an increase of citations, including those for immediate jeopardy."

She also attributed the increase to the department's 2015 reversal of a ban on investigating anonymous complaints. The ban was imposed in 2012 under former Gov. Tom Corbett in potential violation of federal regulations.

But Sam Brooks, an attorney with Community Legal Services of Philadelphia, has a different explanation for the increase.

Brooks, like Walsh, advocates for nursing home residents. Like her, he has noticed a significant increase in immediate jeopardy violations.

But the reason for the increase, Brooks said, was unlikely to relate to the department's response to complaints.

Instead, he said, the department now appeared to be more accurately categorizing violations as immediate jeopardy.

The change appeared to be in response to scrutiny by PennLive, Community Legal Services of Philadelphia, and a subsequent review by the federal government.

Brooks pointed to multiple examples of recent citations to illustrate that point:

--The department issued an immediate jeopardy citation to a Philadelphia home in February after a resident with Alzheimer's wandered out of the home and was found lying on the street a half-mile away with injuries. By comparison, Brooks said, the department didn't issue immediate jeopardy citations to 10 homes between 2012 to 2014 where similar wanderings took place -- some of which the department labelled as minimal harm citations.

--The department issued an immediate jeopardy citation to a Pittsburgh nursing home in November after a resident died from head injuries following a fall. Staff failed to monitor the resident's condition as ordered by a doctor. In contrast, the department didn't issue an immediate jeopardy citation following an almost-identical incident in a Philadelphia home in 2014.

--In January, the department issued an immediate jeopardy citation to a York nursing home when a resident developed a pressure ulcer after staff failed to regularly reposition the resident as required. In contrast, the department didn't issue an immediate jeopardy citation after inspectors discovering the same issue on three separate occasions at a Philadelphia home between 2012 to 2014.

Brooks said the department deserved credit for now more accurately categorizing those citations.

By failing to cite them correctly, Brooks said, the department had allowed many bad homes to evade serious punishment and scrutiny for years.

It also meant those homes had inflated ratings on the federal government's five-star rating system, "Nursing Home Compare." That meant families searching for nursing homes for their loved ones would have believed those homes were better than they actually were.

"It seems like the department is finally employing the proper definition of what an immediate jeopardy definition is," Brooks said.

Asked whether the department was now defining immediate jeopardy differently, Hutcheson, the department's spokeswoman, initially told PennLive the department's approach had evolved due to federal regulatory changes.

After a PennLive reporter noted there had been no change to the definition of immediate jeopardy under federal regulations, Hutcheson clarified her response.

"Over the past several years, surveyors have been provided additional education to ensure adherence to federal guidelines," Hutcheson said.

How do we compare?

But some experts urge caution in interpreting Pennsylvania's increase in immediate jeopardy violations

According to PennLive's analysis, the department is still issuing those violations at one of the lowest rates in the nation.

Charlene Harrington, professor emeritus of nursing and sociology at the University of California, San Francisco, said the department deserved credit for more accurately categorizing violations as immediate jeopardy.

However, she said, PennLive's analysis suggested the department was either still understating the severity of nursing home incidents or their inspectors were failing to uncover incidents to begin with.

"There's no reason to think that nursing homes in Pennsylvania are any better than anywhere else," Harrington said. "So they have a long way to go to get to the average of what other states are doing."

In cursory searches of recent nursing home inspection reports, PennLive found at least five citations that weren't categorized as immediate jeopardy but appear to fit the definition described in federal guidelines.

That includes an incident involving a resident in a Clearfield County home who was hospitalized for dehydration last September, and later died, after staff failed to monitor the resident's fluid intake.

It also includes an incident in a Westmoreland County home where staff discovered an unresponsive resident but failed to contact 911 or use a defribilator as required. The resident died.

In addition, Harrington said, it also appeared the department was still issuing penalties that were too lenient.

Among the key findings in PennLive's investigation last year, PennLive found that homes were rarely penalized following errors that caused resident deaths.

In other cases, when state and federal penalties were issued, PennLive found they often amounted to fines of only a few thousand dollars.

Penalties against nursing homes in Pennsylvania are typically based on two elements: a penalty issued by the department, and a penalty issued by the federal government based on the department's recommendation.

PennLive could find no data on federal penalties for the 36 immediate jeopardy citations issued in the past fiscal year. The Centers for Medicare and Medicaid Services was unable to confirm whether those penalties were imposed but aren't yet reflected in publicly-available data.

But although federal penalty data may be unavailable, data on state-issued penalties for those 36 citations show a mixed picture.

While the department is now more regularly issuing penalties -- particularly provisional licenses -- its fines are still relatively small.

Last October, for instance, a Millersburg nursing home received a $5,000 state fine and was placed on a provisional license after a resident suffocated on bed side rails and died. Inspectors found the home was improperly using side rails for that resident and others across the facility.

Harrington said, given that nursing homes typically generate $10 to $20 million in revenue each year, a fine of $5,000 meant little to the average home.

"It has no impact on the facilities," she said. "It's just the cost of doing business.

Complaints still unaddressed

Beyond the state's approach to citations and penalties, advocates say they continue to have other oversight concerns.

Brooks, the attorney for Community Legal Service of Philadelphia, said that he believes inspectors are still failing to thoroughly investigate complaints from nursing homes residents.

According to an analysis by Brooks, inspectors substantiated only 16 percent of complaints filed about Philadelphia nursing homes last year.

Brooks said that was a slight increase over previous years -- where only about 10 percent of complaints in Philadelphia led to citations -- but he said it still seemed extraordinarily low.

"It's absurd to think nine out of 10 complaints against nursing homes are unsubstantiated," Brooks said.

In general, Brooks said, he believed inspectors were still largely relying on the testimony of nursing home administrators to verify complaints and weren't speaking with complainants or other residents.

While Brooks said it was encouraging that the department was issuing more immediate jeopardy citations, he said that was ultimately irrelevant if inspectors were still missing problems in the first place.

"If you're not finding violations where there are violations, you're not fixing anything," Brooks said.

Walsh, the program manager for CARIE, said that, encouragingly, she had received reports from some of her staff that inspectors were more responsive to complaints.

But in general, she said, inspectors still appear unwilling to believe resident complaints unless they witness problems themselves.

For instance, Walsh said, a recurring issue in many homes is that staff don't respond to call bells because their facilities are understaffed.

Because homes often bolster their staffing during annual inspections, Walsh said, inspectors rarely see those problems and therefore routinely dismiss complaints about them.

"It should be good enough if a resident, or multiple residents, say there's an ongoing issue with call bells not being answered," Walsh said.

Asked whether the department agrees with those concerns, Hutcheson, the department spokeswoman, said inspectors examine all complaints.

"Every complaint investigation is investigated using our regulations," Hutcheson said. "While many complaints are unfounded, when we identify an issue it is cited an appropriate action is taken."

But advocates, at least, remain skeptical.

Brooks reiterated that the department deserved credit for the progress it had made but, overall, further reforms were urgently needed.

"We still think there's a lot of work to be done in the investigation process," Brooks said. "And we hope that the department will continue that reform."

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