Nursing Home Residents are Still in Jeopardy
Nursing Home Residents are Still in Jeopardy
The Pennsylvania Department of Health (DOH) has significant problems with enforcement of laws, jeopardizing the health and safety of nursing home residents. In order to protect the most vulnerable among us, DOH must make significant changes to its practices, so nursing homes know they must prioritize the health and safety of their residents.
In June of 2015, Community Legal Services (CLS) issued a report on DOH’s nursing home enforcement activities for the period of 2012-2014. The report found that DOH routinely minimized the severity and scope of the harm caused by violations. The report also showed that for the three year period DOH dismissed 92% of complaints against nursing homes. After the report was issued, the Auditor General issued his own report that confirmed CLS's findings and showed that this problem was statewide. Subsequent media coverage revealed a long history of DOH improperly investigating serious occurrences such as deaths, as well a pattern of downgrading very serious violations.
Since 2015, DOH has made some positive changes. Importantly, it withdrew a policy that prohibited the filing of anonymous complaints. Additionally, there has been a significant increase in Immediate Jeopardy violations, the most severe violation that can be issued, and monetary penalties.
Each year, CLS has continued to monitor the nursing home enforcement activities of DOH in Philadelphia. Although there have been some positive changes, serious problems persist. DOH continues to improperly conduct complaint investigations. Although there has been a small increase in the number of complaints substantiated, DOH still fails to comply with federal guidance when conducting investigations. Additionally, DOH continues to improperly assess the severity and breadth of harm when issuing violations. Not surprisingly, the survey reports reveal that residents continue to suffer terrible harm, and sometimes even death, due to improper care in Philadelphia nursing homes. This brief report will highlight the continuing problems and also suggest remedies that can help protect nursing home residents in Philadelphia.
Faulty Complaint Investigations
In the years from 2012-2014, DOH dismissed 92% of complaints filed against nursing homes. Complaints can be filed by anyone: residents, family, or staff members. In the 161 occurrences where DOH did substantiate a complaint, they never once found that the problem persisted, even when the nursing home received the same complaint later on.
From our own experience as advocates who filed complaints, and from speaking with residents and their families, we attributed this unacceptable dismissal rate to how DOH conducted its investigation. At the time, DOH claimed it had no duty to contact the complainant, or even the resident, when conducting an investigation. Oftentimes, DOH would speak only with the nursing home staff when conducting a complaint investigation. These investigation practices contravened federal guidance which prescribes a step-by-step investigation protocol that is focused on the complainant and the resident, and not the facility. Indeed, the Auditor General confirmed CLS’s findings in 2016, when his report concluded that DOH was improperly handling complaints.
Unfortunately, these problems persist. During the years 2015-2017, DOH dismissed 85% of complaints filed against nursing homes. DOH continues to conduct improper investigations. DOH rarely contacts the complainant when a surveyor conducts an investigation. It is not uncommon for DOH to not even meet with the resident, who the complaint is about. Countless times have we spoken with residents or family members that state they filed a complaint, but never heard back from the investigator.
The Centers for Medicare and Medicaid Services (CMS), the federal agency that oversees nursing homes, has issued handbooks to DOH that they are to use when conducting investigations. These manuals are called State Operations Manuals (SOMs). SOM § 5300.3 states: “Interview the person who made the complaint. If the complainant is not at the facility at the time of the survey, he/she should be interviewed by telephone, if possible. Also, interview the person the complaint is about. Then, interview any other witnesses or staff involved.” Despite this explicit requirement, DOH repeatedly claims it is not required to conduct either the complainant or the resident.
When comparing how DOH currently conducts investigations with the federal requirements, it is easy to see why almost 9 out 10 complaints are dismissed. DOH’s actions would be similar to someone calling 911 to report a crime and then the police responding by contacting the alleged perpetrator and not the victim. Yet, this is how DOH routinely conducts investigations.
DOH must change the way it investigates complaints so that it complies with federal requirements. Serious and damaging behaviors continue to go unpunished in nursing homes because of DOH’s complaint investigation process. Fortunately, DOH has explicit and detailed guidance in the form of the SOM. Training in accordance with the procedures in the manuals must be mandated.
Mischaracterization of Harm and Breadth of Violations
CLS’s 2015 report found that in three years DOH only issued one Immediate Jeopardy violation, the highest and serious violation, despite the documented presence of deaths and serious injuries related to improper care by nursing homes. From 2015-2017, DOH only issued six immediate jeopardy violations, three of which were at one facility during a six month period.
DOH continues to incorrectly minimize the potential for harm to residents when assessing violations. For instance, a resident at Caring Heart died after the facility proved unable to manage her tracheostomy. DOH described this death as isolated harm, when it was clear that the facility did not have proper procedures facility-wide to monitor individuals with tracheostomies. Below are more examples where residents’ deaths or serious injuries revealed facility-wide problems but were still considered just isolated incidents. This practice by DOH is in direct violation with federal law and guidance, which explicitly states that the potential for harm to just one person is enough for immediate jeopardy.
During the period of 2015-2017, DOH found the following violations and ranked them the following way:
- On October 25, 2016, a resident at Caring Heart choked to death on food being provided through a feeding tube. The resident was known to be at risk of choking and when a nurse’s aide heard the resident choking, she was told by another employee that it was normal. The choking was ignored. The resident was checked on 20 minutes later and was blue. The resident died. Actual Harm/Isolated.
- On July 21, 2016, a resident at Cathedral Village complained of pain in her right knee and was crying and screaming. These complaints were dismissed as “normal.” The resident continued to complain of terrible plain for at least 30 more hours before an X-ray was done. The X-Ray revealed a fractured femur. Minimal Harm/Isolated.
- On October 10, 2016, a resident fell out a lift used to transfer residents. The lift was improperly used. The resident broke her hip and later died. Actual Harm/Isolated.
- On February 20, 2017, a resident died after pulling out her own tracheostomy. The resident, who suffered from dementia, had successfully pulled out her tracheostomy before and was hospitalized. She repeatedly was observed trying to remove it after she returned from the hospital. Finally, she was found dead after removing it one final time. Actual Harm/Isolated.
- On September 6, 2016, at Cliveden, DOH found that 23 out of 23 times a medication was administered late. Two times the medications were administered improperly. One time a medicine was not given at all. Minimal Harm/Isolated.
- On May 27, 2016, a resident at Delaware Valley Veterans Home fell from a lift used to transfer residents, after it was improperly used. The resident was hospitalized and had to have sutures. Minimal Harm/Isolated.
- On May 22, 2017, a resident at Glendale Home left a facility through an unsecured door. The resident did not return to the facility for 36 hours, after being found on the street by police and taken to the hospital. Minimal Harm/Isolated.
- On November 11, 2016, DOH discovered that Inglis House had failed to properly investigate five serious incidents, including: a resident who had a fractured ankle for at least seven days before a physician examined her, a fall from a shower trolley which resulted in a broken femur, a resident complained of a staff member being rough with residents, a resident fell from a lift and fractured a leg. Minimal Harm/Isolated.
- On October 10, 2017, a resident at Oakwood complained of severe pain and was unable to walk. For the next three days the resident complained of extreme pain. The resident was given no medication. It was not until October 14, 2017 that an X-ray was ordered and it was discovered the resident had a fractured hip. Minimal Harm/Isolated.
- During a survey on November 16, 2017 at Protestant Home, DOH discovered that a resident had fallen face first out of a wheelchair after trying to rest his feet which hit the ground because there were no footrests. While the surveyor was at the nursing home, he or she observed many residents in wheelchairs without footrests. Minimal Harm/Isolated.
- On October 26, 2016, a resident at Tucker House was tied to a chair with bed sheets by a staff member. Minimal Harm/Isolated.
- During a an annual survey on September 21, 2017, DOH discovered that Stenton Nursing Home had not conducted monthly fire drills for nine months in a row. Minimal Harm/ Wide Spread.
- On March 2, 2016, a resident at St. John Neumann rang her call bell for forty minutes because she needed help getting to the bathroom. Finally, she could not wait any longer and tried to go herself. She was later found by staff on the floor of her room covered in feces. Minimal Harm/ Isolated.
- During a November 9, 2017 survey, DOH discovered that staff at St. John Neumann had left a resident at risk of falls alone. The resident fell and fractured their hip. Another resident who was a known fall risk was left alone in the bathroom and fell. The resident suffered a severe hematoma to his or her eye. Another resident at risk for falls fell after being left unattended and suffered a head injury. Actual Harm/Isolated.
- During a survey conducted on December 1, 2016 at Wesley Enhanced Living at Stapeley, DOH discovered that four different residents with dementia who were elopement risks had left the facility and were found outside. Pattern/Minimal Harm.
- On the night of June 24, 2017, a resident at Willow Terrace was dropped on the floor. The resident was placed back in bed by staff but nobody was notified. The next day the resident was observed grimacing. The resident had suffered a fractured femur. Isolated/Minimal Harm.
- Despite a diagnosis of severe dementia with potential for aggression, a resident was placed in a room with another resident. The resident with dementia repeatedly claimed that it was her house and the other resident had to leave. The resident was left unsupervised. Nurses then found that the resident with dementia had pulled her roommate out of her bed by her leg because she thought the roommate was trespassing in her home. The roommate suffered a fractured hip and was placed in hospice. Isolated/Actual Harm.
- At least six nursing homes were found to be infested with mice. In some instances residents reported mice in their beds. All of these were considered minimal harm violations.
These violations are just a sampling from the surveys we reviewed from the past three years. They reflect that DOH continues to find very serious harms suffered by residents as minimal or actual harm. Further, when deciding how widespread the harm was, the majority of instances were found to be isolated, even when the violation had the potential to impact many residents.
Annual Surveys Show Faults in Complaint Investigations
There is some good news when it comes to annual surveys. It appears DOH as adopted a more robust enforcement policy when it comes to annual recertification surveys. From the years 2012 to 2014, DOH found on average 2.5 violations per annual survey. For the past three years that average has increased to 6.25, and was 7.8 in 2017. Our review of the surveys show an increased effort to cite facilities for unsanitary conditions in kitchens and facilities.
Unfortunately, it is very common to see facilities with many unsubstantiated complaints have an inordinate amount of violations during surveys. This highlights the problem of how DOH conducts complaint investigations. For instance, in 2016, Saint Monica’s had only one of eleven complaints substantiated, yet on the annual survey 19 violations were found. During the years from 2015 to 2017, Cheltenham had 33 complaints filed against it, with only 3 being substantiated. However, for the same period of time, Cheltenham had 31 violations during annual surveys. It stands to reason that facilities that have violations during annual inspections would have the same problems that lead residents to make complaints. Therefore, this shows that the complaint investigations are faulty, and that inspectors are not properly spotting and recording violations.
It is clear from the data analyzed that over the past several years that DOH has failed in its duty to nursing home residents and the public. Its failure to rigorously enforce state and federal regulations has created an environment in Pennsylvania where nursing home residents are at risk of serious health problems and even death. The broad impact of this failure is felt across the state and impacts all residents and their families. In order to protect Pennsylvania nursing home residents, DOH must implement system-wide changes to ensure it is enforcing federal and state regulations designed to protect nursing home residents.
All DOH nursing home investigators should be retrained on an ongoing basis to ensure patient safety. It is unacceptable that so many complaints are dismissed, even as problems persist. DOH must change the way it investigates complaints so that it complies with federal requirements. Inspectors should be trained to contact the person who made the complaint, as well as the resident in question, rather than just relying on the word of the nursing home.
DOH should ensure that all complaints and reportable events are fully investigated. A 2016 analysis by The Patriot News/Penn Live found that DOH did not have investigation information for 213 deaths that occurred from 2013-2015. All incidents involving the safety of residents must be investigated and documented.
Require the Department of Health to provide better transparency to the public regarding investigations and characterization of harm. Currently, there is no information provided to the public if a complaint is not substantiated. The public should have a right to know what safety issues occur in nursing homes, and advocates should have a much better idea of what sorts of complaints are being dismissed. DOH investigators should also be required to provide their reasoning about the characterization of harm, in order to ensure that harm isn’t minimized.
Pennsylvania needs to revise the current nursing home regulation to increase the minimum amount of nursing care per resident per day. Current Pennsylvania regulations only require 2.7 hours of nursing care per day. These regulations have not been updated in almost 20 years. Many of the severe and serious events that occur in nursing homes are attributable to understaffing. Experts agree that, at a minimum, each resident needs 4.1 hours of direct care per day. By increasing the minimum number of nursing hours provided to each resident, Pennsylvania will save lives and decrease the frequency of events causing serious harm to nursing home residents.
The Department of Health must create a system to monitor and investigate crimes perpetrated against nursing home residents. Section 1150(b) of the Affordable Care Act requires each employee of a nursing home to report a reasonable suspicion of a crime perpetrated against a nursing home resident to the police and the Department of Health. Section 1150(b) requires the Department of Health not only to investigate these incidents, but also to ensure that facilities and their employees are reporting crimes. In 2017, the federal Office of Inspector General found that this law was not being enforced. The Department of Health must comply with federal law and ensure that facilities are reporting to the police potential crimes committed against nursing home residents.
This is an important issue that must be addressed quickly in order to protect the elderly and people with disabilities from harm. Already, the DOH has been aware of this problem for years, and the agency has not remedied the situation. DOH must be required to enforce regulations and ensure resident safety in nursing homes.
 For the definitions of the terms used to assess severity and breadth see: https://sais.health.pa.gov/commonpoc/content/publicweb/definitions.htm#P...
 CMS has provided a 34 page appendix to DOH detailing what immediate jeopardy is and when it should be found. Our review of DOH makes clear that DOH does not follow the guidance in this appendix. https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/...
 The Need for Higher Minimum Staffing Standards in U.S. Nursing Homes, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4833431/