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Not all nursing home violations result in fines

Daily Gazette (Sterling, IL) - 12/17/2014

Dec. 17--Two state inspections dated Sept. 14, 2012, cited Dixon Rehabilitation & Health Care Center for 14 violations.

They included failure to provide proper fluid plans; staff using cellphones while giving personal care; failure to have a proper activity program; and failure to provide assistance to residents.

None of the violations reached a severe level, but they did include a resident with an unplanned, 16-pound weight loss over the course of 6 months.

The violations were like the majority of violations cited in state and federal surveys, both in scope and penalty.

Since early 2011, Sauk Valley nursing homes have been fined nearly $200,000 by the state or federal government for violations.

The complaint and recertification surveys for all 20 nursing homes are done several times each year, and almost all return violations, many similar to those at the Dixon facility.

In March 2012, the man noted in the Dixon Rehabilitation violation weighed 170 pounds; by September 2012, he was down to 154, a loss of nearly 10 percent.

While eating lunch at a table on Sept. 11, 2012, he was in an unlocked wheelchair, sitting with two other residents and a staff member.

His chin was about 4 inches from his plate, according to the government surveyor who was observing, and he kept moving farther and farther from the table, forcing him to extend his arm to reach his food.

A one point, the man thought his clothing protector was food and tried to put a fork in it.

When the man finished his meal, there was "a large amount of food debris" on his lap and on the floor. The staffer at the table did not offer to help or oversee the man's eating.

According to the dietitian's notes, the man's dementia contributed to the "gradual decline" in weight, and he needed to eat 2,155 calories a day to maintain his weight. But his physician was not notified of the weight loss, and the facility had no policy or procedure to address a resident's weight loss.

No federal or state fines were levied for any of the violations.

The facility was cited for the same violation 3 months later, when another resident was found to have had a 20-pound unplanned weight loss over 6 months.

Both the Illinois Department of Public Health and the Centers for Medicare & Medicaid Services take a compliance-centered approach. And not all violations must result in fines. Even when they do, nursing home advocates say, the fines aren't big enough to ensure quality care.

The plans of correction submitted by the Dixon nursing home included staff training, audits of policies, and random monitoring of nursing procedures.

To address the unplanned weight loss, the dietitian re-evaluated the man, and staff was trained on meal set-up and assistance, among other corrective actions that were accepted.

At the bottom of each page of the plan of correction, the nursing home included a statement that nothing in the plan should be considered "an admission that the facility violated any federal or state regulation."

Informal dispute resolutions

After the completion of surveys that find violations, and before penalties are imposed, nursing homes can dispute the findings.

According to the federal code, states "must offer a facility an informal opportunity, at the facility's request, to dispute survey findings upon the facility's receipt of the official statement of deficiencies."

For federal surveys, the nursing home has 10 days to ask for an informal dispute resolution, which takes place within 60 days of the request. Also, notifications are sent to the resident, or a representative, involved in the violation and to the state's long-term-care ombudsman, who may send a written comment.

A review of CMS enforcement letters between Jan. 1, 2011, and Oct. 16, 2014, found at least three instances when a nursing home chose the informal dispute resolution and had some of the imposed penalties removed. Additionally, some penalties were removed in at least 16 instances after revisits or in-office reviews of documentation.

Some of those 19 total instances involved Level G or higher violations -- those resulting in actual harm or immediate jeopardy to a resident -- and resulted in some fines still being imposed. Some nursing homes that still had civil money penalties had the fines reduced by 35 percent by merely waiving their right to a hearing about the noncompliance.

A complaint-initiated survey conducted on April 28, 2011, at Sterling Pavilion found a severe violation, and the facility was cited for failure "to prevent a dependent resident from falling off the side of the bed. That failure resulted in [the resident] falling and being hospitalized on [April 4, 2011] for treatment of fractures [of] her tibia, fibula and femur."

The facility was notified of the violation in an enforcement letter from CMS dated June 29, 2011. The letter also included two severe violations that inspectors had found during a health survey on May 24, 2011.

One was for a failure to ensure a resident's safety in a sit-to-stand lift. The resident, who was unable to bear weight, had suffered a fractured rib.

The other was for a failure to identify risk factors and implement strategies to prevent the development of bedsores. The failure, according to the report, had resulted in a resident developing a foot wound with dead tissue and signs of infection.

An enforcement letter was sent to the nursing home, and the facility faced mandatory denial of payment and a civil money penalty, which was recommended by the state.

After the informal dispute resolution, which the nursing home requested, the denial of payment was eliminated.

CMS still imposed a civil money penalty of $200 a day for the 90 days -- from April 28, 2011, through July 26, 2011 -- that the nursing home wasn't in compliance.

But because the nursing home waived its right to a hearing about noncompliance, the $18,000 fine was reduced by 35 percent, to $11,700.

When to fine and for how much?

The process through which violations become fines highlights the complexity of the nursing home system and the way it's regulated in Illinois. For as much oversight and regulation as there is, the process of determining fines or their amount can be more art than science.

The state and CMS can consider several factors when determining whether a fine or remedy should be imposed, among them are:

--seriousness of the violation, including the likelihood that death or serious harm to a resident will result or has happened

--severity of the actual or potential harm

--extent of the violation

--whether the violation was isolated or widespread

--efforts made by the nursing home to correct violations

--previous violations

--financial benefit to the facility committing or continuing the violation

Guidelines for the fine amounts are listed in the federal government's code of regulations and the state's Nursing Home Care Act.

"The department's goal is to make sure that all facilities are in compliance with the Nursing Home Care Act," Melaney Arnold, a spokeswoman for the IDPH, said in an email. "The department's first priorities are to ensure the health and safety of all residents.

"If evidence is found that a facility is not in compliance, the department works to make sure the facility comes back into compliance and that the facility implements plans to prevent the situation from happening in the future."

The state and CMS have two types of monetary remedies: a civil money penalty, which is a lump sum, and a denial of payment, when the Medicaid or Medicare reimbursements for new residents are denied for a period of time.

A civil money penalty can be issued for each day a violation occurred or for each instance of the violation.

Of the 15 nursing home administrators interviewed by Sauk Valley Media, only one -- Emily Dykstra at Coventry Living Center in Sterling -- said she budgets for fines. Dykstra, who started at Coventry Living Center in March and previously worked at Pleasant View Rehab & Health Care Center, said fines never exceeded her budget.

Other remedies include temporary management, state monitoring, transfer of residents, directed plan of correction, directed in-service training, closure of the facility and transfer of residents, or alternative remedies approved by CMS.

In 1998, in an effort to decrease the number of consistently poor nursing homes, another potential remedy was created: the Special Focus Facility Initiative.

Nursing homes in the program are visited by survey teams about twice a year for inspections not responding to complaints, which is twice as frequently as other nursing homes. Monthly status reports also are submitted by the state to CMS.

After 18 to 24 months, CMS expects one of three outcomes: graduation from the program, termination from Medicare and Medicaid programs, or an extension of time to complete program due to promising progress.

Only 30 Illinois nursing homes have been put into the Special Focus Facility Initiative since it was started. Two of those facilities were terminated. Four Illinois nursing homes are in the program, but none are in the Sauk Valley.

Gregg Brandush, branch manager for long-term care certification and enforcement at the Chicago office of CMS, said states regularly use state monitoring for situations when immediate jeopardy is identified, and will use directed plans of correction or directed training for facilities unable to correct a pattern of violations or that has a history of violations.

"We rely heavily on the state survey agency to determine the appropriateness of many of these remedies," he said in an email. "Because the state agency in most instances is the entity that has conducted the survey and has seen the care the facility has provided directly, they are more familiar with the needs of the facility and their performance, so they are in a better position to recommend a remedy."

Other than closing a nursing home, the most severe penalty that can be imposed is termination from the Medicare or Medicaid program, which will cut a facility's ability to collect funds.

"While a facility can choose to remain open, the reality is that this is exceedingly difficult without incoming federal money," Brandush said.

Brian Lee is executive director of Families for Better Care, a Florida-based long-term care watchdog organization. He said the state and CMS don't want to be in the business of shutting down nursing homes after severe deficiencies are found.

If that was the criteria for termination, he said, "You'd have none left."

Margaret Niederer spent 12 years as regional ombudsman based in the Peoria area. She worked with Families For Better Care to develop its Nursing Home Report Card.

The Illinois Long-Term Care Ombudsman Program, which was mandated by the Federal Older Americans Act and the Illinois Act on Aging, serves as an advocate group for residents in nursing homes.

Fines aren't doing enough, Niederer said, and nursing homes should be shut down if they can't provide the expected level of care.

In her 12 years as a state ombudsman, only two nursing homes in her region were closed for bad care. She said half of all facilities should have been.

Documents: Survey for Sterling Pavilion -- Survey for Dixon Rehab

Related: Late payments create 'snowball effect' for nursing homes

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