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Florida's worst nursing homes could receive fewer inspections

Florida Times-Union - 2/17/2020

A patient at a Central Florida nursing home near The Villages died after being left out in the sun for three hours.

Another was rushed to a Melbourne emergency room after staff administered anti-psychotic medications at 80 times the prescribed dose.

And at a nursing home between Gainesville and St. Augustine, one patient died after staff waited five minutes before starting cardiopulmonary resuscitation, and another nearly died after he was overdosed on morphine.

Over the last three years, Florida'sAgency for Health Care Administration cited all three low-rated nursing homes with Class 1 violations -- the most severe violations the agency can levy. By state law, AHCA was required to ramp up oversight, inspecting the homes every six months for two years.

But that oversight would be cut back under two bills making their way through the Florida Legislature that would reduce inspections at problem nursing homes. Advocates say it's a threat to patient safety. ACHA leaders say they're already going into poor-performing homes frequently and need more flexibility around inspections.

As part of the legislation, AHCA would be required to do only one additional inspection at nursing homes after the agency cites them with a Class 1 or multiple Class 2 violations. The loosened mandate would apply to every nursing home in the state, from the highest rated to the lowest.

And with fewer inspections, AHCA's inspection fine would be cut in half from $6,000 to $3,000.

The nursing home provision is part of a larger legislative push by AHCA to give the agency more flexibility in how it deploys staff across the health care spectrum.

Other parts of the legislation would give AHCA leeway to extend inspection deadlines at highly rated assisted living facilities and exempt "low-risk providers" -- nurse registries, home medical equipment providers and health care clinics -- with excellent regulatory histories from regular inspections.

The two bills -- Senate Bill 1726 and House Bill 731 -- have received little pushback in Florida's regulation-averse Legislature.

AHCA Secretary Mary Mayhew said in an interview that the purpose of the legislation is to give AHCA the ability to spend less time in good health care facilities and more time inspecting problem providers. The agency's resources are increasingly strained as the state's population and the number of health care providers increase, agency leaders said.

"We wanted to make sure that as we look at our workload, that we are able to have a clear focus on higher-risk and poor performing providers," Mayhew said.

But critics of the legislation worry about the ramifications of cutting back on AHCA's mandates.

"In my opinion, oversight and inspections are critical to ensuring quality care and that residents are safe," state Rep. Margaret Good, D-Sarasota, said during an early February health care committee meeting. "I'm concerned that requiring fewer inspections could lead to worse outcomes to those that are most vulnerable."

The state's nursing homes came under scrutiny in 2017 after 12 residents of the Rehabilitation Center at Hollywood Hills died following a power outage caused by Hurricane Irma.

A 2018 investigation by The Fort Myers News-Press and the Naples Daily News found dozens of Florida's worst nursing homes have long records of failing to meet state and federal standards and operate with little risk that regulators will shut them down.

Treating all nursing homes the same

AHCA Deputy Secretary Molly McKinstry said a problem with the current regulations is they treat nursing homes with good histories of compliance the same as providers with poor histories.

She said that on occasion, a serious violation will occur at a highly rated nursing home, which quickly corrects the problem. But the law gives AHCA no wiggle room to scale back inspections at that nursing home, even if there is little reason to believe that problems are persisting.

AHCA would be required to "go back with a full inspection team every six months for two years while we have other facilities that have a more chronic history that we're not spending as much time in because they didn't have a Class 1 (violation)," McKinstry said.

But the proposed legislation doesn't just eliminate the stricter inspection mandates for highly rated nursing homes. It would apply to all nursing homes, including chronic poor performers.

Fifty-nine nursing homes are currently in the more intense two-year inspection cycle, according to AHCA. Of those, 52 have below average ratings from the federal Centers for Medicare and Medicaid Services, which ranks nursing homes on a five-star scale with one star being the worst and five stars being the best.

The average rating of the 59 nursing homes on AHCA's list is 1.9 stars. There are 695 nursing homes in the state.

"Even if you take at face value what they say is true -- AHCA is overburdened, they're overtasked, the Legislature wants to help to focus on bad operators, concentrate your resources, take them away from the facilities that are doing good and go after the bad guys – well, if you look at this bill, it does exactly the opposite. That's the said irony," said Brian Lee, former head of the state's Long-Term Care Ombudsman program who now heads the nonprofit Families for Better Care.

"The residents will lose with this bill," Lee added. "Nursing homes will be less safe to live in if this bill passes through the Legislature as is."

AHCA leaders disagree. With or without the current mandate, AHCA inspectors will be visiting poor performing nursing homes frequently, McKinstry said.

AHCA would still have to follow federal inspection requirements, which mandate inspections at all nursing homes at least once every 15 months. And the proposed legislation does not affect the requirement that AHCA investigate all claims of abuse, neglect or mistreatment.

On average, AHCA inspected the 59 nursing homes about 10 times in 2019, according to data provided by the agency. AHCA inspectors visited one low-rated Orlando-area nursing home 18 times last year, including 10 times for complaints.

"If we've got a one-star facility, I'm imagining that we're getting complaints routinely and going into that facility frequently," McKinstry said.

The requirement that AHCA ramp up oversight for nursing homes with serious violations became law in 2001, part of a divisive nursing home reform effort that also mandated increased staffing in exchange for giving the long-term care industry increased protections against lawsuits.

State Sen. Aaron Bean, R-Jacksonville, who is sponsoring the legislation in the Senate, said his intent with the bill is to give AHCA the flexibility to focus on bad actors.

"Once you're on the naughty list, we're going to be able to direct resources giving AHCA the flexibility to spend more time with them," Bean said.

Bean said he would be open to amending the bill to continue requiring AHCA to inspect the state's worst nursing homes every six months for two years if they are cited with a serious violation.

"I would consider that, that would be a friendly amendment," Bean said. "Stars matter. If you're a one-star, then you're going to get inspected. And I've been to some. I've toured some and it's sad, some of them are really sad. So we want them to be bright and cheery and happy and enriching."

Kristen Knapp, a spokeswoman for the Florida Health Care Association, said the AHCA reform legislation has not been a focus of her organization this session. The association's focus has been restoring nursing home funding in the state's Medicaid budget.

AARP Florida also hasn't taken a position on the bill. It makes sense to focus AHCA's resources on low-quality providers, spokesman Dave Bruns said in an email.

"But AARP Florida has concerns about the specific provisions scaling back required inspections at nursing homes," he added.

AHCA's increasing workload

In addition to asking lawmakers to lessen AHCA's inspection mandates, the agency has also requested a nearly $5 million bump to its budget, 11 new full-time employees and approval to convert eight administrative jobs to nurse inspector jobs.

Over the last six years, staffing of AHCA'sDivision of Health Quality Assurance has remained flat, according to the agency. In fiscal year 2015, the division had 596 full-time employees. This year it has 597.

But the agency claims its workload has increased significantly in that time.

According to AHCA, during the five-year period from fiscal year 2015 through 2019, the number of health care providers it inspects has increased by more than 8%, from 18,107 to 19,601.

In that time, nursing home incidents have increased 77%, overall adverse incidents have increased 80% and regulatory sanctions have increased 108%, according to the agency.

"As we've seen growth in the state, both from a population perspective, but also from a health care provider perspective, our resources do become strained when we have to equally treat every facility," McKinstry told a House health committee in early February.

Lee, the former ombudsman, said that if AHCA's workload is increasing, lawmakers should boost the agency's budget, not lessen its workload. Otherwise, overall quality of oversight will suffer.

"It is necessary for them to be mandated, required, told, do this. Protect our residents," Lee said. "Why should we give them the benefit of the doubt?"

Fort Myers News-Press staff writer Melanie Payne and USA TODAY Network -- Florida Capital Bureau reporter John Kennedy contributed to this report.

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