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Does this Indiana bill awaiting Holcomb's signature let nursing homes get away with neglect?

Indianapolis Star - 4/23/2021

The video is difficult to watch.

Sophie, an 88-year-old cancer survivor and great grandmother, screams out in pain as doctors remove portions of her scalp.

The procedure, known as debridement, was necessary because of an infection during her stay as a resident at Addison Pointe, a nursing home in Chesterton. Her family, who asked their last name be withheld to protect Sophie's privacy, recorded the video and provided a copy to IndyStar.

"She doesn't even want to look in a mirror anymore," her son, Ron, said of his mother, who has Alzheimer's. "Then she forgets how she looks and then she looks and she's like, 'What the hell happened to me?'"

The family blames poor care at the nursing home. They claim the facility failed to provide basic hygiene care, such as shampooing Sophie's hair, as it dealt with a surge of COVID-19 cases in December and January.

But they may never get a chance to hold the nursing home accountable.

Recently passed legislation, now awaiting Indiana Gov. Eric Holcomb's signature, could effectively block many claims of neglect and substandard care.

House Bill 1002 would provide nursing homes and other health care providers with wide-ranging liability protections that go beyond the COVID-19 immunity lawmakers and Holcomb already granted Indiana businesses earlier this year.

Nursing home operators say the bill is necessary to prevent a flood of COVID-19 lawsuits that could financially cripple the industry. And they claim it is narrowly written so that it won't apply to injuries and deaths from longstanding problems such as deadly bedsores and falls.

But IndyStar found there are reasons to doubt that claim.

At least one nursing home is already using COVID-19 to defend itself against a state health department citation for failing to prevent and treat bedsores, according to records obtained by IndyStar.

And a legal expert who reviewed the bill at IndyStar's request said she was "horrified" by its wide ranging implications.

The bill is of particular concern for Indiana, which even before the pandemic ranked 48th in the nation for total nursing staff hours when adjusted for patient needs. The low staffing levels are surprising given that Indiana receives more nursing home Medicaid funds than nearly every other state in the country.

But an IndyStar investigation last year found that state and federal officials allowed much of that money to be diverted to county hospitals, which have bought up nearly all of Indiana's roughly 535 nursing homes, at least on paper, in order to access the nursing home funds to build new hospitals and pad their bottom lines.

Nursing home residents have paid the cost. IndyStar's investigation found scores of inspection reports and malpractice claims involving injuries or deaths that may have been prevented with better staffing — the same types of claims that could be shot down if Holcomb signs HB 1002.

What's in the bill

One reason critics question the need for House Bill 1002 is that nursing homes were already granted liability protections under a measure Holcomb signed into law in February.

The law, which went into effect immediately, provides civil immunity if someone is exposed to COVID-19 at a business, including a nursing home.

HB 1002 would go further.

It protects providers against any claims "arising from COVID-19." It's how the bill defines that phrase that is causing concern. The definition includes the reallocation of staff, delaying or modifying nonemergency medical services and reasonable nonperformance of medical services due to COVID-19.

There are exceptions to civil immunity for "gross negligence or willful or wanton misconduct,” but trial lawyers say those are virtually impossible to prove. And they say all kinds of cases could be swept into the bill's definition of "arising from COVID-19."

Indiana's nursing homes were already among the lowest staffed in the nation when the pandemic struck, requiring nearly all of them to reallocate staff as employees tested positive and new units were set up to handle the roughly 25,000 nursing home residents who have contracted the virus.

Ashley Hadler, an attorney who specializes in nursing home abuse cases, warned lawmakers during a hearing last month that nursing homes could use the legislation to dismiss particularly egregious cases involving residents who never had COVID-19.

She cited a case from 2019 in which a resident died after maggots allegedly infested her foot because the nursing home had failed to change her bandages. Had that case occurred during the pandemic, the nursing home could simply claim under HB 1002 that there weren't enough staff or resources to change the bandages because of COVID-19.

Hadler said the immunity could even extend to a case in which one nursing home resident was raped by another because of inadequate monitoring. Again, the nursing home could argue it didn't have enough staff to supervise residents because of COVID-19.

"So that is exactly how these claims will be barred," she told lawmakers. "That's exactly how your constituents will be affected."

Nursing homes dismiss concerns

The nursing home industry has sought to dismiss such concerns as overblown.

The Indiana Health Care Association, which represents the state's nursing home operators, would not make anyone available for an interview.

But in an emailed statement, the group's president, Zach Cattell, argued that the legislation is "specifically tailored to address actions that are in response to the pandemic or for COVID-19 and do not provide blanket immunity."

"Any alleged acts of negligence that are not in response to the pandemic or for COVID-19 will not be provided the heightened standard afforded under SB 1 and HB 1002," he said.

He did not answer follow-up questions about cases such as the one at Addison Pointe. The nursing home's director also declined to comment, citing federal health privacy laws.

But during legislative hearings last month, IHCA's lobbyist Laura Brown, denied that nursing homes would be shielded from the kind of claims Hadler had referenced.

“These bedsores, these very serious conditions that she was bringing to light, I would say they’re conscious disregard, but they're also not acts in response to a declared disaster emergency, so they wouldn't be covered,” Brown told lawmakers.

One Noblesville family's experience, though, shows how easily a nursing home could turn a case involving a bedsore into one "arising from COVID-19."

From bedsore to amputation

When Mary Ellen Zenn broke her hip last year, her family hoped she would get the care she needed at Miller's Senior Living Community, a nursing home in Castleton.

She didn't, they told IndyStar.

Shortly after she was admitted in December, the facility experienced a surge in COVID-19 cases, according to state data. Thirty residents and staffers tested positive in a single two-week period.

Zenn was among those who tested positive, but the 90-year-old made a full recovery. In fact, she weathered the virus so well her family wonders if her test result was a false positive.

They thought they had dodged the bullet.

But four days after leaving the nursing home's COVID-19 unit, bedsores were documented on her heels, according to medical records her family provided to IndyStar.

Over the next few weeks, Zenn's son, Duane, and daughter-in-law, Roberta, said they requested photographs of the wounds but never got any.

By the time a physician was able to examine Mary Ellen in person, "he was hysterical," Roberta said. "He said, 'Nobody told me the extent of this. She cannot be treated here. She has to go immediately to the hospital. She is in danger.'"

At the hospital, doctors tried to save her right foot, but gangrene had set in. A pathology report described the foot as "necrotic appearing with areas of leathery black mummification." There was only one option: An above knee amputation.

What had started with a broken hip on Dec. 5 had ended with the loss of her right leg on Feb. 7.

"It's been a nightmare," her son, Duane, said.

Immediate jeopardy

An Indiana State Department of Health inspection of Miller's Senior Living Community last month confirmed what Duane and his wife had suspected.

Inspectors cited the facility for failing to ensure residents, including Zenn, were provided care and services to prevent bedsores.

After reviewing Zenn's care plans, inspectors found "there were no interventions specifically related to the pressure relief on (Zenn's) lower extremities" during the first month of her stay, even though the facility knew she was at risk for bedsores.

The citation was classified as an "immediate jeopardy," meaning serious injury or death has occurred or is likely to occur.

Miller's Health Systems, the company that operates the nursing home, did not respond to a phone message from IndyStar.

But in a response to the state's inspection report, the nursing home disputes the findings, calling the problems an "isolated incident" and arguing the bedsores were "unavoidable."

The facility goes on to blame Zenn's bedsores on her earlier COVID-19 diagnoses.

"This resident developed wounds following a diagnosis of COVID-19," the facility wrote. "The effects of COVID-19 on a person's skin integrity is yet to be understood, but it is known that the use of steroids is an additional risk factor which were utilized to treat the residents COVID infection and pressure injury developed only after the resident began to recover from COVID 19. However, there is evidence COVID-19 presents an additional risk factor."

It's exactly the kind of argument critics of HB 1002 fear could be used to dismiss lawsuits against facilities that injure residents through neglect and substandard care.

“It’s just unbelievable that our Legislature would even think of giving them immunity for what they've done to my mom," Duane Zenn said.

"If they know that they can't be touched, or nobody can come after them, then it's just gonna get worse," his wife added.

A 'large envelope'

Those fears are well-founded, according to Jody Madeira, a professor at Indiana University who teaches courses on medical law. She reviewed the 17-page bill at IndyStar's request.

"I’m greatly concerned about this legislation and its potential impact," she said. "I read HB 1002’s language as applying not only to issues that are immediately or directly related to COVID, but also to deficient care that is indirectly caused by COVID — staff shortages, changes in routine, supply shortages, etc."

The result is a "rather large envelope" into which nursing homes "can stuff all kinds of claims and make them go away," she said.

The protection for reallocating staff because of COVID-19 is especially concerning, she said.

“As soon as you go into staffing, which nursing homes have problems with in the best of times, then it opens up the door to just about anything," she said.

The added liability protections would make it tougher for nursing home residents and their families to sue for neglect in a state that already has some of the most restrictive medical malpractice laws in the country.

Indiana is one of only a handful of states that puts a cap on total damages. It also requires claims to go before a medical review panel before a lawsuit can move forward — a process can easily last three years.

Now, nursing home residents and their families could face even more obstacles.

"It’s already hard to get lawyers to take these cases," Madeira said. "It gets rid of really the only incentive."

Industry protections instead of reforms

The low staffing and poor conditions left Indiana nursing homes ill prepared to deal with the pandemic. More than 6,200 residents have died and the state routinely ranks among the top in the nation for per capita COVID-19 deaths among nursing home residents.

The large death toll has led to calls for reforms from advocates, who want to see more stringent staffing requirements and more money for at-home nursing care.

Holcomb, who declined an interview request for this story, has said he wants to reform Indiana's elder care system. But detailed plans remain elusive and lawmakers have not passed any legislation that would move the state in that direction.

Instead, the General Assembly, which concluded its annual session on Thursday, has focused primarily on shielding nursing homes from potential lawsuits.

Neither of Indiana's top legislative leaders, House Speaker Todd Huston and Senate leader Rod Bray, responded to interview requests and emailed questions for this story. Nor did Rep. Jerry Torr, R-Carmel, who carried the legislation.

Senior care advocates say the state's legislative priorities are troubling.

"It is hard to imagine anything more callous or negligent than state leaders putting the financial interests of a powerful industry over the basic safety and dignity of vulnerable nursing home residents," said Richard Mollot, executive director the Long Term Care Community Coalition, a New York-based group that advocates on behalf of nursing home residents.

The AARP, one of the nation's largest senior advocacy groups, also opposes the bill.

"Are we prioritizing protecting the facilities? Or are we prioritizing protecting the residents and their families?" State Director Sarah Waddle said. "When we know that there are bad actors within that system, why are we so quick to always protect them?"

'Not enough staff to take care of us'

That's something Lisa Shine wonders about, too.

She said blatant neglect at Aperion Care Arbors Michigan City left her 77-year-old mother, Beverly Shine, with a massive and nearly fatal bedsore. It took months for her mom to stop flinching when people touched her because of the pain she experienced, her daughter said.

The facility exemplifies longstanding problems in Indiana's nursing home system.

The nursing home has seen 35 COVID-19 cases and seven deaths among its residents and employees since last year, but issues such as low staffing and failing to prevent or treat bedsores preceded the pandemic .

In May of 2019, for example, employees told state inspectors the facility was so short-staffed that scheduled bathing and incontinence care was “nearly impossible.”

“I try my best to turn and reposition the residents every 2 hours but seems impossible,” one employee said, referring to a standard practice for preventing bedsores

A resident told an inspector: “There is not enough staff to take care of us.”

More recently, the facility was cited in August for failing to ensure treatments were completed for bedsores. While staffers were marking the treatments as being competed every day, inspectors found that one resident's treatments were actually four days old and contained "light greenish drainage."

The wound nurse told inspectors she had talked to the Unit Manager before, "as this has been a problem in the past, staff will sign out the treatment as being completed but will not do the treatment," the Aug. 6 report says.

Today, the facility ranks in the bottom 20% of nursing homes across the country for total nursing staff hours, according to an IndyStar analysis of the most recent federal nursing home data.

'The facility is not understaffed'

Fred Frankel, general counsel for Aperion, declined to comment on Shine's case, citing privacy concerns. But he said: "All these allegations, all of these complaints, all of these findings by the state, are taken very serious as we implement and take action to make corrective actions."

He said staffing at the facility was adequate because it meets the minimum requirements of the law. "We haven't been cited for a staffing violation that I know of there, so I'm not sure what you're asking," he said. "The facility is not understaffed."

He declined to say whether the facility has reallocated staff, saying he unsure what that phrase meant.

As for HB 1002, Frankel said he hadn't read the bill. When a reporter offered to email him a copy, he declined.

"I'll probably wait until it's actually signed, when it's something that's relevant," he said. "Until it's signed into law, it really is not a relevant use of and, honestly, efficient use of my time at this point."

But what is not an immediate concern to Frankel is top of mind for Shine.

Her mother's suffering "crushed me," she said, "because it makes you feel helpless."

House Bill 1002 only contributes to that feeling, she said.

"In my eyes," she said, "it just gives permission for the facility to have an excuse to treat the patient any kind of way."

Contact IndyStar reporter Tony Cook at 317-444-6081 or tony.cook@indystar.com. Follow him on Twitter: @IndyStarTony.

This article originally appeared on Indianapolis Star: Does this Indiana bill awaiting Holcomb's signature let nursing homes get away with neglect?

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