Robert Gebeloff, Katie Thomas and Jessica Silver-Greenberg, The New York Times
Published: 10 Dec 2021 12:21 PM BdST Updated: 10 Dec 2021 12:21 PM BdST
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Tammy Bowman and her husband, Bruce, in Watkinsville, Ga., Nov 5, 2021. They lost Bowman’s sister Kim Blanchar last year in an Indiana nursing home that failed to keep Covid-positive residents separate. Johnathon Kelso/The New York Times
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Sauer Health Care in Winona, Minn., Dec 3, 2021. The facility has a five star rating, despite inspectors finding it put its residents in immediate jeopardy. Tim Gruber/The New York Times
In Minnesota, a woman caught COVID-19 after workers moved a coughing resident into her room.
And in Texas, a woman with dementia was found in her nursing home’s parking lot, lying in a pool of blood.
State inspectors determined that all three homes had endangered residents and violated federal regulations. Yet the federal government didn’t report the incidents to the public or factor them into its influential ratings system.
A New York Times investigation found that at least 2,700 similarly dangerous incidents were also not factored into the rating system run by the federal Centres for Medicare & Medicaid Services, or CMS, which is designed to give people reliable information to evaluate the safety and quality of nursing homes.
Many of the incidents were uncovered by state inspectors and verified by their supervisors but quashed during a secretive appeals process, according to a review of thousands of pages of inspection reports and nursing home appeals, which the Times obtained via public records requests. Others were omitted from the CMS ratings website because of what regulators describe as a technical glitch.
On the rare occasions when inspectors issue severe citations, nursing homes can fight them through an appeals process that operates almost entirely in secret. If nursing homes don’t get the desired outcome via the informal review, they can appeal to a special federal court inside the executive branch. That process, too, is hidden from the public.
Even when the citations are upheld, some never make their way onto the Medicare website, known as Care Compare.
The pattern gives nursing homes a powerful incentive to pursue every available appeal. Even if they lose, the process eats up time and reduces the odds of damaging information ever becoming public.
“There is every advantage to the facility not to have an opinion issued for as long as they could possibly delay, and there’s no advantage to the public for that to occur,” said Richard Routman, a lawyer who represented the federal government in nursing home appeals until 2014.
Representatives of the nursing home industry say it is only fair that they be allowed to appeal citations before they are made public, especially since many end up getting overturned or downgraded.
Jonathan Blum, chief operating officer for CMS, said that citations are omitted during state-level appeals to be fair to nursing homes that are disputing inspectors’ findings. He acknowledged that even after appeals are exhausted, some citations still don’t appear on Care Compare. He said CMS is “working to correct this issue.”
BIG MONEY AT STAKE
The biggest component of nursing homes’ star ratings are the inspections conducted by state health investigators. Because of the weight that people place on the star ratings, researchers have found a connection between better inspection results and greater profits.
Inspectors visit every nursing home once a year or so for general inspections and in response to complaints.
When inspectors encounter problems, they can propose issuing a citation. First, though, they must build a case by compiling things like witness statements and medical records. Supervisors often vet citations before they’re issued to ensure that violations are properly investigated and documented.
The vast majority of citations are minor. But a fraction are deemed serious, faulting nursing homes for putting their residents in “immediate jeopardy” or causing “actual harm.” On each nursing home’s listing on Care Compare, there is a section that shows whether it has received any such citation in recent years.
Inspectors rarely deem problems to be serious enough to harm homes’ star ratings. From 2017-19, the Times found, inspectors wrote up more than 2,000 five-star facilities at least once for not following basic infection-control precautions. At 40 other five-star homes, inspectors determined that sexual abuse did not constitute actual harm or put residents in immediate jeopardy.
The reasons are complicated. Writing up a facility for a serious violation requires extra paperwork and additional visits to check that the home has fixed the problem. Another factor, inspectors say, is that they have been conditioned to expect blowback when they cite homes for serious problems.
“I feel sometimes the things I cite don’t mean anything because it gets tossed out at the state level or they determine it not to be as severe,” an unnamed inspector said in a 2013 survey conducted by the Centre for Medicare Advocacy, a consumer rights group.
RIGHT OF APPEAL
When the state issues a citation against a nursing home, federal rules give the facility the right to appeal through what’s known as an informal dispute resolution process.
Such reviews are supposed to take 60 days, but they sometimes drag on for more than a year, the Times found. Blum, the CMS official, said facilities were required to fix any problems regardless of whether they appealed.
If a nursing home prevails, the citation is made less severe or deleted from the record altogether. While the review is underway, the inspectors’ findings are not posted on the Care Compare website.
That’s why there is no public accounting of what happened at Sauer Health Care, a nursing home with five stars in Minnesota, in April 2020. State inspectors found that as COVID-19 was spreading through the home, the staff was not exercising basic precautions. In one case, inspectors found that the home moved a resident who was coughing and had an elevated temperature into the room of a woman who had no symptoms.
Inspectors concluded that Sauer had placed its residents in immediate jeopardy. They ordered the home to develop an emergency plan to fix the problems, according to their report. The nursing home appealed the ruling through the informal dispute resolution process and is still awaiting a decision, said Sara Blair, administrator of Sauer Health.
If a nursing home loses in the informal process, it can appeal to administrative law judges working for the Department of Health and Human Services. During that process, the citations are supposed to — but often don’t — appear on the Care Compare website.
These cases play out in courtrooms. But unlike most legal cases, there are no public dockets. (A spokesperson for the Department of Health and Human Services said the docket was private because filings often contain “sensitive information protected from public disclosure.”)
In April 2020, a team of state inspectors arrived at Brooke Knoll Village in Avon, Indiana. They found the home had failed to isolate residents who were suspected of having COVID-19. The state concluded that Brooke Knoll had placed residents in immediate jeopardy, according to inspection documents.
Brooke Knoll, which didn’t respond to requests for comment, lost its initial appeal through Indiana’s informal dispute process, and it is appealing the violation to the federal government. A finding of immediate jeopardy often lowers a nursing home’s star rating, but Brooke Knoll still has five stars, and the citation does not appear on Care Compare.
“How do they get away with that?” said Tammy Bowman, whose sister was a resident at Brooke Knoll and died from COVID-19.
Blum, the CMS official, didn’t say why such citations had never appeared on Care Compare. He said the agency was working to fix the problem.
AN INCOMPLETE PICTURE
On paper, Hilltop Rehabilitation in Weatherford, Texas, seems like a place where little ever goes wrong. On Medicare’s rating website, the facility has won the highest scores on its health inspections for four years straight.
What’s missing from that picture, though, is what happened to Alan Hart’s mother, Laverne.
In 2014, he placed the 87-year-old, who had dementia, at Hilltop because he was having trouble caring for her on his own. In August 2015, Laverne Hart was left alone and tumbled from her wheelchair, injuring her shoulder, according to court documents and her son.
Then, she was alone again. She wheeled herself out of unlocked doors to the parking lot, where she fell, smashing her face on the pavement. More than 30 minutes had passed before she was found, her hair matted with blood and her nose broken.
As Alan Hart sped to Hilltop, he prepared for the worst. “I thought she was dead for sure,” he said. “They didn’t supervise her at all.”
Inspectors hit the facility with an immediate jeopardy citation. The inspectors also faulted Hilltop for allowing her to fall on several occasions and for unnecessarily drugging her.
Hilltop, which didn’t respond to requests for comment, appealed the inspectors’ citation through the informal review process. The home lost. Then Hilltop appealed to the federal government. Four years later, in June 2020, an administrative law judge upheld the inspectors’ original findings.
CMS never posted the citation on the Care Compare website. Hilltop has a nearly spotless inspection record.
ASSAULT AT THE DINNER TABLE
Every year, CMS sends special teams to about 5% of nursing homes to double-check state inspectors’ work.
Studies have found that federal inspectors tend to find more serious problems than their state counterparts during these examinations. But the Medicare agency does not publish the reports of its own inspectors or factor them into homes’ star ratings.
Sun Health La Loma Care Centre in Litchfield Park, Arizona, has a five-star rating. In January 2018, a 76-year-old woman went there to recover from surgery. On her second evening there, a male resident beckoned her to his dinner table. Moments after she sat down, he pinched her breast.
When state inspectors visited Sun Health in June 2018, they said they could not substantiate the assault. Later that summer, though, federal inspectors came to a different conclusion. They found that the male resident had a history of assaulting staff.
The federal inspectors cited the nursing home for causing actual harm to residents by failing to follow its own guidance and for allowing the assault to take place.
Ken Reinstein, a spokesperson for Sun Health, said the nursing home disagrees with the federal finding and “cares very deeply about its residents and the care they receive.”
The only thing that visitors to Sun Health’s entry on Care Compare see are the minor issues identified by state inspectors. There is no trace of the serious problems uncovered by their federal counterparts.