Lobbyists for Kentucky’s nursing home industry have helped write two bills so far in the 2019 General Assembly that would place new restrictions on state inspections of nursing homes and on wrongful death and personal injury lawsuits filed against owners of the facilities.
House Bill 210, filed by House Majority Leader John “Bam” Carney, would require inspectors with the Kentucky Cabinet for Health and Family Services to let nursing home management attend their interviews with employees during inspections. Inspectors also would have to sign a newly crafted confidentiality agreement barring them — at risk of losing their jobs — from revealing information to anyone outside of the cabinet about what they witnessed during nursing home inspections.
The cabinet is reviewing Carney’s bill and is not ready to comment on it, spokesman Doug Hogan said Monday. But a national expert on nursing home regulation said the bill “raises red flags.”
Inspectors get valuable information from talking privately to employees who are willing to reveal problems like under-staffing and patient neglect, which is unlikely to happen if their boss is in the room, said Toby Edelman, senior policy attorney for the Center for Medicare Advocacy in Washington.
And inspectors sometimes feel obligated to publicly blow the whistle on serious issues they see at nursing homes that aren’t being addressed by their regulatory agencies, an act that would violate the confidentiality agreement, Edelman said.
For example, in 2016, former Kentucky nursing home inspector Tony Cisney filed a whistle-blower lawsuit against the cabinet in Jefferson Circuit Court, alleging that his superiors ordered him to soften his enforcement of health and safety violations at several facilities. Cisney’s case went to trial last fall, but he backed out of a settlement deal with the cabinet.
“To me, this bill sounds like it’s trying to restrict what the surveyors can do in uncovering problems at facilities,” Edelman said. “How is that an improvement? It’s hard enough to be a surveyor as it is. They work nights and weekends, they have to travel all over the place, the pay isn’t very good, and frankly, there is political pressure brought to bear on them by the facility owners and their friends.”
The cabinet presently permits nursing home managers to attend inspectors’ interviews with employees, but that is meant to be an “occasional” exception only allowed for employees who suffer from “extreme anxiety,” according to a cabinet newsletter sent last November to Kentucky nursing homes. And that policy is being abused by some supervisors, the cabinet warned.
“We are often told in confidence that management has required staff to ask for them to be present during interviews with surveyors, sometimes at risk of losing their jobs if they don’t comply,” wrote Sandra Houchen, director of the cabinet’s Division of Health Care, in the newsletter. “It should be noted that trying to obstruct the ability of survey staff to conduct private interviews as required by the survey process could be considered as impeding the survey process.”
The Kentucky Association of Health Care Facilities announced in its 2017 annual report that its members raised more than $170,000 in political donations for state Senate and House races, and it “successfully fought to oppose all legislation that negatively affected long-term care,” including a bill that would have cracked down on bedsores.
Carney, R-Campbellsville, said his bill originally was meant to have a much narrower focus. He wanted to allow nursing home residents diagnosed with dementia or Alzheimer’s the right to refuse an interview with state inspectors unless they could be joined by their legal representatives who held either power of attorney or health care surrogacy. That section remains in the final bill.
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Nursing home lobbyists write bills to restrict inspections, lawsuits against owners
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