New York's top nursing homes less likely to admit poor

A resident is escorted down the hall at the Elderwood at Lancaster, a five-star nursing home near Buffalo. In 2017, poor people whose bills were paid by Medicaid represented only 1 percent of the nursing home’s admissions. (Robert Kirkham/News file photo)

New York's top nursing homes admit poor people at a lower rate than the state's worst nursing homes despite regulations prohibiting discrimination.

That is especially true for one-third of the poor people who enter New York nursing homes – those whose bills are paid from Day One by Medicaid.

Across the state, these nearly 22,000 people were twice as likely to be admitted to one-star than five-star homes, The Buffalo News determined from state Department of Health data from 2017. In Western New York, they were four times more likely to be admitted to one-star homes.

The situation is better for poor people who started out with their nursing home bills paid for by Medicare, the federal program that provides health care for those over 65. Statewide, they were slightly more likely to wind up in top-rated nursing homes than in the worst.

Why would five-star nursing homes admit one group of poor people at a greater rate than the other?

Advocates and relatives contend it comes down to money. Medicaid pays nursing homes the lowest reimbursement, an average of $216 a day in Erie and Niagara counties. Medicare pays nursing homes more than double that, about $475 a day on average, according to estimates from Buffalo-area nursing home operators.

State and federal regulations prohibit nursing homes from discriminating against individuals because of their payment source, and executives at top-rated nursing homes said they do not.

Some operators of five-star nursing homes in Western New York said their Medicaid admission rates are low because most of their residents are seniors admitted for short stays to get rehabilitative services, which is usually covered by Medicare whether a resident is poor or not. None of the top-rated nursing homes that said their business model focuses on short-term rehab patients would provide statistics on their short-term and long-term admissions. The state said it does not keep that information.

Nursing homes, the executives said, look at many factors when considering admissions, including the level of care needed.

Becky DelPrince is an Erie County Medical Center vice president who oversees the hospital’s patient discharge planners. She acknowledged in an interview last December that it is difficult to place poor patients into the best nursing homes.

When asked why, DelPrince said: “They don’t give us a reason. They just don’t offer the patient a bed.”

When Medicaid pays

Across New York, top-rated five-star nursing homes actually admit more poor people on Medicaid than one-star nursing homes – a reflection of the fact that there are twice as many five-star homes as there are one-stars.

But the raw admission numbers don't tell the whole story.

At the five-star nursing homes, 7 percent of the new residents in 2017 were Medicaid admissions – poor people whose bills were paid by Medicaid from Day One. 

At the one-star nursing homes, 15 percent of the new residents were Medicaid admissions.

Executives at some of Western New York's top nursing homes said the data the state Department of Health provided to The News does not accurately reflect the poor people in their facilities.

About two-thirds of the people eligible for Medicaid admitted to nursing homes, about 36,000 individuals, were also enrolled in the Medicare program. In those cases, Medicare usually pays the nursing home bills for up to 100 days.

Those dual-enrolled individuals are not listed as Medicaid admissions even though they are poor and Medicaid-eligible, the executives said.

That's true, said Jeffrey Hammond, a spokesman for the Health Department.

But when all Medicaid-eligible people are counted – including those whose bills are initially paid by Medicare – the poor were still admitted at greater rates at one-star than five-star homes, by a small margin, according to state data. At one-star homes, 32 percent of admissions were Medicaid-eligible, compared with 27 percent at top-rated homes.

Medicaid bed ‘unavailable’

Kathleen Cattrall says that in 2012 she was told her mother would have to leave Our Lady of Peace Nursing Care Residence in Lewiston when her mother’s payment source switched from Medicare to Medicaid, which pays a lower reimbursement.

Kathleen Cattrall and her mother, Janis,
at Niagara Rehabilitation and Nursing
Center in Niagara Falls. Janis Cattrall
died in the one-star nursing home in 2015.
 (Photo courtesy of Kathleen Cattrall)

“They informed us they did not have a Medicaid bed for her. They literally told me she is going to have to leave as soon as possible,” Cattrall said. “She had been at Our Lady of Peace for rehab and we expected she would be placed in long-term care there.”

"I visited higher-ranked nursing homes pleading with administrators to find a room for mom," Cattrall said.

The only facility that would admit Janis Cattrall was the one-star Niagara Rehabilitation and Nursing Center in Niagara Falls.

Janis Cattrall, 90, who suffered from severe arthritis and dementia, died there in 2015. 

Her daughter says she now knows it is against the law for nursing homes to discriminate against Medicaid recipients.

“At the time, I didn’t know Our Lady of Peace could not kick mom out. I am shocked and I am angry that mom, first of all, had to relocate, and secondly, that she wasn’t given an equal opportunity to stay at a higher-rated nursing home,” Cattrall said.

A spokesperson for Our Lady of Peace, which is owned by Ascension Health Senior Care, declined to comment on Janis Cattrall's circumstances but said the home is committed to assisting the poor.

"As part of that mission, we continually welcome new admissions who are Medicaid and Medicaid-pending," said Molly Gaus. "Today, Our Lady of Peace currently serves 250 residents and 66 percent of those are Medicaid beneficiaries and we welcome new Medicaid admissions frequently."

In 2017, Medicaid admissions accounted for 4 percent of Our Lady of Peace's new residents.

Do the best nursing homes discriminate against poor people on Medicaid?

In New York State, 10 percent of the people admitted to nursing homes in 2017 were Medicaid admissions. But at the top five-star facilities, only 7 percent were Medicaid admissions. At the lowest-rated nursing homes, 15 percent were Medicaid admissions. Here are 2017 Medicaid admission rates at 14 Buffalo area nursing homes that were five-star homes that year. (Click to Continue)

Full Article & Source:
New York's top nursing homes less likely to admit poor

He Broke the Law to Build a Better Nursing Home

Dr. Bill Thomas, a Harvard-trained physician and a 2015 Next Avenue Influencer in Aging, has a message he’d like to share with the world: Growing older is a good thing.

A recent Washington Post story highlighted Thomas’s crusade to change attitudes about aging and encourage people to think of “post-adulthood” as a time of enrichment. “Thomas believes that Americans have bought so willingly into the idea of aging as something to be feared that it has become a self-fulfilling prophecy leading to isolation, loneliness and lack of autonomy,” the article stated.

In 1991, Thomas became the medical director of a nursing home in upstate New York. He found the place, as the Post put it, “depressing, a repository for old people whose minds and bodies seemed dull and dispirited.”

Animals in a Nursing Home

So, what did Thomas do? The Washington Post explains:

“[Dr. Thomas] decided to transform the nursing home. Based on a hunch, he persuaded his staff to stock the facility with two dogs, four cats, several hens and rabbits, and 100 parakeets, along with hundreds of plants, a vegetable and flower garden, and a day-care site for staffers’ kids.

“All those animals in a nursing home broke state law, but for Thomas and his staff, it was a revelation. Caring for the plants and animals restored residents’ spirits and autonomy; many started dressing themselves, leaving their rooms and eating again. The number of prescriptions fell to half of that of a control nursing home, particularly for drugs that treat agitation. Medication costs plummeted, and so did the death rate.

“He named the approach the Eden Alternative — based on the idea that a nursing home should be less like a hospital and more like a garden — and it was replicated in hundreds of institutions in Canada, Europe, Japan and Australia as well as in all 50 U.S. states (the animal restriction in New York was voted down).”

The Not-So-Big Approach

Thomas has also pioneered small, intimate residences that he calls Green Houses, where residents have their own bedrooms and bathrooms.

The result: “Within six weeks, they had to send a truck around to pick up all the wheelchairs,” Thomas told the Post. “You know why most people [in nursing homes] use wheelchairs? Because the buildings are so damn big.”

Full Article & Source:
He Broke the Law to Build a Better Nursing Home

Bribe-taking judge will get annual $120,000 pension

By pleading guilty to bribery-related felonies days ago, John A. Michalek did nothing to jeopardize his six-figure state pension as a former State Supreme Court Justice.

He will be paid approximately $120,500 annually through his golden years, The Buffalo News determined through payroll records and a years-of-service figure provided by the State Comptroller’s Office, which manages the state’s pension funds.

The payments could change slightly based on subtle variables that will be considered before the payments begin later this year, a spokeswoman for the comptroller’s office said after being told of The News’s calculation.

Michalek’s pension is safe, even though New York lawmakers and good-government groups have long argued that public officials should lose all or some portion of their pensions if convicted of a crime related to their official duties.

Full Article & Source:
Bribe-taking judge will get annual $120,000 pension

NYC nursing homes forcing residents into homeless shelters

Editor’s note: This article is the second in a three-part series examining how and why New York’s nursing homes too often fail to keep their residents safe. Read the first part here.

Robert Negron, 60, has been shuttled between more nursing homes than he can remember – at least six and perhaps as many as 20 – before landing in his current bed at Beth Abraham Health Services in the Bronx. The instability has been wearing on Negron, a Crohn’s disease patient who uses a wheelchair and needs regular attention for an unhealed wound on his foot and chronic skin ulcers – but it’s still better than being in a homeless shelter, he would say.

“In the shelters it's dirty, it’s nasty. You could not get enough medical attention and lose a limb,” Negron said, explaining how the unsanitary conditions at the men’s shelters on Ward’s Island, over the 10 years he occasionally stayed there,put him at risk. Although he visited a clinic for care and did the best he could to change his own bandages, “There were times when my foot was really bad,” he said. A New York City Human Resources Administration spokesman said that since Negron’s stay, “substantial improvements” have been made at that shelter.

Yet nursing homes, Negron said, have forced him into city homeless shelters three times. While there, the only thing that concerned him more than the lack of medical care were the people around him.

“They victimize you,” Negron said. “The criminals and the undesirables, they prey on the homeless disabled.” Once, he said, another man assaulted him in the shelter when he refused to hold drugs for him.

Negron’s case is an extreme one, advocates for the disabled say, but he is not alone. His experience is illustrative of a long-standing practice of nursing homes placing residents into New York City’s Department of Homeless Services shelter system. These vulnerable New Yorkers often have chronic medical conditions that have improved little, advocates say, but are moved to shelters that are poorly equipped for ailing individualsand are rife with violence.

Long-term care advocates are alarmed by a sudden spike in the number of older adults who report being forced out after having received nursing home care for many months or years. Although the city keeps no official statistics on transfers from nursing homes to shelters, advocates say there is evidence that the figures are rising.

In March, Gov. Andrew Cuomo called the city’s homeless shelter system “deplorable” and “dangerous,” citing recent news reports that show high numbers of assaults. The city has taken steps to try to address these issues, most recently opting to retrain shelter security staff in order to manage the violence.

“We are in the throes of a homelessness crisis in New York City … and we are watching people being poured into the shelters from nursing facilities,” said Susan Dooha, executive director of Center for Independence of the Disabled, New York. These often frail individuals, she said, “cannot be cared for in the shelters,” where there is no skilled nursing care and part-time clinics offer what is often the only medical aid available.

Nursing homes are required by state law to ensure all transfers are made to a safe place. For that reason, Dooha said she “cannot fathom” how nursing homes could send their residents to the city’s homeless shelters. Beyond that, Dooha said, federal protections were also being trampled.

When reached for comment, an HRA spokesman said “no one” should have been transferred from a nursing home to a shelter “if the needed medical treatment is not available at that shelter.”

“Their civil rights are being violated, in my opinion,” Dooha said, citing protections under the Americans with Disabilities Act that ensure safety and accessibility for the disabled. "I recently brought this up with people in the governor's office because I'm so concerned,” Dooha said, adding that she had also alerted the New York State Department of Health and the New York State Office for the Aging.

“People are not furniture,” Dooha said.

Nevertheless, nursing home administrators responsible for what they call “involuntary transfers” of their residents into homeless shelters tell watchdogs that there’s little they can do. If someone no longer requires a “nursing home level of care,” the logic goes, that person needs to leave. And for those with nowhere else to go, that means they go to a shelter.

“What I've heard directly from the people who were responsible for the discharge is, ‘Yes, it's unfortunate. We wish we had another option. Our hands are tied. They gotta go,’” explained Richard Danford, director of the New York City Long Term Care Ombudsman Program, a federally mandated and largely volunteer group advocating for nursing home residents.

In the past, Danford said, “You could count the number of shelter discharge complaints the ombudsman program got in a year on one hand.”

In the last four months, however, complaints are coming in at eight times the normal rate.

Since last November, the program fielded calls from 16 nursing home residents in New York City complaining that they were being transferred to homeless shelters. And while that number may appear low, Danford said, those complaints represent only a small fraction of what’s happening in the city’s nursing homes. It is likely that there are many others being sent into homeless shelters who did not call to complain, Danford said.

“These are the people who have it together enough to be able to read their notice, realize they can call us, and realize they can appeal the discharge,” Danford said.

And those calls did not originate from a single nursing home or even a few nursing homes. The calls came from 16 residents in 15 different homes, in four out of the five boroughs in New York City. In other words, Danford said, there are indications that the transfers are not only increasing in number, they’re becoming more widespread.

“We're really worried that that's the tip of an iceberg,” Danford said. “It's clearly becoming a practice. … There’s no question about it. Our biggest fear is that the number is substantially higher” than the call logs show.

After City & State requested statistics on the number of nursing home residents discharged into city homeless shelters, a spokesman for the Human Resources Administration responded that “DHS has not been systematically tracking entries from nursing homes but will be doing so in the future.”

The spokesman added, “As part of the 90 day review, we will be enhancing DHS procedures to make sure that clients are not discharged from nursing homes to DHS shelters when that is not appropriate.”

Daniel Ross, a lawyer with MFY Legal Services, which provides pro-bono civil representation for vulnerable New Yorkers, has counseled several nursing home residents threatened with a transfer into a homeless shelter.

“Most shelters are inaccessible (to the disabled) and they're unsafe,” Ross said, citing news reports describing shelter conditions. “And those two things are particularly concerning for nursing home residents who are particularly vulnerable to those conditions.”

“I don't think a homeless shelter can be an ‘appropriate discharge plan’ for long-term nursing home residents,” Ross said, referencing the plans that nursing homes must develop before removing someone from their care.

Nursing home residents can be discharged against their will for a few reasons, according to state regulations, including a determination that “the transfer or discharge is appropriate because the resident’s health has improved sufficiently.” Advocates say that this is the most common reason nursing home residents are given when they are told they are being transferred to a shelter.

Nursing homes are required to provide residents written notice 30 days before transferring them. The notice should include a care plan that shows the facility has arranged for relocation to a specific destination that is safe. Guidelines even suggest an advance visit to the destination.

But actual notices reviewed by the ombudsmen cast doubt on how – or if – nursing homes are meeting these requirements.

One recent notice, dated March 4, appeared not to give the resident 30 days notice. It noted an “Effective/Anticipated Date of Discharge” of just one week later, on March 11. It also didn’t specify where exactly the resident was going. The transfer destination, scrawled in looping handwriting, read simply: “Department of Homeless Services.”

Looking at the form, Danford wryly noted, “That’s it. Just any shelter (they) can drive him to.” In summary, he said, the notice “is not in compliance with the legal requirements.”

But on the face of it, the reason for the transfer was valid: “As per interdisciplinary team, resident has completed health goals and no longer requires skilled nursing care.”

Since nursing home medical staff can make that determination themselves, advocates believe that many residents feel helpless in the face of a transfer, so they do not challenge it.

Residents have the right to appeal to the state Department of Health, but advocates worry that few are even aware of that, because they have found that nursing homes do not always give residents that information, as required.

Ross, at MFY Legal Services, has represented residents who wanted to challenge their transfer.

In one case, a client had lived in the nursing home for years, receiving care for an array of problems. 

The man, an amputee, had an ill-fitting prosthesis that left him reliant on his wheelchair to move around. Nevertheless, his nursing home wanted to send him to a shelter.

He appealed the decision to the Health Department, which regulates nursing homes and acts as arbitrator in transfer disputes. An administrative law judge from Albany came down to New York City to preside over a hearing in a conference room at the nursing home.

Gathered around the table, each side presented their case. The nursing home’s physical therapist argued the man did not need to be a resident any longer. Ross argued the man needed further care.

The judge ruled in the nursing home’s favor and approved the man’s transfer into a homeless shelter. Ross said he has not heard from his client since then and did not know where he was.

“If a nursing home wants to do this,” Ross said, “it's not that challenging.”

Ross explained that a core problem is that the Health Department has decided that homeless shelters can be an “appropriate” place for long-term nursing home residents. “I think we just disagree with the Department of Health about what ‘appropriate’ is,” Ross said.

The Department of Health’s in-house administrative law judges have approved discharges to shelters “in certain instances,” a spokesman acknowledged, “particularly where an individual was homeless prior to being admitted to a nursing home for short-term skilled nursing care and have no other housing options.” The department did not respond to requests for statistics on how often these hearings occur.

The department spokesman also stressed the responsibility of nursing homes to “establish that the discharge is safe and appropriate for the person’s clinical needs.”

Michael Balboni, executive director of the Greater New York Health Care Facilities Association, which represents for-profit nursing homes in the New York City area, agreed with the Health Department on that point, stressing the need for nursing homes to follow state regulations.

But Balboni said there are pressures from state-implemented federal programs, aimed at reducing health care costs, that incentivize nursing homes to push out patients who don’t require skilled nursing care – particularly the Delivery System Reform Incentive Payment Program and managed care.

Richard Herrick, president and CEO of the New York State Health Facilities Association, which represents a variety of long-term care facilities, echoed that sentiment, agreeing that nursing homes were under pressure to discharge patients. The state Health Department, he said, is “always very strict about warning us about the inappropriate placement of patients in nursing homes – ‘inappropriate’ means that they don't meet skilled (nursing) needs.”

A spokesperson for LeadingAge New York, an organization that represents the state’s nonprofit nursing homes, further explained that discharging a nursing home resident to a shelter may allow that person to access public assistance benefits they would be unable to receive while living in nursing home care.

That reasoning sounds familiar to Negron.

He recalled a social worker telling him before he was transferred into shelter, “All we can do is send you to a shelter, but you won't be there long. They'll help you get out.”

“But that's a crock, man,” Negron said. “They don't give anyone with a wheelchair housing. All you're doing is waiting to be shipped off to another nursing home.”

“Between the shelter and the nursing home, there is a revolving door,” Negron said of his experience. “It’s a vicious game.”

Whatever the rationale, advocates say long-term nursing home residents like Negron should not be placed in the city’s shelter system.

The ombudsman’s office has a catalog of stories about such long-term patients that it believes should never have been removed from nursing care. In one such instance last summer, a man who had been transferred out of a nursing home into a homeless shelter immediately walked himself to the nearest hospital emergency room and was admitted for inpatient medical care.

As the number of complaints go up, Danford’s office expects to have more stories to tell.

“There’s definitely been an increase, there’s no doubt about it,” Danford said. “Something’s going on and someone needs to figure out what it is.”

Balboni agrees.

“The Department of Health, the state Senate, the state Assembly should hold joint hearings on this. They should find out what's going on,” Balboni said. “But more importantly: How do you stop it?”

For now, Negron holds out hope that the current care he’s receiving at Beth Abraham will allow him to recuperate enough to find his own place someday. And perhaps, he said, sharing his story will help others, too.

“Maybe if there's enough exposure,” he said. “Maybe someone will say we need to do more for those people.”

You can view an example of a nursing home discharge/transfer notice below. 

Nursing Home Notice of Discharge or Transfer

Full Article & Source:
NYC nursing homes forcing residents into homeless shelters

Marriage Concerns Insufficient To Warrant Guardianship

A family’s concerns about a 29-year-old man with Down syndrome wanting to marry are not sufficient reason to place him under guardianship, a judge has determined.

The mother and brother of a man known as D.D. in court papers sought to become his legal guardians in a Brooklyn, N.Y. court. Central to the petition, however, was D.D.’s desire to marry his girlfriend, Janice. He told the court that he is saving for an engagement ring.

D.D.’s mother adamantly opposes such a union, testifying that “Janice is too pushy.” The mother, referred to as Ms. D. in court documents, said that she worried a marriage would lead to a child with Down syndrome who the couple would be unable to care for.

While in court, D.D. stated that he wanted a guardian, but when interviewed away from his family members, he indicated otherwise.

In her decision, Surrogate’s Court Judge Margarita López Torres said she found no evidence that D.D. could not make medical or financial decisions and found that his desire to marry alone is no reason to impose guardianship.

“D.D. desires to choose whom he loves, to marry, to establish a home, and, perhaps, to bring up children some day; these are choices central to his personal dignity and autonomy and his pursuit of happiness, and they are his to make,” López Torres wrote in her decision.

“There is no doubt that the petitioners deeply love and are devoted to D.D. and are motivated by what they believe is in his best interest,” López Torres continued. “However, the standard here is not whether the petitioners can make better decisions than D.D., it is whether or not D.D. has the capacity to make decisions for himself with the support that he abundantly has.”

Full Article & Source:
Marriage Concerns Insufficient To Warrant Guardianship

HIPAA’s Use as Code of Silence Often Misinterprets the Law

How do people use, misuse or abuse Hipaa, the federal regulations protecting patients’ confidential health information? Let us count the ways:

 ■ Last month, in a continuing care retirement community in Ithaca, N.Y., Helen Wyvill, 72, noticed that a friend hadn’t shown up for their regular swim. She wasn’t in her apartment, either.

Had she gone to a hospital? Could friends visit or call? Was anyone taking care of the dog?

Questions to the staff brought a familiar nonresponse: Nobody could provide any information because of Hipaa.

“The administration says they have to abide by the law, blah, blah,” Ms. Wyvill said. “They won’t even tell you if somebody has died.”

■ Years ago, Patricia Gross, then 56, and a close friend had taken refuge in a cafe at Brigham and Women’s Hospital in Boston, where Ms. Gross’s husband was dying of cancer. She was lamenting his inadequately treated pain and her own distress when a woman seated at a nearby table walked over.

“She told me how very improper it was to be discussing the details of a patient’s treatment in public and that it was a Hipaa violation,” Ms. Gross recalled.

■ In 2012, Ericka Gray repeatedly phoned the emergency room at York Hospital in York, Pa., where her 85-year-old mother had gone after days of back pain, to alert the staff to her medical history. 

“They refused to take the information, citing Hipaa,” said Ms. Gray, who was in Chicago on a business trip.

“I’m not trying to get any information. I’m trying to give you information,” Ms. Gray told them, adding that because her mother’s memory was impaired, she couldn’t supply the crucial facts, like medication allergies.

By the time Ms. Gray found a nurse willing to listen, hours later, her mother had already been prescribed a drug she was allergic to. Fortunately, the staff hadn’t administered it yet.

Each scenario, attorneys say, involves a misinterpretation of the privacy rules created under the Health Insurance Portability and Accountability Act. “It’s become an all-purpose excuse for things people don’t want to talk about,” said Carol Levine, director of the United Hospital Fund’s Families and Health Care Project, which has published a Hipaa guide for family caregivers.

Intended to keep personal health information private, the law does not prohibit health care providers from sharing information with family, friends or caregivers unless the patient specifically objects. Even if she is not present or is incapacitated, providers may use “professional judgment” to disclose pertinent information to a relative or friend if it’s “in the best interests of the individual.”

Hipaa applies only to health care providers, health insurers, clearinghouses that manage and store health data, and their business associates. Yet when I last wrote about this topic, a California reader commented that she’d heard a minister explain that the names of ailing parishioners could no longer appear in the church bulletin because of Hipaa.

Wrong. Neither a church nor a distraught spouse is a “covered entity” under the law.

Last month, Representative Doris Matsui, Democrat of California and co-chairwoman of the Democratic Caucus Seniors Task Force, who has heard similar complaints from constituents, introduced legislation to clarify who can divulge what and under what circumstances. The proposed bill would require the Department of Health and Human Services, which last year issued new Hipaa “guidance,” to make that statement part of its regulations and to create model training programs for providers and administrators, patients and families.

“A lot of times it’s just misunderstanding what is and isn’t allowed under Hipaa,” Representative Matsui said in an interview.

So, what is and isn’t?

Family members can provide information, as Ms. Gray attempted to do. “How does keeping information confidential stop you from listening to someone?” said Eric Carlson, the directing attorney for Justice in Aging, a legal advocacy group in California. “There’s no Hipaa privacy consideration there.”  (Continue Reading)

Full Article & Source:
Hipaa’s Use as Code of Silence Often Misinterprets the Law