Watchdog: Thousands of cases of abuse and neglect in nursing facilities unreported despite federal rules

Health and Human Services Office of Inspector General Deputy Inspector General for Audit Services Gloria Jarmon poses for a photograph in her office in Washington, Monday, June 10, 2019. Nursing facilities have failed to report thousands of serious cases of potential neglect and abuse of Medicare beneficiaries even though the federal government requires it, says a watchdog report due out Wednesday, June 12, that calls for a new focus on protecting frail patients.  ANDREW HARNIK, ASSOCIATED PRESS

WASHINGTON — Nursing facilities have failed to report thousands of serious cases of potential neglect and abuse of seniors on Medicare even though it's a federal requirement for them to do so, according to a watchdog report released Wednesday that calls for a new focus on protecting frail patients.

Auditors with the Health and Human Services inspector general's office drilled down on episodes serious enough that the patient was taken straight from a nursing facility to a hospital emergency room. Scouring Medicare billing records, they estimated that in 2016 about 6,600 cases reflected potential neglect or abuse that was not reported as required. Nearly 6,200 patients were affected.

"Mandatory reporting is not always happening, and beneficiaries deserve to be better protected," said Gloria Jarmon, head of the inspector general's audit division.

Overall, unreported cases worked out to 18% of about 37,600 episodes in which a Medicare beneficiary was taken to the emergency room from a nursing facility in circumstances that raised red flags.

Responding to the report, Administrator Seema Verma said the Centers for Medicare and Medicaid Services does not tolerate abuse and mistreatment and slaps significant fines on nursing homes that fail to report cases.

Verma said the agency, known as CMS, is already moving to improve supervision of nursing homes in critical areas such as abuse and neglect and care for patients with dementia.

CMS officially agreed with the inspector general's recommendations, including clearer guidance to nursing facilities about what kinds of episodes must be reported, improved training for facility staff, and requirements that state nursing home inspectors record and track possible problems as well as incidents reported to law enforcement.

Neglect and abuse of elderly patients can be difficult to uncover. Investigators say many cases are not reported because vulnerable older people may be afraid to tell even friends and relatives much less the authorities. In some cases, neglect and abuse can be masked by medical conditions.

The report cited the example of a 65-year-old woman who arrived at the emergency room in critical condition. She was struggling to breathe, suffering from kidney failure and in a state of delirium. The patient turned out to have opioid poisoning, due to an error at the nursing facility. The report said a nurse made a mistake copying doctor's orders, and the patient was getting much bigger doses of pain medication as a result. The woman was treated and sent back to the same nursing facility. The nurse got remedial training, but the facility did not report what happened. The report called it an example of neglect that should have been reported.

The American Health Care Association, which represents the nursing home industry, said in a statement from its vice president for quality, David Gifford, that it would "fully support more transparent reporting." The group said Medicare's current definition of neglect "is vague and creates confusion about what should be reported."

The nursing facilities covered by the report provide skilled nursing and therapy services to Medicare patients recovering from surgeries or hospitalization. Many facilities play a dual role, combining a rehabilitation wing with long-term care nursing home beds.

Investigators said they faced a challenge scoping out the extent of unreported cases. It wasn't like they could query a database and get a number, since they were looking for cases that weren't being reported to state nursing home inspectors.

To get their estimate, auditors put together a list of Medicare billing codes that previous investigations had linked to potential neglect and abuse. Common problems were not on the list. Instead it included red flags such as fractures, head injuries, foreign objects swallowed by patients, gangrene and shock.

The investigators found a total of 37,600 records representing 34,800 patients. Auditors then pulled a sample of cases and asked state inspectors to tell them which ones should have been reported. Based on the expert judgment of state inspectors, federal auditors came up with their estimate of 6,600 unreported cases of potential neglect and abuse.

Medicare did not challenge the estimates but instead said that billing data comes with a built-in time lag and may not be useful for spotting problems in real time.

Separately, the report also flagged potential problems with state nursing home inspectors reporting documented cases of abuse or neglect to local law enforcement. Federal auditors pulled a sample of 69 cases across five states in which inspectors verified that nursing facility patients suffered neglect or abuse. Only two were reported to local law enforcement, although reporting is required.

In one case, a male resident was sitting in the facility's dining room when an employee walked by and pushed the back of his head, then kept walking. The employee denied it, but his actions were captured on surveillance video. The report said state inspectors verified what happened but did not report it to local law enforcement.

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Watchdog: Thousands of cases of abuse and neglect in nursing facilities unreported despite federal rules

New rules give nursing home residents more power

WASHINGTON — About 1.4 million people living in nursing homes across the country can now be more involved in their care under the most wide-ranging revision of federal rules for such facilities in 25 years.

The changes reflect a shift toward more ‘‘person-centered care,’’ including requirements for speedy development of care plans, more flexibility and variety in meals and snacks, greater review of a resident’s drug regimen, better security, improved grievance procedures, and scrutiny of involuntary discharges.

‘‘With proper implementation and enforcement, this could really transform a resident’s experience of a nursing home,’’ said Robyn Grant, director of public policy and advocacy for the Consumer Voice, a national group that advocates for residents’ rights.

The federal Medicare and Medicaid programs pay for most of the nation’s nursing home care — roughly $75 billion in 2014 — and in return, facilities must comply with government rules. The new regulations, proposed last year by Health and Human Services Secretary Sylvia Mathews Burwell, take effect in three phases. The first kicked in late last month.

They allow residents and their families ‘‘to be much more engaged in the design of their care plan and the design of their discharge plans,’’ said David Gifford, a senior vice president at the American Health Care Association, which represents nearly 12,000 long-term-care facilities.

Grant goes even farther, saying the new approach puts ‘‘the consumer in the driver’s seat.’’ Until now, she noted, a person’s care has too often been decided only by the nursing home staff. ‘‘And if the resident is lucky, he or she is informed about what that care will entail, what will specifically be done, and who will do it.’’

One controversial measure prohibits nursing homes from requiring residents to agree in advance that any disputes will be settled through a privately run arbitration process instead of the court system.

The industry association has objected, contending that Medicare officials have authority only to regulate matters related to residents’ health and safety and that an individual’s right to use arbitration cannot be restricted. The ban is on hold until an association lawsuit, to force the government to drop the provision, is decided.

Health and Human Services reviewed nearly 10,000 comments on its draft proposal before finalizing changes. Here are highlights of the requirements now in effect:

■ Making the nursing home feel more like home: The regulations say that residents are entitled to ‘‘alternative meals and snacks . . . at non-traditional times or outside of scheduled meal times.’’ Residents can also choose their roommates, which may lead to siblings or same-sex couples being together. And a resident also has ‘‘a right to receive visitors of his or her choosing at the time of his or her choosing,’’ as long as it doesn’t impose on another resident’s rights.

■ Bolstering grievance procedures: Nursing homes must now appoint an official who will handle complaints and follow a strengthened grievance process. Decisions must be in writing.

■ Challenging discharges: Residents can no longer be discharged while appealing the discharge. They cannot be discharged for nonpayment if they have applied for Medicaid or other insurance, are waiting for a payment decision, or are appealing a claim denial.

If a nursing home refuses to accept a resident who wants to return from a hospital stay, the resident can appeal the decision. Also, residents who enter the hospital have a right to return to their same room, if it is available.

A state’s long-term-care ombudsman must now get copies of any involuntary discharges so the situation can be reviewed as soon as possible.

■ Expanding protection from abuse: The definition of abuse now includes financial exploitation. Nursing homes are prohibited from hiring any licensed professional who has received a disciplinary action because of abuse, neglect, mistreatment or financial exploitation of residents.

■ Ensuring a qualified staff: Consumer groups had urged federal officials to set minimum staffing levels for registered nurses and nursing staff, but the industry had opposed any mandates and none was included in the final rule. Instead, facilities must have enough skilled and competent staff to meet residents’ needs. There are specific training requirements for caring for residents with dementia and for preventing elder abuse.

‘‘Competency and staffing levels are not mutually exclusive,’’ said Toby Edelman, a senior policy attorney at the Center for Medicare Advocacy. Person-centered care and other improvements ‘‘don’t mean anything if you don’t have the staff who know the residents . . . and can figure out why Mrs. Smith is screaming.’’

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New rules give nursing home residents more power

Suing A Nursing Home Could Get Easier Under Proposed Federal Rules

As Dean Cole's dementia worsened, he began wandering at night. He'd even forgotten how to drink water. His wife, Virginia, could no longer manage him at home. So after much agonizing, his family checked him into a Minnesota nursing home.

"Within a little over two weeks he'd lost 20 pounds and went into a coma," says Mark Kosieradzki, who was the Cole family's attorney. Dean Cole was rushed to the hospital, says Kosieradzki, "and what was discovered was that he'd become totally dehydrated. They did get his fluid level up, but he was never, ever able to recover from it and died within the month."

Kosieradzki says that Virginia Cole had signed a stack of papers when her husband was admitted to the nursing home. As is often the case, one of the forms was a binding agreement to go to arbitration if she ever had a claim against the facility. So instead of taking the nursing home to court, her claim for wrongful death was heard by three private arbitrators. They charge for their services.

"The arbitration bill for the judges was $60,750. That was split in half between the two parties," says Kosieradzki.

Virginia Cole won her claim, but after paying the arbitrators, expert witnesses and attorney's fees, she was left with less than $20,000.

The federal government is now considering safeguards that would regulate the way nursing homes present arbitration agreements when residents are admitted.

But more than 50 labor, legal, medical and consumer organizations have told the government that's not enough. They want these pre-dispute arbitration agreements banned entirely. Thirty-four U.S. senators and attorneys general from 15 states and the District of Columbia also have called for banning the agreements.

"No one should be forced to accept denial of justice as a price for the care their loved ones deserve," says Henry Waxman, a former congressman from California. Arbitration agreements keep the neglect and abuse of nursing home residents secret, Waxman says, because the cases aren't tried in open court and resolutions sometimes have gag rules.

"None of the systemic health and safety problems that cause the harm will ever see the light of day," he says.

The proposed federal regulation would require nursing homes to explain these arbitration agreements so that residents or their families understand what they're signing. It would also make sure that agreeing to arbitration is not a requirement for nursing home admission.

The American Health Care Association, which represents most nursing homes, is against this proposed change in the rules. Clifton Porter II, the AHCA's senior vice president for government relations, says that's because "they're prescribing us to do things that we, frankly, already do." Porter acknowledges, however, that practices vary from facility to facility, depending on state law.


Arbitration agreements, he says, are common throughout the health care industry — in hospitals, surgery centers and doctors' offices. "Why aren't rules being promulgated to eliminate arbitration in those settings?" he asks.

In any case, Porter says arbitration is more efficient for both sides than going to court would be.

"It actually allows consumers to get an expedited award," he says. "And you have the benefit of not having to use the courts and go through the entire process."

But that expedited award is about 35 percent lower than if the plaintiff had gone to court. That's one conclusion of a study commissioned by Porter's organization in 2009.

If the federal government does regulate or ban the signing of arbitration agreements for new nursing home residents, Porter says the American Health Care Association will probably fight the move in court.

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Suing A Nursing Home Could Get Easier Under Proposed Federal Rules