Wanda Delaplane, former
Kentucky assistant attorney general, recounts the story of how she lost
her father to nursing home neglect in 2006 and how she now advocates for
safety in nursing homes.
By Marcus Dorsey
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.”
Rep. John “Bam” Carney
In an interview Monday, Carney said the language in question in his bill was crafted for him by the Kentucky Association of Health Care Facilities, the state’s nursing home lobbying group and one of Frankfort’s larger campaign donors.
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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Two of the
state’s most powerful nursing home lobbyists flanked Sen. Karin
Housley, R-St. Mary’s Point, last week at a Senate committee hearing as
she made her case for a package of reforms intended to protect Minnesota
seniors from abuse.
Every few
minutes, one of the pair stepped to the microphone and launched into a
monologue on the strain that each proposal might inflict on nursing
homes. And as the hours wore on, the focus of the hearing gradually
shifted from preventing elder abuse to the way that new regulation could
cripple hundreds of senior care facilities across the state.
The scene
exemplified the pervasive influence that Minnesota’s nursing home
industry exerts at the Legislature, where deep pockets and an army of
lobbyists have given it a long-standing reputation for getting what it
wants.
Yet that
influence could face a pivotal test this year: Public alarm over a surge
in maltreatment allegations and a scathing report by the state’s
Legislative Auditor have prompted wide-ranging proposals to expand
government oversight of nearly 2,000 senior care facilities.
By last
week, industry leaders had embraced much of a bill by Housley, who is
chairwoman of the Senate Aging Committee, but they were pushing back
against wider reforms, and their voice was being heard.
The senior
care industry’s two largest trade groups — Care Providers of Minnesota
and LeadingAge Minnesota — spent nearly $1 million on lobbying in 2016
and 2017, an increase of 56 percent from the previous two years and the
largest outlay by the groups on record, according to new data from the
state Campaign Finance and Public Disclosure Board.
The
groups, which together have nearly two dozen registered lobbyists, have
also increased their presence at the Capitol, blitzing lawmakers with
information as debate intensifies over how to fix the state’s deeply
flawed system for protecting seniors from maltreatment.
Industry
leaders take a different view. Costly new regulations could hurt, not
help, dozens of nursing homes that already struggle to recruit enough
workers and pay them adequately, they argue.
“Right
now, this is still an industry that is in distress,” said Patti Cullen,
president and chief executive of Care Providers, which represents nearly
900 senior care organizations across the state.
Buying time
The 2018 Legislature is shaping up to be a pivotal session for the industry.
A five-part series
published by the Star Tribune last November documented that hundreds of
incidents of serious abuse — including beatings, sexual assaults and
thefts — were going uninvestigated each year by the agency charged with
protecting the elderly in senior homes. The findings were affirmed by
the state Legislative Auditor, which concluded in a report released this month that the Health Department had failed to fulfill its responsibilities to protect vulnerable seniors.
As a
result, Gov. Mark Dayton and several prominent lawmakers have proposed
measures that would increase oversight of the lightly regulated
assisted-living industry, toughen up penalties for abusers, and
establish stronger protections for the roughly 82,000 residents of
senior care homes across the state.
Industry
representatives argue that a bevy of new rules and regulations could
force some struggling nursing homes out of business, and might have a
“chilling effect” on recruitment of new staff amid a statewide shortage
of caregivers.
Many
nursing homes in Minnesota are barely breaking even or have negative
operating margins, and many are having to pay $2,000 cash bonuses to
recruit staff, Cullen said. All told, 81 nursing homes have shut their
doors since 2000, including a dozen facilities in just the past three
years, according to industry data.
“We are
concerned that, by only focusing on the isolated incidents [of abuse] …
as tragic as those incidents are, it’s a real chilling effect, both on
keeping our great caregivers as well as recruiting new people in this
profession,” Cullen said in Senate testimony last month.
But those
pushing for reforms, including senior advocacy groups like Minnesota
AARP, have objected to what they consider the industry’s casual response
to a five-year surge in complaints of abuse and neglect at care
facilities.
Minnesota
Sen. Karin Housley, center, is flanked by senior care lobbyists Toby
Pearson, left, with Care Providers of Minnesota, and Kari Thurlow with
LeadingAge Minnesota, at a recent Senate committee hearing on elder
abuse legislation.
They point to a video posted on the Care Providers website,
encouraging members to donate to the industry group’s political action
committee, CARE-PAC. In the video, lobbyists can be seen waving cash
while singing a parody of the song “Do-Re-Mi.” “Dough, the stuff that
buys us time!” the lobbyist sings while waving $20 bills. “Far, a long,
long way dough goes!”
To elder care advocates, the video epitomizes what they see as an imbalance of power between the industry and elder residents.
“We are pushing hard for reform, but they have resources that we don’t,” said Kristine Sundberg, president of Elder Voice Family Advocates, a volunteer coalition of family members of abuse victims.
But lawmakers say the industry’s influence stems more from its relationships than its money.
The
industry has deep roots in many rural areas where Republicans, who
control both chambers of the Legislature, are counting on strong support
in this fall’s election. In many small towns, nursing homes are among
the largest employers and a source of peace of mind for families with
aging relatives.
Almost
every legislator from greater Minnesota is on a first-name basis with at
least one nursing home manager or owner, said Sen. Jim Abeler, R-Anoka,
chairman of the Senate Human Services Finance and Policy Committee.
Some even have relatives who work in the facilities and have experienced
firsthand the difficulties with recruiting staff, he said.
“Their
halo is a little tarnished” from the increase in abuse reports, Abeler
said. “But the typical [senior] care facility truly is a treasured
institution in the community. They command respect.”
Hidden cameras
Industry lobbyists also have a track record of getting things done.
With its
strong ties to legislators in both parties, the industry in 2015 won an
overhaul of the system by which they are reimbursed through Medicaid.
For the first time, their compensation would grow automatically with the
costs and quality of care. The monumental change is forecast to
generate more than $360 million in increased Medicaid payments to
nursing facilities through 2019, while eliminating the need for
perennial pleas for rate increases.
Even
seemingly modest changes are often challenged by the senior care
lobbyists, who have a history of showing up for every legislative
hearing and task force meeting, said Iris Freeman, a board member of the
Minnesota Elder Justice Center
and a former public policy director for the Alzheimer’s Association,
Minnesota-Dakotas chapter. For years, she said, advocates struggled to
get the industry to embrace basic training standards for dementia care.
“A modest proposal can sometimes take much longer than you expect,” Freeman said.
In 2016,
industry groups pushed back on legislation allowing families to monitor
the care of their loved ones with electronic recording devices, without
fear of retribution. The legislation came on the heels of
well-publicized cases in which hidden-camera footage corroborated
reports of abuse and neglect at Twin Cities-area nursing homes. Instead
of passing a bill, however, lawmakers created a 17-member work group
that produced a lengthy report last year but did not recommend any changes to state law.
For now,
the industry has embraced some incremental changes, such as tougher
criminal penalties and better information sharing with families of abuse
victims. At the same time, they have resisted broader reforms,
including a proposal to establish a licensing framework for the state’s
fast-growing assisted-living industry, which operates under less
scrutiny than traditional nursing homes.
“Sometimes,
there is a lack of urgency … they seem to forget that people’s lives
are at stake,” said Sen. John Hoffman, DFL-Champlin, a member of the
Senate Aging and Long-Term Care Policy Committee.
At a
Senate hearing last week, after hours of testimony from Housley and
industry lobbyists, senior care advocates made it clear they are not
giving up on their campaign to create basic standards of care for
assisted-living and stronger consumer protections, including a “private
right of action” for lawsuits when vulnerable seniors are abused.
“We had a
list [of reforms] that was a mile long because the system was that
broken,” said Mary Jo George, associate state director of advocacy at
Minnesota AARP, in testimony. “We are going to continue to push.”
