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Two Deaths, Wildly Different Penalties: The Big Disparities in Nursing Home Oversight

ProPublica’s updated Nursing Home Inspect tool shows that government fails to ensure consistent penalties for nursing homes in different states.

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(iStock Photo)

To see the federal government’s inconsistent oversight of nursing homes, one needs only to look at what happened after two residents died — one in Texas, one in South Carolina.

At a nursing home in the East Texas town of Hughes Springs earlier this year, a resident approached the nurses’ station gagging on a cookie. Attempts to clear his airway failed, and he died. Government inspectors determined that staff at the home were not trained for emergencies and did not immediately call 911.

Months earlier, in North Augusta, S.C., a resident pulled out her breathing tube and died. Inspectors faulted the home for failing to take appropriate steps to keep the resident from harming herself, even though she had pulled out the tube multiple times in the two months before she died.

In each state, inspectors working on behalf of the U.S. Centers for Medicare and Medicaid Services cited the homes for their failure to operate “in an acceptable way that maintains the well-being of each resident.” Both homes posed an “immediate jeopardy” to residents’ health and safety, inspectors determined.

But the consequences were starkly different.

In the Texas case, at the recommendation of state officials, CMS imposed a fine against The Springs nursing home of $9,500. In the other, acting at the suggestion of South Carolina officials, CMS required Unihealth Post-Acute Care-North Augusta to pay a fine of $305,370.

These disparities aren’t unusual, it turns out. But they are now much easier to spot using ProPublica’s expanded Nursing Home Inspect tool. We’ve mapped the differences among states in finding serious violations and parceling out fines. Here's more on how to use our updated tool.

The results support what auditors and researchers have maintained for years: Federal fines vary widely by state. Homes in some states pay a steep price for misconduct while those in neighboring states don’t. See our state-by-state breakdown here.

The average fine paid by a South Carolina nursing home in the past three years was $40,507. The average fine in Texas: $6,933.

A Balkanized System

CMS pays states to inspect nursing homes on its behalf. It gives states guidelines on when and how to impose penalties, and states recommend actions to CMS regional offices.

Those regional offices must approve sanctions before they are imposed, but CMS almost always accepts the states’ recommendations. The federal government and states share the fine money.

Despite its authority, some experts say, the federal government has not done enough to standardize punishments.

“The enforcement system is broken,” said Charlene Harrington, a nursing home expert and emeritus professor of nursing at the University of California, San Francisco. “If you don’t go after these really bad violations and try to force these nursing homes to improve quality, they’re going to continue to cause harm and jeopardy.”

Harrington was the lead author of a 2008 study that found enforcement disparities and encouraged the government to “re-examine” the system of imposing fines, called civil monetary penalties (CMPs) in bureaucratic parlance.

Federal officials acknowledged inconsistencies identified by ProPublica and said they are working to reduce them. Years ago, CMS came up with guidelines to advise states and its own regional offices on when and how much to fine homes.

But the guidelines give them wide latitude. States can choose penalties either by incident, capped at $10,000, or on a per-day basis, which can quickly add up to a much higher number.

Beginning next year, CMS will test a new program that provides more specific guidance.  “Our new tool reduces that latitude by a fair degree,” said Alice Bonner, director of CMS’ division of nursing homes.

Bonner said some flexibility is warranted because not every situation is the same. Factors affecting the size of a fine could include a home’s past record of deficiencies, the speed with which it corrects problems and whether too large a penalty could force a facility to close, a hardship on residents, she said.

Some states also have the authority to impose fines against homes under state law, but CMS does not centrally collect and report them.

Tim Thornton, administrator at The Springs in Texas, said his nursing home has retrained staff since the resident choked on a cookie and died.

“With this specific case, the nurse on duty showed a lack of leadership ... There was kind of a breakdown and maybe a little panic in the situation, and the nurse took it all upon herself and didn’t ask for assistance from the others.”

The $9,500 fine against the home is not yet listed on the CMS website because it has not been paid, officials said.

Calls to Unihealth-North Augusta were referred to the home’s parent company, UHS-Pruitt Corp. in Norcross, Ga. Spokesman Nick Williams declined to comment.

Unihealth-North Augusta has received more federal fines than any other home in the nation, $736,580, in the past three years, according to government data. Another of the chain’s homes, in North Carolina, was fined $372,970 during the same period.

Fines vs. Deficiencies, a Disconnect

To demonstrate variation in enforcement, ProPublica mapped states based on their average fine, the number of serious deficiencies per home, and on how often they penalized homes with payment suspensions for new admissions – another form of sanction that is less common than fines.

Officials in several states — those with high fines and low ones — said they had not compared themselves to others and were unaware where they stood. The officials said that if CMS wanted to raise or lower their recommended penalties, it has the authority to do so.

Texas has the second highest number of nursing homes in the nation, behind only California. While it had the most serious deficiencies of any state and imposed more payment suspensions, its average fine placed it near the middle.

Cecilia Cavuto, a spokeswoman for Texas’ Department of Aging and Disability Services, defended the state’s approach.

Texas chooses its actions based on “the nature of the deficiencies identified, prior success or failure of previous remedies, and staff’s professional judgment regarding what remedy might best encourage a facility to come back into compliance with Medicare/Medicaid requirements,” she wrote in a statement.

A South Carolina spokesman said the state simply follows federal guidelines in issuing fines and that “there has been no change in the philosophy for enforcement.”

Michigan has 426 nursing homes, the 11th highest in the nation. Yet, over the past three years, Michigan homes paid more fines than any other state, nearly $10 million, and regulators meted out 175 payment suspensions, second only to Texas.

Officials at the Health Care Association of Michigan, the nursing home trade group, said the figures show that Michigan regulators have been unreasonably harsh.

“We just don’t have any indication that we’re performing worse than other states” in terms of the number of problems cited by inspectors, said David LaLumia, the association’s president and CEO. “The latitude that states have to impose civil monetary penalties is very subjective.”

Kimberly Gaedeke, assistant deputy director for Michigan’s Department of Licensing and Regulatory Affairs, defended the state’s use of penalties. She said the state has seen an increase in the number of serious deficiencies. Like other states, she noted, the final decision ultimately rests with CMS.

In a written statement, Graedeke said the state is re-examining its penalty system to make “positive changes” so that penalties don’t impede a home’s ability to provide quality care for residents.

Are States Too Soft?

Advocates for nursing home residents said they do not accept the argument that some states are being too tough. If anything, they said, many states are going too easy on homes.

“This is not an easy issue to deal with,” said Richard Mollot, executive director of the Long Term Care Community Coalition in New York City. “The states themselves are subject to a lot of political pressure (from nursing homes). They have not been subject to a lot of pressure from CMS to do a good job.”

CMS officials asked Minnesota to “step up our fines” a couple of years ago, Darcy Miner, director of the health department’s Compliance Monitoring Division, wrote in an email. The state’s average fine of $2,147 is one of the lowest in the nation.

“I would have to say that I haven’t seen CMS modifying most of our recommendations, so I have assumed that we are within the appropriate range,” she wrote. Since CMS asked the state to increase its fines, it has tried to do so, she wrote.

Brian Lee, executive director of Families for Better Care in Florida, said residents and their families should care about how well the government oversees the quality of care in nursing homes.

“This is affecting all of us. It’s affecting our families,” Lee said. “We’re relying upon the regulators to ensure safety and quality care for our parents and grandparents.”

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Jennifer LaFleur, ProPublica’s director of computer-assisted reporting, contributed to this report.

The event should be related to the overall condition of the resident and whether or not the resident has signed a “do not rescusitate” order otherwise if that is not discussed in relation to the event, then every patient is treated the same, pounding on the chest to give CPR is really not appropriate in many cases and is very likely to cause nothing but a large amount of pain - while the frail person breaks ribs and has a very low chance of revival. The life in a nursing home must be considered by the individuals not by only regulations. Life is too institutional already there.

Patricia Hunter

Dec. 17, 2012, 8:41 p.m.

Although the point of the article is the disparity in licensing enforcement… the subject of Code/NO Code and specifically POLST and advance directives in the two case investigations, would be helpful in understanding the enforcements.  If in one case the resident was on hospice, signed a POLST form and expressed that she did not wish to receive CPR…then the enforcement action should match the resident’s last wishes. 

If in the case of the man who was choking on the cookie, he was a “no code” ...did the caregivers make a mistake in not calling 911?  One would want to know the policy of the facility and if the caregivers followed the policy as well as the resident’s advanced directives or POLST form.

Mary Caulfield

Dec. 17, 2012, 9:18 p.m.

As a professional writer and nurse I fault you for trying to reduce “care” to a bunch of numbers. Such a mindset turns true care into technical treatment. The more people blame the caregivers for what you judge as outrageous incidents of poor performance the fewer good people will go into the caregiving fields. During my nurse’s training I was astonished and saddened to learn how much time our instructors spent teaching us how to protect our selves and our licenses from attack by lawyers and journalists. I was in the top of my class but decided to go into private practice simply to avoid the enormous burden of avoiding prosecution. I quit corporate life because it was 90% organizational overhead and office politics, a sickening soup of meaningless waste.

Mary, are you recommending covering up problems in hopes of somehow driving away the bad caregivers instead of the good ones?

I mean, really, understand that I’m in software, a field where you never hear from anybody unless you’ve screwed up.  I’m not complaining about that, just pointing out where I’m coming from.  The way our industry solves the problem of “evil journalists” pointing out our flaws is by getting rid of the people who screw up.  We don’t waste time wringing our hands over political damage control when we could be improving things.

Why is medicine so averse to making itself better?  Did we solve all the outstanding problems when I wasn’t looking?

CMS is an organization that I find difficult to respect. First off, “CMS” supposedly stands for “Centers for Medicaid and Medicare Services”. Now any second grader would ask “Which M doesn’t count?  Medicaid or Medicare?”. How can a regulatory body which doesn’t even know how many letters it should have in its abreviation be respected. Maybe if they start calling themselves “CMMS” we can start to listen. If I was fined by them I would insist on writing the check to CMMS.

Finally, the story lacks enough detail and context. Was the bigger fine levied because of a history of similar events previously? If so, thats OK.

Mary Caulfield

Dec. 18, 2012, 1:44 p.m.

John, Please, don’t be ridiculous. No one in their right mind would suggest covering up problems. 

There is a good way to do things and a bad way to do things, in every field. I would never suggest a way to solve problems in a field I have no experience in, even thought I depend on software every single day of my life for tons and tons of functions. I leave it to people who know the field and respect their judgement, even if they make mistakes or could do things better I have to trust them to be moving in that direction.

Medicine if full of smart people who also have a need to see the results of their work in a more immediate way. The pay isn’t great in nursing but I know every single day at work that I have made a person’s life better, or at least prevented it from getting worse than it would without me.

Anyway, spending hours a day filling out forms, fulfilling mandates for “care” whether it is needed or not because that is the protocol that must be followed and all that kind of stuff makes the job less human and more organization driven. If you want to come to conclusions about an industry you do not work in, please spend some time in it, talking to people who work in it, to those who used to, to those thinking about it, etc. and come to your own rational conclusion. Then I will discuss it with you.

Ah, here we have it.  I’m not “an expert,” therefore my opinion shouldn’t matter.

Got it.

My nosiness is screwing up medicine, not the elitist attitude.  I should have known.

(Did I neglect to mention that I worked at Eclipsys for a few years and might know a thing or two about your paperwork?  Probably not, because it shouldn’t make a difference.)

I worked as a nurse for 30 years in 10 different hospitals and I never had a run in with the law.  The nurses are really not all that important- they just “follow orders” of the docs—it is the docs who get sued and maybe even decide to blame the nurses.  My experience was to work on rapport with the patient and the family and after that - no worry about getting sued really.  My main problem was that I never got out on time and always spent an additional hour charting on my own time . This was better for my own stress control rather than rush thru the charting and worry I am doing something wrong.  I think that people get too worried about getting sued and it ruins the harmony between the caregiver and the patient. I really liked my work but I was a kind of rolling stone working in many different settings- probably not done so readily nowadays and there appears to be more paperwork all the time and less hands on care.  When I started it was required to give a backrub to every patient in the evening and when I ended it was only an option. We need to get back to hands on care.

There are many problems in nursing homes that need to be improved. I will point out one that is a very severe one that doesn’t get much attention.I believe the policy of not having so called “restraints” in nursing homes is absurd and resulted in the death of my mother. My mother had fallen from her wheelchair many times, fortunately not suffering severe injuries. When I requested that a safety belt be placed on her wheelchair it was denied on the basis of it being a “restraint.” After my mother continued falling I kept on requesting that a safety belt be placed on her wheelchair to prevent her from falling. After a year of complaining, and after signing a consent form, a safety belt was finally placed. She had the belt on for a year during which time she never fell down. One day I visited her and the belt had arbitrarily been taken off, even, as I have already stated, I had signed a form for it to be placed on her wheelchair. When I complained that she needed the belt to prevent her from falling I was told she didn’t need a belt because she hadn’t fallen in while. When I offered the outlandish suggestion that, duh, maybe she hadn’t fallen was because she had had the safety belt on I was met with incredulous stares and silence. I complained to the doctor, to the staff, to the nurses and even went to an ombudsman all to no avail. I went to a meeting with staff and nurses requesting that the safety belt be put on, because if she didn’t have it on she would surely fall and be seriously injured or worse. I was told someone would get back to me and nobody ever did. When I called back to see if I could receive any information, conveniently nobody was there who could answer my questions. Within a few weeks my mother had fallen from the wheelchair and suffered head trauma, a broken neck and broken eye socket and within another few weeks was dead. If she had the belt on she wouldn’t have fallen and she wouldn’t be dead. Of course, I wanted to prevent this but since nobody would listen to a simple, decent, logical, common sense request she had to die for no reason and had to die because a simple measure would have prevented her death. Anyway, I tried to bring a lawsuit against the nursing home and nobody would touch the case with a ten foot pole because of this idiotic, absurd ‘restraint’ law. Now, I completely understand that people have been restrained before and were mistreated and were not able to do their normal activities. That is a criminal act and should be avoided at all costs. However, there is a BIG difference between a “restraint” and a “safety measure”. A restraint implies a restriction placed upon a person who is physically able to do his/her normal activities and is being denied that ability due to hindrances being placed on him/ her, i.e. a “restraint”. A safety measure or a safety belt is a completely different matter in that it is a tool that is trying to prevent an injury or death to a person who is feeble and is at risk and has a history of falling. The difference is obvious and even a mentally deficient prehistoric tic would understand this. By labeling a safety measure a “restraint” is a convenient way to let people die and for people to have no recourse to redress their grievances. This is an absolute disgrace that should be remedied as soon as possible. People should not be allowed to die when obviously simple measures could save them.

Anthony, You and your mother got caught up in the legal tangle surrounding healthcare. It is a sin that people are put in the position of actually endangering patients—in this case your mother—in order to protect themselves. But when people try to fit “care” into strict categories they take away the ability to tailor care to every person. Senselessness creeps in. I’m so sorry this happened to you. I would continue to tell your story, especially to regulating agencies, politicians, families of other patients, etc. People need to know real stories. God bless.

Mary, thank you for your kind comments and encouraging words. I did e-mail my story to HHS and to one of my senators and never received a response. I also called my state health department and specifically mentioned that I, as her proxy, had signed a consent form requesting a belt and explained that it was arbitrarily taken off and someone had the gall to say it didn’t matter at all that I signed a form. So, I guess if you sign a form that will save your mother’s life and then someone decides to take it off for no reason you have no recourse. I wish I could say the same after signing my mortgage papers or credit card forms and then I decided not to pay and then an official government agency would tell me I needn’t pay because my signature doesn’t mean anything, I may be naive but I have the funny feeling that wouldn’t work. It seems that nowadays when you are in the right and have a legitimate complaint you will not get any satisfaction and nobody will listen to you, on the other hand when one has an absurd complaint that is completely illegitimate, courts and the government bend over backwards to offer/ guarantee help. Society has descended that far. It is beyond sad; it is tragic.

Anthony—so sorry that this happened to your mother.

I bet they did not want to restrain her because it was work to put the belt on and off and who knows if they even bothered to tell every shift that in your case you had specifically requested to have this done.  Nursing homes can be zombielike and very disappointing—I have experience with a relative I won’t go into details.

I am very young looking and acting person who is 71 years old and I had cataract surgery and when I woke up from anesthesia ( not always given in this routine surgery) they had given me Propefol which is what Michael Jackson overdosed with and it is very strong knockout but one also wakes up quicker too—hospitals like it as they can dismiss a person quickly and use the bed for somebody else. I woke up in the middle of the surgery and my head was itching and my arm without my knowing it went up to the head—I was told I interfered with the surgery and the doctor had to re dress himself and they had to give me more Propefol to knock me out some more and they said it might have affected the surgery. I asked did they put my arm in a restraint?  I am a nurse and when I practiced we routinely restrained unconscious patients on a gurney or in the operating room.  They lied and said yes that I was restrained.  I could not believe getting out of what I consider a restraint—a leather belt usually with a buckle.  They then admitted they had tucked the bedsheet under my arm—BIG DEAL!  Needless to say I never returned to that place for my second cataract surgery- they lied to me and tried to blame me for possibly screwing up the surgery—

  I told my second surgeon what happened and he assured me that I would be restrained while under anesthesia but that I would not need full anesthesia for cataract surgery and the surgery went very well and I was conscious thruout but had insisted that they restrain my arm due to the past.  They had no problem with that.

Elder Abuse Exposed.com

Jan. 14, 2013, 3:13 p.m.

Elder Abuse Exposed(dot)com exposes to the light of day the disturbing secrets about California licensing and regulatory agencies charged with protecting vulnerable patients in healthcare facilities, including nursing homes.

We expose the broken nursing home inspection and complaint investigation process that U.S. Senator Charles Grassley (R-Iowa), a staunch and longtime advocate of abused nursing home residents and government whistleblowers, revealed “has been seriously corrupted” by an intertwined, “unspoken political presence”  and “high-level state bureaucrats” and “state lawmakers acting on behalf of facility administrators” who pressure state nursing home inspectors to overlook or systematically downgrade even high-level citations and quality-of-care deficiencies.

For example, in one nursing home elder abuse/death case captured on video in our possession, the Los Angeles-area nursing home negligently failed to administer oxygen to a fainting patient at a flow rate required by physician orders and the patient’s care plan. At that time, the unfortunate, 88-year-old victim suffered rapidly declining oxygen saturation levels, cardiopulmonary arrest, and unexpected death.

A California Department of Justice (DOJ) special agent working for California Attorney General Kamala Harris’ Bureau of Medi-Cal Fraud and Elder Abuse (BMFEA) concluded that “the videotape documents a series of gross lapses in patient care that constitute neglect of an elder.” Because the nursing home was responsible for the elderly man’s death (captured on digital video), the DOJ BMFEA special agent recommended criminal prosecution for elder abuse/neglect.

But the California Department of Public Health (CDPH) Licensing and Certification Program, whose deputy director is Debby Rogers, RN, MS, FAEN, downgraded the violation, issued only a class “B” citation, and disrespected the deceased by issuing only a paltry $750 fine against the perpetrators. CDPH’s Licensing and Certification Program did this, even though in its citation against the nursing home, CDPH, which is hardly an aggressive watchdog of wealthy, politically connected nursing homes, said, “The above violation had a direct relationship to the health, safety and security of Patient 1.”

And to make matters worse, Medicare’s often inaccurate Nursing Home Compare website says that the nursing home has zero (0) deficiencies reported during the period of the class “B” citation and has not received any fines in the last 3 years. So, when the public looks at the data on the nursing home on the Medicare Nursing Home Compare website, they do not know about the wrongful death of the elderly man in 2011. (Please see the U.S. HHS Office of Inspector General’s report entitled Inspection Results on Nursing Home Compare: Completeness and Accuracy.)

This article is part of an ongoing investigation:
Nursing Homes

Nursing Homes

Our Nursing Home Inspect tool allows anyone to easily search and analyze the details of recent nursing home inspections, as well as penalties imposed on each home over the past three years.

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