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The Honolulu Advertiser
Posted on: Monday, March 29, 2010

Few nursing homes fined for infractions


By Rob Perez
Advertiser Staff Writer

Hawaii news photo - The Honolulu Advertiser

The grandchildren of Kapolei residents Martha and Keith Timson take a longtime family friend, Ka Punawai Ola nursing home resident "Martha," out for some fresh air. Maeda Timson has filed a formal complaint with the state over the nursing home's care of Martha.

DEBORAH BOOKER | The Honolulu Advertiser

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Hawaii news photo - The Honolulu Advertiser
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Hawaii news photo - The Honolulu Advertiser
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On Christmas 2007, a Nu'uanu nursing home resident fell for the 17th time that year, injuring a toe so badly it had to be amputated.

A few miles away, a resident at another nursing home fell more than a dozen times from August 2007 to July 2008, twice breaking the right hip. The resident, who was unable to speak, was found several times lying or crawling on the floor, sometimes with a soiled diaper removed.

Inspectors cited both nursing homes for failing to revise the residents' care plans to protect against recurring falls.

Yet, despite the injuries, neither facility was sanctioned.

"There's no excuse for this," said Charlene Harrington, a University of California, San Francisco, emeritus professor of sociology and nursing. "It's just more evidence (regulators are) not doing their job."

Under orders from regulators, Nu'uanu Hale and Hale Nani Rehabilitation and Nursing Center both of which declined comment for this article revised their care plans to address problems with the falling residents.

The nursing homes were not fined and that's not unusual. Over the past five years, the federal government, which oversees almost all nursing homes in Hawai'i, has rarely imposed civil fines here despite documenting hundreds of deficiencies, including some that caused patients serious harm.

Since 2005, only six of nearly 50 nursing homes in Hawai'i have been fined, and, in most instances, the penalties totaled only several thousand dollars, according to federal records obtained by The Advertiser under the Freedom of Information Act.

During that period, Hawai'i had the lowest sanction rate of any state in the country, according to an Advertiser analysis of federal data. Acting on the recommendations of state inspectors, the federal government on average fined only 2.5 percent of Hawai'i's nursing homes each year.

That's compared with a national rate of 17.6 percent.

Hawai'i stands out in another way that concerns advocates for the elderly. It is one of only a handful of states that do not impose their own fines for poor care, relying exclusively on the federal system. The federal system, however, has been criticized as being too lenient and ineffective.

State agencies are hired by the U.S. government to inspect federally certified nursing homes annually, and those agencies make recommendations to the Centers for Medicare & Medicaid Services about possible sanctions. Federal regulators have adopted all Hawai'i's recommendations for fines over the past five years.

ISLE CARE HOMES RATED HIGHLY

Some industry officials say Hawai'i nursing homes are sanctioned infrequently because they provide high-quality care. When the federal government launched a rating system for nursing homes in 2008, Hawai'i was one of only six states where at least 20 percent of the institutions received five stars, the top grade. Eleven of 48 local nursing homes, or 23 percent, got five stars. That was the second-best showing nationally.

Yet a review of dozens of annual inspection reports from the past few years shows numerous cases in which nursing home residents were harmed or were put at risk of harm, and yet the facilities were not penalized. Typically, they were cited for lapses in care and ordered to develop corrective plans, subject to regulatory approval.

Unless a deficiency meets certain thresholds, regulators tend to favor remediation over penalization, giving the nursing home a chance to fix the problem. If severe deficiencies aren't corrected within a specific period, sanctions typically are imposed.

With remediation as the focus, the inspection process in Hawai'i has become more collegial in recent years, with regulators and nursing home administrations working more collaboratively to improve care, industry officials say.

But that approach has meant some cases have escaped sanctions, including instances in which institutions failed to heed warning signs and residents ended up being harmed.

Some other examples of unsanctioned cases, based on federal and state records:

• At Hale Mākua in Wailuku, Maui, regulators in February 2009 cited the facility for failing to adequately supervise residents. A female patient with Alzheimer's was inappropriately touched by male residents on three separate occasions, and Hale Mākua didn't develop a care plan to adequately protect her.

Another resident wandered from the grounds and was found walking along a highway nearly half a mile away.

A third couldn't be located for nearly an hour until someone heard heavy breathing and found the resident on the floor inside an unlocked storage closet.

In a fourth case, a resident obtained a butcher's knife and threatened staff, requiring police to intervene.

In each case, Hale Mākua made changes to address the problems.

• Kahala Nui's Hi'olani Care Center failed to take "reasonable" precautions to protect residents after a 94-year-old, wheelchair-bound man who was cognitively impaired was caught fondling and kissing another man. He fondled or kissed four other residents over the next two months.

• A Life Care Center of Hilo resident who developed an E. coli bacteria infection from pressure sores didn't get antibiotics for six days because the attending physician was on vacation and the replacement physician considered the case "too complex" to evaluate. Antibiotics were prescribed only when the primary doctor returned from vacation.

"We could have done better for this resident," an administrator told inspectors.

Because of the emphasis on remediation, a facility can have a particularly bad inspection without getting penalized as long as its previous evaluation was adequate. For example, regulators cited Hilo Medical Center in 2008 for 28 deficiencies nearly four times the Hawai'i average during that period yet the nursing home was not sanctioned, partly because its previous inspection was better by comparison.

A Hilo Medical Center representative declined comment.

LAX ENFORCEMENT

Harrington, the San Francisco professor, said Hawai'i seems to have particular difficulty with what is a national problem: lax, ineffective enforcement of nursing homes.

The federal enforcement system tends to be grossly underfunded and understaffed, and inspector training is a problem as well, said Harrington, who has done studies on nursing home sanctions.

Even though 25 percent of all documented deficiencies nationally in recent years involved harm to nursing home residents, only 2 percent led to fines, she said.

"If nothing happens, if there are no sanctions, the facilities are just not responsive," Harrington said. "They'll just not take the regulatory system seriously."

Toby Edelman, senior policy attorney at the Center for Medicare Advocacy in Washington, D.C., reviewed some of the unsanctioned deficiency cases compiled by The Advertiser.

"It looks absolutely horrible," Edelman said of the lack of sanctions.

Federal, state and industry officials defend the enforcement system, saying it provides sufficient protections for residents without being unduly burdensome to nursing-home operators. Money that goes to pay fines is money that can't be used to maintain and improve care, they said.

Sanctions are designed to help facilities improve, said Paula Perse, a CMS official in San Francisco.

"They are remedial in nature, not punitive," she said.

Any time inspectors find a situation that puts a nursing home resident in "immediate jeopardy of harm" considered the most severe type of deficiency a sanction is imposed, and immediate correction is pursued.

Penalties can range from fines to denying reimbursements for new admissions. The most severe sanction is termination of federal certification, meaning the nursing home no longer can accept Medicare or Medicaid payments. About 80 percent of a typical nursing home's revenue comes from Medicaid.

Deficiencies that fall short of "immediate jeopardy" but still result in harm to residents may or may not lead to sanctions.

No penalties would be imposed if the facility's recent prior inspections were relatively good, earning the institution an "opportunity to correct" designation, and if the newly identified problems were corrected within a specified time, Perse said.

'IMMEDIATE JEOPARDY'

Of the 14 fines imposed against the six Hawai'i nursing homes since 2005, all but five involved "immediate jeopardy" situations.

Among the sanctioned cases, according to federal records:

• Nu'uanu Hale was fined $6,500 in July for failing to ensure the resident environment was as free as possible from hazards that could cause accidents. In one of the cases, the nursing home failed to provide appropriate supervision for a 74-year-old woman who tended to wander from her second-floor room, several times making it outdoors without being detected. Once, the woman was found walking toward a bus stop along the busy Pali Highway. Another time she was found at a residence several properties away.

Nu'uanu Hale subsequently provided one-on-one supervision to the woman and made other changes to ensure her safety.

Regulators also fined Nu'uanu Hale $1,950 in June for abandoning an 81-year-old woman at a hospital emergency room without making prior arrangements on where she would go after the hospital.

• Garden Isle Healthcare was fined nearly $2,000 for, among other things, failing to ensure the safety of a paraplegic man with a history of behavior problems and alcoholism. The man was able to leave the premises unsupervised at least five times in 2004 and twice bought beer at a nearby Walmart. On one occasion, he got a pass for an unsupervised excursion, was reminded by the staff not to buy alcohol and returned with an open 24-ounce can of beer. He told a nurse he drank two beers on his outing. The nursing home subsequently revised his care plan, including providing one-on-one supervision.

• Hilo Medical was fined $6,500 for a variety of violations, including failing to appropriately treat a drug abuser who repeatedly told staff members he intended to commit suicide by hanging himself or cutting his wrists. Despite the threats, the staff didn't increase his monitoring. The man later tried to hang himself with a blanket tied to a ceiling bracket. The attempt failed. An administrator told regulators the institution did everything it could for the man, including having him assessed whenever he expressed suicidal thoughts.

Federal officials said sanctions are not used in every case involving harm to patients.

"Our goal is not to close nursing homes but to keep them operating within our rules and regulations," said Mary Kahn, a CMS spokeswoman in Washington, D.C. "A sanction is an enforcement action that is the last step after making every effort to get the facility into compliance."

'THERE WILL BE INCIDENTS'

Industry officials say instances of bad outcomes are bound to happen in institutions that care for such a frail, challenging population.

But when those institutions fail to provide basic care, don't adequately address warning signs or repeatedly make the same mistakes, the problem generally is poor leadership, not the enforcement system, they say.

"There will be incidents," said Emmet White, president and chief executive of Arcadia Retirement Residence in Honolulu. "The key is how regulators help to develop a system in which every (nursing home) staff member right up to the CEO spots the problem and addresses it immediately so the chances of it happening again are diminished."

Industry officials also argue that sanctions don't necessarily lead to better outcomes and improved care, especially in an environment in which facilities are struggling financially and Medicaid reimbursements don't cover the full cost of care.

"For some facilities, they're just trying to make payroll month to month," said Coral Andrews, vice president of the Healthcare Association of Hawai'i, which includes some nursing homes.

Instead of just looking at one slice of the long-term-care network, the industry encourages more discussion about how to improve quality in the overall healthcare delivery system and how to create incentives that lead to a more efficient system, Andrews said.

The dearth of sanctions in Hawai'i comes amid a backdrop of a shortage of nursing home beds and a rapidly growing elderly population. It's not uncommon for the state's nursing homes, which collectively have about 4,300 beds, to maintain wait lists, and local hospitals often scramble to find space for patients who are ready to be discharged but who need long-term care.

Given such high demand in a market with a bed shortage, institutions need to know they will suffer consequences if they compromise on care, advocates for patients say. Otherwise, they say, there is little incentive to improve, even if patients or others complain.

Maeda Timson knows what they mean.

On several visits to a Kapolei nursing home, Timson had raised concerns about her elderly friend's oxygen tank running dangerously low. She assumed the staff took her concerns to heart.

But in September, Timson said, she arrived for her regular visit to find her friend sitting in a front lobby at Ka Punawai Ola in her wheelchair, gasping for breath. Her portable oxygen tank gauge was on empty, Timson said, and none of the nearby staff were paying attention to the elderly woman and her fellow residents sitting around a television.

Timson loudly demanded help, the staff got a replacement tank and within minutes her friend was breathing normally, Timson said.

"I can't imagine what would've happened if I hadn't shown up at that moment and made a big fuss," she said.

Timson filed a formal complaint with the state, which is investigating. But Timson fears the nursing home will not be sanctioned.

A Ka Punawai Ola representative declined comment.

Locally and nationally, most nursing home deficiencies documented in annual inspections typically are classified as not causing resident harm. Many are record-keeping shortcomings, procedural flaws and other problems that don't directly indicate poor care but are still cause for concern.

In the newspaper's review of about a year's worth of inspections, mostly covering 2008, only 13 of 388 deficiencies, or 3 percent, were classified as resulting in harm or putting patients in immediate jeopardy.

But even the less severe deficiencies raise questions about the quality of staff, training or leadership.

At Hilo Medical, for instance, some residents periodically were given showers only once every two weeks because of staff shortages, and residents complained to inspectors about foul body odors, according to the facility's most recent inspection report from June. When inspectors were on site, they noted one room reeking of foul odors.

The facility subsequently changed its shower policy.

While inspectors were at Kau Hospital on the Big Island, they saw a staff member, with gloved hands, cleaning a resident after a bowel movement and applying cream to the person's buttocks.

The caregiver then brushed and patted down the person's hair without changing gloves.

The nursing home told regulators it would review its infection-control policy with staff.

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