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.

‘Patients are getting screwed’ as Kentucky’s under-staffed nursing homes go unfixed

<div class="card-info center" style="padding: 0px;"><address class="author">BY <a href="mailto:jcheves@herald-leader.com">JOHN CHEVES</a></address><time>September 27, 2018</time></div>

At Sunrise Manor Nursing Home in Hodgenville, a frail woman spent a night in 2015 sitting precariously on her bathroom toilet, shouting uselessly for help, shivering with cold, because nobody remembered to return and assist her to bed. The nurse’s aide for that unit later told state inspectors that she had been overwhelmed trying to monitor 26 residents during the graveyard shift.

At Stonecreek Health and Rehabilitation in Paducah that same year, harried nursing staff dealt with a resident screaming about excruciating pain from a neglected urinary catheter — he had an infection that soon would require emergency hospitalization — by removing his speaking valve, a plastic prosthesis in his throat, to render him mute.

At Woodcrest Nursing and Rehabilitation Center in Elsemere this year, a resident told state inspectors that he was ordered to empty his bowels in bed when nobody on staff was available to take him to the bathroom. The resident cried and said this was disgusting. A nurse’s aide who often cared for him confirmed this practice to inspectors, adding that “the facility was short-staffed all the time.”

These stories and many others taken from state inspections of Kentucky nursing homes over the last three years show a pattern — vulnerable people frequently are at risk because their caregivers are stretched too thin to be effective.

It’s a big reason why 43 percent of Kentucky’s 284 nursing homes this year were rated as “below average” or “much below average” by the U.S. Centers for Medicare and Medicaid Services because of serious problems discovered with the quality of care they provide their roughly 12,500 residents, according to a Herald-Leader analysis of federal data.

That’s among the worst collective ratings for nursing homes in the country.

The state’s nursing home lobby, while complaining about what it called a “gotcha” regulatory system, told lawmakers at a 2015 committee hearing that Kentucky’s facilities received six times as many “immediate jeopardy” deficiencies from inspectors as the national average and fines that were six times larger than the national average.

Fines are levied — and lawsuits are filed — over bedsores, infections, bone-breaking falls, choking, medication errors, untreated pain and neglect, as residents are left to lie in their own feces and urine for hours, according to the newspaper’s review.

“I don’t think the public really understands what goes on in some of these places. Reading the inspection reports, seeing what the citations are for, it opens your eyes,” said Wanda Delaplane, a nursing home reform advocate who has testified to lawmakers.

Delaplane’s 84-year-old father suffered an agonizing death at a Frankfort nursing home in 2002 from what she described as a lack of medical attention for an impacted bowel. Staff was nowhere to be found while he cried out for someone to help him, she said. A jury awarded her family $20 million in damages.

The General Assembly keeps responding to this plight with legislation that would make it harder to sue nursing homes. They have established “medical review panels” composed of doctors deciding the credibility of negligence suits before they can go to court, quickly creating a backlog of cases. They also have proposed placing caps on plaintiff’s attorneys’ fees in such suits and restrictions on how a nursing home’s safety violations can be publicized in lawyers’ advertising.

However, lawmakers won’t touch the underlying problem: There typically aren’t enough nurses and nurse’s aides on duty at nursing homes to properly care for residents. Some inspection reports describe a solitary direct-care employee rushing up and down hallways to assist so many elderly and ailing residents that injuries, even deaths, are almost inevitable.

“It’s the staffing,” said Sherry Culp, executive director of the Nursing Home Ombudsman Agency of the Bluegrass in Lexington. Culp’s nonprofit agency visits nursing homes in Central Kentucky to monitor living conditions and inform residents of their legal rights.

“A lot of the problems we work on, it all comes down to the fact that either there isn’t sufficient staff on hand to care for people or else they’re not being adequately trained, or both. Over and over and over we see this,” Culp said. “If you’ve got one nurse’s aide and 40 residents, there’s no ability to do any basic care, much less to develop any sort of a relationship with people.”

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Ombudsmen Sue Landis, from left, Sherry Culp, and Denise Wells visited with patients Tuesday at Brookdale Richmond Place in Lexington. The ombudsmen work for a nonprofit that monitors living conditions in nursing homes.
Alex Slitz aslitz@herald-leader.com

The federal government recommends an “expected staffing” level at nursing homes that would allow a resident every day to get more than one hour of care from registered nurses and two hours and 45 minutes of care from nurse’s aides.

Kentucky nursing homes, on average, fall short of that goal, reporting 43 minutes of daily care from registered nurses and two hours and 19 minutes from nurse’s aides, according to the Centers for Medicare and Medicaid Services, which collects staffing and resident population data from the facilities.

The state’s many substandard nursing homes have even worse numbers. At Hazard Health & Rehabilitation Center in Perry County, for instance, with $45,861 in fines accumulated from deficiencies over the last three years, residents can only count on 15 minutes daily with a registered nurse on average, CMS reports. (In a recent interview, facility administrator Charlotte Thornsberry said she disputed that figure, but she declined repeated requests to provide a sum that she believes is more accurate.)

Melinda Henshaw, a nurse who has worked as a unit manager in Western Kentucky nursing homes, said she quit because the conditions she witnessed upset her.

“The nurses on the floor are stressed,” Henshaw said. “They are missing so many of the changes in residents — and they know it. It’s not unusual for one nurse to have 30 residents. She’s gonna miss it when things start going bad. She does not have the time to notice everything she needs to and answer the phones and fill out the paperwork she’s supposed to. No one could do all that.”

Henshaw said her own mother was in a Kentucky nursing home and went eight hours on the overnight shift without anyone checking on her because the facility was short-staffed.

“People are going without baths. People are going without following their care plans,” Henshaw said. “I had one resident who was supposed to be up and about four hours a day so he could regain his strength. That wasn’t happening because there wasn’t enough staff to help him.”

Sherry Culp, executive director of the Nursing Home Ombudsman Agency of the Bluegrass, describes about how to select a nursing home for a loved one. Brookdale Senior Living resident Becky Walters talks about life in her nursing home.

‘Patients are getting screwed’

Recommendations aside, federal law only requires that nursing homes have “sufficient” staff to meet residents’ needs, including a registered or licensed practical nurse on duty at all times, although the states are invited to set their own more rigorous standards.

Kentucky chooses not to. When state Rep. Rick Nelson, D-Middlesboro, introduced a bill in the Kentucky legislature last winter to insist on minimum requirements for staffing in the state’s nursing homes, he ran into a brick wall.

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State Rep. Rick Nelson, D-Middlesboro
Legislative Research Commission

House Bill 573 would have required one nurse on duty for every 21 residents during the day and every 29 residents at night. It would have required one nurse’s aide for every nine to 10 residents during day and evening shifts and every 19 residents at night. Larger facilities would also have needed nurse supervisors on staff. And nurses who were assigned to administrative jobs, filling out paperwork in offices instead of caring for residents, would not have counted toward the minimum ratio.

Facilities that failed to meet those ratios for two consecutive days would have been barred from taking new admissions until they could demonstrate they had resolved their problems, while facing fines of up to $1,000 for each day they were not in compliance.

“I really tried to get it to move,” Nelson later recalled in an interview. “I sent out a press release explaining why we needed it. I asked for a committee hearing so we at least could have a discussion about it. But I didn’t have any luck.”

Setting a mandatory “staffing ratio” for Kentucky nursing homes is unrealistic because too many facilities would fail, said state Sen. Ralph Alvarado, R-Winchester.

“We struggle to find people willing to work in nursing homes,” Alvarado said. “It can be a tough job. You’re helping people who might have dementia. They can curse at you, they can hit, they can pinch. You’re helping people to eat and to bathe. You’re taking people at their worst moments and helping clean them up.”

Alvarado, vice chairman of the Senate Health and Welfare Committee, champions the nursing home industry’s interests in the legislature. He is a doctor in private life who works as medical director at five low-rated nursing homes around Central Kentucky.

“The concern I have with staffing ratios is that most facilities, even if they wanted to, they can’t keep up with that because they can’t find the people to do the work. Every nursing home I go to, that’s the theme. Most of them would fail to meet the standard,” Alvarado said.

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State Sen. Ralph Alvarado, R-Winchester
Legislative Research Commission

“If you said that you have to have X amount of nurse’s aides per shift and two people quit on the spot and don’t show, what’s the penalty for the facility?” the senator asked. “Is it a financial penalty? Is it, you know, you shut them down?”

Delaplane, whose father died from alleged neglect at the Frankfort nursing home, said she has no patience for this excuse.

“If you can’t take care of all of these people, then don’t accept them. Nobody is making you,” Delaplane said.

“Seriously, if we know that it takes more staff to properly run one of these places — and everyone seems to agree that it does, right? — then why are you intentionally, knowingly creating a hazardous situation where you cannot adequately care for all of the residents you have accepted?” Delaplane asked.

“What other business does anything like this? Does a restaurant say, ‘Well, we’ve only got enough staff to handle 20 tables tonight, but let’s go ahead and put out 100 tables and see what happens’?” she asked.

Proposals for minimum staffing levels in nursing homes have failed in Kentucky’s legislature for years, although some states, such as California and Florida, have passed stricter standards.

And Kentucky sets tough rules for other places that care for vulnerable people. For example: A child-care center in Kentucky faces civil penalties if it does not have at least one care provider on duty for every five infants, one care provider for every six toddlers under age 2, and so on.

But nursing homes, most owned by for-profit corporations, housing the aged and infirm, essentially can decide their own staffing.

“I’ll be honest with you, the nursing homes, they’ve got the money, they’ve got the lobbyists. When you’re trying to compete in any way with the nursing home industry in Frankfort, you get swallowed up pretty easily,” Nelson said. “Unfortunately, I think the folks in the nursing homes, a lot of them are easily forgotten.”

Kentucky might lie toward the bottom of the scale but it’s not unique, said Charlene Harrington, a social behavioral scientist at the University of California at San Francisco.

Harrington has extensively studied staffing at nursing homes. In a 2016 peer-reviewed paper that analyzed 150 prior studies published over 25 years, she concluded that higher staffing levels definitely can be linked to better medical outcomes for residents. But staffing is too low in half of the nation’s nursing homes, due in no small part to political power held by the facilities’ owners, she said.

“They do control the statehouses,” Harrington said in an interview. “It makes it so hard to get anything positive done, and the patients are getting screwed as a result.”

Winning access in Frankfort

Kentucky’s nursing home industry — which last year collected nearly $1 billion from the state’s Medicaid program — says under-staffing is a vexing challenge, particularly at a time of low unemployment in urban areas.

Nursing homes struggle to keep enough qualified employees, said Betsy Johnson, the former state Medicaid commissioner who now runs the Kentucky Association of Health Care Facilities, the industry lobbying group.

Good nurses are lured away by better offers from hospitals, Johnson said. Nurse’s aides — unskilled workers who typically only have a couple of weeks of training — might leave for less stressful fast-food work that pays roughly the same entry-level wages, she said.

“It’s a difficult job, it’s very physically taxing, it’s very emotionally taxing,” Johnson said. “Our national association and, I can tell you, our state association, knows that staffing is linked to quality, so we’ve got to do something to figure that out.”

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Betsy Johnson lobbies in Frankfort for the nursing home industry as executive director of the Kentucky Association of Health Care Facilities.
Provided

That said, Johnson disputes the idea that inadequate staffing has created bad nursing homes.

“Are there any bad nursing homes? Not that I’m aware of,” she said. “They’d be closed down if they were bad.”

“I think it’s not very productive to say ‘Oh, there are bad nursing homes out there!’” she added. “There are circumstances that happen.”

Nursing homes speak with one of the louder voices at the statehouse.

The Kentucky Association of Health Care Facilities announced in its 2017 annual report that its members had 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.

The group also lobbied to defeat a House bill in 2016 that gradually would have increased the $7.25 hourly minimum wage in Kentucky to $10.10, because many nursing homes pay minimum wage or close to it, Johnson said. A full-time worker earning minimum wage gets about $15,000 a year before taxes and other paycheck withholding.

“A lot of the aides, the CNAs (certified nursing assistants), are coming in at minimum wage,” Johnson said. “It’s a business decision. To the extent that our people can be competitive in wages, they do so. We just didn’t feel that it was the government’s place to be dictating what that should be or look like.”

Political donations are how you win valuable access to lawmakers, Johnson explained.

“It gets you, ‘Hi. Can I meet with you and talk to you about this bill?’ And they’ll say, ‘Yes.’ And then sometimes they’re like, ‘Betsy, sorry.’ But it at least gets us five minutes of their time to educate them about why we don’t think a bill is good,” Johnson said recently. “I mean, you know how the system works. That’s what it does. It opens up some doors.”

Hardly anyone opens doors at the Capitol for nursing home residents, said Culp, of the ombudsman agency.

“We’ve got 34,000 people in long-term care facilities in Kentucky, but they’re not going to be in Frankfort lobbying,” Culp said. “Something like 50 percent of them have memory loss, and of that 50 percent, 70 percent have behaviors that can be difficult to manage — you know, spitting, biting, wandering unsafely. These are not really people who are in a position to tell our elected leaders what they’re going through.”

The Office of the Inspector General at the Kentucky Health and Family Services Cabinet, which is responsible for regulating the state’s nursing homes, repeatedly declined to be interviewed by the Herald-Leader about its work. Under Gov. Matt Bevin, the office is led by Inspector General Steven Davis. Executive Adviser Jamie Gitzinger, a former Kentucky nursing home administrator, recently joined the office to provide better outreach to the industry, according to its monthly newsletter.

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Steven Davis regulates the state’s nursing home industry as inspector general of the Kentucky Cabinet for Health and Family Services.
John Cheves

In a prepared statement, the office said it’s sympathetic to challenges faced by its “health-care partners,” the nursing home owners.

“Staffing issues are complex, vary by locale, and include a number of factors. Facilities also have difficulty attracting direct-care staff because many view the work as physically and emotionally demanding,” the office said.

“We have made every effort to be a partner with our long-term care industry to the extent possible as an enforcement agency,” the office continued. “The associations have expressed their appreciation to us on a frequent basis for our willingness to dialogue with them, hear their side of the story and work through issues.”

The nursing home lobby has a good relationship with the Bevin administration after publicly tangling with inspectors under previous Gov. Steve Beshear, Johnson agreed.

“I think we have the ear of the people in the current cabinet who are very interested in these issues of working together,” she said.

Citing, fining, no improvements

To give the public some idea of how well nursing homes perform, the Centers for Medicare and Medicaid Services runs a 5-star rating system based on each facility’s staffing, health inspections and quality of resident care. Five stars is much above average, four stars is above average, three stars is average, two stars is below average and one star is much below average.

Ratings can change throughout the year depending on the results of new inspections or fresh staffing data. But over the last several years, Kentucky’s nursing homes collectively have ranked among the worst in the country, according to separate national comparisons by the Kaiser Family Foundation and advocacy group Families For Better Care.

As of Aug. 7, Kentucky had 52 one-star nursing homes (or 18 percent of its total) and 71 two-star nursing homes (25 percent).

Over the last three years, 48 of those low-rated nursing homes have received at least one Type A citation, the most serious, for one or more deficiencies; 29 have accumulated fines greater than $100,000; and 18 temporarily have been denied Medicaid payments by CMS because of a pattern of unresolved quality problems.

Kentucky nursing homes also rank near the bottom for certain quality of care measures, like bedsores suffered by residents who are not regularly repositioned, the use of powerful anti-psychotic medications, and the percentage of long-term residents who must be hospitalized within six months, according to a 2017 study of federal survey data by the AARP.

The 5-star ratings are imperfect because some of the information they’re based on is self-reported or otherwise can be “gamed” by the nursing homes, said Toby Edelman, senior policy attorney at the Center for Medicare Advocacy.

This summer, for example, when CMS began to use actual payroll data from nursing homes to determine their staffing, rather than unreliable surveys, nearly 1,400 nursing homes across the country immediately lost a star because they had fewer employees on duty than they had claimed.

That said, “I would be extremely cautious about a 1-star or 2-star facility,” Edelman added.

From the opposing perspective, Johnson, the nursing home lobbyist, said the state’s health inspections on which much of the 5-star ratings are based are too strict, unfairly driving down facilities’ scores.

“We firmly believe that surveyors are instructed a lot of times to just go in and find things,” Johnson said.

“I’m not sure who that benefits, to tell you the truth,” she said. “It’s definitely not benefiting the residents. Because you would think that if you’re citing, citing, citing and you’re fining, fining, fining, and yet the quality of care is not going up, if it’s not improving, then what is the purpose of this arcane survey process we have? It would seem like the ultimate goal would be to get everybody to be a five-star facility. But that’s not the way the system is working.”

When below-average is normal

Kentucky’s 123 low-rated nursing homes cover the entire state, in cities and rural areas, and are dominated by a handful of for-profit corporate chains, including Signature Healthcare of Louisville; Preferred Care Partners Management Group of Plano, Texas; Providence Healthcare Management of Cleveland, Ohio; Genesis Healthcare of Kennett Square, Pa.; Hillco Ltd. of Kinston, N.C.; Corbin-based Forcht Group of Kentucky; and Diversicare of Brentwood, Tenn.

Only one of those companies responded to requests for an interview: Signature HealthCare, which had a reported 2017 income of $1.2 billion. (The privately held company does not reveal its profit margin.) It’s a national chain that owns 42 nursing homes in Kentucky. In August, 12 were 2-star facilities and 15 were 1-star facilities. That means its average nursing home in Kentucky is “below average.”

Those poor ratings come with a body count.

According to inspection reports, a resident died in Signature HealthCare’s two-star facility in Horse Cave in 2015 after falling and hitting his head in the shower because the staff ignored a written care plan that called for two aides to help move him with a special belt. Another report describes how a resident fell, hit his head and died, this time at the chain’s two-star nursing home in Morgantown in 2016, after staff failed to seek prompt medical care for him and didn’t tell doctors that he was on blood-thinner medication that led to a fatal brain bleed.

In an interview at the chain’s nursing home in Harrodsburg, Signature Healthcare chief executive Joseph Steier said his company inherited challenges that it’s still grappling with today when it acquired troubled facilities from Elmcroft Senior Living and Kindred Healthcare as “they exited the Kentucky market.”

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Signature Healthcare CEO Joseph Steier, right, talked to LPN Trish Lister as he took a tour at Harrodsburg Health & Rehabilitation Center, a Mercer County nursing home owned by Signature HealthCare.
Charles Bertram cbertram@herald-leader.com

The company has spent $58 million to remodel and modernize its Kentucky buildings, Steier said. (Separately, Signature HealthCare was ordered in June to pay $30 million as part of a fraud settlement with the U.S. Justice Department over allegations that it bilked the Medicare program with false rehabilitation therapy claims.) It’s also spending $6 million a year on temp-agency workers to help flesh out its direct-care staff, he said.

“We’ve tried to invest millions into renovating buildings, bring culture change to the state, and then we’ve increased staffing,” Steier said. “Now, we’re still trying to fill jobs. Obviously, full employment makes it a struggle. But our goal is to have the best staffing in the state.”

On the individual criteria of staffing, Signature HealthCare’s Kentucky nursing homes boosted their average score on the CMS 5-star rating system from 2.4 stars a year ago to 3 stars in August, Steier said, citing CMS data.

But the chain’s average score for health inspections — the more or less annual visits by state inspectors to look for potentially dangerous problems inside facilities — fell during that same period from 2.3 to 2, keeping its overall 5-star rating low.

“We’re making some nice progress, but we’re not where we want to be,” Steier said.

Raising wages could be a great recruiting tool — 20 percent of nurse’s aides nationally live “at the poverty line” — but that would be difficult given Kentucky’s long-running freeze on Medicaid reimbursement rates for nursing homes, Steier said. About two-thirds of Signature HealthCare’s income is Medicaid, with the rest either coming from Medicare or private insurance, he said.

The state could help solve a number of problems by rewarding facilities that improve their quality measures with a higher Medicaid rate, even if there isn’t enough money available to boost payments across the board for all nursing homes, Steier said.

“Kentucky is the only state we’re in where there’s been a Medicaid freeze for nine years,” he said. “When you think about it, me and you, we just got a normal 5 percent raise every year for the last nine years. So you can imagine when the pay rate stays the same, it makes people say, ‘I can’t work in this state, I can’t be in this state.’”

“Most companies, they want to run their buildings fully staffed,” he added. “I don’t think anybody today would want to run a building short-staffed. The liability is too high.”