Bill would restrict how nursing home violations could be publicized

A Senate committee approved a bill Wednesday that would restrict how information about a nursing home’s safety and health violations could be broadcast or published.

Senate Bill 205, approved by the Senate Health and Welfare Committee, would prohibit advertisers from mentioning deficiencies found at a nursing home by state inspectors unless they give equal prominence to the dates of the citations, the home’s corrective plans and whether the problems later were found to be resolved.

As originally written, the bill also would have covered “nongovernmental publications,” such as news stories on nursing homes. But the sponsor, Sen. Danny Carroll, R-Paducah, said he never intended to influence news reporting. With an amendment Wednesday to correct that “overreach,” he said he limited the bill’s focus to advertisements only.

Carroll said his target is advertising by lawyers who recruit clients to sue nursing homes. Often, to alarm the public, lawyers list a nursing home’s record of violations without explaining that the problems later were fixed, or they make the violations sound worse than they really were, Carroll said.

“It is fishing. But instead of fishing with a worm, this is like fishing with a stick of dynamite. It is misleading, it is unethical and it is something I feel we need to address,” Carroll said.

The state is partly to blame for being too tough on nursing homes and creating a paper trail of violations, he said.

“This is an environment that we’ve created as a state,” he said. “The regulatory environment in our state dealing with long-term care facilities, with other Medicaid providers, we need to make some changes. It is a very punitive environment. It’s very much a ‘gotcha’ environment.”

Joining Carroll at the witness table to support the bill was Betsy Johnson, president of the Kentucky Association of Health Care Facilities, the nursing home industry’s trade group. Over the last five years, the group’s political action committee has given nearly $160,000 in state political donations.

The committee voted 8 to 2 in favor of the bill, sending it to the full Senate. One opponent, Sen. Julian Carroll, D-Frankfort, said he sympathized with the bill’s intent, but he doubted such a law would survive a constitutional challenge in court, given that it attempts to restrict lawful speech.

After the hearing, a longtime critic of the nursing home industry called the bill “pitiful.”

“This is just more of the trash the nursing home industry thinks up and tries to get past the legislature in order to impede progress in improving the quality of life for its residents,” said Bernie Vonderheide, founder of Kentuckians for Nursing Home Reform.

“Obviously, the industry is stung by these ads because the truth hurts,” Vonderheide said. “They don’t want to have their own records of wrongful conduct thrown back in their faces. Nobody’s even pretending that this information is inaccurate; it’s just embarrassing to the nursing homes.”

Senators supporting SB 205 cited the specific example of full-page newspaper advertisements by the law firm of Wilkes & McHugh, which sometimes identify nursing homes by name and address, listing the problems uncovered there by state inspectors. The firm includes its toll-free number and email address at the bottom of the ad “if someone you love” has been a resident at the home in question.

Sen. Ralph Alvarado, R-Winchester, said the firm placed such an ad in his local paper in December publicizing two- and three-year-old violations found at an area nursing home that later was purchased and improved by new owners.

“This, to me, is ambulance chasing. It’s offensive to me as a physician,” Alvarado said. “It defames someone’s reputation even after something has been addressed and fixed.”

Contacted by phone later Wednesday, Wilkes & McHugh attorney Richard Circeo said his firm’s advertisements use public inspection records that are posted online by the federal government. In the past, the nursing home industry has tried to avoid stronger regulation by arguing that its safety record is easily available to the public, “so this bill strikes me as ironic, because of the hypocrisy involved,” Circeo said.

“The purpose of the advertising is to shed some light on what is going on inside these nursing homes,” said Circeo, who practices in the firm’s Lexington office. “It’s sad to read these reports. If you’ve never seen one, it’s, like, 120 pages of what surveyors uncovered ... it tears at your heart-strings.”

This story was originally published March 2, 2016 at 4:25 PM with the headline "Bill would restrict how nursing home violations could be publicized."