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Did The Nursing Home Reform Act Work?

Not many New Yorkers are aware of the Nursing Home Reform Act, a sweeping piece of legislation passed in 1987.

The Act was meant to broaden federal authority, tying nursing homes in each state together under a single, rigorous code of standards.

But our Banville Law article didn't tackle the most obvious question:

Did Federal Reform Actually Fix Nursing Homes?

A study published in 2002, 15 years after the Act's passage, was less than promising. On the question of nursing home quality, Federal nursing home reform seemed to have had little effect.nursing home employee assisting a resident

Nursing homes were still plagued by systemic problems.

According to the New York Times, the study found that over 90% of America's nursing homes were "woefully understaffed." To complete the research, surveyors spent over 8 years in elder-care facilities across the nation. They concluded that under-staffing had led to an increased incidence of "severe" bed sores, malnutrition and troubling weight loss among patients.

New Suggestions, Old Problems

After reviewing the report, the US Department of Health & Human Services (HHS) amended its suggested guidelines.

HHS recommended that residents should receive at least two hours of attention from nurse's aides every day, and at least 12 minutes from registered nurses. At the time, HHS reported that the majority of nursing homes were under-equipped to meet either standard.

With funding tight and little movement among Congress, it looked like nursing home's were poised to fall back into their old ways. Under-staffed, crowded, and unsanitary, elder-care facilities had been largely unchanged by the Nursing Home Reform Act.

Nursing Home Deficiencies Still Rampant

Of course, 2002 is old news. Unfortunately, the intervening years saw few improvements.

A decade later, in 2011, researchers from the University of California San Francisco (UCSF) led an exhaustive, national study of America's 10 largest for-profit nursing home chains:

Together, these nursing home companies oversaw an astounding 13% of all nursing home beds in the country. All but one, Sun Health Care, are still in business. Notably, none of them, not one, have locations in New York State. Several are active in New Jersey and Pennsylvania.

For-Profit Elder Care Facilities Chronically Understaffed

The study found that for-profit nursing homes "have fewer staff nurses than non-profit and government-owned nursing homes." As a result, patients living in the for-profit homes received 30% fewer total nursing hours, and were the "sickest" people living in elder-care facilities nationwide.

Compared to the best facilities in America, the large chains had been cited for 36% more minor deficiencies and 41% more serious deficiencies.

What Went Wrong?

After the study was released, officials in California cited two overarching problems that were actively threatening the lives of nursing home residents:

In short, regulators were lax in their inspections, missing deficiencies entirely.  And even when violations were spotted, the enforcement protocols instituted by the Nursing Home Reform Act failed to adequately address them.

This claim was confirmed in 2008, when a study conducted by the US General Accountability Office found that 70% of the surveys conducted by State regulators missed at least one deficiency. 1 out of 7 surveys missed a violation that had caused patient's actual harm.

Here's another huge point to remember:

When Medicaid and Medicare were changed to offer substantial amounts of money to privately-owned nursing homes, the market expanded at a rapid pace. New players entered the game at an alarming rate.

But these places are businesses, and their focus is on cutting costs and increasing profits. One of the easiest ways to slash expenses is to decrease worker hours. All of which comes at the expense of residents' safety and health.

Did The Nursing Home Reform Act Make Things Worse?

The team at UCSF also tracked the average number of deficiencies caught by State regulators at nursing homes across the country. Their statistics run from 1994 to 2006, a period in which the Nursing Home Reform Act's changes should have been taking firm hold on the industry.

But what they found was the opposite.

As Nursing Home Citations Increase...

In 1994, the average certified nursing facility was cited for 7.2 violations. By 1997, that number had dropped substantially, to 4.9 annual deficiencies.

True progress seemed within reach.

But by 2004, the average had peaked, at an unacceptable 9.2 violations. While the number fell again, dropping to 7.5 violations in 2006, it never again reached the low it had achieved 12 years earlier.

Fewer Homes Are Citation Free.

On the other hand, you can look at the amount of nursing homes that were never cited for deficiencies and see some real hope. But it would be short-lived.

In 1994, 12.6% of facilities had not been cited for a violation that year. By 1997, that number rose to 21.7%. But there was a staggering change from 1997 to 2006, a year in which only 7.7% of homes had completely clean records.

Are Nursing Home Residents In More Danger Than Before?

There was improvement, though, in the most important category.

Any time we mention "deficiencies," that word says nothing about whether or not residents were harmed by a violation. It only means that regulators found some broken standard, which may have occurred far from patients. For all we know, the deficiencies may be record-keeping errors.

In mid-July of 2005, regulators began to differentiate between simple "deficiencies" and violations that cause "actual harm" to residents or place them in "jeopardy." It finally became possible to tell if a nursing home's patients were being hurt by the facility's negligence.

In 1996, 25.7% of America's certified nursing facilities were cited for a life-threatening violation. The percentage peaked at 30.6% in 1999, but then gradually fell to 15.5% in 2004. By 2006, the number had creeped back up to 18.1%.

And while the numbers clearly reflect an overall improvement, it's still 1 out of every 5 nursing homes, violating standards and causing actual harm to residents.

How Are Residents Being Threatened?

It's very hard to tell.

This is one of the biggest problems with the way we track nursing homes. Facilities can be wildly negligent in one area of service, and fine in another.

When we lump everything together into an aggregate rating, as Medicare's Nursing Home Compare website does (nursing homes are given a "grand total" ranking out of five stars), we often miss the real ways in which they threaten patients.

Here's another problem: State regulators seem to minimize many life-threatening violations, by classifying them as "simple" deficiencies rather than ones that cause "actual harm."

While only 18.1% of nursing homes were cited for "actual harm" deficiencies in 2006, almost 20% were cited for violations in relation to pressure sores. You can read about the dangers of bed sores yourself, but there is no doubt that they can become life-threatening if left untreated.

Another example: a shocking 37.9% of nursing homes were cited for "food sanitation" violations. If you read our last article, you'll know Congress was spurred to investigate the problem of care in nursing homes because of an outbreak of food poisoning that killed 36 patients in Maryland.

If you'd like more information, you can find a concise survey of the study's results on the Kaiser Family Foundation website.

For related reading, visit:

Laurence P. Banville
Date Published: January 30, 2017
Laurence P. Banville is the managing partner of Banville Law. As an experienced personal injury attorney, Mr. Banville helps clients recover compensation from those responsible for his clients' injuries. Our firm is located in New York City, serving clients from the five boroughs: Manhattan, Brooklyn, Queens, The Bronx, and Staten Island.
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