Thousands of problems identified by state inspectors were never publicly disclosed because of a secretive appeals process, a New York Times investigation found.
Tammy Bowman and her husband. Ms. Bowman’s sister died in an Indiana nursing home that did not isolate residents suspected of having Covid-19.
Credit...Johnathon Kelso for The New York Times
By Robert Gebeloff, Katie Thomas and Jessica Silver-Greenberg Dec. 9, 2021
In Arizona, a nursing home resident was sexually assaulted in the dining room.
In Minnesota, a woman caught Covid-19 after workers moved a coughing resident into her room.
And in Texas, a woman with dementia was found in her nursing home’s parking lot, lying in a pool of blood.
State inspectors determined that all three homes had endangered residents and violated federal regulations. Yet the federal government didn’t report the incidents to the public or factor them into its influential ratings system. The homes kept their glowing grades.
A New York Times investigation found that at least 2,700 similarly dangerous incidents were also not factored into the rating system run by the federal Centers for Medicare and Medicaid Services, or C.M.S., which is designed to give people reliable information to evaluate the safety and quality of thousands of nursing homes.
Many of the incidents were uncovered by state inspectors and verified by their supervisors, but quashed during a secretive appeals process, according to a review of thousands of pages of inspection reports and nursing home appeals, which The Times obtained via public-records requests. Others were omitted from the C.M.S. ratings website because of what regulators describe as a technical glitch.
The Times this year has documented a series of problems with Medicare’s ratings system. Much of the data that powers the system is wrong and often makes nursing homes seem cleaner and safer than they are. The rating system also obscures how many residents are receiving powerful antipsychotic drugs.
But the problems with the inspection process, which are the core of the ratings system, are the most consequential. On-the-ground inspections are the most important factor in determining how many stars homes receive in Medicare’s rating system. The reports that inspectors produce give the public an unvarnished view inside facilities that house many of the country’s most vulnerable citizens.
On the rare occasions when inspectors issue severe citations, nursing homes can fight them through an appeals process that operates almost entirely in secret. If nursing homes don’t get the desired outcome via the informal review, they can appeal to a special federal court inside the executive branch. That process, too, is hidden from the public.
Even when the citations are upheld by this federal court, some never make their way onto the Medicare website, known as Care Compare. In November, for example, the court sustained a major punishment against Life Care Center of Kirkland, Wash. — the nursing home that faced the first coronavirus outbreak in the United States — yet the citation is absent from the Medicare site. The facility has a five-star rating.
The pattern gives nursing homes a powerful incentive to pursue every available appeal. Even if they lose, the process eats up time and reduces the odds of damaging information ever becoming public.
“There is every advantage to the facility not to have an opinion issued for as long as they could possibly delay, and there’s no advantage to the public for that to occur,” said Richard Routman, a lawyer who represented the federal government in nursing home appeals until 2014.
“Once I realized that people wouldn’t see cases that are on appeal, I thought, why would anybody ever look at this again?”
Representatives of the nursing home industry say it is only fair that they be allowed to appeal citations before they are made public, especially since many end up getting overturned or downgraded. But The Times found that the appeals process can be one-sided, excluding patients and their families.
Jonathan Blum, the chief operating officer for C.M.S., said that citations are omitted during state-level appeals to be fair to nursing homes that are disputing inspectors’ findings. He acknowledged that even after appeals are exhausted, some citations still don’t appear on Care Compare. He said C.M.S. is “working to correct this issue.”
'Kinder and Gentler'
There’s big money at stake. Because of the weight that people place on the star ratings, researchers have found a connection between better inspection results and greater profits. The Times analyzed nursing homes’ financial statements from 2019 and found that four- and five-star facilities were much more profitable than lower-rated facilities. (For-profit companies own about 70 percent of all U.S. nursing homes.)
Inspectors visit every nursing home once a year or so for general inspections and in response to complaints. They spend several days combing through medical records, tagging along with nurses and aides as they do their work, interviewing staff and residents and even testing the temperature of the morning coffee.
When inspectors encounter problems, they can propose issuing a citation. First, though, they must build a case by compiling things like witness statements and medical records. Supervisors often vet citations before they’re issued to ensure that violations are properly investigated and documented.
The vast majority of citations are minor. But a fraction are deemed serious, faulting nursing homes for putting their residents in “immediate jeopardy” or causing “actual harm.” On each nursing home’s listing on Care Compare, there is a section that shows whether they have received any such citation in recent years.
The violations then are incorporated into a formula that helps determine a facility’s star rating. The more severe the violations, the heavier the toll on the rating.
For decades, federal watchdog agencies have criticized state inspectors for taking a light touch with the nursing homes they oversee.
Inspectors rarely deem problems to be serious enough to harm homes’ star ratings. From 2017 to 2019, The Times found, inspectors wrote up more than 2,000 five-star facilities at least once for not following basic infection-control precautions, like having employees regularly wash their hands.
At 40 other five-star homes, inspectors determined that sexual abuse did not constitute actual harm or put residents in immediate jeopardy.
The reasons are complicated. Inspectors tend to be overworked and poorly paid. Writing up a facility for a serious violation requires extra paperwork and additional visits to check that the home has fixed the problem.
Another factor, inspectors say, is that they have been conditioned to expect blowback when they cite homes for serious problems.
“I feel sometimes the things I cite don’t mean anything because it gets tossed out at the state level or they determine it not to be as severe,” an unnamed inspector said in a 2013 survey conducted by the Center for Medicare Advocacy, a consumer rights group. “Sometimes it makes you wonder why we spin our wheels on a problem.”
Public officials have urged inspectors to nudge nursing homes to improve, instead of punishing them.
Oklahoma’s inspections agency referred to nursing homes as its “clients,” according to a letter from the agency reviewed by The Times. Inspectors in Pennsylvania complained about being told to be “kinder and gentler” with nursing homes, according to the 2013 survey. Last year, in the depths of the pandemic, the California department of health told inspectors to act as safety “consultants” to nursing homes and to not take on an enforcement role. (The policy was scrapped after inspectors objected.)
In Arkansas, some inspectors said supervisors discouraged them from citing homes for immediate jeopardy or actual harm, even when they spotted dangerous conditions.
“Deficiencies are thrown out all the time,” said Lisa Thomas, who previously oversaw the training of the state’s inspectors. (She said she was fired in 2019 after complaining to the governor’s office about the agency.)
Gavin Lesnick, a spokesman for the Arkansas Department of Human Services, denied that inspectors were discouraged from citing nursing homes for serious violations. He also denied that Ms. Thomas was fired for her complaint. “The safety and health of the patients is our number-one priority, and why all of our staff come to work every day,” he said.
Keeping Data Secret
When the state issues a citation against a nursing home, federal rules give the facility the right to appeal through what’s known as an informal dispute resolution process. The home can argue that inspectors were mistaken in their findings or that their proposed punishment was overly harsh.
Such reviews are supposed to take 60 days, but they sometimes drag on for more than a year, The Times found. Mr. Blum, the C.M.S. official, said facilities were required to fix any problems regardless of whether they appealed.
Procedures vary among states. Sometimes, the agency that issued the initial violation reviews its own work. Other times, states ask a nonprofit organization to make the decision. In Massachusetts, the process is left to a panel where a majority of members either represent or have worked for nursing homes. In Indiana, nursing home residents and their family are not permitted to attend hearings.
If a nursing home prevails, the citation is made less severe or deleted from the record altogether.
While the review is underway, the inspectors’ findings are not posted on the Care Compare website.
That’s why there is no public accounting of what happened at Sauer Health Care, a nursing home with five stars in eastern Minnesota, in April 2020.
State inspectors found that as Covid was spreading through the home — five residents would die in less than a month — the staff was not exercising basic precautions. Employees weren’t removing protective gear after they left a sick person’s room. The home wasn’t consistently screening staff for Covid symptoms. In one case, inspectors found that the home moved a resident who was coughing and had an elevated temperature into the room of a woman who had no symptoms. Both eventually tested positive for the virus.
Inspectors concluded that Sauer had placed its residents in immediate jeopardy. They ordered the home to develop an emergency plan to fix the problems, according to their 21-page report, which The Times obtained through an open-records request.
The nursing home appealed the ruling through the informal dispute resolution process and is still awaiting a decision, said Sara Blair, the administrator of Sauer Health. She wouldn’t explain the basis for the home’s appeal.
While decisions in these cases aren’t made public, homes like Sauer stand a good chance of winning.
The Times asked public health agencies in all 50 states how often citations were upheld, reduced in severity or deleted entirely since 2016. Eighteen states provided figures. About 37 percent of the time, the nursing homes succeeded in getting citations removed or reduced in severity.
The success rate varied from state to state. In Massachusetts, 36 percent of the citations that nursing homes appealed ended up being deleted. In Connecticut, facilities were successful at either erasing or reducing the severity of citations nearly half the time.
Multiple states declined to provide the data to The Times; two, Missouri and Florida, said they had been told not to by C.M.S. The federal agency declined to disclose nationwide figures to The Times.
Nursing homes say that the relatively high rate of successful appeals is a sign of problems with the inspection process.
“If I was the chief executive of a company and looking at an error rate of 40 percent, I’d think what is going wrong,” said Margaret Chamberlain, a lawyer who represents nursing homes.
But the appeals process tilts in favor of nursing homes because the facilities are the only ones to make their case; residents and their families are shut out of the process.
Regardless of the reason, visitors to the Care Compare website have no way of knowing if they are getting an incomplete picture of problems at a nursing home.
Heroin in a Purse
If a nursing home loses in the informal process, it can appeal to administrative law judges working for the Department of Health and Human Services. During that process, the citations are supposed to — but often don’t — appear on the Care Compare website.
These cases play out in courtrooms. But unlike most legal cases, there are no public dockets, where members of the public can look up the status of cases, the next court date or the latest legal filings. (A spokeswoman for the Department of Health and Human Services said the docket was private because filings in these cases often contain “sensitive information protected from public disclosure.”)
In April 2020, a team of state inspectors arrived at Brooke Knoll Village, a nursing home in Avon, Ind. They found the home had failed to isolate residents who were suspected of having Covid-19. The state concluded that Brooke Knoll had placed residents in immediate jeopardy, according to inspection documents reviewed by The Times.
Brooke Knoll, which didn’t respond to requests for comment, lost its initial appeal through Indiana’s informal dispute process, and it is appealing the violation to the federal government. A finding of immediate jeopardy often lowers a nursing home’s star rating, but Brooke Knoll still has five stars, and the citation does not appear on Care Compare.
Instead, the site says, “no health deficiencies found.”
“How do they get away with that?” said Tammy Bowman, whose sister was a resident at Brooke Knoll and contracted Covid just before the inspectors arrived at the home. She later died from the disease.
“I feel like you can’t hide something like that when we’re talking about somebody’s life,” Ms. Bowman said.
The appeals often shed light on serious violations that never made it onto Care Compare. The Times reviewed 76 federal administrative decisions published in 2020 and 2021. Ten violations that were upheld by the court were not posted to the federal website and didn’t affect the homes’ star ratings.
People checking Care Compare never found out that a resident was arrested at the Voorhees Care and Rehabilitation Center in New Jersey after being spotted placing heroin in another resident’s purse, and that a third resident died of an overdose.
The public never found out that inspectors cited another New Jersey nursing home, Rehab at River’s Edge, for failing to protect a fragile resident who fell seven separate times, at one point fracturing her foot.
And the public never found out that a resident at the Golden Living Center nursing home in Morgantown, W.Va., crashed to the ground and died after staff mistakenly removed the safety rails from his bed.
In all three of those cases, the state inspectors’ findings were upheld by a federal judge.
Mr. Blum, the C.M.S. official, didn’t say why such citations had never appeared on Care Compare. He said the agency was working to fix the problem. (The three homes declined to comment or didn’t respond to requests for comment. Golden Living is under new management.)
Dr. David Gifford, the chief medical officer of the American Health Care Association, which represents the nursing home industry, said the group’s members believed the appeals process should be faster and more transparent. He said Medicare should not post the results of inspections that are in dispute.
Found on the Pavement
On paper, Hilltop Rehabilitation, a sprawling ranch-style nursing home in Weatherford, Texas, seems like a place where little ever goes wrong. On Medicare’s rating website, the facility has won the highest scores on its health inspections for four years straight, not incurring a single serious infraction.
What’s missing from that picture, though, is what happened to Alan Hart’s mother, Laverne.
In 2014, he placed the 87-year-old retired children’s book author, who had dementia, at Hilltop because he was having trouble caring for her on his own.
Mr. Hart said it broke his heart to move her, but he thought she would be in good hands at the five-star nursing home, which planned to keep her on a supervised, locked floor.
In August 2015, Ms. Hart was left alone and tumbled from her wheelchair, injuring her shoulder, according to court documents and her son.
Then, shortly before Christmas, Ms. Hart was alone again. She wheeled herself out of unlocked doors to the facility’s parking lot, where she fell, smashing her face on the pavement. It was just above freezing outside, and she was wearing only a thin nightgown. More than 30 minutes had passed before she was found on the ground, her hair matted with blood and her nose broken.
Mr. Hart, a police officer, was at work when he got the call. As he sped to Hilltop, he prepared for the worst. “I thought she was dead for sure,” he said. “They didn’t supervise her at all.”
Inspectors agreed. They hit the facility with an immediate jeopardy citation for not properly supervising Ms. Hart, even though the home knew she was prone to wandering. The inspectors also faulted Hilltop for allowing her to fall on several occasions and for unnecessarily drugging her.
Hilltop, which didn’t respond to requests for comment, appealed the inspectors’ citation through the informal review process. The home lost. Then Hilltop appealed to the federal government. Four years later, in June 2020, an administrative law judge upheld the inspectors’ original findings.
C.M.S. never posted the citation off the Care Compare website. Hilltop has a nearly spotless inspection record.
Assault at the Dinner Table
Every year, C.M.S. sends special teams to about 5 percent of nursing homes to double-check state inspectors’ work. The idea is to enforce consistency and ensure that individual states are holding homes accountable to federal standards of nursing care.
Studies have found that federal inspectors tend to find more serious problems than their state counterparts during these examinations. But the Medicare agency does not publish the reports of its own inspectors — even when they turn up dangerous or deadly conditions — or factor them into homes’ star ratings.
The Times reviewed details of three federal inspection reports.
One involved the Lakeview Manor nursing home in Indianapolis. In March 2020, federal workers were following up on a state inspection from two months earlier when they found that Lakeview had placed a resident in danger by installing the wrong rails on her bed, increasing the risk that she would get entangled in them.
The same month, at Landerbrook Transitional Care in Mayfield Heights, Ohio, federal investigators discovered a woman smoking a cigarette while connected to a flammable oxygen tank.
The federal inspectors determined that both situations risked causing severe injury or death. Neither was disclosed to the public. (Representatives of Lakeview and Landerbrook didn’t respond to requests for comment.)
Mr. Blum of C.M.S. said federal surveys were excluded from the ratings system because they were designed to “assess a state survey agency’s performance,” not the quality of nursing homes.
Sun Health La Loma Care Center in Litchfield, Ariz., has a five-star rating. In January 2018, a 76-year-old woman went there to recover from surgery for a fractured femur. On her second evening there, a male resident beckoned her to his dinner table. Moments after she sat down, he pinched her breast. Terrified, the woman refused to eat in the dining room for the remainder of her stay.
When state inspectors visited Sun Health in June 2018, they said they could not substantiate the assault. Later that summer, though, federal inspectors came to a different conclusion.
They found that the male resident had a history of assaulting staff. The week before the incident in the dining room, he had groped his occupational therapist on three separate occasions. The nursing home had added a note to the man’s record warning staff to keep him away from female residents.
The federal inspectors cited the nursing home for causing actual harm to residents by failing to follow its own guidance and for allowing the assault to take place.
Ken Reinstein, a spokesman for Sun Health, said the nursing home disagrees with the federal finding and “cares very deeply about its residents and the care they receive.”
The only thing that visitors to Sun Health’s entry on Care Compare see are the minor issues identified by state inspectors. There is no trace of the serious problems uncovered by their federal counterparts.
Robert Gebeloff is a reporter specializing in data analysis. He works on in-depth stories where numbers help augment traditional reporting. @gebeloffnyt
Katie Thomas covers the business of health care, with a focus on the drug industry. She started at The Times in 2008 as a sports reporter. @katie_thomas
A version of this article appears in print on Dec. 10, 2021, Section A, Page 1 of the New York edition with the headline: How Nursing Homes Hide Their Most Serious Lapses.