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.