Ombudsman's treatment was illegal, inquiry finds

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Florida Gov. Rick Scott (R)
Florida Gov. Rick Scott (R)
FLORIDA – Federal HHS investigators accused the state's Department of Elder Affairs of violating the Older Americans Act, capping a five-month investigation over a series of actions it claims unlawfully neutralized the powers of a nursing home watchdog program.

The complaint is the latest fallout of a storm that began in February. Brian Lee, director of Florida's Long-Term Care Ombudsman Program, resigned under pressure from Gov. Rick Scott's administration after he requested nursing home ownership information. Lee's replacement later retracted the request.

HHS cited numerous federal law violations, including firing volunteers who spoke out after Lee's firing and restricting the independent watchdog group's media access and legislative lobbying efforts on behalf of nursing homes residents. Lee has filed a civil lawsuit under state whistle-blower law provisions.

SNFs eye service cuts
NEW JERSEY – Faced with 3% Medicaid reimbursement cuts and elimination of a subsidy for holding beds for hospitalized patients, many nursing homes in the state are struggling for ways to cut costs.

While the state will save $25 million by doing so this fiscal year, Health Care Association of New Jersey President Paul Langevin told the Star-Ledger most facilities will no longer be able to provide the same level of care.

Numerous facilities already are considering drastic cuts in everything from nutrition services to transportation.
Adding in federal matching funds, nursing homes are facing $75 million in total lost reimbursement this year. To make matters worse, Medicare payments will drop by an average of 11% on Oct. 1 across the board.

Irene evacuations fraught
NEW YORK – Nursing home evacuations tied to Hurricane Irene helped New York avert tragedy when the storm slammed the East Coast, but it left plenty of headaches behind.

In anticipation of high winds and flash flooding, New York City Mayor Michael Bloomberg ordered the evacuation of nursing homes and hospitals in the city's low-lying boroughs. About 5,000 nursing home residents were evacuated from the New York City area, along with residents in nine facilities in New Jersey, according to LeadingAge.

Evacuations of that scale are unprecedented in New York.

The evacuations weren't without hiccups. Doctors and nurses who took care of evacuated nursing home, rehab and hospice patients in a Brooklyn hospital reported problems with delayed medications, tests and other procedures.

 Operators were understandably concerned that paperwork for those transfers and subsequent reimbursement would take several days to sort out. Richard Herrick, CEO of the New York State Health Facilities Association told Crain's New York Business that he hoped reimbursements to nursing homes would be made within 10 days, but that he believed some of the costs might not be reimbursed.

Still, the plans for assisting those in long-term care were in marked contrast to the disasters that befell nursing home residents during Hurricane Katrina in 2005. 

Death award defies cap law
WEST VIRGINIA – An eight-year-old amendment to a state law tightly capping compensatory damages for medical malpractice didn't sway a jury: it awarded an eye-opening $91.5 million award in a civil lawsuit involving the death of a nursing home resident.

In early August, a Kanawha County jury awarded the family of Dorothy Douglas $80 million in punitive damages and $11.5 in compensatory damages. It found Heartland of Charleston failed to properly care for Douglas, indirectly causing her death after a three-week stay in 2009.

Heartland of Charleston's attorneys said they planned to appeal the decision, and are confident the award will be significantly reduced based on changes to the state's Medical Professional Liability Act that place a $500,000 cap on non-economic damages for medical negligence. The attorneys called the $80 million punitive award “excessive.”

Reform advocates say West Virginia has experienced exponential increases in medical malpractice claims per bed, leaving the state at a competitive disadvantage in attracting clinicians.

Mental health residents out
NORTH CAROLINA – A spike in primary behavioral-health diagnoses in close to 40 nursing homes has triggered a move to offer help for or require residents with mental health or substance abuse problems to relocate.

State regulators identified the homes having more than 50% of their residents with such possible diagnoses based on Medicaid-paid claims from July 1, 2010, to March 31. If those residents relocate to alternative community-based care, it could reportedly lead to some facility closures. Medicaid rules prohibit reimbursement for homes whose mentally ill populations exceed 50%. State law also prohibits adult care homes from admitting residents for treatment of mental illness, or alcohol or drug abuse.

North Carolina Health and Human Services Secretary Lanier Cansler calls the revelation “a perfect storm” for behavioral-health services following a Justice Department mandate that the state place 1,200 mentally ill citizens either in alternative housing or allow them to live on their own. Only homes that qualify as institutions for mental disease would qualify as eligible adult care facilities for such individuals, according to the Centers for Medicare & Medicaid Services, and those facilities must be caring for at least half of their resident populations with a primary behavioral-health diagnosis.

Money and talent lacking
TEXAS – They may pale in comparison to some of the deepest government cuts in the nation's second largest state, but the latest budget will mean significantly fewer dollars — and fresh, new clinical talent — for Texas' long-term care industry.

The $57 million in Medicaid shortfalls that began with a phased-in permanent annual 3% cut last September are painful in an industry faced with growing numbers of residents and high healthcare costs. The Legislature passed on a threatened 33% cut, according to the online Texas Tribune, but denied a nursing home industry request for an additional $96.2 million in funding.

Meanwhile, more than $23 million in separate budget cuts have dramatically lessened state funding for nursing education, a striking blow to a state already facing an acute shortage of registered nurses (22,000 at last count). Texas Nurses Association Executive Director Clair Jordan said the shortfall left more than 11,000 qualified nursing school applicants frozen in the queue.

The state ranks 49th in the nation in Medicaid reimbursement rates to nursing facilities, according to the Texas Health Care Association, and more than 1,100 facilities already are implementing wage freezes and layoffs and postponing facility upgrades.

HHS: Stop charging co-pays
ARIZONA – Coming just short of accusing Health and Human Services officials of balancing the Medicaid budget on the backs of the state's poorest citizens, a federal court recently ordered the department to release them from mandatory co-payments.

Health and Human Services is allowed by federal law to approve waivers on non-imposition of mandatory Medicaid co-pays, and in this instance, that's exactly what it “capriciously” did, the 9th U.S. Circuit Court of Appeals said in its ruling following a seven-year case over the matter.

Arizona did have the ability to deny medical care and drugs to childless adults who failed to make the $4 to $30 co-pays after exhausting their savings to become Medicaid-eligible under the state's Health Care Cost Containment System. The mandatory co-pays are still in effect, ending an appeal by the federal government, and thousands of homeless, chronically ill and the mentally ill are still subject to paying them.

Waiver pushes alternatives
MINNESOTA – It's the latest in a series of measures the state is taking to dissuade residents with less chronic needs from seeking more costly nursing home care: a request by the state's Medicaid agency for permission to use more federal Medicaid funds for home or community-based services.

The state's Medical Assistance program is asking the federal government for a “global waiver” that would give it more latitude in how it spends federal human-services funds. The waiver would still ensure those with the greatest needs would be eligible for Medicaid-funded nursing home care.

Observers say the waiver request, along with the recent 6.4% Medicaid payment cut ($50 million) for the state's 400 nursing homes, are aimed at encouraging low-care nursing home residents to seek alternative care options.

Agency officials say they want to allow the state to redesign its entire system, and use Medicaid dollars to heavily promote home and community-based care.

Disabled get more chances
ILLINOIS – Developmentally disabled, Medicaid-eligible Cook County nursing home residents capable of functioning independently will now be given the chance to live on their own. They will be eligible for subsidized housing under a proposed settlement that ends years of legal wrangling and documented cases of facility abuse.

Under the agreement, as many as 20,000 such residents will be allowed to move out of the facilities into apartments and group homes, with an initial 1,100 scheduled over the next 30 months, according to the Chicago Tribune. Observers say the move puts to rest a key allegation in one of several lawsuits that claimed Illinois was not obeying the 1999 Olmstead Supreme Court decision requiring government agencies to place people with disabilities in the least restrictive setting appropriate to their needs.

Those who choose to relocate will receive financial assistance in getting settled, and receive medical illness care and other services through a network of community-based organizations. Advocates of the plan say it also will save the cash-strapped state untold dollars being spent now in Cook County nursing homes, some of which have been accused of providing substandard care for the vulnerable population.

Less costly community care
WISCONSIN – Patient advocates are lobbying the federal government to compel Gov. Scott Walker to lift a cap on a program that helps developmentally disabled people out of nursing homes. Such a move would allow more than 11,000 Wisconsin residents to seek alternative, less costly care in the state's successful publicly funded long-term care and community-based support program.

The 12-year-old Family Care program, still being opened across the state, was designed to eliminate waiting lists for community-based services. But Walker and the Legislature imposed an enrollment cap in the current state budget as a $100 million cost-cutting measure. More than 11,000 are waiting to get into the Family Care program but cannot enter until a slot opens up.

The state's average reimbursement rate for a managed care organization that provides home-based services is about $3,100 to $3,200 per month, while the monthly cost for a skilled nursing home averages $6,200 to $6,400.

Inspector rebuffs critics
IOWA – The state's nursing home inspection process continues to come under scrutiny following revelations that funds for fired inspectors were diverted toward other purposes.

Despite successfully lobbying the state for $650,000 to fulfill its promise to reinstate 10 nursing home inspectors, the Department of Inspections and Appeals reportedly has no plans to replace them, according to The Des Moines Register.

The state's long-term care ombudsman has been criticized roundly for not properly regulating nursing homes, and the newspaper also earlier disclosed that many nursing homes enjoy tax-exempt status while being immune from state fines related to patient injury or death.

Critics charge that some of the 442 facilities in the Iowa nursing home industry wield too much influence over what is supposed to be an independent agency.

Department officials say the lower number of inspectors is more efficient because it uses existing personnel, such as nurses working as program coordinators.

Glitches delay pay

OHIO – Legitimate Medicaid budget cuts may be hard enough for long-term care facilities to swallow, but those in more than one state are choking from computer errors, as some in-home care providers recently found.

In New Jersey, a computer error led recently to overpayments. In Ohio, 450 mostly self-employed service providers are waiting for long-overdue checks delayed by computer glitches related to the switch to a new $115 million Medicaid billing system, according to the Columbus Dispatch. Consequently, the gaff has forced some providers to lose vital things such as phone services due to unpaid bills.

Pay cuts hit homes hard
SOUTH DAKOTA – Nursing homes in the state are facing a double whammy of cuts in Medicare and Medicaid, forcing a substantial number to consider dropping vital services and raise private-pay rates.

In the coming months, a $10 million Medicare payment shortfall will be on the books on the heels of a 4% Medicaid cut enacted as part of the state's fiscal budget that began July 1. The latest cuts will represent 11% of the Medicare funds expected by the state's 107 nursing homes and are aimed at correcting an earlier overpayment, according to the Argus Leader newspaper.

Sioux Falls-based Southridge Healthcare told the newspaper the Medicare shortfall will cost the facility $180,000 this year alone, forcing it to postpone planned construction projects.

Even though the revised Medicare payments are 3.4% higher than last year, many facilities were caught by surprise, and argue the private-pay rate hikes could eventually force more residents to enter the Medicaid program after exhausting their personal funds.

Divide SNFs, communities
WASHINGTON – It's known for having one of the nation's fastest growing populations of over age 65 residents and prides itself for a long track record of successfully placing them in less costly yet integrated home- and community-based settings. But Washington state officials fears federal Medicaid program plans to keep providers such as assisted living facilities physically separate from nursing homes could reverse that progress in the years to come.

In a state where 11% of the population is currently age 65 or older, providers continue to stay afloat against a growing tide of demands by home- and community-based services. But that is also two-thirds of Washington's entire $3 billion budget in the past two years. Lawmakers said they are working to “rebalance” the entire long-term care system and reduce dependency on nursing homes.

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