Medford nursing home arrests expose NY's lax oversight

If accusations by the state attorney general against Medford MultiCare Center for Living prove true, the facility would be the "poster child" for how oversight of nursing homes can go wrong, national and local experts say.

On the federal website that gives consumers information about the quality and safety of nursing homes, Medford registers three out of five stars, or "average," overall. In fact, the 320-bed nursing home garnered four out of five stars in 2013 in both health inspections and measures for the quality of care.

But a lawsuit filed Feb. 11 by state Attorney General Eric T. Schneiderman paints a very different picture. The 58-page document details a decade of mistreatment or neglect of residents that culminated in at least one death, that of a 72-year-old woman in 2012 because she was not attached to a ventilator machine. Schneiderman's office filed criminal charges against seven Medford employees for allegedly allowing or covering up the circumstances of the woman's death and two more for patient neglect.

Experts said it is too easy for nursing homes to game or even defraud the federal and state system -- which is based on self-reporting and an annual inspection -- and appear as though they provide adequate care.

What's more, New York is not as aggressive as some other states in finding problems or penalizing subpar nursing homes, the data indicate.

In 2013, despite numerous ongoing problems detailed by the attorney general and a history of falsifying records and neglect, the nursing home was not cited for any deficiencies.

"When you see a nursing home with enforcement issues and four or five stars, that's bizarre, that's ridiculous," said Richard Mollot, executive director of the Long Term Care Community Coalition in Manhattan.

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Robyn Grant, director of Public Policy and Advocacy for the National Consumer Voice for Quality Long-Term Care in Washington, agreed. "This is the poster child for how the system goes wrong," she said.

Suit: Facility understaffed

The state Department of Health, which conducts nursing home surveys, defended its findings: "Based on the information provided to the DOH inspectors and the records reviewed during the inspection, DOH found no facility culpability and therefore did not issue a statement of deficiency."

A spokesman for the nursing home disputed the charges against it.

"While we are very concerned by the complaint filed by the attorney general and the criminal charges against some of our employees, we know that these allegations are not indicative of the excellent quality of care that we and our dedicated staff provide," spokesman Hank Sheinkopf said. "We want to emphasize that all the claims and statements made by the attorney general are merely allegations and that we are confident that during the forthcoming legal proceedings our attorneys will prove the accurate facts and will establish that the characterizations announced by the attorney general are not correct."

Schneiderman's lawsuit in state Supreme Court charges that Medford, a for-profit nursing home, was chronically understaffed, care was poor and records were routinely falsified. Since its 2003 opening, the health department had cited Medford with 130 violations -- including 31 health deficiencies -- from 2010 to 2012. Even as the owners paid themselves millions each year, they cut the food allowance for residents, and workers were told not to change diapers more than once every eight hours, the attorney general said.

Conditions 'deplorable'

"The conditions at Medford remain deplorable," the suit said, "the residents continue to suffer and face risk of harm."

"Deplorable" conditions are exactly what officials were hoping to avert when in 1998 the federal Centers for Medicare & Medicaid Services launched "Nursing Home Compare," a website that uses data gathered by the states that allows consumers to see how every nursing home in the country that accepts federal money fares on inspection surveys, staffing and quality of care. New York also has it own website, "Nursing Home Profile," with much of the same information.

Of the 630 nursing homes rated by CMS in New York, a total of 201 -- including 18 on Long Island -- got fewer stars than Medford, raising questions about the quality of care at those homes and/or the system of oversight. The data also indicate that New York has not been overly aggressive in finding or punishing poorly run homes.

In 2013, the state instituted a total of 28 penalties against nursing homes, compared with 44 in Connecticut, which has about one-third as many nursing homes. Florida, which has about 50 more nursing homes, issued 83 penalties. And the number of penalties has dropped nationally over the past several years, including in New York. In 2011, the state gave out 68 penalties; in 2007, 142.

"The state's enforcement actions have dropped precipitously in the past seven years," Mollot said. "Enforcement actions are the citations that have any meaning whatsoever. Citations that do not result in an enforcement action are, unfortunately, not terribly meaningful."

The latest federal data show that New York also issues fewer deficiencies per facility: 5.4 versus 6.8 nationally.

That's not because New York's nursing homes are so much better than others nationally, said Brian Lee, executive director of the Families For Better Care, a nursing home advocacy group based in Florida. Lee's group gave New York an "F" for nursing home quality last year in its state-by-state report card that analyzed eight federal measures.

"New York historically has not been strong on regulations," said Charlene Harrington, a professor of nursing at University of California, San Francisco, and author of many studies on nursing homes. In a study published in 2004, she and co-authors ranked New York 43rd in five measures of enforcement.

The state Health Department said that each state has its own regulations that dictate enforcement actions. "Therefore comparing New York's enforcement data with other states may not be a reliable comparison," the department said.

In addition, no study has been done as to whether gathering and publishing information on the federal website has actually improved safety and care, a CMS spokesman said.

There is evidence, however, that quality has improved -- which is self-reported by the nursing homes. For example, he said, there has been a decrease in the use of physical restraints, in the prevalence of pressure ulcers and the use of catheters. From 2007 to 2011, citations for the use of restraints fell by half nationally and in New York. Citations for pressure ulcers fell by 20 percent nationally and by 40 percent in New York.

Nursing home ratings are based on three areas: a survey every nine to 15 months by state surveyors that can result in "deficiencies"; self-reported measures of quality, such as the number of falls or bedsores among residents; and the ratio of staff to residents.

Harrington said all three can be manipulated: "The rating system is based on three things: First, deficiencies: If those aren't issued properly, then you can't rely on that. Second, staffing: Nursing homes can gin up those numbers when they suspect surveyors are coming. Third, they can falsify quality measures. The ratings are only as good as the data."

Nursing home operators in the state and advocates alike say that there is variability among the surveyors who conduct the annual visits to nursing homes and some regions are known to be stricter than others.

"Variance by region at what surveyors find is well known," said Jim Klyne, president of LeadingAge New York, which represents 500 not-for-profit long-term care providers in the state.

A 2006 study by Mollot's group using 2004-2005 data found that New York's surveyors gave 12 percent of New York nursing homes no deficiencies, compared with 9.5 nationally. On Long Island, 23 percent were given no deficiencies. What's more, New York tended to write fewer deficiencies that showed actual harm than the national average, his study found: 5 percent in New York versus 15.5 percent nationally.

Dick Herrick, president of the New York State Health Facilities Association/New York State Center for Assisted Living, which represents about 290 for-profit and not-for-profit nursing homes, said there is always likely to be some variation among surveyors.

"Ultimately, no matter what, surveys are conducted by people," he said.

Long Island nursing home operators say that the issue is not so much strict versus lenient surveyors, but the fact the survey itself often seems focused on inconsequential minutiae that can distort whether a home provides good care or not.

But Dr. Debra Saliba, director of the Borun Center for Gerontological Research at the University of California, Los Angeles, said that too often nursing homes try to game the system and anticipate what surveyors will key in on -- and thus what the nursing home can ignore.

"We all look for ways to do better on tests," she said. If you realize the teacher doesn't ask you for dates, you're not going to memorize dates, even if dates are important, she said.

18 quality-of-care metrics

At Medford, the administrator, David Fielding, who was charged with trying to cover up the death of the 72-year-old resident, came to the nursing home in 2009 after working for the state Department of Health as assistant director in the Bureau of Long Term Care from 1992 to 1997, said his attorney, Brian Griffin of Garden City. There he regulated nursing homes in New York City, Long Island and Westchester, according to Medford's website.

Nursing homes are also rated by 18 measures of the quality of care, ranging from the percent of long-stay residents who fall and sustain a major injury to those who report moderate to severe pain, to those who have had a catheter inserted and left in their bladder.

But the problem, experts said, is that the data are self-reported -- and that can be manipulated. "There's no requirement to audit the accuracy and that raises huge concerns," Grant said.

At Medford, the attorney general detailed "past and continued falsification of records."

In addition to the nine arrests last month, 17 nurses and aides in 2008 were convicted of neglect and falsifying records. Staff were "regularly directed to 'fill in the blanks' in patient records, even when the care was not provided," the attorney general stated. "Falsifying records is the norm at Medford," the lawsuit said.

Experts said they don't believe it's the norm to falsify records at most nursing homes. But they all agreed that there has to be a way to verify what a nursing home reports.

"We still have a lot of work to do to capture data that really shows what is going on," Lee said. "We have to do more to tighten up the data so that it's more independent and not so reliant on nursing homes."

Advocates argue that without adequate staffing, quality measures mean little.

"It's the linchpin," Grant said. "We have no current minimal requirement, and what we get is Medford."

Suit: Extra workers hired

Although Medford, a for-profit home, scored fairly high in its most recent health inspection and quality measures, it got one star in staffing. According to the attorney general's lawsuit, the nursing home had hired extra workers around the time it had expected surveyors would come.

"The fact that Medford got one star in staffing . . . makes you wonder what it [staffing level] really is," Grant said.

For-profit homes, which comprise a little more than half of all homes in New York, are more likely nationally to have lower staffing levels and more deficiencies compared with not-for-profit homes, according to a 2011 study by the Government Accountability Office. In New York, for-profit homes averaged 5.5 deficiencies compared with 4.9 at not-for-profit homes, according to 2011 CMS data.

That, Harrington said, is because of the pressure for profits.

In a 2013 study, Harrington found that the percent of revenue spent on nursing care fell in California's for-profit homes from 2007 to 2010 while profits rose -- with more than half of homes showing a profit of more than 20 percent.

Medford, according to the attorney general, was reaping profits similar to what Harrington found in her study -- $60 million, or 22 percent, over a 10-year period -- even as the owners were griping about staffing costs.

"The news reports don't go into what's causing this," Harrington said, referring to the Medford case. "Basically it's because New York and the federal government do not have a ceiling on profits and administrative expenditures. It's perfectly legal to cut on food and staffing . . . It's only illegal to have horrible care, and it's very hard to catch them at it."

Asked whether there has been any thought to limiting profits on nursing homes that receive state-funded Medicaid reimbursements, the state Health Department said: "Medicaid is designed to ensure that a provider's costs are reasonably covered so that patients have access to vital health care services."

A 2001 CMS study for Congress found that residents need a minimum of 4.1 to 4.85 hours daily of combined registered nurse, licensed practical nurse and nursing assistant care to prevent harm to residents. The latest CMS staffing data show a total number of staffing hours per resident per day as 3.9 in New York and 3.8 at Medford. That is compared with the national average of 4.1 per resident per day and 4.49 in Florida.

Experts said that those low figures don't always reflect the actual number of nursing staff because homes often hire extra workers to boost their ratios when they are due for an inspection. Without auditing, nursing homes can simply "game the system," Harrington said.

The Affordable Care Act is supposed to alleviate that problem by mandating that CMS collect payroll records, agency contracts and cost reports. The requirement was slated to go into effect in March 2012, but has been delayed awaiting funding.

Grant said that CMS officials have indicated it would cost about $8 million to $10 million to implement the program. "Despite acknowledging that current staffing information is unreliable and that such information is important for consumers, developing a payroll data collection system is clearly not a priority for CMS at this time," she said.

A 2013 Kaiser Family Foundation report commented: "Until the new system is in place, Nursing Home Compare will be unable to provide reliable information about the adequacy of facilities' direct care staffing . . . "

Grant and others said they are frustrated. In terms of improving quality, she said: "You just can't get there without adequate numbers."