Ky. nursing homes say number of citations alleging ‘immediate jeopardy’ to residents show ‘excessive regulation’ by state

Kentucky’s nursing home industry says it is under “excessive regulation,” but The Courier-Journal reviewed more than 100 reports of state inspections of Kentucky nursing homes over the past three years and found “multiple instances” where residents had been “threatened, ridiculed, slapped, injured or sexually abused” or “lived in squalid conditions amid urine, feces, mice and insect infestations,” with several cases of residents dying because of “poor or neglectful care,” Deborah Yetter reports for the Louisville newspaper.

Kentucky nursing home representatives note that Kentucky nursing-home inspectors are more likely to cite violations that place residents in “immediate jeopardy” than inspectors in other states, “even though Kentucky nursing homes compare favorably in other categories, such as staffing or quality measures,” Yetter writes.

An immediate-jeopardy violation is one that causes harm, serious injury or death, or is likely to do so. It carries fines of up to $10,000 a day, and “Some of Kentucky’s 289 nursing homes have been fined nearly $16 million in the past three years for violations,” Yetter reports.

Betsy Johnson, former state Medicaid commissioner and executive director of the Kentucky Association of Health Care Facilities, the main nursing-home lobby, said at a legislative committee meeting Sept. 16 that Kentucky has a “broken regulatory environment” and that the rules to ensure the safety of residents are “overly strict,” Yetter reports.

“We firmly believe that the current regulatory environment only exacerbates the toxic litigation environment in Kentucky,” Johnson said in a follow-up letter to the state’s joint Health and Welfare Committee. The nursing home industry has lobbied for years for a state law to limit lawsuits.

Advocates counter that state oversight must not be weakened.

Brian Lee, executive director of Families for Better Care, a Florida-based nonprofit that advocates for quality nursing home care, said “lawmakers should consider details of violations before accepting the industry’s claim of too much regulation,” Yetter writes.

“If you look at these inspections, all of them, all of them … this is serious stuff,” Lee said. “It’s not dust bunnies in the air vents.”

Maryellen Mynear, inspector general for the Cabinet for Health and Family Services, told the committee in a letter, “The fact that an industry believes it is over-regulated does not make it so.”

Mynear explained at the hearing that Kentucky inspects nursing homes on behalf of the federal government, and the U.S. Centers for Medicare and Medicaid Services determines the severity of a violation and how much to fine the facility, not Kentucky inspectors. She noted that the federal government provides most of the funding for nursing-home care, receiving nearly $1 billion from Medicaid in 2015.

Mynear listed the number of violations that were serious enough for fines over the past few years: 47 in fiscal year 2013; 53 in 2014; and 40 in 2015. She noted that only 36, or 12 percent, of Kentucky’s nursing homes got the top five stars in the CMS rating system; and 42 percent of them rank below average, the largest percentage among the eight states in CMS’s Southeast region.

Mynear acknowledged to the committee that “Kentucky’s seemingly high number of immediate jeopardy violations may be skewed by the fact that some troubled homes rack up multiple or repeated citations,” Yetter reports. But Mynear disputed Johnson’s claim that citations lead to lawsuits and litigation costs for nursing homes, saying that “in several recent Kentucky lawsuits involving egregious abuse or wrongful death cases, no violations had been cited or fines imposed.”

Rep. Tim Moore of Elizabethtown suggested that regulators might be a bit over-zealous like Deputy Barney Fife in the “Andy Griffith Show.” Moore said, “There were times when Barney applied the law in such a way that it really wasn’t helping anybody and it was just a burden to everybody and Andy had to rein him in.”

The meeting ended with an agreement for the nursing home industry and state officials to discuss areas of concern and possible resolution of disputes. “Mynear said that  she’s willing to talk, but that doesn’t mean her agency is willing to back down when it finds problems,” Yetter writes.

The Courier-Journal offers these tips on how to check out a nursing home:

• Go to http://chfs.ky.gov/os/oig/  for inspection reports.
• Go to Medicare.gov/nursinghomecompare for a Medicare facility rating.
• Ask the nursing home for its most recent survey, or inspection. They are required to provide it upon request.